Fall 2010 Outline

8/8/2019 Fall 2010 Outline

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Civil Procedure

Personal JurisdictionPerson Based Jurisdiction

A. Traditional Bases: the state has personal jurisdiction over people and things w/in its boundaries1. presence

(a) is served w/ process in the forum(b) Pennoyer v. Neff(1877): very mechanical, wooden, in the state then have personal jurisdiction(c) Burnham (1990): is presence still enough to establish personal jurisdiction if served personally without trickery.

(i) justices split (four said presence still enough /

four said PJ must apply minimum contacts (Int'l Shoe))2. domicile(a) state has general jurisdiction over domiciled w/in its borders(b) Milliken v. Meyer(1940): party is amenable to suit w/in state of domicile(c) domicile - two factors (i) present in the state (ii) intent to make that your permanent home(d) you only have one domicile at a time (i) retain that domicile until you establish a new one

3. consent(a) coerced consent:Pennoyer - state can require official act as agent for non-residents w/ business w/in the forum state(b) implied consent: Hess v. Pawloski (1927) was entitled to benefits and protections of forum; subject to jurisdiction

B. No traditional bases for jurisdiction: absent, non-resident, non-consenting 1. Does the statute itself assert jurisdiction over this particular ?

(a) every single state has a long-arm statute (specific jurisdiction / "sky's the limit"(specifies arising out of or derivessubstantial revenue))

2. Is the assertion of jurisdiction constitutional? LONG ARM STATUTE constitutional?(a) International Shoe Co. v. Washington (1945)

(i) the state has jurisdiction if the has such minimum contacts w/ the forum so that exercise of jurisdiction does nooffend traditional notions of fair play and substantial justice(ii) two parts to the minimum contacts test 1. systematic, continuous contacts 2. fairness(iii) The Shoe Spectrum General ("all over", systematic&continuous)|---------| Specific ("arising from", one contact)

the more contact the has with forum, the less directly related the claim needs to be "quality and quantity"(b) tests for minimum contacts

(i) McGee v. International Life Insurance (1957) One insurance contract ... specific "arising from"(ii) Gray v. American Radiator(1961) (IL St. Sup. Ct. view only but never overruled)

putting products into the stream of commerce with the expectation that they will be purchased in the forumstate is sufficient contact (p. 122-123)

(c) must purposefully avail himself of contact with the forum state, not just unilateral association(i) Hanson v. Denckla (1958) to be relevant contact, must result from s purposeful availment (not unilateral)(ii) the family law exception Kulko v. Superior Court of Ca (1978) sending child to visit mother not purp'fl avail

(d) foreseeability and contact with the state - Foreseeability alone is not enough to establish jurisdiction.(i) World-Wide Volkswagen Corp. v. Woodson (1980) it must be foreseeable that would get haled into forum(ii) Asahi v. Ca (1987): the stream of commerce split

(e) is there a foreign relations concern Helicopteros, Asahi(f) is the forum unfair/inconvenient?

(i)reasonableness of the forum depends on several factors:1. burden on 2. interests of the forum state3. s interest/ability in obtaining relief 4. is there another forum out there for the (ii)Burger King v. Rudzewicz(1985) burden is on to show unfairness of the forum1.minimum contacts and really convenient vs lots of contacts and really inconvenient

3. Fed courts have personal jurisdiction wherever state courts do R 4(k)(1)(a)4. Fed courts have PJ over foreign if not enough contacts with any particular state but enough with US as whole 4(k)(2)

Property Based Jurisdiction acting against s property1. in rem: the case itself is about who owns the property2. quasi in rem: where the dispute has nothing to do with what person owns the property

(1) its attached as a means to collect or (2) used in absence of in personam jurisdiction(NO MORE)3. Still need to go through the two part analysis

(a) there must be an attachment statute by the state(i) allowing the court to grab property that owns or claims to own

(b) Would jurisdiction be constitutional?(i) Pennoyersaid attachment had to be at time of service(ii) Shaffer v. Heitner(1977) must still meet minimum contacts test and all assertions of state court jurisdiction

must be evaluated according to minimum contacts. Cannot attach property (debt, ins policy) if not "arising from


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(iii) in rem cases may mean that attachment of property is enough to meet minimum contacts test, property itself isin the jurisdiction and therefore meets Shoe in in rem actions

Notice and the Mechanics of Service of Process

1. governed by Rule 42. The constitutional standard for giving notice; Mullane v. Central Bank(1950)

(a) service must(i) be reasonably calculated under all circumstances to inform parties of action and afford an opportunity to

respond , reasonably convey required information, afford reasonable amount of time to respond(ii) be served by individual of appropriate age, etc to someone of appropriate age, etc.

Forum Selection, Venue, Transfer

A. Forum Selection1. Why do litigants care about choice of forum?

(a) convenience (b) values and bias (c) procedural advantages (d) choice of law(i) state can apply its own procedural laws

B. Venue1. Generally

(a) not a function of the power of the court , has to do with allocation of cases within a court(b) Choice of law based on forum having interest in litigation

2. Basic provisions for venue(a) governed by 1391(a) for diversity and 1391(b) for FQ

(b) gives the two basic choices(i) may lay venue in any district where all s reside

if all s reside in diff districts of the same state, may lay venue in any district w/in that state

reside usually means same as citizenship for individuals

a corporation resides in all districts where its subject to personal jurisdiction at time the action iscommenced; 1391(c)

(ii) may lay venue in any district where a substantial part o/the claim arose(c) where neither of the two options can be met, may lay venue

(i) diversity: in district where any subject to personal jurisdiction; 1391 (a)(3)(ii) FQ: in a district where any may be found; 1391(b)(3)

3. Forum non Conveniens(a) court dismisses case because theres a far more appropriate court somewhere else(b) factors considered for dismissal under forum non (FN 6,Piper v. Reyno)

(i) those pertaining to private interests of litigants (witnesses, cost, practical concerns)(ii) those pertaining to public interests

4. Transfer Within the Federal System(a) must be w/in the same judicial system

(i) fed to fed or state to state

transferee court must be a proper venue must have personal jurisdiction over the (b) use the substantive laws of the transferor court

(i) dont get a change of law w/ a change o/ forum- Van Dusen

Ferens: go to Miss, get statute of limitations there, then transfer to PaPa has to apply Miss substantive laws (Handoff case), but could choose whether to apply PA or MSprocedural law (Statute of Limitations ruled procedural law here)


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Subject Matter JurisdictionA. Diversity Jurisdiction

1. Article III, Section 2 of the Constitution(a) judicial power extends to controversies between citizens of diff sts

2. Congressional Authorization: 28 U.S.C. 13323. Supreme Court Interpretation

Complete DiversityEvery Plaintiff must be of diverse citizenship from every defendant. If aPand aD share a state in common there is no

complete diversity. (unless interpleader)1. complete diversity requirement [Strawbridge v. Curtiss (1806)]

(a) there is no diversity if any is a citizen of the same state as any (b) very mechanical(c) draw a line btwn s and s, no one may be from the same state(d) will take into account limited partners for diversity

(i) Carden v. Arkoma Associates (1990)(ii) could not drop individual partners, limited partnerships and unincorporated associations, court must consider

citizenship of each partner for purposes of Diversity citizenship(f) all named members of a class action must be diverse (un-named need not be diverse)

(g) indispensable parties must be considered for diversity(h) cant create diversity- 2 exceptions to Diversity rules

(i) 1359 says no jurisdiction where parties improperly or collusively joined, shenanigans rule

(ii) improper joinder of nominal parties not allowed to defeat diversity2. how do we determine citizenship of a person

(a) Physical Presence and an intent to remain there indefinitely(b) a person is a citizen of the state where she is domiciled(c) domicile is a test for a persons citizenship

3. to determine citizenship of a corporation: 1332(c)(1)(a) a corp is a citizen of all states where it is incorporated(b) also a citizen of one state where it has its principle place of business

(i) can only have one principle place of business, determined by: nerve center: where decisions are made4. citizenship of representative suits 1332(c)

(a) look to their citizenship not that of the representative(i) decedents (ii) minors (iii) incompetents (iv) insurance companies

(b) look to the citizenship of the person being represented

Amount in Controversy1. must exceed $75,000, not counting interest on the claim and costs2. s claim governs unless clear to a legal certainty she cant recover that much3. s ultimate recovery is irrelevant to SMJ

(a) district court may impose costs on for recover less than $75K, 1332(b)4. Aggregation of claims? Merging multiple into one?

(a) Can aggregate claims if there is one v. one (b) Cannot aggregate claims if there are multiple parties on either side(c) joint claims may look to total value of the claim

(i) claims against joint tortfeasors or joint liability(d) what if one exceeds the amount, can others w/out required amount

(i) an attempt to get the others in via supplemental jurisdiction(ii) traditional approach says no

Zahn: each member in class action need have requisite amount cant aggregate claims

CAFA 2005 law says as long as total claim over $5 million, fed. court jurisdiction authorized

Exxon Mobil v. Allapatah (2005) permits supplemental jurisdiction over claims in class action as long asthe named plaintiff's claim is over $75,000.

B. Federal Question Jurisdiction1. arising under interpretation: very grudging approach, authority is Article III of the Constitution and 28 U.S.C. 1331

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of theUnited States

2. Federal Question must appear in the complaint part of the cause of action.(a) The Well-Pleaded Complaint Rule: look only at the claim

(i) is the enforcing a fed right?(ii) a well-pleaded claim must assert fed law (Mottley 1908)


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the federal issue must be necessary to the proof of s claim(b) Holmes Creation Test: suit arises under law that creates the cause of action

(i) cause of action: the right to sue(ii) beware of the flip side of the Holmes test: cases where the federal law creates the remedy but state law is used

as the standard

i.e. the federal law mandates the use of state law

Shoshone Mining Co. v. Rutter- did not create cause of action, so can't use it to create federal arising underjurisdiction, federal Statute said to look to State law

(c) exception to Holmes: jurisdiction where fed law doesnt create cause of action

(i) where vindication of a right under state law necessarily turned on some construction of federal law (FranchiseTax Boardon Smith)

s asserting state right, but need to fed law to prove that right the Smith exception(ii) beyondHolmes, but still faithful to Mottley

the court still looks at what the must establish as part of her case(d) Federal Interest in the case may allow for jurisdiction, even if Federal law doesn't create the claim

(i) where there is more at stake for the federal government, the well-pleaded complaint rule may be loosened(Smith v. Kansas City Title, upheld in Grable- "a federal court ought to be able to hear claims recognized understate law that nonetheless turn on substantive questions of federal law"), but this is an exception not thestandard law

also must not present a floodgates problem if FQ jurisdiction granted(e) Congress must intend fed action for violation of statute (Merrell Dow)

(i) court no want to create fed remedy where Congress didnt intend to do so, Can be unpredictable whetherSmith

orMerrell Dow will apply, Oct. 6 notes, on exam argue both3. Be aware of exclusive federal jurisdiction

(a) 1338: patent infringement (f) Some Foreign State Cases

(b)1334: Bankrupcy Proceedings (g) 1339: Postal Matters

(c) 1351: Cases with Consuls and Vice Consuls (h) 1340: Internal Revenue

(d) Antitrust Cases (i) Securities Exchange Act

(e) Some Admiralty Cases (j) FTCA: federal tort claims act

4. an FQ summary(a) jurisdiction under arising under statute must be based on s claim(b) case satisfies arising under test if it satisfies the Holmes creation test(c) have jurisdiction if proof of state claim requires proof of proposition of fed law(d) may not have arising under jurisdiction if fed law mandates use of state law(e) may not have jurisdiction if fed law doesnt create implied private right of action

C. Supplemental Jurisdiction we now get a hospitable view as opposed to FQ jurisdiction

Is there a common nucleus of operative fact between the jurisdictionally sufficient and insufficient claims?

Will taking the insufficient claims create fairness and judicial economy?1. can join other claims that form part of the same case or controversy, 1367(a)

(a) the key to allowing supplemental claims is the factual similarities of the claims: they must arise out of the samecommon nucleus of operative facts(i) same common nucleus if arise out of same transaction or occurrence

(b) decision to join the state claim is discretionary(c) R 13(a) compulsory counterclaims: may be heard because they arise out of the same transaction or occurrence(d) R 13(b) permissive counterclaims: may not be heard because they do not arise out of the same transaction or

occurrence2. can join other parties unless they do destroy diversity

(a) wont allow claims made by s under that destroy diversity under(i) R 14: bringing in 3d party(ii) R 19: indispensable parties(iii) R 20: permissive joinder(iv) R 24: intervention

D. Removal1. 1441: can remove any case that would have original federal court jurisdiction

(a) can remove any claims that could have been filed in fed in 1st place(b) not in diversity where sued in home state(c) entire case can be removed, but judge can remand separate and independent claims that do not have their own

independent jurisdiction(i) we need 1441(c) so can remove fed claim with attached but unrelated state claims because removal of those

state claims would be unconstitutional


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2. only the original can effect removal3. removal is a one-way street

(a) no such thing as removing from fed court to state court(b) fed court may remand back to state court if case never should have been there

4. removal only to the fed district embracing the state court where case was filed5. remove only w/in 30 days of service of document that makes case removable

(a) 30 days runs from service6. two exceptions where a case cannot be removed

(a) no removal if any is a citizen of the forum state- diversity only(b) cant remove a case more than one year after it was filed in state court

7. 1446: procedure for removal(a) 1446(b) says notice of removal must be filed within 30 days upon receipt by defendant of initial pleading upon

which s action is based

Joinder of Claims and Parties

A. Real Parties in Interest1. R 17(a) requires that lawsuit be brought in name of the real party in interest

(a) in the name of the person in possession of the substantive right to recover(i) prevent relitigation of claims

(b) fed courts look to the citizenship of the real party in interest for diversityB. Joinder of Claims

1. By Plaintiffs(a) R 18 does not require any transactional relationship between the claims

(i) free to assert as many claims, whether related or unrelated(ii) but if not related, may be dismissed for lack of supplemental jurisdiction(iii) permissive rather than compulsory

but rules of preclusion act as rules of compulsory joinder

better join claims related enough to be precluded later(b) Severance: R 42(b) separate trials if needed

2. By Defendants and Co-Parties(a) counterclaims

(i) R 13(a) compulsory counterclaims: must assert counterclaims that arise of the same t/o that is the subject matterof opposing partys claim and does not require for its adjudication the presence of third parties of whom thecourt cannot acquire jurisdiction

9th Cir: claims have to have factual relatedness Grummans claim that DG violated Ca antitrust act arises out o/ same facts as DG suit for copyright

infringement (B30, N38), Prof. Williams prefers this interpretation

6th Cir: claims have to have legal relatedness

Grummans claim is not a compulsory counterclaim because it has a different legal argument/basis

R 13(f) may allow you to amend if you forget or such

R 60(b) may be relieved of final judgement for neglect, new evidence, etc.(ii) R 13(b) permissive counterclaims: pleading may state any counterclaim not out of the same t/o

better bring it though if it might be related(iii) Severance: R 42(b) separate trials if needed Guedry

(b) cross-claims(i) R 13(g) cross-claim against co-party: must arise out of the t/o as subject matter of original transaction or that of

a counterclaim

(ii) permissive only, though watch out for the jaws of preclusion(iii) Severance: R 42(b) separate trials if needed

3. Joinder of Parties(a) permissive joinder and consolidation

(i) R 20(a) permissive joinder: s are allowed to join parties as long as

s claim against joined s arises out of same t/o or series of t/o

and if any common question of law or fact will arise

Severance: R 20(b) separate trials if needed

once permissive joinder established, R 18 allows claim free-for-all

but still need SMJ on every claim(ii) R 42(a) consolidation: court may order joint hearing or trial when pending actions involve a common question

of law or fact


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judge may hold joint hearing on any or all matters

notice only requires common question not same t/o

much broader than 20(a)(iii) Severance: R 42(b) separate trials if needed

(b) compulsory joinder: necessary and indispensable parties(i) indispensable parties are those necessary that cant be joined(ii) R 19(a): party shall be joined if

in the persons absence complete relief cannot be accorded

the person has an interest in the suit and her absence will

impede persons ability to protect that interest OR subject s to multiple or inconsistent obligations

those refusing joinder can be made a or an involuntary (iii) R 19(b): factors for what to do if indispensable party cant be joined

extent judgment in that parties absence will prejudice those already party

extent to which prejudice can be avoided by protective provisions

whether judgment in that persons absence will be adequate

whether will have an adequate remedy if the action is dismissed

Broussard v. Columbia Gulf(N40), nowPimentela. could not drop out of case to create diversity because she was necessary partyb. judgment in absence inadequate because she had interestc. s had adequate remedy: state court

(c) impleader: bringing in 3d parties

(i) governed by R 14(ii) refers to this as 3d party practice(iii) joins party who owes indemnity or contribution on underlying claim(iv) R 14(a): claims in all directions must arise out of same t/o as original

still need SMJ for everything(d) intervention: absentee joins herself

(i) governed by R 24(ii) intervener chooses whether to be a or a

court has the power to realign(iii) two types of intervention

R 24(a): intervention of right

must show that absentees interest may be harmed if not joined

and that interest is not adequately represented now, or Fed. Statute allows 24(a)(1)

R 24(b): permissive intervention

show absentee has at least one question in common w/ the casea. court has discretion whether to allow absentee in

still need SMJ


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SUPPLEMENTAL JURISDICTION

Fall 2010 Outline

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