Civil Procedure 1

Personal Jurisdiction: judicial power over the person or property; suit may be brought in forum where
∆ is subject to personal jurisdiction

Hawkins v. Masters Farms: personal jurisdiction established by domicile

*for purposes of determining whether diversity jurisdiction exists a person is a citizen of the
state in which he or she is domiciled
1. residence—where person lives
2. intent to remain indefinitely

Subject Matter Jurisdiction: power or authority of a court to decide a particular type of legal dispute
*General: court can hear any claim unless legal authority limits
*Limited: courts limited by statute to hear certain types of cases (all federal courts are limited)
*Concurrent: when jurisdiction overlaps between two courts
-all states have at least one trial court of general subject matter jurisdiction
-all federal courts are courts of limited subject matter jurisdiction

Diversity Jurisdiction: U.S.C §1332—civil actions between citizens of a different state AND where matter
exceeds $75K may be heard in federal court

-§1332(c)(2)—the legal representative of the estate of a decedent shall be deemed to be a citizen only
of the same state as the decedent

Venue: U.S.C. §1391(a)(1)—venue proper in judicial district where ∆ resides; (a)(2)—a district where a
substantial amount of events occurred

Service of Process: summons issued by court with complaint; two basic means of notice (Rule 4)
1. Waiver of service: informal and inexpensive; π mails ∆ complaint and forms 1A and 1B and
if the ∆ mails back a signed copy of form 1B the case can continue
2. Summons: formal and expensive; if ∆ refuses to waive service a summons must be issued by
the court (signed and sealed by clerk) and served on ∆ by process server

Rule 11—Sanctions
-attorney is required to make reasonable (under the circumstratances) investigation as to the facts
alleged
-must ensure that claim is supported by existing law—UNLESS attorney has a non-frivolous argument for
extending, modifying, or reversing existing law
-all facts must be supported by evidence—UNLESS reasonable belief that will likely have evidentiary
support at a later time
-court is not obligated to impose sanctions but MAY do so according to their discretion

Bridges v. Diesel Service: π attorney did not investigate and find that claim should have been filed with
EEOC; court declined to impose sanctions because the mistake was procedural and not blatantly
frivolous

Rule 8 - Complaint: serves to i) commence the action and ii) inform the ∆ of the nature of the π action
-if the allegations are not sufficiently detailed or specific the ∆ is not afforded a fair opportunity to
formulate an appropriate response
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Bell v. Novick Transfer Co: FRCP Rule 8(a)—requires only a short and plain statement of the claim
showing that the pleader is entitled to relief
*FRCP 12(e): motion for a more definite statement

Response—Motions and Answer

-if no response then default judgment entered against ∆
-types of responses:
1. Defective jurisdiction, venue or process
2. Lack of a claim: the substantive law under which π sues must give π a right to sue
3. Negative defense: deny the truth of the complaint’s factual allegations
4. Affirmative defenses: example—SOL or immunity
5. Clarification: factual allegations are too vague, incomplete or confused
6. Defendant’s claims: counterclaim; cross –claims; third-party claim
Counterclaim: claim against π by ∆; Rule 13(a) and 13(b)
*compulsory: must state any claim that at the time of its service the pleader has against
opposing which arises out of same transaction or occurrence
-MUST state now b/c waive right to do so later
*permissive: may state as a counterclaim against an opposing party any claim which is not
compulsory
-already in court in unrelated matter & may take action on plaintiff for other grievance
Cross-Claim: Rule 13(g) claim by ∆ against another ∆; must arise out of the same transaction or
occurrence
Third Party Complaint (impleader): where ∆ brings in a new party—co-∆
*Rule 14: a party who is or may be liable to defendant for all or part of claims asserted against
defendant
Answer: Rule 12--∆ has 20 days after service is made to file an answer if do not file a pre-answer motion
*admit or deny the truth of allegations: if not answered then deemed admitted
Amendment of the Pleadings: Rule 15(a) allows a party to amend pleadings before a response from ∆ or
after, with leave of the court if justice requires

Parties to the Lawsuit

Permissive joinder: Rule 20 allows either party to expand the size of the lawsuit by pulling in nonparties
as party π or party ∆
-Larson v. American Family Mutual Insurance C: under rule 20(a) court can grant joinder if justice
requires to do so—here π amended complaint to add former attorney as co-∆ because he failed to file
against ∆ (arose out of same transaction or occurrence)

Compulsory Joinder: Rule 19(a) provides that any person with an interest in the subject matter of a
pending action must be joined as a party if:
i) In his absence complete relief cannot be accorded those already parties OR
ii) His interest is such that to proceed without him would be substantially prejudicial as a
practical matter because it would impair his ability to protect his interest in later
proceedings or expose the parties already before the court to the risk of double liability or
inconsistent obligations
Intervention: Rule 24 allows a nonparty to expand the size of the lawsuit by jumping in
*intervention as of right 24(a): allows a nonparty to intervene in order to protect his interest
that may be adversely affected
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Discovery: provides judicially backed means for a party to obtain information about the case from
opposing parties or witnesses
-scope: not any privileged info; must be relevant to claims; doesn’t have to be admissible evidence—
anything that is reasonably believed to lead to evidence
 Disclosures-Rule 26(a)
i. Must produce without being asked
ii. names of witnesses, documents
 Production of Documents-
i. Rule 34: applies to parties
ii. Rule 45(a)(1)(C): applies to non-parties
 Oral Depositions-
i. Rule 30 or 45
ii. Questioning a witness under oath
 Written Interrogatories-
i. Rule 33
ii. Questions to be answered by the parties
 Physical and Mental exams-
i. Rule 35
ii. Must demonstrate good cause for the exam
 Requests for admissions
-limits on discovery
*26(b)(2) and 26(c)
1. Privileged info
2. Duplicative
3. Has been ample opportunity to discover
4. Burden outweighs likely benefit

Butler v. Rigsby: ∆ move to compel third party medical group to disclose information including patient
names who were referred by attorneys in the lawsuit; court ruled that most of the information was
relevant to determine bias but a list of all the patients is privileged
Gordon v. TGR Logistics

Motion for Summary Judgment: Rule 56 implies that motions will not be granted until after discovery
-allows a court to enter judgment as a matter of law to the π or ∆ (no genuine issue as to any material
fact)
-must be viewed in light most favorable to party opposing the motion

Houchens v. American Home Assurance Co.: π husband disappeared in Thailand and trying to collect on
accidental life insurance policy; court holds that SJ is granted when one party fails to establish an
element essential to their case

Motion for Judgment as a Matter of Law: Rule 50(a)(1) can be made during the trial when the other
side has fully been heard
-standard for granting: when a reasonable jury would not have a legally sufficient evidentiary basis judge
may grant

Other Methods of Pretrial Disposition

a) Default judgment—Rule 55 ∆ fails to answer complaint entirely or fails to defend
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b) Dismissal—if π does not obey a court order

c) Voluntary dismissal—Rule 41(a) gives the π the right to restart her lawsuit by seeking a
voluntary dismissal

Trial
-jury selection (voir dire)
*peremptory challenges: do not have to state a reason (only have a limited number
*challenging for cause: must state argument why it juror is not appropriate
-opening statement
-π case in chief
-∆ can move for a judgment as a matter of law
-∆ case in chief
-π motion for judgment as a matter of law
-closing arguments
-jury charge: may object to what was included in instructions under Rule 51

Post-Trial Stage
Judgment Notwithstanding the Verdict (JNOV): delayed motion for a directed verdict; where if the party
who has the burden of proof on an issue offer no evidence at all on that issue

Norton v. Snapper Power Equipment: court had issued JNOV because required too many inferences that
defective part on mower caused the accident; court reversed because jury could have reached π
conclusion
*test for JNOV: only where the evidence so strongly and so favorably points in favor of the
moving party that reasonable people could not arrive at contrary verdict

Former Adjudication
- Res judicata- “thing already judged”
i) The first and second lawsuits must involve the same claim
ii) The decision in the first lawsuit must have been based on the merits
- Claim preclusion- cannot sue for same claim twice
o Requirements
 Identity of Claim or Cause of Action
 Includes closely related claims coming out of the same action
 Identity of Parties
 Includes person who are in privity
- Issue preclusion or collateral estoppel-when issue is determined in 1 st litigation, it cannot be
brought up again
o Requirement
 A fact or issue has to be actually litigated
 Fact has to be necessary for 1st judgment
 Has to have been against a party who had full and fair opportunity to litigate
 Only be used against a party who had its day in court previously

Rush v. City of Maple Heights: π first brought suit claiming damages to property and subsequently
brought second suit for damages to her person
*Majority Rule: court held the second claim was barred by res judicata because the second
lawsuit sought to relitigate the same claim as the first lawsuit
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*Minority Rule: when claims arise out of the same wrongful act but there are infringements on
different rights there are two claims which do not have to be brought at the same time
Ison v. Thomas

Appeals
§ 1291—final judgment rule: district court’s judgment must be final in order to be appealable

Apex Hosiery Co. v. Leader: appealing a discovery order is an interlocutory order and therefore not
appealable until final judgment

§1292: allows interlocutory decision to be appealed when:

-There is a controlling question of law
-Involves an injunction
§ 1254: enables circuit court decisions to be appealed to Supreme Court; writ of certiorari
§ 1257: enables state supreme court decisions to be appealed to Supreme Court when they involve a
federal question of law

Reese v. Board of University

Mississippi Court System

Mississippi Circuit Court

- The circuit court shall have original jurisdiction in all matters civil and criminal in this state not
vested by this Constitution in some other court, and such appellate jurisdiction as shall be
prescribed by law.
o Have jurisdiction over claims concerning money damages over $200

Chancery Court
- All matters of equity
- Divorce and alimony
- Matters in testamentary and of administration (wills)
- Minor’s business (child support, adoption, etc.)
- Cases of idiocy, lunacy, and persons of unsound mind
- All cases of which the said court had jurisdiction under the laws in force when this Constitution
is put in operation

Justice Court
- Maximum civil jurisdiction over cases in which the principal amount in controversy is $500 or
such higher amounts as may be prescribe by law
o §9-11-9: up to $2500

County Courts (Created by Legislature) §9-9-21

- Has complete concurrent jurisdiction with the justice court
- Jurisdiction with the Circuit Court up to $200,000
- Has concurrent Jurisdiction in Equity with the Chancery court

Court of Appeals (Created by Legislature) §9-4-3

- Cannot take jurisdiction away from Constitutional Courts
- Appeals proceed by right to the Supreme Court which then assigns cases to the Court of Appeals
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Supreme Court
- Given appellate jurisdiction
- Cannot assign to the Court of Appeals: (political controversial cases)
o Death Penalty
o Utility Rates
o Annexations
o Bond Issues
o Election Contest
o Statute held unconstitutional

Deer Plantation v. Swarek: ∆ petitioned Chancery Court to transfer to Circuit Court; on appeal court
found that the transfer motion should not have been granted because of specific performance of a land
sale contract

PERSONAL JURISDICTION

In Personam: judicial power over a natural person, corporation, or unincorporated association; can
obtain jurisdiction by service of process while ∆ is in state

In Rem: state has jurisdiction over property in its territory; obtain jurisdiction by seizure of property at
outset of action
*Pure In Rem: principle interest of case is in property
*Quasi In Rem: principle interest of case is 1) related or 2) unrelated to attached property

Pennoyer v. Neff: courts may enter judgment on a non-resident ∆ only if he is personally served with
process while within the state, or if he has property within the state if the property is attached before
litigation begins
 2 important concepts from Pennoyer
1) 3 ways which a court could obtain jurisdiction over Δ to enter a binding judgment
i. In personam- serving ∆ personally w/ service of process
ii. In rem- if dispute is over property, attach that property
iii. Quasi in rem- exercising jurisdiction over a foreign ∆ by attaching their property
which is in the jurisdiction
2) For 1st time, brought PJ under U.S. Constitution
i. Court applies Due Process Clause of 14th Amd.
ii. Courts now limited obtaining personal jurisdiction over a foreign ∆ to 3 ways:
1. ∆ being personally served w/ process in the state
2. ∆ consenting to jurisdiction by voluntarily appearing
3. Obtaining quasi-in-rem jurisdiction.

To Raise Lack of Personal Jurisdiction

- If you raise a Rule 12 Pre-Trial Motion you must raise an issue of personal jurisdiction or you lose
it
- Must bring up personal jurisdiction in your Answer if you do not present a Rule 12 Pre-Trial
Motion
- YOU CONSENT TO PERSONAL JURISDICTION IF YOU DO NOT RAISE IT

Carnival Cruise Line Case???

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International Shoe v. Washington: if not present, due process requires only that in order to subject
defendant to a judgment in personam, if he be not present within the territory of the forum, he have
certain minimum contacts with it such that the maintenance of the suit does not offend “traditional
notions of fair play and substantial justice”
 Minimum Contacts:
o Looked at to determine sufficient presence in forum state
o Suit must arise out of contacts
o Δ must have “purposefully availed” himself to laws of forum state
 Purposeful availment- to enjoy protection of laws of state while being subject
to laws if doing business
o Look at every single minute contact Δ had w/ forum state. Then analyze to determine if
they are sufficient. Then, if yes, determine if suit arises from said contacts
 Traditional Notions of Fair Play and Substantial Justice:
o Is it fair and just for Δ to be sued in forum state?
o Very elastic- judges have discretion
o Things courts consider to decide if suit violates TNFPSJ
 The burden of the defendants
 The forum states interest
 The plaintiffs interest in obtaining relief
 The interstates judicial system interest in obtaining an efficient decision
 The mutual interest of different states

 Int’l Shoe did away w/ strict requirement of actual presence and required contact. It modified
Pennoyer to include corporations and growth of interstate.

General Jurisdiction: natural persons are subject to general jurisdiction where they are domiciled
-corporations subject to general jurisdiction in:
*place of incorporation
*principle place of business
*where they are engaged in continuous and systematic business activity
Specific Jurisdiction: jurisdiction exists for the specific claim in question but not necessarily for other
claims

McGee v. International Life Insurance: court found that one contract being issued in state satisfied the
minimum contracts requirement of International Shoe; contract and payments didn’t violate TNFPSJ to
subject ∆ to personal jurisdiction in state were not incorporated or principle place of business

Hanson v. Denckla: unilateral acts of a 3rd party are not sufficient to satisfy minimum contacts; there
must be some act by the ∆ where the ∆ purposefully avails himself to the benefits of another state
-

Harris v Balk: state could acquire jurisdiction over persons whenever their debtors were present in the
state by “attaching” the debts; the result was to make creditors liable in any state which their debtors
set foot
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Shaffer v. Heitner: π sought to gain qausi in rem jurisdiction over multiple ∆s from out of state based on
DE state statute that authorized DE courts to take jurisdiction by sequestering stock in a corporation
incorporated in DE; court held ALL assertions of state jurisdiction must meet International Shoe Test
*contacts can include ownership of property but mere ownership does not conclusively
establish jurisdiction
*overruled Harris v. Balk

World Wide Vokswagen Corp. v. Woodson: ∆ must deliver a product into the stream of commerce with
the expectation that it will be purchased by consumers in the forum state before it can be said that the
forum state can assert jurisdiction over the ∆--here the car was not sold in forum state so no reasonably
foreseeable
- TEST: Reasonable foreseeability or reasonable anticipation
o The Δ must reasonably anticipate being hauled into court there, not reasonably
anticipate his products ending up there.
o Foreseeability alone can’t be the benchmark because it opens up sellers of chattel being
liable wherever their products are used
- “Stream of Commerce”-
o ∆ must reasonably anticipate that injecting a product into the stream of commerce will
cause him to be hauled into a foreign state.
- Minimum Contacts performs 2 functions:
1) Protects ∆s from burden of litigation in distant or inconvenient forum (reasonableness)
a) Primary concern is actual burden on D
b) Forum state interest
c) P interest in convenient, effective relief
d) Interstate judicial system and its interest in efficient allocation of decision making
e) Shared interests of implementing social policies arising from case
2) Acts to ensure that states, through their courts, do not reach beyond their limits=> if no fair
or minimum contacts, everything in 1) is irrelevant
- TNFPSJ requires courts analyzing stream of commerce to look at:
a) burden on ∆
b) State’s interest in adjudicating the dispute
c) π’s interest in convenient effective e relief
d) Interstate judicial system’s interest in dispute
e) Shared interest of several states in forming fundamental social policies

Asahi Metal Industry v. Superior Court: third party indemnity claim against a foreign ∆; ∆ asserts no
minimum contacts
- П must PURPOSEFULLY AVAIL himself of the forum by more than just putting a product into the
STREAM OF COMMERCE. If MINIMUM CONTACTS exist, must still meet FAIRNESS requirement
must still be met.
- Violation of Fair Play and Justice
o The burden on the defendant
 Great burden on the Δ
o The interest of the forum state
 Cal. has little interest
o The plaintiff’s interest in obtaining relief in State
 Very little because the event happened in Taiwan
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- Court Disagrees on Stream of Commerce

o Justice O’Conner (majority) + 3 others = 4 votes
 Stream of Commerce does not establish minimum contacts
 Uses “Stream of Commerce PLUS” Doctrine
 Must have Stream of Commerce PLUS:
o Designing the product for the market
o Advertising in the state
o Establishing channels for regular advise in the forum state
o Marketing the product through a distributor who has agreed to
serve as the sales agent in the forum state.
o Justice Brennan (concurrence) + 3 others = 4 votes
 Stream of Commerce does establish minimum contacts
 Does not require PLUS

Burger King v. Rudzewicz: BK sued ∆s (MI residents) in FL District Court for breach of contract; ∆
challenges personal jurisdiction alleging πs incorporation in FL are not sufficient minimum contacts
-if minimum contacts are met there is a PRESUMPTION that fair play and substantial justice are
satisfied and D must present a compelling case to defeat jurisdiction
-D accepted a long term and exacting regulation of his business with BK’s FL headquarters
-by entering into a contract with a FL corp ∆ has purposefully availed himself to laws of that
state

Calder v. Jones: The California resident brought a libel action against a national magazine
based in Florida and against petitioners, a reporter and the magazine's editor

Pavolich v. Superior Ct: contacts in context of internet communications

-Calder Purposeful Availment Test:
1. ∆ would have expressly aimed tortuous conduct at the forum state
2. be aware that intentional conduct would cause harm in forum state
- Sliding Scale of Internet Contacts:
o Continuous and Systematic sale to a certain state
 MINIMUM CONTACTS ARE MET
o Merely an interactive website
 MUST LOOK AT FACT TO MAKE A DETERMINATION
o Passive website with no knowledge of contacts with outside state
 MINIMUM CONTACTS ARE NOT MET

General Jurisdiction
-individuals: citizenship, domicile or place of residence
-corporations: place of incorporation; principle place of business; continuous and systematic business or
corporate activity
-TEST: 1) are there systematic and continuous contacts with the forum
2) if so, are those contacts fair and reasonable

Perkins v. Benguet Consolidated Mining Co.: ∆ moved operations of business from Philippines to OH
during wartime and challenges personal jurisdiction
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-even though the cause of action did not arise out of activities taking place within Ohio, the
president’s activities in Ohio were continuous and systematic enough to satisfy the minimum
contacts requirement outlined in International Shoe for |ALL claims not just those arise out of
the claim (jurisdiction by necessity)

Helicopteros Nacionales de Colombria, SA v. Hall: due process is not offended by a state’s subjecting a
corporation to in personam jurisdiction when there are sufficient contacts between the state and the
foreign corporation

Gator.com Corp. v. LL Bean: suit brought in CA even though Bean had no connection to the state; court
found systematic and continuous contacts with the state sufficient to exercise jurisdiction; significant
amount of total sales in CA; ongoing marketing in CA; interactive website

Mcintyre v. Nicastro- This case arises from a products-liability suit filed in New Jersey state court. Robert
Nicastro seriously injured his hand while using a metal-shearing machine manufactured by J. McIntyre
Machinery, Ltd. (J. McIntyre). The accident occurred in New Jersey, but the machine was manufactured
in England, where J. McIntyre is incorporated and operates. The question here is whether the New
Jersey courts have jurisdiction over J. McIntyre
-no minimum contacts
-A court may not exercise jurisdiction over a defendant that has not purposefully availed itself of
doing business in the jurisdiction or placed goods in the stream of commerce in the expectation they
would be purchased in the jurisdiction

Burnham v. Superior Court: NJ resident served with summons and divorce papers while in CA visiting
children; motion to quash
-PJ based on physical PRESENCE can survive even absent sufficient minimum contacts between
the ∆ and the forum state
-Scalia’s (Majority) Theory: jurisdiction based on physical presence alone constitutes due
process because it is one of the continuing traditions of our legal system that defines the due
process standard of traditional notions of fair play and substantial justice
-Brennan’s Theory: in order for tagging to be constitutional must be evaluated under
International Shoe (minimum contacts + reasonableness) ∆ availed himself to the laws and
benefits of the forum state as long as ∆ is knowingly in state

4 ways to establish PJ:

1) Specific Jurisdiction
a. Multiple Contacts- purposeful availment (foreseeable being hauled into court b/c of
contacts w/ state)
b. TNFPSJ
i. Burden of ∆
ii. Interest of forum state in hearing case
iii. π’s interest in convenient and efficient remedy
iv. Interstate judicial system’s interest in obtaining efficient resolution of conflicts
v. Shared interest of involved states in furthering fundamental social policy
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2) General Jurisdiction
a. Individual  Domicile
b. Corp  state of incorporation
c. Corp  home office
d. ∆ has “substantial, systematic, and continuous contact” w/ forum state; contacts must
be substantial.
3) ∆ personally served w/ SOP while in forum state
4) Consent- voluntarily or knowingly

Choice of Forum Clauses

-permissive forum selectionpermits but does not require suit to be brought in state which agent is
located
-mandatory forum selection mandates that suit be brought in a particular forum (Carnival)
-choice of law clausenot where suit to be brought but whose law (BK)

Carnival Cruise Lines v. Shute: cruise passenger is injured and is injured and files suit in Washington
federal court but ticket had “forum selection clause” for FL
-forum selection clause must be reasonable and have fundamental fairness in order to apply
-Factors a court must consider:
o ∆ must knowingly consent to jurisdiction (was there notice?)
o Party constructing forum selection clause must do so in good faith
o Consent cannot be obtained through fraudulent means.
o Consenting party must have had a choice

Notice
-Wutcher v Pizzufti: when someone commits a tort in another state can state get jurisdiction by serving
on Secretary of State; SOS is agent of ∆
*court found that notice must be required by state statute

Mullane v. Central Hanover Bank & Trust Co.: accounting action is required to be brought to “settle
accounts” and will result in a final judgment order that will preclude (res judicata) subsequent litigation
based on subject of said order; issue of whether publication in newspaper meets the requirements of
notice
- Notice must be reasonably calculated, under all the circumstances, to appraise interested
parties of the pendency of the action and afford them an opportunity to present their objection.
- Known Beneficiaries- it’s reasonable that trustee mail out notice
- Unknown Beneficiaries- publication notice is reasonably calculated
- Constructive notice is sufficient for those parties:
a) who are known to exist, but whose whereabouts are unknown
b) who may exist, but are unknown to party bringing suit
c) whose interest is conjectural or future
 Ct requires reasonableness and fairness for notice under due process.
 For in rem jurisdiction if you own property then notice by publication would be sufficient;
theory that you should have known if you have a physical presence (by owning property)
Rule 4
-4(k)(1)—Service of Process establishes jurisdiction over a ∆ subject to personal jurisdiction—note: PJ
must already exist
-∆s may “wave service” to speed up litigation and cut down on costs
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1) ∆ receives longer period to answer (60 instead of 20 days)

2) if ∆ refuses to waive w/o good cause then ∆ must pay costs of service
-in fed court for required notice you can use fed rules or serve process in any way permissible under
state law in the state which the fed court is located
-ONLY for impleader (3rd party ∆): there is a 100 mile bulge; good PJ and good service if ∆ is within 100
miles of the courthouse
-when there is no state for PJ and there is a fed law claim then there can be PJ as long as it is not
unconstitutional

Service
-must happen within 120 days of the complaint
-can get extensions of time for good cause (∆ hiding, etc)
-claim for SOL varies depending on state
-MS Rule: if you file within SOL and get service within 120 days then you have satisfied the SOL
-Fed Rule: same as MS

Long Arm Statutes: 2 types of state long arm statutes which goes to the max stating that state will
have jurisdiction as long as it is not unconstitutional; others are limited to certain types of claims

Mississippi Long Arm Statutes

- Does not go to the Federal limits
- Non-resident motorist
o Subject to PJ when they cause and accident in the State
- Non-resident or corporation are subject to PJ when:
o If they make a contract with a resident in the state which it to performed at least in part
in the state
o The tort at least in part occurs in the State against anyone (doesn’t matter whether the
victim is a resident)
o Doing any character or work or service in the State subjects the Δ to PJ in Mississippi

Gibbons v. Brown: Gibbons (TX) brought action against Mr. Brown in FL; Mrs. Brown tried to bring an
action against Gibbons in FL
- In order to bring a Δ under an out-of-state jurisdiction:
o Comply with long arm statute
o Meet Constitutional Requirement
 Minimum Contacts
 Notions of Fair Play and Justice
- Filing a case in a jurisdiction does not subject yourself to that jurisdiction for life

Venue
-must raise a venue objection or else you will lose standing to object (consent without objection)
Local Action Rule: if you have a local action, must be brought in a court where the land is located
*local action is a lawsuit that is subject to the local action rule
*includes in most cases: trespass on land; damage to land

Federal Venue § 1391(a) and (b)

1) where the ∆ resides if the ∆ resides in the same state
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*corporation resides wherever it is subject to PJ

2) where a substantial part or omission giving rise to the claim arise
3) if there is no other district, venue is proper where a ∆ is subject to PJ or where a ∆ is to be found
(served)
4) aliens are subject to venue in any district

Piper Aircraft v. Reyno: case about § 1404(a)—allowing the transfer of cases to other judicial districts
 Forum non conveniens- discretionary doctrine whereby a court which has jurisdiction over a
case may decline to exercise it, as there is no substantive reason for the case to be brought
there, or if in presenting the case to be brought there, it would create a hardship on the ∆’s or
witnesses.
 Factors affecting private interest:
a. relative ease of access to sources of proof
b. availability of compulsory process for attendance of unwilling
c. cost of obtaining attendance of willing witnesses
d. possibility to view premises, if viewing would be appropriate action
e. all other practical problems that make trial of a case easy, expeditious, and expensive
 Factors affecting public interest:
a. Administrative difficulties flowing from ct congestion
b. Local interest in having localized controversies decided at home.
c. Interest in having the trial of a diversity case in a forum that is at home w/ the law that
must govern the action.
d. The avoidance of unnecessary problems in conflict of laws, or in the application of
foreign laws.
e. The unfairness of burdening citizens in an unrelated forum w/ jury duty

SUBJECT MATTER JURISDICTION

-Art. III § 2 sets out a list of subject matter which may be heard in federal courts
*sets out issues which between two states shall be heard in federal court
*a case which a state is a party, Supreme Court shall have original jurisdiction and exclusive
jurisdiction (§1251)
-Federal courts are courts of limited jurisdiction
-Federal courts share most of their jurisdiction with state courts

Exclusive Federal Subject Matter Jurisdiction

- State v. State cases
o Supreme Court has original and exclusive jurisdiction - § 1251
- Admiralty and Maritime
o District court shall have original jurisdiction, exclusive of the courts of the States
o Savings to Suitors: a problem area where certain claims may be brought in State court
 § 1333
- Bankruptcy
o § 1334
- Anti-Trust Action
o §1337
- Patent and Plant variety, and copyright issues are exclusively federal
o Trademark issues are concurrent
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o § 1338
- Federal Tort claims where the tortfeasor is a federal employee

28 USC § 1331—Federal Question: District Courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws or treaties of the US

28 USC § 1332Diversity of Citizenship; Amount in Controversy: the District Courts shall have original
jurisdiction of all civil actions where the controversy exceeds the sum or value of $75K and is between:
1) Citizens of different states
2) Citizens of a State, and citizens and subjects of a foreign state
3) Citizens of different states and in which citizens or subjects of a foreign state are additional
parties; and
4) Foreign state (as π) and citizens of a state or different states.
-For the purposes of this section…and section 1441(Removal), an alien admitted to the U.S. for
permanent residence shall be deemed a citizen of the state in which such alien is domiciled

Louisville & Nashville RR v. Mottley: π sue RR because the revoke free passes because of a federal law;
complaint for a breach of contract; affirmative defense would be 5th amendment; case brought in
federal court
*Well Pleaded Complaint Rule: party must show that CLAIM arises out of Federal issue; not
enough to anticipate a defense

Declaratory Judgment Act 28 U.S.C. §§ 2201-2202

- The federal courts are empowered to hear certain cases in which a potential Δ seeks not a
coercive remedy but a declaration of rights
- This does not expand the subject matter jurisdiction of the Federal Courts but authorizes the
action

Challenging Federal Subject Matter Jurisdiction Rules 12(b)(1) and 12(b)(6)

-12(b)(1) asserts absence of federal subject matter jurisdiction
-12(b)(6)  motion to dismiss the substantive claim
-∆ would rather have a final decision on the merits because π can’t bring claim again in state court BUT if
π loses because there isn’t federal subject matter jurisdiction then π is free to bring again in state court
-Direct Attack: challenge to the original court that it does not have subject matter jurisdiction
-Collateral Attack: not a direct challenge but party goes to another court and court finds a lack of subject
matter jurisdiction (eg execution proceedings)

Rules for Direct Attack

- Anybody at anytime can raise lack of subject matter jurisdiction
- Court can bring up lack of subject matter jurisdiction to dismiss a case
- Different from raising lack of PJ because there is only one time to raise lack of PJ
o You use it or lose it

Rule for Collateral Attack

- Subject Matter Jurisdiction is raised and decided, it is NOT able to be reverse
- Could have raised SMJ, but you did not, then you cannot raise SMJ
- Bankruptcy exception Kalb
Civil Procedure 1

o If the proceeding is for bankruptcy you can raise a collateral attack

- You did not appear at all: It is uncertain whether there can be an attack of SMJ when someone
Defaulted

Dismiss for Failure to State a Claim or Lack of Subject Matter Jurisdiction

1) Bring a 12(b)(6) to dismiss for failure to state a claim (for very weak cases)
2) Dismiss for failure to state a claim because you cannot appeal this but you can appeal lack of
subject matter jurisdiction

DIVERSITY JURISDICTION

§ 1332- Diversity Citizenship

(a) District courts have original jurisdiction in controversies exceeding $75,000 and are b/t:
(1) Citizens of different States
(2) Citizens of a state and citizens of a foreign state
(3) Citizens of different States and in which citizens of a foreign state are additional parties
(4) Foreign state as plaintiff and a citizen of a State
An alien is deemed a citizen of the state she is domicile
(b) If at the end of a case the π is awarded less than $75,000, the district court may deny cost to
π, in addition, may impose cost on the π

-TEST for citizenship: must be a citizen of the US and domiciled in a state

*domiciled: physical presence and an intent to remain indefinitely in state
*determined at time action is filed
-each π must be diverse from each ∆
*if brought alleging DJ court can dismiss just the non-diverse party or dismiss the entire case

-TEST for Corporations:

1) nerve center test: where the executive and administrative functions are controlled
2) muscle test: concentrates on everyday business activities
3) third test: emphasizes place where the company has the greatest contact with the public

Redner v. Sanders: π is an Am. Citizen and 10 year resident of France; filed suit in Federal court against
∆s (NY) alleging diversity
- Court first notes that 1332(c)2 (citizens of a state and citizens of a foreign state) requires
citizenship in France, but Redner is only a resident.
- 1332(a)2 would apply if Redner was a citizen of a state other than NY, but he fails to give
sufficient evidence of “domicile and intent to remain indefinitely”.
- Therefore, Redner is not a citizen of any state, and under 1332, he has no diversity.
- Strawbride Rule
o Complete diversity is required
o If there is any overlap then there is no diversity

Gordon v. Steele and Hawkins v. Master Farms

- Citizenship for 1332 diversity cases is determined by domicile and intent to remain indefinitely

Saadeh v. Farouki: Greek citizen sues “permanent resident” foreigner in Federal District Court for
breach of contract
- Citizenship is determined at the filing of the law suit
Civil Procedure 1

- Purpose of diversity is not to expand the court system but to shrink it

- A resident alien is unable to bring a suit against a foreigner in American Courts
o Resident Alien: a foreigner legally allowed to live in US

Amount in Controversy
- Has an amount in controversy requirement must EXCEED $75,000 exclusive of interest and cost
o Includes realized and punitive damages
o The amount in controversy has changed over time
- Deciding the amount of controversy for damages
o Starting with the amount asked in good faith by π
 If there is evidence of bad faith the judge may dismiss
 πs in good faith can slightly inflate the amount in controversy in order to get
into federal court
 π cannot rely on excessive punitive damages to get them to Federal Court

Amount in Controversy: Relief that is not money damages

- If the party is seeking an injunction, the value of the must exceed $75,000:
o Determine the value of the injunction to the plaintiff
o Determine the cost to the defendant for complying
o Determine the cost or value to the party invoking federal jurisdiction
o Allow jurisdiction if any of the test above yields a figure of the statutory amount

Amount in Controversy: Aggregating Damages

- Guidelines for aggregating:
o A single π with two or more unrelated claims against a single Δ may aggregate claims to
satisfy the amount
 Can add unrelated claims if there is one π and one Δ
o If two πs each have claims against a single Δ, they may not aggregate if their claims are
regarded as “separate and distinct”
 Two parties cannot add claims together no matter how related they are to each
other
 Exception: When there is a single undivided claim
 Partners, Spouses, joint title claims
o If one π has a claim in excess of the statutory amount and a second π has a claim for less
than the statutory amount, only the first π can file
o In situations involving multiple πs or multiple Δs with a common undivided interest and
single title or right , the value of the total interest will be used to determine the amount
in controversy
 Martial Partners or business partners
o Simply aggregating the claims of all the class members cannot satisfy the amount in
controversy; at least some members must have claims that individually satisfy the
jurisdictional amount.

SUPPLEMENTAL JURISDICTION
- There is federal court jurisdiction over a compulsory counter-claim regardless of the amount in
controversy
- There is federal court jurisdiction over a permissive counter-claim only if the amount in
controversy is satisfied
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- Allows a π to join a state claim with a federal question claim in her complaint as long as both
claims are asserted against the same ∆

§ 1367 – Supplemental Jurisdiction

- Any civil action which the district courts have original jurisdiction they shall also have
supplemental jurisdiction over other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III
a) Gives: Some part of the case which the district court has original jurisdiction
o If so  the federal court has supplemental jurisdiction over other parts of the same
case
o Gibbs* case  If it arises from a common nucleus of operative facts
b) Takes: Take away supplemental jurisdiction when:
o Π’s claim in diversity
c) Discretion: May decline to exercise supplemental jurisdiction if:
o Novel or complex issues of State law
o Claim substantially predominates over the claim or claims over which the district has
original jurisdiction
o The district court has dismissed all claims over which it has original jurisdiction
o In exceptional circumstances, there are other compelling reasons for declining
jurisdiction
d) Shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period

**United Mine Workers v. Gibbs- If there is one federal claim w/in federal SMJ, fed’ district court may
hear all other claims arising out of a “common nucleus of operative fact.”

In re Ameriquest Mortgage Co.: π has claim in Federal Court against one ∆ under Federal Truth in
Lending Act (no issue as to jurisdiction) also has state claims for fraud against ∆ and another ∆; issue as
to whether court has supplemental jurisdiction over second ∆
-TEST: to determine whether the def and state law claims are connected by common and
operative facts, courts compare the facts necessary to prove the elements of the fed claim with
those necessary to the state claims
*also look to see if the state claims can be resolved without affecting the fed claims
-discretion: four instances can exercise discretion to deny supplemental jurisdiction
1. claim raises a novel or complex issue of state law
2. claim substantially predominates over the claim over which the district court has
original jurisdiction
3. district court has dismissed all claims over which it has original jurisdiction
4. other compelling reasons

Szendrey-Ramos v. First Bancorp: π fired from job as general counsel for a foreign ∆ corporation; filed
suit in federal court under a federal employment law but also stated numerous claims under Puerto
Rican law; question of whether court should exercise discretion in allowing supplemental jurisdiction
-court exercised discretion and declined to hear the case
-§ 1367(c)(2): allows courts to decline to exercise supplemental jurisdiction if state law claims
substantially predominate over the federal claim
-§ 1367(c)(1): allows federal courts to decline to exercise supplemental jurisdiction if the state
claims raise complex or novel issues
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REMOVAL
§ 1441(a): any civil actions (besides exceptions) may be removed by ∆ to district court; this is when state
and federal courts exercise concurrent jurisdiction

Removal Requirements:
1) the district court (federal) must have original jurisdiction
2) removal is filed with the district in which the state action was filed
3) π cannot remove
4) if more than one ∆, then all ∆’s must be in agreement to remove
5) unnamed and fictitious ∆s are disregarded

Special Removal Requirements

a) Removal in diversity cases: all ∆s must be noncitizens of the state (1441(b))(ex: if π sues ∆ in ∆’s
home state then the case cannot be removed)
b) Removal in federal question cases: only if such federal question appears in the π’s complaint—
may not arise from a defense the D makes (well pleaded complaint rule)
c) Removal jurisdiction not derivative of state court jurisdiction: formerly if state court lacked
subject matter jurisdiction the action could not be removed to fed court (must be dismissed and
refilled in proper state court before removal; now under 1441(e) fed court is permitted to retain
action removed from state court even though state court lacked jurisdiction
d) Removal when lawsuit involves multiple claims: when separate and independent claim that falls
within fed question jurisdiction is joined with non-removable claims the entire case may be
removed to fed court

§ 1446—Procedure for Removal

- Removable is automatic when certain items are completed:
o File in the district court a notice of removal containing a short and plain statement of
the grounds for removal
- The Δ has 30 days from when the pleading/complaint is received to remove the action
o If the case was not initially removable, it may be removed within 30 days of the case
becoming removable
- Cases based on diversity juris. removal may only be removed one year after the commencement
of the action
- Exception: bad faith; ex. P hiding the amount in controversy in order to keep case in state court

§ 1447—Remand
-if improperly removed π may move to remand back to state court
-30 days after removal for any defect other than subject matter jurisdiction (defect= anything
other than requirement for original jurisdiction)
-for remand on basis of subject matter jurisdiction—at any time before judgment
-remand orders are not appealable
-cost and expenses are awardable when a ∆ wrongfully removes a case
Civil Procedure 1

Catepillar v. Lewis: at time of removal—removal wasn’t proper (complete diversity didn’t exist); but by
the time judgment was entered complete diversity did exist (one ∆ settled); question of whether
improper removal vacates judgment
- Failing to remand a case improperly removed is not fatal to the ensuing adjudication IF federal
jurisdictional requirements are met at the time judgment is entered
- Under 12(h)(3): if at the end of the day and case a jurisdictional defect remains uncured—the
judgment must be vacated

THE ERIE DOCTRINE

Overview
Erie Case
- There is no constitutional authority to create Federal Common Law
- Federal Courts sitting in diversity must apply state standard of care
o Must apply legislative laws and common laws (because of the Supremacy Clause)

Guaranty Trust Case

- Outcome Derivative Test
o Requires Federal Courts sitting in diversity to apply state procedural law when they
significantly affect the outcome of litigation

Byrd Case
- Clarifies the Outcome Derivative Test
o Federal Courts must apply state law when it will significantly affect the outcome of
litigation with respect to forum shopping and promote unequal administration of laws
- Where there is a federal judicial policy that is legitimate you balance the Erie policies with the
federal judicial policies
- In Byrd case the interest of federal jury trial weights more than the Erie policy

Federal Common Law

-court indicates in Erie that there is no such thing as fed common law which is inaccurate
-Erie holds only that a general federal common law may not displace that of the states in areas in which
the Constitution grants lawmaking powers to the states
-constitution grants potential lawmaking power to fed courts in the courts in which fed has original
jurisdiction
*interpretation of the constitution
*grant of judicial power in admiralty and maritime cases
*federal common law: where government is a party
*fed statutes
*antitrust law
*lawmaking within the cracks of fed statutes (fed interstitial common law)

 § 1652: Rules of Decision Act

The laws of the several states, except where the Constitution, laws, or treaties otherwise require or
provide, shall be regarded as rules of decision in courts of U.S., in cases where they apply.
Civil Procedure 1

Swift v. Tyson: court ruled “laws” did not include the decisions of the local tribunals; precedents are not
laws; common meaning of laws is—statutory laws
-when not bound by state statute the court can and SHOULD create and apply general federal
common law

Erie RR v. Tompkins: π hit by train while walking on tracks in PA; π attorney wanted to file in NY (where
train located) because under PA Common Law π considered a trespasser and the RR therefore only liable
for wanton negligence—but if file in NY follow fed common law which is guilty of ordinary negligence
 Rule: A federal ct sitting in diversity must apply state substantive law, including state
common law. However, federal courts still applies federal procedural law.
 This decision overruled Swift.
 Four reasons for decision:
o Forum Shopping Rationale- πs were vertical forum shopping (b/t state and fed)
o Practical Problems- Swift didn’t work. No uniform common law was created b/c judges
varied in opinions.
o Constitutional Q- While court doesn’t say Swift is unconstitutional (as Reed’s
concurrence claims), they seem to assert a constitutional issue.
 10th Amd- powers not granted to fed are reserved for state. Problem is S.Ct. has
never based a decision on this amd.
 Equal Protection- 14th Amd, but also applied to fed gov by implication
 Federalism- Swift violated the structure of gov inherent in the Constitution.
o Rules Decision Act- §1652- “the laws” now includes laws by the state legislature and
highest court of the state.

Erie decided that the substantive law that applies in diversity cases is state law. The following 3 cases
deal w/ the difficulty of distinguishing b/t substantive and procedural law.

Guarantee Trust v. York: diversity case that when filed the state SOL had run but fed courts used
equitable rule of “latches” that would allow case to proceed
-issue: is SOL a substantive or procedural law
Outcome-Determinative Test
 The outcome of the litigation in the federal court should be substantially the same so far
as legal rules determining the outcome of a litigation as it would be if tried in a State
court
 Does it significantly affect the result of litigation for a federal court to disregard a law of
a State that would be controlling in an action upon the same claim by the same parties
in State court
o Federal courts do not have to apply state law that is merely a manner and
mode

Byrd v. Blue Ridge Electric: issue over π status as an employee; state: judge decides; federal: jury
decides (7th amendment)
-extends Outcome-Determinative Test: federal law MUST be applied if there is a strong federal
policy involved in the matter; where there is a countervailing federal policy
-requires a balancing of the federal and state interests---however if the choice between federal
and state law is not outcome determinative as applied in York there is no need to apply Byrd
balancing test because the matter is procedural and federal law applies
Civil Procedure 1

*here there is a very strong policy against allowing state rules to disrupt the judge-jury
relationship in federal courts; and the state’s rule is not intended to be bound up with
the definition of the rights and the obligations of the parties

Hanna v. Plummer: Federal service of process only required that be served at place of residence; State
statute requires that service be personal when delivered to an executor of an estate
-test must be whether a rule really regulates procedure—the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and redress for
disregard or infraction of them
-Guided Erie Analysis--> applying state or federal rule/procedure:
1) whether the applicable rule relates to the practice and procedure of district courts
(whether it really regulated procedure)
2) whether such rule transgresses constitutional bounds (whether it falls within the
Rules Enabling Act)

 Sibbach test: two part test to determine the whether or not a FRCP falls w/in REA:

1) Is rule procedural?
i. Test to determine: is there any rationale argument that it’s procedural; is it
arguably procedural.

2) Does rule abridge, enlarge, or modify substantive rights?

 If answer to 1 is YES and answer to 2 is NO, then FRCP applies b/c it is w/in Congress’ power
to make such a rule.
 IMPORTANT: No FRCP has EVER been struck down as unconstitutional, therefore the
Federal Rule will probably always apply. But you must still go through Erie analysis to show
why.

Formula for evaluating Erie cases:

 First: Is there a conflict b/t a Federal law/rule/practice and a state law? If not, BOTH WILL APPLY.
 Second: If conflict, what is the source of the federal law/rule/practice?

1. U.S. Constitution:
 Article VI, §2- Supremacy Clause: The Constitution and laws of the US shall be the
supreme law of the land, and all judges are bound by them, regardless of state law to
the contrary.
 Constitution WINS

2. Federal Statutory Law:

 Must ask: Is the statute w/in the Congress’ power?
 Article I, §8 gives Congress the power to make all laws “necessary and proper” to
implement the powers given to the federal government in the Constitution.
 If statute is Constitutional, then Federal Statute applies.
 Test:
 Is statute/law w/in Congress’ powers? (i.e. is it Constitutional?)
 If YES, then Federal law applies b/c of supremacy clause.
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 See Ricoh v. Stewart- Conflict b/t Alabama state law which allowed judges discretion in
enforcing choice of forum clauses and 28 USC 1404 which allowed transfer of venue.

3. Federal Judge-Made Law (practice):

 Decision will be based upon RDA §1652
 Use Erie/York/Hanna test.
 Will use of Federal law/practice:
1) Encourage forum shopping?
2) Lead to inequitable administration of law?
 IF answer to both of above is NO, then the Federal practice/judge-made law may be
used. Otherwise, STATE LAW prevails.

4. Federal Rule of Evidence or Procedure:

 The REA (§2072) is Constitutional
 Does the FRCP fall w/in the REA?
 Sibbach two part test:
1) Is rule rationally capable of being considered procedural? Is it arguably
procedural?
2) Does rule abridge, enlarge, or modify substantive rights?
 If answer to part 1 is YES and part 2 is NO, then FRCP applies b/c it is w/in Congress’
power to make such a rule, and it doesn’t violate the U.S. Constitution.

Semtek v. Lockheed: res judicata case

Mason v. American Emery Wheel Works: π is a MS resident suing manufacturer for tort in US District
Court in RI (where ∆ incorp); complaint dismissed based on MS Rule which held that manufacturer is not
liable when manufacturing highly dangerous product and not in privity with injured party; MS indicated
that they were going to revise the rule but RI court applied it anyways because following state of RI rules
which require to apply state rules
-court of appeals held: not obligated to apply state CL rules when they are outdated and court
has indicated that they were willing to revise

Certification
-federal court asks the state supreme court for an answer to a question about state law
-defects in the certification system:
1) state must have a certification procedure (many do not)
2) results are not always satisfactory
3) sometimes state court does not accept the invitation to answer the question of state law

Miss. R. App. P. Rule 20 (Certification Procedure for MS)

-when there are no clear controlling precedents the federal court “may certify such questions or
propositions of the law of this state to the MS Sup Court for rendition of a written opinion concerning
such questions or propositions of MS law. The Sup Court may in its discretion, decline to answer the
questions certified to it”
*b) may be invoked by fed court by own motion or motion of interested party
*may be invoked by Supreme Court or any US Courts of Appeals within jurisdiction
Civil Procedure 1

Pierce v. Cook & Co.: court rejects πs attempt to reopen old federal case stating that Erie does not
entitle πs to open all old cases they lost to gain benefit of newly announced decision of state court
RULE 60(b)—permits the reopening of a final judgment under limited circumstances
1) mistake, inadvertence, surprise or excusable neglect
2) newly discovered evidence that with reasonable diligence could not have been discovered in
time to move for a new trial
3) fraud, misrepresentation or misconduct by an opposing party
4) judgment has been satisfied, released or discharged; it is based on an earlier judgment that
has been reversed or vacated; applying it prospectively is no longer equitable
6) any other reason that justifies relief

RULE 65—Temporary Restraining Orders and Injunctions

William Inglis and Sons Baking Co v. ITT Continental Baking Co: π has anti-trust claims under Sherman
Act as well as claims under state statute (supplemental jurisdiction); court denies π a preliminary
injunction because not persuaded that π would prevail on the merits
-Test for Granting Preliminary Injunction (standard)
(1) the π will suffer irreparable injury if injunctive relief is not granted
(2) the π will probably prevail on the merits
(3) in the balancing of the equities the ∆s will not be harmed more than the plaintiff is
helped by the injunction
(4) granting the injunction is in the public interest
-Alternative Test for Granting Preliminary Injunction
(1) one moving for a preliminary injunction assumes the burden of demonstrating either
a combination of probably success and the possibility of irreparable injury or that
serious questions are raised and the balance of hardships tips sharply in his favor
(2) it is not necessary that the moving party be reasonably certain to succeed on the
merits. If the harm that may occur to the π is sufficiently serious, it is only necessary that
there be a fair chance of success

Rule 65(c)—Security: court may issue a preliminary injunction or temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained. The US , its officers and its
agencies are not required to give security
*some courts waive the bond even though it is meant to be required
-low bond or no bond is appealable

Rule 65 – Preliminary Injunctions and Temporary Restraining Order

- Temporary Restraining Order 65(b)
o May be issued ex parte (when requested by one side)
o May be issued without notice
o To get a TRO
 Must submit an affidavit under oath
 Specific facts
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 Facts must show if relief is not granted there will be an immediate and
irreparable injury
 Certify reasons why there is no notice
o Protections
 Limited in Duration
 Only last for 10 days
 Party subjected to TRO has 2 days to dissolve a TRO
 Security Requirement
 Π must submit a security deposit
 Available for both TRO and Preliminary Injunction
- Preliminary Injunction
o Must provide notice to the other side
o Must have a hearing
 Gives the opposing side an opportunity to appeal
o Must provide bond

Fuentes v. Shevin: examines the constitutionality of a FL replevin statute (14th amendment)

-14th amendment protection does not only extend to necessities
*any property interest; including temporary taking
-UNCONSTITIONAL: no notice or hearing
-exceptions for taking without prior notice and hearing:
1) seizure has been directly necessary to secure an important governmental or general
public interest
2) there has been a need for very prompt action
3) the state has kept strict control over its monopoly of legitimate force: the person
initiating the seizure has been a government official responsible for determining under
the standards of a narrowly drawn statute that is /was necessary and justified in the
particular instance

Rule 11: Sanctions

-requirements:
1) inquiry reasonable under the circumstance
2) not presented for any improper purposel
3) claims and defenses which are warranted by existing law or a nonfrivolous argument for
changing the law
4) factual contentions have evidentiary support, or will likely have evidentiary support
-note: must give party 21 day notice to withdraw the complaint

Walker v. Norwest Corp: π filed complaint against corporate and individual ∆s based on diversity of
citizenship claims but failed to show complete diversity and failed to respond when ∆ warned that
would seek rule 11 sanctions if π did not amend complaint or dismiss for lack of jurisdiction
-court granted Rule 12(b)(1): motion to dismiss for lack of jurisdiction and Rule 11 sanctions
-πs desiring to invoke diversity jurisdiction assume the burden to plead citizenship of all parties

Christian v. Mattel: π failed to sufficiently investigate copyright infringement claims; refused to

withdraw complaint during 21 safe harbor period when he was informed; other misconduct such as
discovery abuses, misstatements during oral arguments and conduct in other litigation
Civil Procedure 1

-Limits on Rule 11 Sanctions: while Rule 11 permits the district court to sanction an attorney for
conduct regarding pleadings, written motions and other papers that have been signed and filed
in a given case, it does not authorize sanctions for among other things, discovery abuses, or
misstatements made to the court during an oral presentation

Other Sanctions
-§ 1927: misconduct in an unreasonable and vexatious manner; multiplicatious
-court’s inherent authority: standard—for bad faith actions which includes a broad range of conduct
-tort liability/abuse of process (malicious prosecution)

Domestic Relations: even when 1332 is met fully, federal courts do not entertain divorce cases
Probation Rule: even when 1332 is met, federal courts will not probate a will
Civil Procedure 1