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- 1332 SMJ In order for the Louisiana federal court to have good SMJ under $1332 in the suit filed by Plaintitt Luke against Defendant United, LLC, the suit must satisfy the complete diversity requirement and the amount in controversy must exceed $75,000. Here both required showings can be made. The parties are diverse be- cause Plaintitt Luke is a Louisiana citizen and Defendant United, LLC, is a citizen of Delaware, Mississippi, and Texas. The amount in controversy is suflcient because the federal court can rely on inferences to be drawn from the facts in the Complaint, which show by a preponderance that Plaintitt Luke's likely recovery will exceed $75,000, given the cost of his medical bills, property damage, and lost wages. Plaintitt's domicile: Physically present and intent to remain indefinitely to change Each defendants domicile Non corporate entities have the citizenship of its members Corporate: state of incorporation and PPB According to Hertz, the "nerve center" state is the one in which a corporation's "high level oflcers direct, control, and coordinate the corporation's activities," which in practice "should normally be the place where the corporation maintains its headquarters." AIC: must exceed 75k. Can aggregate against a single defendant
- 1332 smj and changes after fil- ing
- Defendant 3p complaints SMj
passed 2 / 29 The post-filing event of a change of citizenship of a party in a diversity suit is irrelevant to the issue of subject matter jurisdiction. This is because the time for determining the citizenships of the parties is on the date of the filing of the Plain- titt's Complaint in federal court. On the date of filing here, Plaintitt Tractor Town, LLC, was a citizen of Louisiana and Defendant Molly was a citizen of Mississippi. Thus, the complete diversity requirement was satisfied on the date of filing, If the federal court grants Defendant 's motion for leave to file a third-party complaint against Pat with an impleader claim under FRCP Rule 14, the court still vs amended com- will have subject matter jurisdiction over Plaintitt Luke's diversity suit. plaint SMJ Here it appears that the federal court will grant United's motion because its
passed 4 / 29 the roof collapse and whether United was aware that the boathouse was being constructed out of low quality and unsafe materials supplied by Pat. (b) If the federal court grants Plaintitt Luke's motion to amend his Complaint adding
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- Defendant 3p complaints SMj Third-Party Defendant Pat as a Defendant, then the court will no longer have good subject matter jurisdiction over the Plaintitt's suit. Neither $1332 nor §1367 may be invoked to allow the exercise of such jurisdic- tion.First, $1332 precedents do not allow Plaintitt Luke to violate the complete vs amended com- diversity requirement by the simple expedient of amending his Complaint to add plaint SMJ pt 3
- Removal Proce- dure a non-diverse Defendant such as Third-Party Defendant Pat. APPLY. The only way to preserve good §1332 SMJ would be to deny Plaintitt Luke's motion to amend. Second, the federal court cannot exercise supplemental jurisdiction under §1367 over Plaintitt Luke's claim against D3rd Pat because of the express statutory pro- hibition in $1367(b). This prohibition applies to the addition of "persons made parties" under Rule 14 in a suit in which $1332 is the basis for SMJ. Here, Pat is such a party because the procedural basis for Plaintitt Luke's claim is Rule 14. The §1367(b) prohibition applies here because the exercise of supplemental jurisdiction over Plaintitt Luke's Rule 14 claim would be "inconsistent" with the §1332 requirement of complete diversity, given the lack of diversity between Luke and Pat There are six steps that counsel for the Defendant Cajun's must follow to remove the state court suit by Plaintitt George to federal court. First, as required under $1441(a), counsel for Defendant Cajun's should file a timely Notice of Removal in the proper federal district court. This is the court in the federal district that encompasses the location of the state court in which the suit was filed. When filing the Notice of Removal, counsel for Defendant Cajun's should take note that under §1446(b)(3), the 30-day period to file the Notice will run from the date of Defendant's receipt of the medical
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- after removal steps and grounds to re- turn to state court Third, under $1446(a), counsel for Defendant Cajun's should sign the Notice pursuant to FRCP Rule 11 and attached a copy of all state court "process, pleadings, and orders" to the Notice. Fourth, under $1441(a), when filing the Notice in the Western District of Louisiana, counsel for Defendant Cajun's should file the Notice of Removal and the attached state court documents together. Fifth, counsel for Defendant Cajun's should serve Plaintitt George with a copy of the Notice of Removal and all the attached documents, along with a memo explaining the reasons why the suit was removed. Sixth, counsel for Defendant Cajun's should promptly file a copy of the Notice of Removal, the attached documents, and the memo with the state court in which Plaintitt George filed his suit. This filing by the Defendant will ettect the removal of the suit to federal court. a. Plaintitt George (a Georgia citizen) might object to Defendant Cajun's removal of the suit on the grounds that Cajun's is a Louisiana citizen - and therefore, a citizen of the forum state in which the state court suit was filed. Since Defendant Cajun's presumably would rely on 1332 SMJ as the basis for removal, Cajun's forum state citizenship would create a removal procedure defect under $1441(b). Therefore, after removal, Plaintitt George would be entitled to the return of the suit to state court. b. Plaintitt George must file a Motion to Remand in order to seek a return of the case to state court. Under §1447(c), Plaintitt's Motion to Remand must be filed within 30 days of the date when the Defendant filed the Notice of Removal. If a timely motion is not filed, then Plaintitt will be deemed to have waived any potential objections to any defects in removal procedure. c. The ettect of Plaintitt George's delay in answering discovery is that the federal court will allow Defendant Cajun's to remove the state suit to federal court under $1446(c)(3)(B), notwithstanding the fact that the removal occurred more than one year after Plaintitt filed his state court suit. Plaintitt
passed 8 / 29 George cannot require the federal court to enforce that time limit because he acted in bad faith by "deliberately failing to disclose" the actual amount in controversy "in order to
passed 10 / 29 material fact," and also show that Defendant is "entitled to judgment as a matter of law." The federal court must construe the facts in the light most favorable to the non-movant Plaintitt George. Since afldavits have been ottered by both Defendant Cajun's and Plaintitt George, the court must determine whether each of the afldavits will satisfy the Rule 56(c) requirements that any afldavit: 1) must be "based on personal knowledge"; 2) must set forth "facts that would be admissible in evidence"; and 3) must show that the aflant is competent to testify on the matters stated." i) The federal court's analysis of the submissions by the parties. First. the court will analyze the submissions of the Defendant Cajun's by assessing whether Cajun's, as the movant, has adequately supported its assertion that there is no "genuine dispute as to any material fact" by its citations to material in the record. Defendant Cajun's has attempted to establish the fact that Plaintitt George's "slip and fall" accident near the kitchen never happened by using the afldavits from the chef and the former co-worker. However, neither afldavit shows the absence of a genuine dispute as to the existence and cause of the accident. The chef's afldavit showed that she "saw" Plaintitt George "walk by the kitchen" and "did not see him fall." But this afldavit does not establish either the fact that the chef was in a position to see the continuous action of the Plaintitt at all times or the fact that the chef never stopped watching the Plaintitt. Also, the afldavit from the former co-worker is not relevant because this afldavit does not reveal any personal knowledge concerning the Plaintitt's "slip and fall" accident.
passed 11 / 29 MSJ Standard and Next, the federal court will analyze the submission of Plaintitt George to determine Analysis and Rul- ing pt 2
- Discovery: work productivi- ty/atty/client and general buisness records whether, as the non-movant, Plaintitt can show that there is a genuine dispute as to a material fact, and can cite to evidence in the record to support this assertion. By ottering his own afldavit, which states that he did slip and fall Is alleged in his petition, Plaintitt George satisfied the requirement of Rule 56(c) by properly supporting an assertion of fact. Plaintitt's testimony in his afldavit would provide a showing that there is evidence in the record to support the existence of a genuine dispute between Plaintitt and Defendant Cajun's.The Plaintitt's afldavit also would provide further support for the court's denial of the Defendant's motion based on the conflict between the afldavits in the record by Cajun's chef and by Plaintitt George. This conflict would illustrate why the Defendant failed to show that there is no "genuine dispute as to any material fact." Only the trier of fact can resolve the genuine factual dispute by considering the credibility of the witnesses who submitted afldavits, as well as the value of additional evidence that may be admitted at the trial.b. Why the federal court should deny Defendant Cajun's Motion for Summary Judgment. The court should deny Defendant Cajun's motion because it has not shown the absence of a genuine dispute about the occurrence of the accident and has not shown that it is "entitled to judgment as a matter of law." The court cannot assess the credibility of witnesses or weigh the evidence when ruling on a Rule 56 motion. Therefore, the court cannot assess Defendant Cajun's challenge to the credibility of Plaintitt George, as presented in the contradictory afldavit with the chef's testimony. The credibility of the witnesses must be assessed by the fact-finder at trial. First, according to FRCP Rule 26(c)(3), Defendant Cajun's is not required to pro- duce the letter from its owner to Plaintitt George. This letter is protected by the work product doctrine because it reveals the
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- Discovery: work productivi- ty/atty/client and general buisness records pt 2 Plaintitt George may not discover documents prepared in anticipation of litigation or for trial, either "by or for" a party like Defendant Cajun's, a party's representative like the owner, or a party's attorney. Here the letter was sent to the Defendant Cajun's attorney because of the attorney's request to "gather up all paperwork and records" relating to the "restaurant's maintenance and clean-up procedures." Second, Defendant Cajun's also may invoke attorney-client privilege regarding the owner's letter under Rule 26 (b)(5). (B). That provision allows a party to withhold information otherwise discoverable by claiming that the information is privileged. Defendant Cajun's can assert the privilege because the owner's letter was a confidential communication made in furtherance of obtaining legal services from the attorney who asked the owner to gather the relevant paperwork for the defense of the lawsuit. The letter is confidential because it was not intended to be disclosed to persons other than the attorney representing Defendant. Here Defendant may describe the nature of the letter's content in a way that enables the Plaintitt to assess the claim of privilege, without actually revealing the privileged information b. Defendant Cajun's is required to produce the business records delivered by the owner to Defendant's attorney.Under Rule 34, the business records described in Plaintitt George's request for document production must be produced, assuming that they are discoverable under Rule 26 as any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. The business records were described as required by Rule 34 with reasonable particularity in Plaintitt George's request, which mentioned "business records of any kind that reference or are related to maintenance and clean-up procedures implemented by Cajun's."
- Erie According to the interpretation of the Erie doctrine in Hanna v. Plumer; the federal court should not apply the first Louisiana statute that requires
passed 14 / 29 the mandatory initial disclosure of any audio or video recording of one party in the possession of another party before the recorded party sits for a deposition. This is a state procedural rule and it directly conflicts with the relevant federal
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- General or Specif- First, it is clear that the federal court in Louisiana may not exercise, general ic JDX (^) personal jurisdiction over Defendant Sturdy Sheds, LLC, because as a Louisiana LLC, the Defendant is not a corporation with the minimum contacts that may be
passed 17 / 29 deemed to show that the Defendant is "essentially at home" in the forum state. Under Goodyear and Daimler, the paradigm "at home" factors that would create minimum contacts for a corporation would be the incorporation of the corporation in a particular state or the location of its principal place of business in a particular state. But Sturdy Sheds, LLC, is a non-corporate entity that does not qualify under $1332(c) for the possession of either of these factors. The fact that Sturdy Sheds, LLC, is "a Louisiana LLC" does not create an at home factor under Goodyear and Daimler. Second, however, it appears that the federal court in Louisiana may exercise specific personal jurisdiction over Defendant Sturdy Sheds, LLC, because this entity has minimum contacts with the Louisiana forum that arise out of and relate to the Plaintitt's claims. First, the minimum contacts for the tort claim seeking reimbursement for the medical bills (and for the pain and suttering damages that may be inferred) arose when Sturdy Sheds, LLC, delivered the shed package to the Plaintitt's home in Louisiana, which is where the defective shed collapsed and injured plaintitt.
- General or Specif- Third, the facts describe the Plaintitt as ordering a shed package from Sturdy ic JDX pt (^2) Sheds "over the internet" for $10,000. It may be inferred from this statement that the Plaintitt used an interactive website to obtain the package. According to Fifth Circuit precedents, purposeful availment of the privileges of conducting activities in a state forum is demonstrated when a non-resident defendant operates an "interactive" website that allows customers residing in that state to place an online order and thereby purchase goods or services. In the absence of Supreme Court case law defining the circumstances under which the operation of a website may demonstrate purposeful availment, the Fifth Circuit has endorsed the Zippo test used in the lower federal courts, from which the criteria for purposeful availment have been derived.
passed 19 / 29 Plaintitt's causes of action arose out of or resulted from Defendant's forum- related contacts, namely internet sale of the shed package. Second, the minimum contacts for the property claim (for the damage caused to the tractor and the shed) also arose when the accident occurred at the Plaintitt's home in Louisiana.
- General or Specif- Finally, the Fifth Circuit's third requirement is also satisfied because the Louisiana ic JDX pt
- 12(b)(6) Stan- dards federal court's exercise of personal jurisdiction over Defendant would be fair and reasonable according to the five traditional Due Process factors: 1) It will be unduly burdensome for Defendant to defend the suit in the Louisiana forum in which the company intentionally made sales: 2) The Plaintitt has an interest in obtaining convenient and ettective relief - and since Plaintitt is a Louisiana citizen, the federal court in Louisiana presumably will be a convenient forum for him; 3) Louisiana has a strong interest in protecting its residents from defective products like the defective shed that caused the severe injuries to the Plaintitt, 4) Most of the key witnesses and evidence are located in Louisiana, where the defective shed was delivered and where it collapsed; 5) The fifth Due Process factor is the concern with the advancement of social policy, considering the availability of alternate forums. Since Defendant is a Louisiana LLC but not "at home" in that state forum, it would be fair to expect the company to defend a suit in Louisiana, even though it is not subject to general jurisdiction because it is missing the "at home" factors that a corporation can have. If the Plaintitt drove to Sturdy Sheds' facility in Mississippi to obtain the shed package and then drove it back to his Louisiana home, this change in the facts would not deprive the federal court of specific personal jurisdiction over Sturdy Sheds. Even though one of the Fifth Circuit's three Zippo requirements would not be satisfied - that the Plaintitt received a shipment from the Defendant for the internet transaction. But the same minimum contacts with the Louisiana forum would arise out of
passed 20 / 29 and relate to the Plaintitt's tort and property damage claims. n assessing Defendant's Motion to Dismiss pursuant to FRCP Rule 12(b)(6), the court will rely on the Twombly standard. Under that standard, the court will dismiss Plaintitt's Complaint if Defendant can show either: 1) that Plaintitt's two claims
