Civ Pro Outline 2

8/2/2019 Civ Pro Outline 2

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I. SUBJECT MATTER JURISDICTION4 Questions to Ask to Determine Subject Matter Jurisdiction:

1) Is it a state court? No Limits Besides Exclusive Federal Statutes2) Federal Court:

a. Federal question? Art. III + 1331 + exclusive federal statutesi. Cause of Action arising under federal law?

1. Does it meet the constitutional standard?2. Does it meet the statutory standard? 1331

ii. If it is a statute:1. Cort v. Ash Test?2. If no private right of action stated/implied: Is there a substantial

federal interest/construction required?

b. Diversity of Citizenship + > $75,001?i. Complete diversity? (Strawbridge)ii. Citizenship of parties on day of institution?

iii. Amount in controversy? Can claims be aggregated?c. Supplemental Jurisdiction?

i. CNOF + 13673) Removal Applicable?4) Has Anyone Collaterally Attacked? AND REMEMBER: Neither Party Can Waive SMJ!

1. STATE COURTS:General JurisdictionLacks v. Lacks(NY, 1976):state courts are courts of general jurisdiction (original, unlimited, and

unqualified jurisdiction)

1) Although state jurisdictions may choose (for convenience purposes) to divide their courtsinto matrimonial, civil, etc., all state courts have the power to hear any case2) This excludes areas of exclusive jurisdiction of the federal courts (copyrights, patents,

bankruptcy,

3) FELA cases can always be tried in the court of the employees choosing2. FEDERAL QUESTION JURISDICTION: Article III + 1331 + Exclusive Federal Statutes

A) Applicable Laws/Statutes:1) Article III: Judicial Power shall extend to all Cases arising under the Constitution, the Laws

of the United States

2) 1331: The district court shall have original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States3) 1334: bankruptcy (exclusive); 1337: commerce, antitrust (original); 1338:patents, copyrights (exclusive), trademarks (original); 1343: some civil rights;

elective franchise (original); 1345/1346: US is a P/D (original, except for money or

land title)

B) What does arising under mean?1) Ingredient Test: Osborn v. Bank of US(1824): Bank of US brought suit in federal court to

enjoin state auditor of Ohio from collecting a tax alleged to be unconstitutional


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(a) Ingredient testThe act *of Congress+ is the first ingredient in the case, is its origin, isthat from which every other part arises

(i) Very expansive view of federal jurisdiction under Article III (Constitutional Std)(b) Jurisdiction granted

2) Well-Pleaded Complaint: Louisville & Nashville R. Co. v. Mottley(1908): Railroad gaveMottleys free transportation for life, but stopped giving passes because act of Congress

forbade free transportation on railroads

(a) Well Pleaded Complaint Rule(i) Federal Issue must arise at genesis, not as a possible defense(ii) Must be a necessary component of the cause of action (law that creates it)

(b) Narrower interpretation of 1331. (Statutory std)(c) Jurisdiction denied (raised by court)

3) Creates Cause of Action: T.B. Harms v. Eliscu (1964): copyright infringement issue(a) Creates cause of action standard applied (fromAmerican Well Works, Holmes)

(i) Here, case relied on contract lawdidnt turn on the copyright issue.(b) Jurisdiction Denied

4) Statutory Federal Question Standard:(a) If remedy for cause of action is granted by federal law (expressly or implied)

(i) Cort v. Ash Four-part test (1975):(a) Class of plaintiffs?(b) Legislative intent (implicit or explicit)?

1. If the statute is silent either say that it means that Congress did not intenda private right of action or say that it allows for flexibility

(c) Consistent with underlying purpose to imply remedy for P?(d) Is this traditionally state law (fed law would be inappropriate)?

(ii) IF NOimplied private right of action:(a) If the cause of action requires determination ofconstruction/application of

federal act/statute (and substantial federal interest), then federal question.

(b)

Check federal interest in interpreting law vs. state interests in case.5) Statutory Federal Question Standard Applied:

(a) Is there a necessary interpretation of federal law?(i) Smith v. Kansas City Title & Trust(1921): shareholder sued to enjoin Trust company

from investing in federal bonds because Act of Congress authorizing their issuance

was unconstitutional

(a) Cause of action created by state, but right to relief depended on construction(b) If it depends of Construction of US laws, federal question

1. Here, interpretation of bonds create jurisdiction2. Substantial federal interest in resolving tax laws

(ii) Moore v. Chesapeake & Ohio Railway(1934): cause of action brought under stateEmployer Liability Act, but key issue is whether defendant failed to comply with

federal act

(a) Despite federal statutory question, no jurisdiction existed.(b) Contradicts Smith, but may be reconciled because not a great chance of national

significance (less federal interest)

(b) Is the remedy granted by federal law?(i) Merrell Dow Pharmaceuticals Inc. v. Thompson (1986): Plaintiffs sue Merrell Dow in

state court because drug caused children to be born with multiple deformities;

Merrell Dow removed case to federal court for federal question jurisdiction; claim


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filed under Ohio negligence law, but misbranding under federal act in one count

(Private right of action must be contemplated by federal statute or regulation for

this to qualify as a claim arising under)

(a) Ultimately a fight between those who believe it was closer to Smith and thosewho believe it was closer to Moore (5 Stevens/4 Brennan Decision)

1. Majority Unlike Smith no great federal interest; Similar to Moore notmuch impact on the federal government.

(b) Ps right to relief must depend necessarily on a question of federal law1. Here, statute did not intend private remedy (uses Cort v. Ash test), so no

jurisdiction

(c) Dissent: Uses Smith to argue that there was interpretation of federal lawnecessary.

(ii) Empire Health v. McVeigh (2006): Statute does not create federal right of action(a) When a statute is silent, we can generally assume that Congress did not intend

to extend a right of federal jurisdiction.

(iii)Grable & Sons Metal Products v. Darue Engineering & Manufacturing(2005): IRSseized property belonging to Grable and sold property to Darue; Grable claims

Darues title is invalid because IRS failed to notify Grable of seizure in mannerrequired by statute (personal service)

(a) Even though no federal cause of action, can be tried in federal court becausenation interest in a federal forum is great

(b) Clear interest of the government in land sale/tax litigation trumps any state titlelaw

(c) Compared to Merrel Dow:1. Grable turns on federal conduct (obviously, a federal interest)2. Merrel Dow turns on the behavior of the labeling company (insignificant)

(c) Current Law: A state law private action that alleges a violation of a federal statutearises under the laws of the US only if Congress intended to provide a federal remedy

for the statutory violation (or has substantial interest).

YES JURISDICTION NO JURISDICTIONOsborne (Bank ingredient test) Moore (State interests trump)

Smith (bonds) interpretation of fed law Mottley not within cause of action

Grable (taxes) national interest + no problem

with division of state and federal law

Eliscu (copyright) did not create cause of

action

Merell Dow(branding drugs) no federal

interest + state division of labor

3. DIVERSITY OF CITIZENSHIP AND AMOUNT IN CONTROVERSY:1332 + $$$A) Applicable Law/Statutes:

1) Art III, Section 2: judicial power shall extend to all cases arising between citizens of differentstates.

2) 1332 provides neutral forum for people of different states to litigate.(a) Citizens of different states; citizens of a state and citizens or subjects of a foreign state;

citizens of different states and in which citizens or subjects of a foreign state are

additional parties; a foreign state, as P and citizens of a state or different states.

B) Diversity of Citizenship:


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1) There must be Complete Diversity:(a) Strawbridge v. Curtiss (1806): establishes complete diversity bright-line rule

(i) Every plaintiff must be from a different state from each defendant(ii) If diversity exists due to potential prejudice against an out-of-state resident, that

prejudice cant exist if the same state is on both sides of the dispute

(iii)Not constitutional statutory interpretation of Federal Judiciary Act of 1789(b) Three Exceptions:

(i) Interpleader (1335): Diversity as long as two claimants are citizens of differentstates

(ii) Multi-forum Multiparty Act (1369): In mass disasters involving at least 75 people,diversity exists as long any 2 people involved in mass disaster come from different

states

(iii)Class Action Fairness Act (1332): If any member of the class is diverse fromany defendant, federal courts have original or removal jurisdiction as long as

the aggregate value of the classs claim >$5 million

2) 1359: No constructed diversity (Rose)3) Determining Diversity:

(a) Citizenship: Determined at the time the action is filed(i) Individuals: Domicile = citizenship

1) Domicile = physical presence PLUS intent to remain for indefinite future(a) Acquired domicile remains until both factors co-occur(b) Common multiple homes or work in one state/live in another(c) Need to look for center of gravity of life (Zuckerberg)

2) Mas v. Perry(1974): citizenship = domicile(a) Students do not change their domicile to the state of their school if

they do not intend to remain there past graduation

(b) Even if you dont intend to return home, you are domiciliary of yourhome state until you acquire a new domicile

3)

Forks in the Facts:(a) Stateless persons cannot invoke diversity jurisdiction(b) American citizen who is a domiciliary of a foreign nation is not a

domiciliary of any state cannot invoke diversity jurisdiction

(Elizabeth Taylor)

B) Alien: alienage jurisdiction (Art. III)1) Aliens as both plaintiff and defendant: cant sue in US courts2) Permanent resident aliens are domiciled in the state where they live

for jurisdictional purposes

3) If aliens are permanent residents of the same state, cant sue in federalcourt

C) Corporations: state of incorporation (often Delaware) + principal place ofbusiness

1) Principal place of business: [Will have to argue for one of 3 tests coverthem all]

(a) Muscle test manufacturing/service provision(b) Nerve Center test executive headquarters(c) Total Activities test case by case determination of center of gravity

2) Corporation = 2 people, although state of incorporation and principalplace of business may be the same


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D) Unincorporated Associations: cumulated citizenship of all members1) Includes labor unions, law firm partnerships and fraternal organizations2) If an association has members in all 50 states, it cannot sue or be sued

in federal court under diversity jurisdiction (only federal question

jurisdiction) (See Carden v. Arkoma)

3) NOTE: different when defendant in class actionE) Representative actions:

1) Includes: infants, infirm, deceased; class action, trusts, shareholders2) Historically, citizenship = representative, not represented (1332(c)(2))

(a) Problem: fabricate diversity by choosing an out-of-staterepresentative

3) Now, representative is deemed to be citizen of state ofdecedent/infant/incompetents

(a) Exceptions trusts, class actions, shareholder derivative suitsrepresentatives citizenship still applies

F) Judicially developed exceptions to diversityjurisdiction: Probate andMatrimony

1) Deeply embedded in state policy, expertness and competence leave itto states

C) Amount-In-Controversy:1) Accept damage allegation unless it is shown to a legal certainty that amount cannot be

reached (AFA Tours v. Whitechurch (1991) good faith standard)

(a) Injunctive relief makes determining the value of a claim difficult(i) Can guess at the value from either the plaintiff or defendants viewpoint

(courts are divided on what is appropriate)

2) Aggregation of claims:(a) Individual plaintiff can add his unrelated claims up against an individual defendant to

come up to amount in controversy requirement

(b)

Cannot aggregate multiple plaintiffs claims against a common defendant or single Pagainst multiple Ds

(i) But, if multiple plaintiffs rights are indivisible (contract, inheritance, etc.),then you can aggregate their claims common and undivided interest

3) Class actions:(a) Historically, each individual claim must satisfy amount in controversy minimum(b) But: Class Action Fairness Act: $5 million aggregation for federal jurisdiction (+ minimum

diversity)

4) Amount in Controversy: Example of Congresss ability to limit federal jurisdiction (not inArticle III or Constitutional at all) just for docket clearing purposes.

5) Excludes costs and interestsincludes attorneys fees2. SUPPLEMENTAL CLAIMS IN FEDERAL COURTS: 1367 And CNOF

A) 28 USC 1367:(a) In action where Federal courts have original jurisdiction, they have

supplemental jurisdiction on all claims that are part of the same case or

controversy under Article III, (excluding exceptions in b and c) *Codifies Gibbs

really means CNOF for all intents and purposes]


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(i) (Some question here- If C&C is broader than T&O then all 13As aresupplemental, or if T&O is broader possible some 13As arent

supplemental)

(b) Diversity [ 1332] NO Supplemental IF [Kroger](i) ORIGINAL PLAINTIFF brings claim under:

(a) Rule 14 (Third Party) (need separate state action)(b) Rule 19 (Compulsory Joinder of Parties) (remedy prejudice!)(c) Rule 20 (Permissive Joinder of Parties)(d) Rule 24 (Intervention)

(ii) AND, other requirements of 1332 arent satisfied(a) Textually: both Amount in Controversy and Diversity(b) In practice: Really, just diversity [Allapattah]

(iii)Categories immune to this exception: Rule 23 (class actions), Rule 13(a)(a) If defs counterclaim is compulsory under Rule 13a (same T&O),

then court will allow ancillary jd over the counterclaim

(b) If counterclaim is permissive under Rule 13b, it will not(c) District courts may decline to exercise supplemental Jur. IF

(i) Novel/complex issue of state law(ii) Claim predominates over the initial claim that serves as basis for SMJ(iii)District court has dismissed all claims over which it has J(iv)Exceptional circumstances with other compelling reasons

(a) Remember: An incidental federal question will not be enough if theclaim is primarily state-based (no fabricating federal q jurisdiction)

(d) Supplemental claim tolls while waiting for federal judge to rule, and for 30 daysafter dismissal.

2) Remember:(a) If you have original jurisdiction over a proper counter/cross/claim etc., do not

invoke supplemental jurisdiction (make sure there is a problem with diversity or

federal question)

(b) You can append a state claim to federal claim in fed court if:(i) 1367(a) CNOF(ii) Federal case predominates

(c) Supplemental Jurisdiction is always discretionary(d) WATCH OUT for cases that invoke federal language but arise under state law(e)

1367 ONLY applies to SMJdoesnt satisfy PJ or service of process3) Old way: pendant and ancillary jurisdiction

(a) Pendant: when P. appends a claim lacking an independent basis for fed SMJjurisdiction to a claim possessing such a basis

(b) Ancillary: when either P. or D. injects a claim lacking independent fed SMJ viajoinder (counterclaim, cross-claim, 3rd party claim) that comes from same T&O

as original claim that does have fed SMJ

B) Supplemental Beginnings:


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1) Hurn v. Oursler(SCOTUS, 1933): P sued for copyright infringement (federal) and unfaircompetition (state). Federal claim was rejected on the merits, but the court still had

jurisdiction to decide the state claim.

2) United Mine Workers v. Gibbs(SCOTUS, 1966): D was hired as a minesuperintendant/coal hauler by a company that had just fired 100 UMW workers.

UMWs local violently prevented the opening of the mine. D lost his job, sued underTN common law and Congress Labor Relations Act; trial court set aside damages for

second claim. Yes pendant jurisdiction.

(a) CNOF standard basically redefined what a Constitutional case or controversy is, for thepurposes of those words in Art. III codified later into 1367(a).

C) Pendant Party Jurisdiction:(a)Aldinger v. Howard(SCOTUS, 1976): P sued two county employees under civil

rights act, but couldnt get county except on state law claim; P argued CNOF. No

pendant J, cant join entirely different defendant on a claim over which there

is no independent basis of federal jurisdiction

(b) Owen Equipment v. Kroger(SCOTUS, 1978): P sued power company, whobrought in D (14a), then won on summary judgment, destroying diversity. No

more SMJ; analysis must extend beyond Gibbs.

(i) Becomes 1367(b)(c) Finley v. US (SCOTUS, 1989, Scalia): Federal claim, combined w/ state-law claim

against non-diverse D. Although pendant claim J is OK, pendantpartyclaim is

not, perAldinger.

(i) Jurisdiction created by two things(a) Const courts capacity to take it(b) Act of congress must supply it.

(ii) NOT GOOD LAW! Led to the enactment of 1367(b)(d) Exxon v. Allapattah(SCOTUS, 2005, Kennedy): If 1 P meets AoC, 1367

authorizes supplemental jurisdiction over related class action claims.

(i) OverturnsZahn, which refused to apply 1367 to class actions.(e) Executive Software N. Am. v. United States Dist. Court(9th Circuit, 1994):

District court erred in remanding pendant state claims without relying on 1367.

(f) Recently: Judiciary has become more and more conservative about assertingsupplemental jurisdiction

D) Public Policy Reasons for Supplementary Jurisdiction:1) Pro: Efficiency (we have everyone here), Fairness to either party so they

dont have to fight on two fronts, Dont dissuade people from exercising afederal right by allowing them to combine their claims only in state court.

2) Against: Supplemental jurisdiction expands the scope of the federal courts atthe expense of federalism and state courts. It also allows clever lawyers to

use supplemental jurisdiction as a facade

3. CHALLENGING SMJ:A) How to do:

1) Direct Attack


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(a) Rule 12(b)1: motion to dismiss for lack of SMJ(b) Rule 12(h)3: Court MUST dismiss if it finds lack of SMJ(c) PJ v. SMJ

(i) Ruhrgas v. Marathon (SCOTUS, 1999): D removes. District court dismissesfor lack of PJ before considering whether it has SMJ. B/c both are

constitutionally required, no reason why one must be decided first.

2) Collateral Attack (against judgment enforcing diff. outcome)(a) Judgment in contested action is beyond collateral attack UNLESS

(i) No justifiable interests of reliance(ii) One of three:

(a) SMJ was so silly that entertaining the action was a manifest abuse ofauthority.

(b) Judgment would substantially infringe on other tribunals authority(c) Tribunal lacked capability to make informed determination of

jurisdiction

(b) Default judgment collateral attack allowed on:(i) SMJ(ii) PJ(iii)Notice.

II. PERSONAL JURISDICTIONFive Questions to Ask to Determine Personal Jurisdiction:

1. Is there a traditional base of personal Jurisdiction (cover all 4)?2.

If theres no traditional base, does the long-arm statute apply (specificjurisdiction)?3. If Long-arm statute applies, is its application Constitutional?

a. Go through general information specific to hypo givenb. Minimum contacts/General Stream of Commerce (Shoe, McGee, Gray)?

i. Effects Test (Calder)?ii. Purposeful Availment (Keeton, not Hanson,Kulko, or Volkswagen)?

c. Fairness (Burger King, Four FactorsAsahi)?i. Stream of Commerce PLUS (Purposeful DirectionAsahi)

4. If no specific jurisdiction, is there general jurisdiction?a. Standard for general jurisdiction is high (need continuous and systematic activity -

Perkins, not Helico)

(Side Q: Iftechnology, see Pebble Beach to determine activity level)

5. If no other wayquasi in rem jurisdiction (Shafferand same minimum contacts test)1. TRADITIONAL BASES FOR JURISDICTION Physical PresenceDomicileAgency

ConsentA) Territoriality and Physical Presence:

1) No state can exercise direct jurisdiction and authority over persons or property without its


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territory

(a) Pennoyer v. Neff(1877): Oregon seized Neffs (whereabouts unknown) propertythrough publication. Neff was not in Oregon, and could not serve a non-resident via

publication

2) But a state can always exercise territoriality over someone within its borders(a) Burnham v. Superior Court(1990): D (NY resident) in CA on business, where divorced

wife sued him for personal reasons. SCOTUS said that territoriality is based on state

sovereignty and should be retained. (Scalia tradition!)

(b) Grace v. MacArthur (1959): Passenger flying over Arkansas was legally served(c) Exception: If you are in the state involuntarily (plane emergency landing ex)

3) A corporation may be considered present if it is doing business in a state.B) Domicile:

1) Like citizenship in SMJbut dont necessarily need physical presence (Florida is my domicilebecause I am a FL citizen, until I intend to move to NY permanently).

C) Agency1) If you can grab the agent, you can grab the individual2) Examples: Corporate agent, partnership agent, or an individual citizens agent3) Szukhent: Flo Weinberg serves as agent for service of process

D) Consent:1) Express:

(a) M/S Bremen v. Zapata Off-Shore(1972):Provision in contract stipulates that alldisputes were to be litigated before London Court of Justice; Zapatas rig damaged in

storm off Florida sues in Florida federal court

(i) American action is dismissed consented to jurisdiction in London(ii) Expansion of American industry internationally is harmed when, in the face of

contracts that say otherwise, Americans insist on the parochial concept that all

disputes should be resolved in our courts under our laws

(b) Carnival Cruise Lines v. Shute (1991): Shutes pays local travel agent for cruise from LA toMexico; no sense of Florida being involved in this transaction; Contract says that alldisputes will be litigated before a court in Florida

(i) Supreme Court upholds enforceability of forum-selection clause sanctity ofcontract

(a) Cruise ship carries passengers from all over a mishap could subject thecompany to litigation in many different fora

(b) Ex ante establishment of forum reduces confusion, cost, and judicial resourcesdevoted to determining correct forum (may even reduce fares)

(c) Understandable that entities want predictability, comfort with location2) Implied:

(a) Hess v. Pawloski(1927): The use of a highway by a non-resident is equivalent of theappointment of the Dept. of Motor Vehicles as an agent for service of process.

(i) Facts: Hess (D), driver from PA, negligently struck and injured Pawloski (P) on aMass. Public hwy. Process served to registrar of state as an agent. Hess received

actual notice. Hess filedplea in abatement(contests place, time, or method of

asserting the claim). =Service valid.

(ii) A move away from literal interpretation of territoriality in Pennoyer.2. EXPANDING THE BASES:


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Minimum Contacts Equaling Fair Play and Substantial JusticeA) International Shoe v. Washington (1945)B) Facts: International Shoe based in MO, incorporated in DE and has no office in Washington.

Makes no contracts for sale/purchase of merchandise, no inventory there (they rented hotel

rooms and showed one shoe to the customers); Employed salesmen in Washington; Salesmen

have no power to contract, but displayed samples and solicited orders (Presence game); Statesued for failure to contribute to WA unemployment compensation scheme.

C) RULE: When contact with the state is systematic and continuous and the company receivesbenefits and protection of the laws of the state

1) Four categories of cases:Type of Conduct Nature of Cause of

Action

Jurisdiction Examples

(1) Continuous and

Systematic

Arises from that

Conduct

Specific Jurisdiction International Shoe,

McGee, Burger King

(2) Continuous and

Systematic

Does not arise from

that Conduct

General Jurisdiction Perkins v. Benguet

Mining

(3) Isolated and

Sporadic

Arises from that

Conduct

Specific Jurisdiction

MAYBE (depends on

the nature and quality

of the act) (Does

anticipate being

hailed into that

forum?)

Yes: Hess v. Pawloski,

Gray,

No: Volkswagen,

Asahi

(4) Isolated and

Sporadic

Does not arise from

that Conduct

No jurisdiction (not

fair play)

Hanson v. Denckla,

Helicopteros

2) Minimum Contacts Equaling Fair Play and Substantial Justice =(a) Two part test:

(i) Does the defendant have minimum contacts with the forum state (quality andnature of activity)?

(ii) If so, would asserting personal jurisdiction comport with fair play and substantialjustice (14th Amendment and fair administration of law)?

(b) Split burden on 2 halves ofShoe test:(i) On question of minimum contacts, burden is on party asserting jurisdiction(ii) On question of reasonableness of forum, distant forum abuse, burden is on party

denying jurisdiction

(c) Remember: The cause of action (minimum contact) must be related to the forum =arising in that forum

(d) Minimum contacts performs 2 functions: (Worldwide Volkswagen)(i) Protects defendant against burden of litigating in distant/inconvenient forum(reasonableness/fairness concern)(ii) Ensures that states do not reach beyond limits imposed on them as coequal

sovereigns

(e) Is it reasonable for the forum state to assert jurisdiction over the defendant? [Fair playand substantial justice inquiry]

(i) Burden on defendant of being haled into foreign states courts, while always aprimary concern, must be weighed against other relevant factors


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transacted business by mail until Franklins death in 1950; International Lifes only contact

with California was Franklins policy; International Life refused to pay McGee, beneficiary,

upon Franklins death

(a) Suit based on a contract that hadsubstantial connection with California was sufficientfor purposes of due process

(b) Follow-up acts by mail (management of policy/premiums paid from California)created a relationship and direct benefit for International Life (from genesis)

(c) California has interest in providing means of redress for its residents when insurersrefuse to pay

(d) Residents would be at severe disadvantage if forced to follow insurancecompany to distant state to hold it legally accountable

(e) California highly involved in its insurance regulations sovereignty issue (stateinterest)

(i) Inconvenience for insurer does not amount to a denial of due processC) Effects Test (Calder) Something more is needed than a mere foreseeable effect in forum

state

1) Committed intentional act2) Expressly aimed at forum state (individualized targeting)3) Cause harmed, brunt of which is suffered/known to be likely to be suffered in forum

D) Purposeful Availment (Keeton, not Hanson, Kulko or Volkswagen)?1) Keeton v. Hustler(1984): Plaintiff (NY resident) brought a libel suit against the magazine

(Ohio corp.) in New Hampshire (because of lenient statute of limitations laws). Hustler sells

10,000 15,000 magazines a month. There is jurisdiction.

(a) Reminder: Courts do not require a plaintiff to have minimum contacts. The defendantsintentionally acted in the forum. The issue is personal jurisdiction, not choice of law.

(a) The business Hustler conducts is not random, isolated or fortuitous. Regular monthlysales establish minimum contacts

2) Hanson v. Denckla(1958): Donner (PA) established a trust in Delaware and named DE bankas trustee; Donner moved to Florida, executed her will there, and changed the beneficiaries

of the trust; Donner died in Florida; 2 daughters claimed that appointment of beneficiaries

of trust was ineffective; actions pending in both Florida and Delaware

(a) Because trustees contacts with Florida were less than minimal, Florida could not exertjurisdiction over it as an indispensible party

(b) Since Florida had not obtained personal jurisdiction over indispensible party toaction, Delaware was justified in refusing full faith and credit to Florida decree

(c) However minimal the burden of defending in a foreign court, a defendant may not becalled upon to do so unless he had minimum contacts with state

(i) Cause of action does not arise out of acts done in the forum state(d) Bank never purposefully availed itself of the privilege of conducting activities

in Florida (did not invoke benefits and protection of its laws)

(i) First case that indicated that SCOTUS might not move toward national jurisdiction(e) Compare McGee: International Life knew they made a contract in CA at the beginning

(i) Here, no volitional contact with Florida Donner moved to Florida aftertrust created

(ii) Must be volitional, cognitive, and beneficial (not an involuntary shift)3) Kulko v. Superior Court(1978): New York divorce, wife and now 2 kids live in California;


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Wife wants readjustment of child support payments and brings suit in California

(a) California does not have personal jurisdiction over husband(b) Husband buying his daughter a ticket to California is not purposefully availment(c) Merely causing an effect in the forum state without purposeful availment does

not support jurisdiction

(d) Policy interest: do not want to impose an unreasonable burden on family relationships(i) Cause of action arises out of personal, domestic relations, not commercial

transactions

4) World-Wide Volkswagen v. Woodson(1980): Robinsons, NY residents, purchased Audi fromSeaway Volkswagen; while passing through Oklahoma, another car struck their Audi in the

rear; World-Wide Volkswagen only does business in NY, NJ and CT; Seaway only does

business in NY

(a) World-Wide and Seaway have no contacts, ties or relations with state of Oklahoma, soOklahoma courts cannot assert in personamjurisdiction over them (no minimum

contacts)

(i) Foreseeability (that the car might travel to other states) alone is notenough to establish jurisdiction

(b) Defendants connection with forum state must be such that he reasonablyanticipates that states courts to assert jurisdiction over him

(c) Defendant need stable understanding of jurisdictional consequences in order tostructure conduct

(d) If no minimum contacts, plaintiff and state interests do not come in as balancing factors(e) Affirmation of minimum contacts requirement, but also allows other relevant factors

to tip the balance:

(i) Forum states interest in adjudicating the dispute (McGee)(ii) Ps interest in obtaining convenient, effective relief (Hess)(iii)Interstate judicial systems interest in obtaining the most efficient resolution of

controversy.

(iv)States shared interest in furthering social policy.

E) Fairness (Burger King, Four Factors)1) Burger King Corp v. Rudzewicz (1985): Rudzewicz is a Burger King (FL corporation) franchisee

in Michigan; day-to-day management of franchisees conducted in Michigan; contract

provides that franchise relationship is established in Miami and governed by Florida law;

monthly fees go to FL; BK sues for failure to pay in Florida federal court

(a) Rudzewicz purposefully availed himself of the benefit and protections of Floridas lawsby entering into contracts expressly providing that those laws would govern franchise

disputes

(b) Defendants conduct and connection with state are such that he shouldreasonably anticipate being called into its courts

(c) Once decided that a defendant purposefully established minimum contacts with forumstate, courts must determine whether the assertion of personal jurisdiction comports

with fair play and substantial justice (minimum contacts alone is not enough)

(i) Weigh facts of each case: burden on defendant, forum states interest, etc.(ii) Inconvenience may be so significant as to achieve constitutional proportions

(not here)

F) Stream of Commerce PLUS (Purposeful DirectionAsahi)


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1) Asahi Metal Industry v. Superior Court(1987): Zurcher lost control of Honda motorcycle onthe highway in California; Accident caused by sudden loss of air and explosion in rear tire;

Asahi (Japan) made valve on tire; Cheng Shin (Taiwan) made tire; Cheng Shin filed cross-

complaint seeking indemnification from Asahi; Zurchers claim settled only Cheng Shin v.

Asahi remains to be settled

(a) Court splits: 4 v 4 v 1 NO law regarding minimum contacts(b) Asahi never purposefully availed itself of the California market - personal

jurisdiction over Asahi by Superior Court of California exceeds limits of due

process *OConnor+

(i) Stream of commerce + additional conduct of defendant = activitiespurposefully directed toward the forum state

(ii) Not enough that a foreign corporation be aware that a component wouldreach the forum state in the stream of commerce

(c) Stream of commerce is sufficient [Brennan](i) As long as a participant in commerce is aware that the final product is

marketed in the forum state, the possibility of a lawsuit cannot come as a

surprise

(d) Unreasonable and unfair for California to exercise jurisdiction over Asahi:(i) Asahi test for holistic evaluation:

(a) Burden on the defendant severe distance from Japan and foreignjudicial system

(b) Interests of the forum state slight two foreign companies(c) Ps interest in obtaining relief- Cheng Shin has not demonstrated that it

is more convenient for it to litigate claim in California than in Japan or

Taiwan

(d) Interstate judicial systems interest in efficient resolution ofcontroversies

(e) Shared Interest of several states in furthering substantive social policies(e)

Burden on defendant is Interests of plaintiff and forum are

(f) Forum states interest is mostly gone all that remains is claim between twoforeign corporations

(i) Avoid getting involved in bilateral international issue2) ON EXAM: Discuss Ginsberg vs. Brennan approach!3) Parry v. Ernst. Home Center Corp. (1989): P injured splitting logs with a maul

manufactured by Hirota (Japanese). They were informed of sales but we dont know

numbers.

(a) Court rules:There was no sufficient link here (relying on Asahi) Withoutadditional conduct, sale alone does not justify jurisdiction.

(i) Case using Asahi reasoning demonstrates stream of commerce is no longerenough


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PJ Case Chart:

YESJURISDICTION NOJURISDICTION

Min Contacts Basic

Shoe min contacts original

Stream of

Commerce

Gray stream of commerce Green v. Advance Ross

no tortious act

Effects Test (purposeful

direction)Calder v. Jones Effects Test

Pebble Beach not aimed at forum

state

Purposeful

Availment (in a minimum

contacts sense) +

Fairness

Keeton intentional act in forum

McGee purposeful availment

and states interests

Burger King purposeful

Availment and not unfair

Hanson no purposeful

availment

Volkswagen (reasonably anticipate)

Kulko no purposeful availment

and fairness

Stream of Commerce

PLUS

Asahi Five Factor Test (fairness to

Defendant and state)

General

Jurisdiction

Perkins continuous and

systematic activities

Frummer

Ratliff

Helicopteros

Metropolitan Life Ins.

v. Robertson

4. GENERAL JURISDICTION AND STATE LONG-ARM LAWS:Continuous And Systematic Activities So That They Are Present For All Purposes

A. Here, cause of action does not arise from contacts in the forum state, but defendant engages inconsistent and continuous contacts with the forum = presence in the state (can be sued for

anything)

1) Perkins v. Benguet Consolidated Mining (1952): Benguet is incorporated in Ohio, but doesbusiness in the Philippines; suit arose outside Ohio; Benguet carries on continuous and

systematic corporate activities in Ohio (directors meetings, business correspondence, etc.(1) Benguets business done in Ohio is sufficiently substantial and of such a nature as to

permit Ohio to entertain a cause of action against the foreign corporation, even though

cause of action arose from activities distinct from activities in Ohio

(2) Suit during WWII: no appropriate forum in Philippinesb) Helicopteros v. Hall(1984):Helicol (Helicopteros), Colombian helicopter transportation

company, contracted with WSH (Texas) to provide helicopter transport for pipeline being

built in Peru; checks from WSH drawn upon a Houston bank; Helicol bought helicopters


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(1) Caddys acts not expressly aimed at California, so he is not subject to the personaljurisdiction of the district court (no individualized targeting of website)

(a) Extends holding ofSchwarzeneggerto situations where sole basis for assertingjurisdiction is a non-interactive passive website

(2) Purposeful direction (aimed at and has effect in forum)Calder effects testsayssomething more is needed than a mere foreseeable affect in forum state

(a) Committed intentional act(b) Expressly aimed at forum state (individualized targeting)(c) Cause harmed, brunt of which is suffered/known to be likely to be suffered in forum

f

Jurisdiction Based on Power Over Property: YOU ARE WHERE YOUR PROPERTY ISA. Ways to claim jurisdiction:

1) Pure in rem: seeking title to land against the world2) In rem: seeking title to/interest in the land against an individual3) Quasi in rem: hybrid, claim does not involve the land, land is treated as personification of you

for jurisdictional purposes

4) In personam action: claim against a personB. Quasi in rem: You are where your property is

1) Protects people against absent/ unknown defendanta) After Pennoyer, courts extended quasi in rem jurisdiction beyond bounds of land ownership

and tangible property

b) Value in modern society goes way beyond real estate into new ideasc) Ex: Domain name, bank account

2) Quasi in rem jurisdiction practically abolished in Shaffer v. Heitner(1) Minimum contacts = basis for jurisdiction(2) Quasi in rem still exists where there are gaps in the long-arm (NY defamation suits) so

that it does not reach to the extent of the Due Process Clause

(3) No full faith and credit = courts cannot enforce in another state beyond the value ofproperty in the rendering state.

C. Pennington v. Fourth National Bank(1917)1) State jurisdiction over property within its borders extends to both tangible and intangible

property (like bank deposits)

Decreasing Contacts Increasing Contacts

Extent of

Contacts

Juris.

Conseq.

No No Specific Specific GeneralJurisdiction Jurisdiction Jurisdiction Jurisdiction Jurisdiction

No Casual or Single Continuous Substantial orContacts Isolated Act But Limited Pervasive


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2) 14th Amendment does not stop the power of state courts to seize property of absent defendantand apply it to the satisfaction of an obligation

a) Property must be within the states bordersb) Seizure must be at commencement of proceedingsc) Owner must have an opportunity to be heard

D. Harris v. Balk(1905):Harris owes $180 to Balk (North Carolina); Balk owes Epstein $344 (Epstein inMaryland); Epstein attaches Harriss debt in Maryland: Balks property is in Maryland since a debt is

with the debtor, and a creditor can sue his debtors debtor; Balk later sued Harris in North Carolina

court to recover debt

1) Does not matter where situs of the debt originally was2) Obligation of debtor to pay his debt follows him wherever he goes: Balks debt traveled to

Maryland, so Epstein can attach it in Maryland, despite no other contacts with state

a) Does not matter that he was only in Maryland temporarily not a defense(1) Quasi in rem jurisdiction is running amok

E. Rush v. Savchuk: Insurance obligation cannot be attached to effect quasi-in-rem jurisdictionF. Shaffer v. Heitner(1977): Heitner sued Greyhound and officers in a shareholders derivative suit;

Heitner is a non-resident of Delaware; Greyhound is a Delaware corporation, but does business in

AZ and cause of action arose in OR; Heitner filed motion for sequestration of property of defendants(shares of Greyhound stock) asserted quasi in rem jurisdiction; stock considered to be in Delaware

by statute; Delaware is the only state where place of incorporation = situs of stock; no special

appearance in DE

1) Justice Marshall: From now on I emphasize that all assertions of jurisdiction will be tested bythe principles of Shoe and its progeny.

a) No minimum contacts with Delaware to establish jurisdictionb) Property is not subject matter or related to underlying cause of actionc) Defendants had no reason to expect to be haled before Delaware court

2) A proceeding against a thing is really a proceeding against a persons interest in a thinga) Presence of property in a state bears on existence of contacts in stateb)

Probably does not impact in rem jurisdiction, but may abolish quasi in rem as a separatebasis for jurisdiction (combines personal and quasi in rem jurisdiction)

c) Quasi in rem still exists where there are gaps in the long-arm (NY defamation suits)so that it does not reach to the extent of the Due Process Clause

Jurisdictional Reach of the Federal CourtsA. For federal question jurisdiction, the jurisdictional reach of the courts is defined by substantive area

covered by statute (copyright, etc.)

1) Some statutes have no jurisdictional provision in thema) Omni Capital if there is no jurisdictional provision that applies, the courts cant make one

up

(1) Probably minimum contactsusing 4K(2): standard of minimum contacts may applyto contacts with the United Statesbut that probably wouldnt be fair (Asahi-esque).

B. Diversity cases: use states long arm statute (FRCP 4k1A)1) Federal Rules:

a) Rule 4(k)(1)(A)borrow jurisdiction of forum states jurisdiction provision(1) Does not isolate diversity or federal question jurisdiction covers both

b) Rule 4(k)(1)(B) 100 mile radius provision(1) Recognizes metropolitan areas sitting on border between states practicality rule(2) Rule 4(k)(1)(C) when authorized by federal statute


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(a) Primary way of getting jurisdiction, since most statutes have provisionc) Rule 4(k)(2)nowhere else to bring suit: defendant not subject to jurisdiction of any state

court AND exercising jurisdiction is consistent with US constitution

(1) Written to deal with Omni problem: state long-arm not long enough, no statutoryprovision for jurisdiction

(2) Applies only to federal question cases not for diversity jurisdiction(a) Federal court cannot reach farther than state court in matters of state law(b) Consistent with constitution: about 5th amendment, not 14th amendment (federal,

notstate, power issue)

(i)Unclear whether the minimum contacts equaling fair play and substantial justicestandard applies

d) No concerns about shared sovereignty between states and federalismChallenging A Courts Exercise of Jurisdiction Over Person or PropertyA. Rule 12b2 motion

1) Special appearance: D is allowed to make special appearance to contest personal jurisdiction. Hecannot make any defense on the merits.

2) Collateral attack: If a D has no property in the forum state he can ignore the suit, suffer a defaultjudgment against him, and later challenge enforcement of judgment based on lack of personal

jurisdiction. Cant challenge later based on merits, though.

a) If defendant does not show up, plaintiff will get a default judgment and move to enforce thedecision

(1) Tactical decision not to show updefendant defaults knowingly(a) When cost of what is on the table is less than the cost of defense

(i)If you feel like the system in which action is pending is stacked against youb) Notion that you may be able to attack decision collaterally (not if you have assets in the

state)

c) Once you raise or waive the jurisdiction issue, cant collaterally attack on that basisd) Strategic action: dont believe that plaintiff will enforce judgment of court inanother statee) If you have assets in other states, judges in other states have to enforce decision of

other states courts full faith and credit

(1) Will enforce unless something radically wrong with original states decision or ifdecision violates new states public policy

3) Transnational law suit class action not recognized everywherea) Foreign corporation without US assetsb) Believe home nation will never enforce the judgment

III.NOTICE AND OPPORTUNITY TO BE HEARDNotice: As a practical decision is the notice reasonably calculated under the

circumstances to give notice?

A. Notice (Constitutional due process)


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1) Notice must be reasonably calculated, under the circumstances, to give actual notice(high threshold from Mullane)

2) Forms of process which by themselves provide notice:(a) In-hand delivery of summons, delivery by registered mail or certified mail, ordinary

mail, service of process on a person living with D/agent who we believe will transmit

the service to D(b) Problematic Form: Publication(c) While most forms of process provide notice, publication is tricky(d) Look at facts to see what is reasonable (ex: nail and mail may not be, if there is a

better way/wont reach D)

3) Mullane Standard: Constitution requires that notice be reasonably calculated, under thecircumstances, to give actual notice, and must afford a reasonable time for those

interested to appear. What matters is the appropriateness, not whether or not def

actually got notice

(a) High constitutional standard(b) Publication is not reasonably calculated to give actual notice(c) Sometimes a class though is so large that there isnt an alternative (rare situation)-publication is acceptable when beneficiaries arent known(d) Groups to be identified and provided notice appropriately:

(1) Known beneficiaries (address known) direct notice (by mail in this case) isrequired

(2) Unknown beneficiaries (changed address, beneficiary died) use due diligenceto find class members; if you cant then publication may be okayreasonable

effort to give notice needed

(3) Contingent interests: future beneficiaries get no notice, because notcurrently vested

4) Dusenbery v. United States(2002): federal government is the plaintiff; defendant is infederal prison; US gave notice: by publication, by mail to prison, to residence at time of

arrest and to step-mothers residence; Dusenbery claims he never received notice

(a) Actual notice is not required no heightened notice standard for individuals in USgovernments custody

(b) Did not receive notice, but was reasonably calculated to achieve notice(c) Due process does not require heroic efforts by the government(d) Certified mail achieves constitutionally sufficient notice

B. Opportunity to be heard: debtor/creditor cases usually:1) D must be given notice that they are being served, and must be given the opportunity to

defend herself.

(a) Due process requires that D be given a reasonable opportunity to develop his case(b) Rule 12aand most state statutes give the D 20 days after service to respond

2) Snidach, Fuentes, Mitchell, Goldberg Standard:(a) Decision to issue a writ of attachment/garnishment/replevin/repossession must be

made by a judge and debtor must be given an immediate right to a hearing on the

merits

(b) Judge must make the decision based on a full presentation by the creditor as to whythe creditor believes it has the right to immediate possession

(1) Fact-based statement of right to the debt/property made under oath


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(2) Less danger that seizure will be mistaken decrease in utility of pre-seizureadversary hearing

(a) Adversary hearing will be available immediately after(d) Connecticut v. Doehr(1991): statute authorizes prejudgment attachment of real

estate without prior notice or hearing, without a showing of extraordinary

circumstances and without a requirement that person seeking attachment post

bond

(1) Relevant 3-part inquiry for due process for prejudgment attachment (balancingtest)

(a) Private interests affected by prejudgment measure(b) Risk of erroneous deprivation and probable value of additional safeguards(c) Interest of party seeking prejudgment remedy with regard for ancillary

interest government may have in providing procedure/foregoing added

burden

(2) In this case:(a) Property interests are significant sufficient to warrant due process

protection

(b) Statute presents too great a risk of erroneous deprivation: only skeletalaffidavit needed

(c) Judge cannot make a realistic assessment of likelihood of success on one-sided and conclusory submissions(highly fact-specific situation)

(d) Interests in favor of attachment are too minimal: no existing interest inproperty, no allegation that Doehr would be unable to satisfy a judgment;

no government interest

(e) Bonds are useful in protecting property rights against mistaken award ofprejudgment remedies

C. Due process values:1) Fairness/dignity2)

Participation in justice system

3) Decrease litigation4) Property rights

IV.SERVICE OF PROCESSAsk: Was service of process executed in the manner prescribed by the service of process rule?

Proper Service of Process (Non-constitutional compliance)

B. MECHANICS OF SERVICE OF PROCESS1) Must follow the rules of the state, or Rule 42) Reasonably calculated under the circumstances to succeed (Mullane)3) No fraud/trickery to get individual into state to serve process but you can flush them

out

(a) Tickle v. Barton (1956): judgment against D was overturned because the Ps lawyerinduced the D into the state for the purposes of serving process on him by

fraud/trickery. No personal jurisdiction no service.

(b) Wyman v. Newhouse (1937): Affair between P and D, man fraudulently induced bylover to come to FL by convincing him she loved him and wanted to say goodbye


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and that she was leaving to see her dying mother. His arrival at the airport was met

by a deputy sheriff who served him w process in a suit for $500,000. The man

returned to NY (state citizen) and was advised by his atty to ignore the summons.

Collateral attack. He did so, default judgment was entered against him, 2nd circuit

held the

(1) Judgment was void bc he was induced to come to FL through fraud.4) If youre voluntarily in state, you are susceptible to service of process.

(a) State ex rel Sivnksty v. Duffield(1952): while on vacation in WVA, P hit and injured2 kids while driving. While in jail awaiting trial because he couldnt post bond, a civil

suit was brought against him. The WVA ct held that he was subject to service of

process. He didnt come into the state specifically to defend against a criminal

charge; he was there voluntarily; though this argument seems specious. If he

could have afforded bail, he wouldnt have been subject to the suit.

5) Parties are, at times, immunized from service of process, in the interests of the court:Witnesses, parties, attys who come to a state to participate in a lawsuit; Ps who

voluntarily enters state to bring an action; Ds who voluntarily submit to other

adjudications there.

C. METHODS OF SERVICE:1) Personal Delivery:

(a) Natural personsin hand at house or abode(b) Rule 4h:Artificial entitiesofficer, manager, or general agent, or anyone apptd by

law by the entity

2) Service by Mail (substituted service)certifiedmail(a) Rule 4d: letter sent with a copy of the complaint and the waiver. D can waive

process, but if he chooses not to waive/doesnt respond, he will be served in person

and charged for the cost of hand delivery.

3) Service on a Person Residing in Ds dwelling (substituted service)(a) Rule 4e2: service must be left with a person of suitable age and discretion who

resides at the dwelling.4) Delivery to an agent Authorized by Appt: (Substituted service) Rule 4e2

(a) Rule 4d1: Service can be provided to an agent if there is evidence he has beenauthorized by the D.

(1) Claims by an agent that he has the authority to receive process or the fact thatan agent actually accepts process is not enough to bind the defendant; there

must be evidence that the defendant himself intended to confer such authority

upon the agent

(2) Szukhent: P (NY corp) sued Ds (MI residents) in NY federal court, because theydefaulted on farm equipment lease. Lease designated Florence Weinberg (NY)

to accept service of process. Ds werent acquainted w agent. Agent delivered 2

copies of summons/complaint to Ds with letter stating that documents had

been served on her. Also notified D. SCOTUS says that acceptance and

transmittal of notice was sufficient for agency to be valid.

(a) Party can appoint an agent contractually even when he doesnt personallyknow that agent, as long as the agent promptly accepts and transmits notice

(even if it doesnt seem like they are required to).

5) Publication:(a) Rule 4doesnt authorize service by publication


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(1) But rule 4e1 says federal court can use the service rules in state where it sits orwhere service is affected.

(2) State statutes provide that service may be made by publication when the P hasdemonstrated that there are no other reasonable ways to serve process.

(3) Rarely acceptable.6) Service on an artificial entity

(a) Rule 4h: authorizes service to an officer, managing agent or general agent when D isa corporation, partnership, unincorporated association or whatever that is subject

to suit under a common name.

7) Class Actions(a) Sometimes publication + actual notice to a sample of class members suffices.

8) International Service(a) Have to follow the service of process rules in the country where the person you are

trying to serve is otherwise you wont get a judgment enforced there

(b) Consular treaties- specifies a way of serving process bilaterally(c) Multinational agreements on service of process- Hague Convention(d) If not part of the agreement: long process (class notes P. 26)

D. RETURN OF SERVICE1) Must file a return, disclosing enough facts to show that D has actually been served and

given notice to appear in court. Ordinarily this is necessary for the trial court to

consclude that it has jurisdiction.

E. STATUTE OF LIMITATION AND SERVICE1) Federal Court:

(a) Rule 3: in fed court, filing of complaint = commencement of the action(b) Rule 4m: requires fed ct to dismiss an action when the D hasnt been served within

120 days of the filing of the complaint (if P fails to show a good cause for not

completing service within that time)

(c) Rule 6: allows P to request extra time to serve summons/complaint(d)

Rule 12b5: motion to dismiss for insufficiency of service of process(1) Considered waived if not made in motion or responsive pleading!

2) State Court: when cause of action is based on state law(a) Varies; in some states, cause of action is commenced by service of process.

F. TERRITORIAL LIMITS OF SERVICERule 4k11) Diversity/federal question cases: service of process may be made

(a) Within the territorial limits of the state in which the district court sits(b) Anywhere else permitted by state law of the state where the court sits

2) Rule 4k1b: service of process permitted within a 100 mile radius of the district court,but only applies where out-of-state parties brought in as additional parties to an

already pending action.

(a) Valid parties are 3rdparty Ds and indispensable parties (Joined under Rule 14 orRule 19)

3) Subject to federal interpleader jurisdiction under 1335(a) Congress can provide for nationwide service in some cases.

4) Rule 4k1Aallows a federal court to piggyback on a state long arm statuteprocess ofa federal court may thus be the same as the state in which it is sitting.

5) Rule 4k2: limited federal long arm provision (1990s). Only applies when individual is notsubject to general jurisdiction in any state and no long arm statutes apply. Very rare.


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V. VENUE

Venue deals with the allocation of a case within a court system that has jurisdiction overthat case- Jurisdiction over parties must be established first

Venue challenge must be raised particularly early by def, otherwise it is waived Rule12b3

o Venue is waivable because it is an issue ofallocation/convenience/administration, not a constitutional issue

Rules of venue are particular to a system- each has a different set of rulesThree Questions to Determine Proper Venue

1. Does the court have venue under the statutory structure (each state is different)?2. If the court has venue, can the court transfer it?3. If the court has venue, are there situations where we should transfer it anywayforum

non conveniens?

QUESTION 1. Does the court have venue under the statutory structure?

1. Venue in Federal Actions1391 which court shall try the action?a. 1391(a) Diversity cases may be brought only in federal court:

i. Where any D resides (not the same as citizenship) if all defendantsreside in the same state

ii. Where substantial portion of events occurred or where substantial partof the property is situated

iii. If and only if neither of the first 2 apply, then venue exists in a judicialdistrict in which the defendant is subject to PJ at the time the action is

commenced

b. 1391(b) Fed Question & Mixed Diversity/Fed Question cases may bebrought only in federal court:

i. Where any D resides (not the same as citizenship- can reside in morethan one state) if all defendants reside in the same state

ii. Where substantial portion of the events giving rise to the complaintoccurred, or where substantial part of the property that is the subject of

the action is situated

iii. If and only if neither of the first 2 apply, then venue exists in any judicialdistrict in which the def may be found (usually means wherever PJ exists

at time action is commenced)

c. Corporations and Aliens for purpose of venuei. Corporations reside in any district where subject to PJ at the start of the

action 1391(c)

ii. Aliens may be sued in any district 1391(d-f)d. Removal: 1441 (a) says that when a case is removed to federal court, the fed

court encompasses the place where the state action is pending, so its irrelevant

that the fed court wouldnt have been a place of proper venue originally

e. Local action: in cases involving land, the action must be brought in the state inwhich the land is located (Livingston v. Jefferson)- never codified in statue; if

property is located in more than one state, venue is proper in both 1392


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i. Based on the now outdated reasons: of land being very parochial,difficult to know the law of different places, sovereignty tied up so you

want that court to decide

ii. Problem defining what is a local actionnot hard when its the title ofland, destruction of things on land (burning of crops/structures) are also

probably local actions- but its more difficult with trespass, or stealing of

natural resources

iii. Transitory action: one in which the court will try the case even thoughthe suit relates to land outside the state (Reasor-Hill) if a local action

cant be brought where the property is because of lack of PJ over the

def, the action may be brought in the state where the def resides. This

represents a minority view- local action still lives. Really here youre

talking about a products liability action, not actually talking about land.

2. State Courts Factors state courts consider in deciding whether to dismiss forforumnon conveniens

a. Whether the plaintiff is a state residentif so, plaintiff has stronger claim tohave case heard in home state

b. Whether witnesses and sources of proof are more available in different state orcounty

c. Whether forums own state laws will govern the actionQUESTION 2: If the court has venue, can the court transfer it?

Have to have PJ in the Transfer court- Ask all questions again!

1. 1404(a)For the convenience of parties and witnesses, in the interest of justice, adistrict court may transfer any civil action to any other district or division where it might

have been brought

a. Motion to transfer almost invariably made by def, and burden is on movant toshow why

b. Transferee forum must be one in which the original claim could have beenbrought (Hoffman v. Blaski)

c. The law of the transferor court must applyi. Generally only applicable to diversity cases; consensus against applying

to fed question cases

2. 1407 Allows cases with the same CNOF to be transferred to a single court forconsolidated pre-trial hearings

a. Cases must be returned to transferor court for trials, unless get parties consentor invoke 1404(a)

QUESTION 3: Situations where we should transfer it anywayforum non conveniens?

1. Generallyforum non conveniens exists because the transfer is impossiblea. Cant transfer state-to-state, federal-to-state, US to foreign court

2. Forum non conveniens works when it really makes no sense to litigate in the given court3. There is a presumption in favor of plaintiffs forum choice, soforum non motions and

transfers are rare

a. Declaringforum non conveniens results in an actual dismissal or action, soplaintiff must initiate again

b. Because of this harsh outcome, court may grant motion on condition(s):i. Def identifies an alternative forum

ii. Defs consent to jurisdiction in the other forum, waiving statute oflimitations in the other forum


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4. Piper Aircraft: plaintiff cant defeat a motion to dismiss merely by showing that thesubstantive law of the alternative forum is less favorable to him than that of the current

forum. Here accident, evidence, documents, plane, etc all in Scotland. Court used forum

non con even though Ds were Americans

a. Court accepts the possibility that changing forum may affect the outcome, butsays need to weigh that possibility with other interests:

i. Private interests convenience of litigants and litigation elements(witnesses, documents, etc), access to proof, enforceability of judgment

if one is obtained, advantages/obstacles to a fair trial, does it

oppress/harass D by enforcing an unnecessary expense or trouble to

pursuing the remedy

ii. Public interests which court/venue is really interested in adjudicatingthe case, administrative problems of cases being piled on, jury duty

burden, importance of local issues being solved locally, difficulty of

applying foreign law

b. See greater use of the doctrine- it is a check on federal long arm, excessive useof jurisdictional principles- reflects that US is a judicial magnet

c. Reluctance to say that another countrys legal system is inadequate- only inextreme situations like we dont want to send holocaust victims back to

Germany.

d. Remember that unlike transfer which just moves the action to another court,with forum non the action has to be dismissed and P must initiate again- statute

of limitations may have run out, have to get PJ over the D in the second forum.

Since the motion is made by the D, usually court says that they arent going to

grant unless (1) theres an alternative forum (2) D waives SOL defenses that may

have accrued since the first action (3) agree to stand as a D in the alternative

forum (consent to jurisdiction)

- 1407 Multidistrict Litigation allows cases with the same common nucleus ofoperative facts to be transferred to a single court for consolidated pre-trial hearings.Cases are returned to the transferor court for trials, unless you can get parties

consent or invoke 1404a.

o Appointed by CJ of the USo May give it to a court that had earlier jurisdiction or may have improper

venue but done pursuant to statute

o Lexecon: says that you can only stay there if everyone consents- somethingthat never happens.

VI.REMOVALA. REMOVAL GENERALLY: 1441

1) Removal is a one-way street, no removal from federal state court2) EVERY REMOVAL QUESTION IS ALSO A SMJ QUESTION3) You can only remove an action that could have been brought in a federal court originally4) Well-pleaded complaint rule applies fully on removal


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1) Federal question claim separate and independent non-removable claim [28 USC1441(c)]

a) Feds can try the whole thingb) Feds can remand state-issues

(1) Borough of West Mifflin: state claim must be separate and independent.c) Foreign state sued in state courtmay remove to Fed, where there shall not be a

jury.

d) Mass disaster: if claim could have been brought in Fed ct. under 1369 removable(1) BUT: remand for damages determination, except convenience of parties or

interests of justice.

(2) Fed court can hear claims ordinarily barred in the state court.2) Federal Officers [28 USC 1442]

a) Federal official sued for act under color of her office removable3) Civil Rights claim removable [28 USC 1443]4) NON-REMOVABLE! [28 USC 1445]

(1) Action against railroad arising under Federal Employers Liability Act (FELA)(a) BEWARE OF THIS EXCEPTION!!!!

(2) Workmans comp(3) Violence Against Women Act 40302(4) Plaintiff cannot remove b/c of counterclaim [Shamrock Oil & Gas](5) Third parties cannot remove [First National Bank of Pulaski, 6th Circ.]

F. Procedure for removal [1446]1) Ds file short and plain statement of grounds all paperwork w/ district court2) Must be filed within 30 days of service of process/amended, newly removable motion

a) Ds file removal notice w/ adverse parties and state court promptly after a.(1) Any defect 30 days to file motion for remand

G. If P tries to destroy SMJ through joinder [28 USC 1447]1) Deny joinder2) Permit joinder + remand

H. Class Action: [28 USC 1453]1) May be removed by any defendant w/o consent of others2) Remand orders are reviewable IF appeal to Circuit w/in 7 days.

a) Appeals court must render review w/in 60 daysb) Deadline for review can be extended by:

(1) Agreement of all parties(2) Interests of justice

3) Non-Removable Class Actions:a) Securitiesb) Internal corporate governance

VII. WAIVER


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(ii) IfNo to both: Apply Federal RuleErie Untangled:

A. Historical Underpinnings:1) APPLICABLE RULES/STATUTES:1652 Rules of Decision Act; 2072 Rules Enabling Act;Necessary and Proper Clause; 10th Amendment2) Swift v. Tyson (1842): Do the words the laws of the several states in 34 of the

Judiciary Act of 1789 refer to state statutes or state statutes in common law?

a) Interpreted laws in 1652: federal courts are only required to follow a state law if it isstatutory not required to follow common law precedents

(1) Federal judges can reach decisions using discretion (natural law philosophy)b) Creation of a general federal common law

D. Erie Doctrine Unfolded:1) Erie R. Co. v. Tompkins (1938): Tompkins was hit by something protruding from a train while

walking along the tracks at night; under Pennsylvania common law, traveler is a trespasser;

under federal common law, the railroad would owe a duty of reasonable care to traveler

a) Swift is abused and leads to forum shopping/inequitable administration of law (diversityjurisdiction, meant to protect non-citizens leads to abuse by those very non-citizens)

b) Rules of Decision Act: Misinterpreted (Unconstitutional to read it that way!)(1) Not intended to allow federal courts to establish substantive federal common law (there

is no such thing)

c) Both Article III and 10th Amendment (quote) deny the right to a federal blah?d) State substantive law governse) Under Erie, federal courts must apply the law of the highest state court (sometimes will

involve prediction or certification)

2) Guaranty Trust Co. v. York(1945): state statute of limitations vs. federal equitable defense oflatches

a) Statute of limitations blurs lines between substantive and procedural(1) A statute that would completely bar recovery in a suit if brought in a state court

bears on a state-created right vitally not just formally

b) Extension of Erie doctrine: Now, it isnt substance vs. procedure, but outcomedetermination that is key

(1) If application of federal law would lead to a different result, must apply state law (if afederal forum is open, the state forum must also be open and lead to same outcome)

c) Vertical uniformity is sought (as opposed to horizontal uniformity through a federalcommon law ala Swift)

E. How Far Can We Take Yorkin 1949?1) Ragan v. Merchants Transfer & Warehouse (1949): Kansas has a 2-year statute of limitations on

torts; process not served until after 2 years; plaintiff complied with Federal Rule 3: suitcommenced (and statute tolled) by filing of complaint

(a) Because an action in Kansas state court is not commenced until process is served, you mustcomply with Kansas law in a federal diversity action

(a) Federal courts cannot extend Kansas statute of limitations(b) Takes York outcome determinative concept to an extremely procedural

level

2) Woods v. Interstate Realty Co (1949):


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(a) States say that corporations must register to do business in their state or they can be sued,but cannot sue, in that state

(1) Door-closing law: outcome determinative in the same sense that Guaranty isoutcome determinative

(2) Federal courts cannot hear diversity suits in that case3) Cohen v. Beneficial Loan Co. (1949): Corporations concerned about shareholder derivative suits:

plaintiffs must post bond against expenses they might inflict in pursuit of a frivolous suit

(a) Federal rule 23 does not require bond, but New Jersey law does(1) Cant get through front door without the bond in state court = outcome determinative

F. Reclaiming Federal Power:1) Byrd. v. Blue Ridge (1958): (state: judge vs. federal: jury (as per 7th amendment right))

(a) Reads outcome determinative less literally - even though it could technically be a differentresult

(b) Chances of forum shopping/inequity influencing decision of where to bring suit are small(c) Balancing of federal and state interests

(1) Here, weak state policy gives little indicator of any reason for judge over jury(2) Federal interest is considerably strong: Under the influence if not the

commandof the Seventh Amendment(d) Still outcome determination test (from York), but if there is a federal interest

involved, make sure to consider that too2) Hanna v. Plumer(1965): Substituted service of process in diversity suit made in compliance with

Federal Rule 4(e)(2), but not in compliance with Massachusetts law (only in-person service)

(a) First case to look at a federally-mandated right (as opposed to judicially-created)(b) Considers the Rules Enabling Act, 2072 (applies to anything that is arguably procedural)(c) Steps for Hanna analysis:

1. Is there a direct conflict with state law? YES2. Is it Constitutional? YES (Constitution grants Congress the power to make

rules of procedure for its federal courts)

3. Does it abridge, enlarge, or modify a state substantive right? NO3) Sibbach v. Wilson & Co (1941): set procedural standard (usually interpret for lack of conflict)

G. Modern Applications:1) Walker v. Armco Steel(1980): Walker sued Armco for negligent design/manufacture; complaint

filed within 2 year statute of limitations, but service of process not made until after (identical to

Ragan facts)

(a) Ragan is not implicitly overruled by Hanna: Rule 3 is not broad enough to control the issue,so there is no unavoidable clash between the Federal Rules and state statute

(b) Statute of limitations is a statement of substantive state policy(c) Concern: inequitable administration of law

2) Stewart Org. v. Ricoh Corp.(1988): contract between Alabama corporation and New Jerseymanufacturer contains a forum selection clause; case brought in DC in Alabama; Alabama doesnot uphold forum selection clauses

(a) Congressional statute ( 1404(a) transfer statute) is law to be applied: Hanna Analysis:(1) Is the statute sufficiently broad to control the issue before the court? YES(2) Does the statute represent a valid exercise of Congress authority under the

Constitution?

(a) If Congress intended to reach issue and if it acted in a manner consistent withConstitution, then federal courts are bound to apply rules enacted by Congress


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(3) Is there a direct conflict? YES - Federal and state rules are opposite(4) Is it procedural?

(a) 1404(a) is procedural transfer does not change applicable law3) Gasperini v. Center for Humanities(1996): Center lost 300 of Gasperinis photo slides; jury

awarded $1,500 per slide = $450,000; federal standard = shocks the conscience (trial) or abuse

of discretion (appellate)

(a) Not 100% outcome determinative only a possibility of altered verdict (compare theloosened definition ofYorkstandard with the one used in 1949 trio)

(b) Compromise position:(1) NY law would be applied by federal trial court judge(2) Appellate control limited to review for abuse of discretion

(c) Respect NYs dominant interest without disrupting federal system(1) Substantive: deviates materially controls how much a plaintiff can be awarded

(a) If federal courts applied a different standard, substantial variations betweenstate and federal money judgments would be expected

(2) Procedural: assigns decision-making authority to NYs Appellate DivisionH. The Problem of Ascertaining State Law

1) Klaxon Co v. Stentor(1941): Federal Courts sitting in diversity must apply the conflicts-of-lawrules of the states in which they sit

(a) Although this might destroy horizontal uniformity, more important to further Erie goals(eliminate forum shopping and inequitable administration of law)

(b) Possible future clash between CAFA and Klaxon?2) Van Dusen v. Barrack(1964): A suit filed in one federal court may be transferred to a different

states federal court, leading to a different states law being applied.

(a) To prevent forum shopping, federal court must apply law of the state where suit wasoriginally filed, not the state in which it sits (law travels with a transfer of venue).

3) Mason v. American Emery Wheel Works(1957): Mississippi tort law does not allow for liabilityfor negligence in manufacturing in absence of contractual privity; last case dealing with this

issue is 30 years old what is state law?(a) If last case on point is outdated and the direction of state law indicates a change, the federal

district court may behave as a state supreme court

(1) Here, court can predict what the highest court would declare (they infer that modernrule would be adopted)

(b) Lawyers wanting to challenge existing state doctrine will choose federal court(1) May somewhat encourage forum shopping and inequitable admin while a state trial

court doesnt have the power to overrule precedence, a federal court

4) Remember: A federal court can always ask for certification to clarify an issueI. Federal Common Law

1) There are certain areas of specialized federal common law, though scope is uncertain(a) Usually used to resolve cases involving important federal interests(b) Traditionally federal areas may also fall under this category (even if no statutes apply)

2) Clearfield Trust Co. v. United States (1943): Federal commercial paper: Government has aunique interest in making sure that federal interests are met (and there is a possible conflict

with application of state law).

(a) But, as between private parties, there is no federal interest in every commercial paper case(Parnell 1956)

(1) Upheld in Miree v. DeKalb County(1977) (also between private parties)3) Cases involving military contractors are fed interest (Boyle v. United Technologies Corp)


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J. Federal Law In State Courts (Inverse Erie)1) When there is concurrent jurisdiction for a federal statute, and it appears in state court, what

law is applied?

(a) Inverse Byrd analysis: Balancing test between state and federal interests2) Most often: FELA can be asserted in state or federal court but defendant cannot remove!

(a) Under the Supremacy Clause, federal law must be applied3) Dice v. Akron (1952): federal courts would give fraud question to the jury; Ohio gives it to the

judge (Similar to Byrd problem, but in a state court)

(a) Right to trial by jury is too substantial a part of the rights of FELA to permit it to be classifiedas a local rule of procedure

(b) Apply with care and deference4) Brown v. Western Railway: Pleadings in Georgia read against the pleader; pleadings construed

in light most favorable to pleader under Federal Rules

(a) States have to construe pleadings in light most favorable to pleader for FELA cases, eventhough them construe them against the pleader in all other cases

IX.MODERN PLEADING

A. Standard of Particularity (Rule 8a)1) Traditionally, four functions: 1) notice, 2) identify baseless claims, 3) show facts, 4) narrow issue.

a) Modern Pleading: Just notice, usually.2) Under Code Pleadings:

a) Gillispie v. Goodyear Service Stores(1963): Under North Carolina code then in force,plaintiff had to make a plain and concise statement of the facts constituting a cause of

action

(1) Not enough facts to constitute a legal conclusion(2) Code pleadings have usually required more detail than the FRCP

b) Under Modern Federal Rule 8(a): Rule 8(a) 1: Calls for an understanding of the courtsjurisdiction (diversity must be established if a diversity case). Rule 8(a) 2: short and plain

statement of the claim showing that the P is entitled to relief. Rule 8(a) 3: Claim for relief

(1) Reflects the substantive law that is being invoked by the P(2) In each part ofRule 8(a), the substantive element of the claim is reflected in the

pleading.

(3) Every cause of action/claim for reliefmust include all three elements of8(a)c) Remember: If dismissed for failure to state a claim, the court can file a leave to amend

under Rule 15.

d) Dioguardi v. Durning(1944): Diogardi wrote his own complaint against the Collector ofCustoms of the Port of New York; District Court dismissed complaint with leave to amend on

ground that it fails to state facts sufficient to constitute a cause of action.

(1) Just need a short statement of claim showing entitlement to relief no pleadingrequirement to state facts sufficient to constitute cause of action.

(2) Purpose: Not to deprive P of his day in court to show what he obviously so firmlybelieves

e) Conley v. Gibson(1957): Dont dismiss unless it appears beyond doubt that P can prove noset of factsin support of his claim

(1) Standard for 50 years. Designed to let people in, not keep people out.3) Civil Rights have no higher standard:


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a) Leatherman v. Tarrant: There has been no amendment to federal rules requiring addedspecificity

b) Bautista: Lower courts might require each P in class action to show individual right to relief(1) Move towards heightened requirement

c) Swierkiewicz v. Sorema N.A.(2002): P 59 years old and a native of Hungary; CEO, Frenchnational, demoted P and transferred his responsibilities to a younger French man who was

less qualified; Plaintiff filed complaint alleging discrimination based on national origin and

age; SDNY dismissed complaint for not alleging circumstances to support an inference of

discrimination

(1) Dont need prima facie case of employee discrimination in complaint that is anevidentiary standard (Just need 8(a) 2)

4) Most Recently, Plausibility Standard has developeda) Bell Atlantic v. Twombly(2007 Souter, majority) P brought suit against large telecom firms

alleging anti-competitive behavior; establishes parallel conduct only.

(1) Cant plead anti-trust conspiracy by showing parallel conduct (under Sherman Act)(a) Need to provide grounds of entitlement to relief through factual allegations

(i)Need more than suspicion of a legally cognizable right to be a valid complaint.(2) Discovery is expensive for antitrust suits(3) Retire Conley phrase (dont read it literally)

(a) Claims they are not imposing a heightened fact pleading standard onlyenough to state a plausible claim

b) Stevens, Ginsberg (and Miller!) Twombly Dissent:(1) Federal Rules are meant to keep litigants in court, not out.

(a) Conley permits dismissal only when proceeding beyond discovery would be futile(i)Plausibility standard is irreconcilable with Rule 8 and Conley

(2) Majority just wants to protect rich corporations from the burden of pretrial discovery(3) Miller: This seems like the Court has invited subjectivity in rendering decisions about

plausibility

(a)

The discretion is at the expense of a citizens right to a day in court/jury trial(b) The higher you create an access barrier, the less people will climb over into court.

c) Erickson v. Pardue (2007) after Twombly(1) Reaffirmed Conley standard (Backtrack from Twombly?)

d) Ashcroft v. Iqbal(2009) (Kennedy majority; Souter dissent) Muslim citizen of Pakistan stateshe was deprived of constitutional rights while in federal custody.

(1) Applies Twombly Two-Pronged Approach:(a) Are there factual allegations?(b) Do they give a plausible rise to relief?

(2) The complaint has not crossed the line from conceivable to plausible (like in Twombly)because the allegations are conclusory and, thus, not entitled to be assumed true (not

factual fails first prong of Twombly test)

(a) Even accepted as true, it doesnt show that there was discrimination (no plausiblerise to relieve fails part II across the line from conceivable to plausible)

(b) Federal Rules do not require courts to credit a complaints conclusory statementswithout reference to its factual context (Big change from tradition to accept

statements as true)

(3) Must be more likely explanation of the facts than any other explanation(4) Souterdissent: This complaint has factual allegations (unlike Twombly)(5) Millers view on Iqbal:Conley is basically dead now although you can make arguments


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that only the passage is retired, and maybe at the low end of case complexity, it lives.

(a) Striking passage in Kennedy opinion: How is the judge supposed to determineplausibility?

(i)Use his judicial experience and common sense1. Subjectivity in a nutshell (things not in the complaint)

(b) Ashcroft has shown a flood of dismissals for conclusory statements.5) Pleading Intricacies:

a) Garcia v. Hilton Hotels International(1951):Garcia claims that Hilton, employer, accusedhim of hiring prostitutes; Garcia sued Hilton for defamation; Hilton moved to dismiss

complaint under (12(b)(6))(no publication alleged), or strike paragraphs 5-8 (12(f)) and

require a more definite statement (12 (e))

(1) No defamation on witness stand motion to strike granted(2) Need actual utterance recorded12(e) motion for more definite statement granted(3) Complaint must be construed in the light most favorable to the plaintiff with all doubts

resolved in his favor and the allegation taken as true

(4) Side Q: Does any of this survive Twombly?(a) Judges may not be as willing to provide leave to amend after Twombly ($ concerns)

b) Schaffer v. Weast (2009):(1) Party seeking relief carries burden of proof

B. Special Pleading Rules (Rule 9): For Pleading Special Matters1) Generally: Rule 9a: Capacity: no need to aver the capacity of a party to sue/be sued, except to

the extent needed to show juris. Rule 9b: Circumstances of fraud must be pleaded with

particularity. Malice/intent alleged generally. Rule 9c: once P avers that all conditions

precedent have been performed/have occurred, burden shifts to D to find/identify conditions

precedent unperformed by P (Used to be minimal, but modern Ks have hundreds of conditions,

which is why the burden is reversed) Its a P-friendly, pragmatic approach. Rule 9g: Special

damages must be stated explicitly (Special damages are those which arent foreseeable under

the claim as it is brought).

2) Alleging Fraud Under FRCP 9(b)a) Denny v. Carey(1976): Satisfy minimum notice and apply Rule 9(b) to evidenceb) Denny v. Barber(1978):

(1) Refuses Carey because complaint is too vague (Increases requirement)(2) Most jurisdictions follow Barber

3) PLSRA: Super-heightened pleading standard on securities lawsuitsa) Twin goals of PLSRA: Curb frivolous, lawyer-driven litigation, while preserving investors

ability to recover on meritorious claims

b) Ask: Do all the facts alleged, taken collec

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