Legal Procedures and Principles in US Jurisprudence, Summaries of Civil Law

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S. L. Emanuel,

Civil law attack outline

Federal Court System & Adjudication Basics

Alternative Dispute Resolution —a process in which a neutral person resolves a dispute or helps the parties to resolve their dispute; private, informal trial in which each side pleads its case before a panel of arbitrators (or 1) which considers evidence and arguments an then issues a decision; ● Typically binds ● Limited grounds to appeal I. Contractual Arbitration —The Federal Arbitration Act (FAA) governs written arbitration agreements involving interstate or international commerce and preempts conflicting state law A. Procedure;

1. A written agreement to arbitrate a dispute is valid and enforceable unless a contractual ground for revocation exists (aka fraud)
2. At the proceeding, the arbitrator can subpoena witnesses and require them to bring documentary evidence to the hearing; after arbitrator renders the award a party can move to have the court confirm the award; opposing party may move to vacate the arbitration award on ground
3. If the award is confirmed, it is considered to be final and binding, and it is enforceable as a court judgement
4. Judicial Review of Award; a) An arbitration award may be vacated, only on narrow statutory grounds, such as fraud or bias B. Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20 (1991-- C. Emeronye v. Caci International, Inc. , 141 F.Supp.2d 82 (D. D.C. 2001) II. Mediation —involves the use of a neutral person to help parties to a dispute reach mutually acceptable agreement; mediator does not have decision making power, his role is to facilitate the process by which the parties reach their own voluntary agreement A. Not binding; but can be made mandatory by local rule in certain cases B. Woods v. Holy Cross Hospital , 591 F.2d 1164 ( th Cir. 1979)

Process of Procedure

1. Notice

2. Personal Jurisdiction

3. Subject Matter Jurisdiction

4. Venue

Notice

“Notice” —A reasonable method used to notify the Δ of a pending lawsuit and afford them an opportunity to present their objections (reasonably conve required information and afford reasonable time to make an appearance)

Personal Jurisdiction

Traditional ( Pennoyer ) Δ is in state

1. Δ can be served in the jurisdiction no matter how fleeting the presence
2. Δ may voluntary appear
3. State of a person’s permanent home may exercise personal jurisdiction over her wherever she happens to be at the time
4. Δ can consent to service of process by appointing an agent for that purpose (in advance) A. Hess v. Pawloski , 274 U.S. 352 (1927) “Long-Arm Jurisdiction” Δ is out of state —a statute that allows for a court to obtain personal jurisdiction over an out-of-state D on the basis of certain acts committed by an out-of-state D, provided that the D has sufficient contacts, ties, or relations

personal jurisdiction over a non-resident Δ who is physically present in the state. —A state has (1) State Statute A. Ways To Comply a. (1) state has said that can exercise juris to due process b. (2) State can have specific act statute = specific things for D to be done to qualify long-arm statute i. World-Wide Volkswagen Corp v. Woodson , 585 P.2d 351 (1978) (2) Due Process A. Minimum Contact a. Elements: i. (1) Purposeful Availment ii. (2) Relatedness b. International Shoe Co. v. Washington, 326. U.S. (1945) —P.J. over individual/corporate Δ, if has minimum contacts, ties and/or relations that cannot offend fair play and substantial justice. c. Burnham v. Superior Court of California , 495 U.S. 604 (1990) i. (1) Purposeful Availment —Δ’s directed activities into forum state

1. Contracts as Contacts a. Burger King v. Rudewicz , 471 U.S. 462 (1985): Choice of law provision & term of franchise agreement b. Hanson v. Denckla , 357 U.S. 235 (1958): Unilateral activity of plaintiff does amount to personal availment. c. McGee v. International Life Insurance Co. , 355 U.S. 220 (1957) 2. Stream of Commerce a. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 (1980): not enough product is in stream of commerce, Δ needs to direct activities into forum state. b. Keeton v. Hustler Magazine, Inc. , 465 U.S. 770 (1984): quality of directed activities over quantity. c. Asahi Metal Industry Co., LTD v. Superior Court of California , 480 U.S. 102 (1987): not enough that parts ended up in California or that they knew it would end up in California, this does not qualify as a substantial connection. i. “Substantial Connection Test” —placing an item in the stream of commerce could with some other acts that show the intent to serve forum state. d. J. Mcintyre Machinery, LTD v. Nicastro , 564 U.S. 873 (2011)

3. “The Effects Test” —an action causes a harm that is felt in the forum state a. (1) Intent [for effect to be felt] b. (2) felt in forum state c. Kulko v. Superior Court , 436 U.S. 84 (1978) d. Calder v. Jones , 465 U.S. 783 (1984) ii. (2) Relatedness (Specific Jurisdiction)

a. Rodriguez v. Senor Frog’s de la Isla, Inc. , 642 F.3d 28 (CA1 2011) b. Eze v. Yellow Cab Company of Alexandria, VA, Inc. , 782 F.2d 1064 (D.C. 1986) c. Hertz Corp v. Friend , 559 U.S. 1181 (2010)

2. Amount in question exceeds $75, a. Coventry Sewage Associates v. Dworkin Realty , 71 F.3d 1 (1st Circuit 1995) 28 U.S.C. 1331 —Federal Question

1. Creation Test— Congress has created the cause of action a. Louisville and Nashville Railroad Company v. Mottley , 211 U.S. 149 (1908) 2. Ingredient Test a. (1) Necessarily Raised b. (2) Actually Disputed (each side disagrees about what it means) c. (3) Substantial (important to federal system as a whole) d. (4) Federal-State Balance i. Grable & Sons Metal Products, Inc v. Darue Engineering & Manufacturing , 545 U.S. 308 (2005) ii. Gunn v. Minton , 568 U.S. 251 (2013) 28 U.S.C. 1367 —Supplemental Jurisdiction
2. MUST satisfy either 1332 or 1331
3. Original Jurisdiction: all other claims are related to claims in the action with original jurisdiction
4. Common Nucleus of Operative Fact Test —there is a claim, arising under the Constitution, laws and treaties, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises one constitutional case.
5. Discretionary Factors —whether the court should exercise supplemental jurisdiction a. A state claim can trump a federal claim if more evidence supports the state claim and/or if the damages for the state claim are greater b. United Mine Workers of America v. Gibbs , 383 U.S. 715 (1966)—Does have authority to take jurisdiction? Yes, substance to confer subject matter jurisdiction on court. Common nucleus of operative fact is present because the same evidence is used to prove both state and federal claims. A. 1332 in relation to 1367 a. Can come in under supplemental jurisdiction if satisfy diversity but not amount in controversy 28 U.S.C. 1441 —Removal A. “Removal” —Start in state court, defendant(s) file notice of removal to federal court if the action is one where the federal courts have original jurisdiction a. Can keep federal claims but must send states claims back to state court b. Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) i. Usually, federal jurisdiction lies at the time a claim is filed...this case involved a mistake that was not caught until years later, it's an exception.

Venue and Forum Non Conveniens

28 U.S.C. § 1391(b) : 3 places in which a π can bring a civil action

1. A judicial district in which any Δ resides, if all Δs are residents of the State in which the district is located;
2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or
3. If there is no judicial district in which an action may otherwise be brought as provided in this section, any judicial district in which any Δ is subject to the court’s personal jurisdiction with respect to such action 28 U.S.C. § 1404(a): [venue transfer] Original Venue was Proper A. Rule: for the convenience of parties and witnesses and in the interest of justice, venue transfer can occur to any other district or division where the case might have been brought. B. Factors To Consider: a. Availability and convenience of witnesses and parties b. Location of counsel c. Location of books and records d. The cost of obtaining attendance of witnesses and other trial expenses e. The place of the alleged wrong f. The possibility of delay g. Prejudice if transfer is granted h. Π’s choice of forum C. Smith v. Colonial Penn Insurance Company , 943 F.Supp. 782 (S.D. Tex. 1996) Private/Public Interest Factors: A. Private: a. Relative ease of access to sources of proof; b. Availability of compulsory process to secure the attendance of witnesses c. Cost of attendance for willing witnesses; d. All the other practical problems that make trial of a case easy, expeditious and inexpensive B. Public a. Administrative difficulties flowing from court congestion b. Local interest in having localized interests decided at home c. Familiarity of the forum with the law that will govern the case d. Avoidance of unnecessary problems of conflict of laws of the application of foreign law C. Skyhawke Technologies, LLC v. Deca Int’l Corp. , 2011 WL 1806511 (D.Miss. 2011) 28 U.S.C. § 1406: [ forum non A. Rule: the district court of a district which has filed a case laying venue in the wrong division/district shall dismiss, or if it be in the interest of justice, transfer such a case to any district/division in which it could have been brought. B. Up to the discretion of the court when weighing all of the relevant factors conveniens ] Original Venue was Improper

Rule 22: “Interpleader” & 28 U.S.C. § 1335: “Interpleader Statute” A. Purpose Is To Avoid Double Liability: a. Permits the person in the position of a π-stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in double liability on a single obligation i. Claims DO NOT have to have a common origin B. What is a π-stakeholder? a. The party initiating the litigation C. Rule 22: a. To grant interpleader under this rule there MUST be either a federal question claim or complete diversity/$75,001+ D. § 1335: a. Permits jurisdiction where amount in question is over $500+ and diversity between any two contrending claimants E. When To Use Which? a. Rule 22 – if plaintiff-stakeholder has no interest F. Indianapolis Colts v. Mayor and City Council of Baltimore , 741 F.2d 954 (CA7 1984) Rule 24: “Intervention” A. Test: a. (1) a timely motion; b. (2) an interest relating to the property or transaction that is the subject matter of the action; c. (3) An impairment of that interest without intervention; and d. (4) the movant’s interest is not adequately represented by the other parties to the litigation B. Permissive Intervention: granted when an applicant's claim or defense and the main action have a question of law or fact in common a. Court Considers: whether the intervention will unduly delay or prejudice the adjudication of the rights of the original pirates b. Other Factors: i. Nature and extent of the intervenor’s interests ii. Whether these interests are adequately represented by the parties iii. Whether the party seeking intervention will significantly contribute to the full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal question presented C. Great Atlantic & Pacific Tea Company, INC. v. Town of East Hampton , 178 F.R.D. 39 (E.D.N.Y. 1998) Rule 13(g): “Cross-Claims”

1. That it be a claim by one party against a co-party; and
2. The claim arise out of the same transaction or occurrence A. Harrison v. M.S. Carriers, Inc. , 1999 WL 195539 (E.D. La April 7, 1999) Rule 13(a) & (b): “Counterclaims” as the original counterclaim

A. Rule 13(a): if a counterclaim is compulsory and the party does not bring it in the original lawsuit, that claim is thereafter bared B. Test 13(a): the claim.... a. (1) exist at the time of pleading; b. (2) arise out of the same transaction or occurrence as the opposing party’s claim; and c. (3) not require for adjudication parties over whom the court may not acquire jurisdiction C. Rule 13(b): a pleading may state as a counterclaim against an opposing party any claim that is not compulsory D. Burlington Northern Railroad Co. v. Strong , 907 F.2d 707 (CA7 1990)

Pleadings and Responses

The Complaint: Rules 8, 12, and 11 Rule 8: “General Rules of Pleading” A. Rule: a short and plain statement of the claim showing that the pleader is entitled to relief (fair notice to ∆) B. Conley v. Gibson , 355 U.S. 41 (1957) Rule 12: “Pleading Reponses” (to survive a motion to dismiss)

1. Accept facts as true (π’s factual allegations)
2. If factual allegations move beyond conceivability (could have happened) to plausibility (probably would have happened) A. Ashcroft v. Iqbal , 556 U.S. 662 (2009) B. Swanson v. Citibank. N.A., 614 F.3d 400 (7th Cir. 2010): After Iqbal, this court states that plausibility means that the π must give enough details about the subject-matter of the case to present a story that holds together. Rule 11(c): A. Purpose: to reduce frivolous claims, defenses/motions to avoid delay/unnecessary expense in litigation B. Test: a. (1) Whether the complaint is legally or factually baseless from an objective perspective; and b. (2) if the attorney has conducted a reasonable and competent inquiry before signing and filing it C. Christian v. Mattel, Inc. , 286 F.3d 1118 (9th Cir. 2002) D. O’Rourke v. Dominion Voting Systems, Inc. (D. Colo. August 4, 2021) The Answer: 8 Rule 8(b)(1)(A)-(B):

Work Product Doctrine: work completed to prepare for litigation/to state a claim that is exempt from discovery requests

1. Fact: facts that come up during an attorney’s investigation 2. Opinion: a. The way the attorney states the questions & the answers b. Attorney’s thought process & tactics A. Who does it extend to? a. Anyone an attorney hired to help with investigation to encourage attorneys to do thorough investigation B. Rule 26: (how to get around fact work product doctrine) a. (1) substantial need b. (2) relevant to claim c. (3) failure to produce will cause a hardship C. Hickman v. Taylor , 329 U.S. 495 (1947) Inadvertent Disclosure of Privileged Communication (work product): A. Strict Accountability: intent of attorney no considered, lose privilege once breach occurs, even if it was an accident a. Purpose – to encourage attorneys to be extra careful/holds them accountable for their lack of care B. Middle Test: (adopted in MA) a. (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; b. (2) the amount of time it took the producing party to recognize its error; c. (3) the scope of the production; d. (4) the extent of the inadvertent disclosure; and e. (5) the overriding interest of fairness and justice f. Purpose – accounts for the errors that inevitably occur in modern, document-intensive litigation C. Never Waived : a disclosure that was merely negligent ca never effect a waiver because the holder of the privilege lacks a subjective intent to forgo protection a. Drawback – creates little incentive for attorneys to guard privileged materials/it undermines the confidentiality of communications D. Amgen Inc. v. Hoechst Marion Roussel, Inc. , 190 F.R.D. 287 (D. Mass. 2000) Electronic Discovery: A. Rule 26(g) : imposes an affirmative duty on the parties to engage in pretrial discovery in a responsible manner and imposes sanctions on parties who engage in discovery abuse, in order to deter evasion or excessive requests B. Qualcomm Inc. v. Broadcom Corporation , 2008 WL 66932 (S.D.Cal. March 5, 2008) Expert Testimony: A. Test: a. (1) preponderance of evidence is 50% + 1 b. (2) clear & convincing B. Test on Whether to Disqualify a Witness:

a. (1) Was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? b. (2) did that party disclose any confidential information to the expert? c. NOTE: The court should balance these questions against the public policy interests involved in expert disqualification. It should not be too easy to disqualify an expert witness, or else unscrupulous attorneys may retain the services of an expert solely for the purpose of disqualifying him. C. Cordy v. Sherwin-Williams Company , 156 F.R.D. 575 (D.N.J. 1998) Interrogatories: A. Rule 60(b)(3) : [on a motion to dismiss, the court may relieve party from final judgement/order if] fraud, misrepresentation, or misconduct by an opposing party B. Rozier v. Ford Motor Company , 573 F.2d 1332 (5th Cir. 1978) Examinations: A. Rule 35 : an independent physical or mental examination of a party when that party’s physical or mental condition is in controversy and only available if ordered by the court, on showing of good cause. B. Test: a. (1) in controversy b. (2) good cause has to be shown C. Schlagenhauf v. Holder , 379 U.S. 104 (1964) D. Spaulding v. Zimmerman , 116 N.W.2d 704 (Minn. 1962)

Dispositions and Adjudications

A. Summary Judgement—(dismissal motion post-discovery) a. 56:

1. No genuine issues of material fact
2. Moving party is entitled to judgement as a matter of law a. Burden is on moving party to prove no issue b. Mechanism devised to prevent jury trials b. Celotex Corp. v. Catrett , 477 U.S. 317 (1986) B. Motions for Judgement as a Matter of Law a. 50 (a)(1) —A court may grant a motion for judgement as a matter of law if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue i. Hernandez-Cuevas v. Taylor , 836 F.3d 116 ( st Cir. 2016) C. Settlement a. 16 —promotes settlement (did not discuss in class) b. 68 —if a timely pretrial offer of settlement is not accepted and the judgment finally obtained by the offeree is not mote favorable than the offer, the offeree must pay the costs incurred after the making of the offer

f. Express Statutory Foreclose: In certain circumstances a special statutory scheme may expressly foreclose successive litigation by nonlitigants...if the scheme is otherwise consistent with due process C. Taylor v. Sturgell , 553 U.S. 880 (2008)