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Civ Pro (Pleadings (joinder of parties and joinder of claims (Third…

- - - - GR: "Federal courts are courts of limited jurisdiction"
        
        fed court has jurisdiction if claim arise under federal law or is created by state law but depends on a substantial federal question.
        
        federal question
        
        based on questions arising from fed constitution, statutes, and treaties of the U.S.
        
        A defense based on a federal question is insignificant to est. federal jurisdiction.
  - - - diversity
        
        requires complete diversity of citizenship, and
        
        controversy over $75,000.
        
        To get the $75,000 threshold, a claimant may aggregate claims against a single defendant, but not against multiple defendants. Multiple claimants cannot aggregate claims.
        
        An individual's citizenship is determined by domicile.
        
        A corporation can be domiciled in its state of incorporation AND the state where its principal place of business is located.
        
        A partnership or association is a citizen of every state in which one of its members is a citizen.
      - If no SMJ then...
    - - federal court has discretion to consider pure state law claims if there is a common nucleus of operative facts between the state law claim and the federal claim.
        
        i.e. If federal claim is based on diversity jurisdiction, then only claim involving diverse parties may be added provided they arise from a common nucleus of operative fact. Does not need $75,000.
        
        i.e. If one claim is based on a federal question, then a state law claim with non diverse party is may be brought under supplemental jurisdiction, so long as they arise from a common nucleus of operative facts
    - - Defendants in state court may remove an action to the federal court that geographically embraces the state court if, (1) the federal court would have jurisdiction, (2) all defendants consent, and (3) a notice of removal is filed within 30 days of the service of the state court complaint.
        
        Notice must be served on all plaintiffs and on the state court.
        
        Removal is not allowed if any defendant is a citizen of the state where the action is pending... However this rule does not apply if claim is based on federal question.
        
        If federal jurisdiction does not exist plaintiff can remand back to the state court within 30 days of the filing of the notice of removal.
    - - in personam jurisdiction over parties
        
        (1) Exists if a person is located within the state by another domicile or service. Domicile exist if the person resides within the state and has expressed the intent to remain there indefinitely.
        
        (2) Exists if defendant is served with process well in the forum state, in personam jurisdiction exists even if his presence is temporary and even if his presence is unrelated to the lawsuit
        
        If defendant's presence in the forum state is due to force, fraud, or participation in another judicial proceeding service may not establish jurisdiction
        
        (3) Exists if the person consents.
        
        Implied consent
        
        State has a substantial interest in regulating non residents in a particular in-state activity
        
        i.e. Traffic laws. Driving with inane other state results in implied consent to personal jurisdiction in that state for traffic violations
        
        Waived
        
        Defendant fails to raise the defense of lack of personal jurisdiction in an answer or first responsive pleading. Defendant does not waive jurisdiction if he appears in court to contest jurisdiction
        
        Express consent
        
        (4) Exists over nonresidents through the operation of a state's long-arm jurisdiction even if nonresident did not consent
        
        Personal Jurisdiction if 1) Law of the forum must grant personal jurisdiction and 2) law forum is constitutional.
        
        Specific Jurisdiction if defendant does a specific activity enumerated in the statute.
        
        i.e. transacting business within state, entering into contracts within state, and committing tortious acts within state.
      - in rem jurisdiction over property that is subject of the claim.
        
        Based on the parties' interest in a particular piece of property located within the state.
      - quasi in rem jurisdiction over property that is attached to satisfy judgment in the action
        
        Exists in actions involving attachment of real or personal property as a part of the relief requested.
      - Plaintiff must establish personal jurisdiction over each defendant
      - Constitutional requirements:
        whether the defendant engaged in minimum contact such that it would not offend traditional notions of fair play in substantial justice. If yes, the issue becomes whether defendant purposely availed himself of the benefits of the forum state
  - - - Service is not required for an action to be considered commenced, but service must occur within 120 days of the filing up the complaint.
        
        Proper methods of service include: abode service, waiver, agent service, state methods, personal service
  - - - Even if court has subject matter and personal jurisdiction, plaintiff must also bring its claim in the proper venue.
        
        Venue is proper if:
        1) where any defendant resides, if all defendants reside in the same state;
        2) In the federal district where a substantial part of the claim arose or where the property is located; or
        3) Where the defendant can be found provided the court has personal jurisdiction, if there is no other district in which the action may otherwise be brought.
    - - Based on the doctrine of forum non conveniens
        
        NOTE: Substantial difference is given to the plaintiff's choice forum.
- - - - Rule 12(b) Defense must be filed with the first responsive pleading. If not, then waived.
        
        Rule 12(b) Defenses include:
        
        lack of personal jurisdiction
        
        Insufficient service of process or insufficient process
        
        Improper venue
        
        Failure to state a claim
        
        Failure to join a indispensable party.
        
        Also includes the defense of lack of subject-matter jurisdiction - Never waived and can be raised at any time, even by the court.
  - - - Affirmative defenses under rule 8(c)(1) include:
        
        accord and satisfaction
        
        arbitration end award
        
        assumption of risk
        assumption of risk
        
        contributory negligence
        
        discharge in bankruptcy
        
        duress
        
        estoppel
        
        failure of consideration
        
        fraud
        
        illegality
        
        injury by fellow servant
        
        laches
        
        licenses
        
        payment
        
        release
        
        res judicata
        
        statue of frauds
        
        statue of limitations
        
        waiver
  - - - Issue that can arise involves the relation back of amendments to conform to the statue of limitations
        
        if the amendment is a new claim, then it relates back to the day of a timely filed complaint if the new complaint derives from the same transaction or occurrence as the earlier timely filed complaint
        
        If amendment is a new party, relation back applies only if the amendment derives from the same transaction or occurrence, and the new party acquired knowledge within 120 days of the earlier timely filed complaint that but for a mistake in name it would have sued
  - - - if arises from the same transaction or occurrence, the counterclaim must be brought in that action - mandatory or compulsory counterclaim
        
        Failure to bring results in waiver of claim.
      - A def. has a permissive counterclaim when it seeks to join claims that do not arise from the same transaction or occurrence.
        
        Failure to bring claim does not equal wavier.
        
        no supplemental juris. exists because it did not arise out of the same transaction or occurrence and independent grounds for federal juris. must exist.
    - - Plaintiff must join indispensable parties where there would be prejudice any parties' right to a full and fair adjudication, including leaving an existing party subject to substantial risk of incurring multiple inconsistent obligations.
        
        A plaintiff my join as many claims as they have against a defendant regardless whether there is any connection between the claims.
    - - Impleader
        
        Def. may bring in a third party if that party may be liable to def. for all or part of the Def's liability to plaintiff.
      - Interpleader
        
        The holder of a common fund may file a lawsuit as a plaintiff and join as a defs all rival claimants to its common fund
      - Intervention
        
        A non-party moves to enter a lawsuit.
        
        As a right: non-party's interest will be adversely affected by the lawsuit and that right is not protected by the parties.
        
        Permissive: court has discretion to permit if there is a commonality of issues between those in the ongoing lawsuit and those affecting the intervener.
    - - The court has subject-matter jurisdiction under supplemental jurisdiction for compulsory counterclaims and cross-claims if they arise out of the same transaction or occurrence in the absence of an independent basis for federal jurisdiction.
- - - - Party has duty to supplement or be subject to exclusion of that evidence at trial
  - - - Of materials include attorney's mental impression, then never discoverable. All other forms are discoverable only with a showing of substantial hardship
- - - - A final judgement is one that disposes of all issues as to all parties.
        
        If judgement is a partial final order, in that it only resolves some of the issues, an interlocutory appeal can be requested.
- - - - May be used offensively by one who was not a party to the first action against one who was a party in the earlier suit.
        
        Courts are reluctant to permit offensive use. Will look to see if the plaintiff in the second suit could have jointed the first action; whether there are procedural opportunities available to the defendant in the second suit that were unavailable in the first; and whether the defendant had incentive to litigate the issue in the first action.