The Holy Grail-1

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The Holy GrailFall 2007

Cannon (Glannon/Big Dog?), Civ Pro Outline

PART I. SELECTING THE PROPER COURT

Four requirements for a court to entertain a lawsuit court must have: Jurisdiction over the parties to the suite Jurisdiction over the subject matter of the dispute Defendants must be served with process Venue must be correct

Civil procedure is difficult b/c: It is based on statutory rules (as opposed to case law) Statutory words mean exactly what they say they mean (Statutes are

commands; case opinions are written to persuade) 51 systems of civil litigation/procedure, all of them heavily statutory in

nature one can never talk about civil procedure in the abstract,generalization; one is only talking about the rules in a particular

jurisdiction at any one time.

I. A. Jurisdiction Over the Parties Jurisdiction : the power of a court to declare and apply the law authoritatively to a

particular controversy and the individuals party to that controversy. Types

1. In personam : jurisdiction is based on the courts physical power over individuals can beestablished by:

a. Minimum contacts

b. Transient jurisdictionc. Voluntary appearanced. Consent e. Domicile

2. In rem : jurisdictionfounded only upon the presence of property within the state; the resulting

judgment is limited to the property which support jurisdiction and does notimpose personal liability on the property owner, since he is not before thecourt [Schaffer v. Heiter (1977)]; in rem includes both true and quasi in rem.

a. True in rem : jurisdiction founded only upon the presence of propertywithin the state, judgment is binding on all persons with respect to theirinterest in the property involved, regardless of whether or not they were

parties to the actual notice of the action - binding upon all the world[Hanson v. Denckla].b. Quasi in rem : jurisdiction founded only upon the presence of propertywithin the state, judgment is binding only on those persons who are partyto the actual notice and proceedings there is no effect on the interests of persons not made a party in the actual notice (2 types (1) P seeks tosecure a preexisting claim in the subject property and to extinguish Dsclaim, or (2) attachment jurisdiction: P does not dispute Ds ownership of the property involved, P uses Ds property as the jurisdictional basis for

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asserting a personal claim against D (this claim may be unrelated to theproperty, the property will serve as a substitute or supplement for inpersonam jurisdiction, quasi in rem actions like this are started byattachment or garnishment or seizure ).c. Shaffer v. Heitner held that in rem and in personam should have thesame standards.

If the traditional rules in Pennoyer and Pennington still apply,the court could exercise jurisdiction based on the fact that theproperty had its situs in the state. But now, we need to applythe standards of minimal contacts. Why??

By having in rem jurisdiction, its not really having jurisdiction over property, the property is not a livingbeing. It is really jurisdiction over the interest of theperson in that judgment.

It is just a specialized form of in personam jurisdictionbased on property in the state.

o Why isnt owning property in a state (in this case holding stock in astate) sufficient contacts?

This property is totally unrelated to the plaintiffs cause of actionIn personam , the contacts must either be such to rise to thelevel of general jurisdiction, or the plaintiffs claim must relate toor arise out of those contacts.

I. A. 1 In Personam Jurisdiction in State Courtsa. RULES statecourts can establish personal jurisdiction over the person of the D in one of thefollowing ways.

1) Minimum Contacts - To establish in personam jurisdictionover the person of a non-resident D using the minimum contacts test, there

must be statutory authorization (state long arm statute) and the exerciseof jurisdiction must be consistent with the Due Process Clause of theConstitution (purposeful availment).

a) Statutory Authorization usually in the form of aLong-Arm Statutes

(1) Purpose of state long arm statutes to provide personal jurisdiction over non-residents who cannot be found and served in theforum.(2) Authority : a court cannot exercise extraterritorial jurisdictionwithout statutory authorization.(3) Limitation : 14 th Due is a limitation on states and how far theirlong-arm statutes can stretch.(4) Application : State courts have interpreted the statutorylanguage of the jurisdictional reach of long-arm statutes VERYdifferently (see Gray and Feathers for a comparison).

(a) However, many state courts have now adopted the view,articulated in Gray and echoed in Helicol, that a seemingly limitedlong-arm provision was intended to extend to the limits of the 14 thDue Process to the fullest extent of the constitution.(b) The specific categories of jurisdiction conveyed by the SLASare to be interpreted as liberally as Due Process

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(5) Reach : Under state long-arm statutes, jurisdiction overnon-residents could stretch to the Ds general activity in the state, thecommission of acts in the state, or commission of certain acts outsidethe jurisdiction causing consequences in it (dependent upon statecourt interpretation of the statutory language).(6) Always two questions in long-arm cases:

(a) Statutory interpretation question : Does this court havestatutory authorization for the exercise of in personam jurisdictionunder the meaning of the statute? If no, that is end of inquiry, casestops.(b) If yes then, procedural question : Is the statute, asinterpreted, consistent with the 14 th Due?

(6) Cases Gray v. American Radiator

Interpreted Illinois statute which allowed jurisdiction if the Dcommits a tortious act in Illinois. The tortious act wascommitted in the state b/c the water heater exploded there.

The D did not have to act within the state, or have any realcontact within the state as long as the tortious acthappened there. Although this was expansive and beyondthe scope of the SLAS it has not been overruled.

Burger King You dont have any physical presence within the state to

have sufficient contact. They had substantial and continuousbusiness contacts (relations) with the Miami headquarters,such as Ds choice of law provision, 20 year relationship,deliberate affiliation.

b) Is the exercise of in personam jurisdiction consistent with DueProcess? (1) Do we have minimum contacts in the sense that D has purposefully

availed himself of benefits and privileges of forum state? (post-BurgerKing definition and test creates a two-part sliding scale with a newemphasis on purposeful availment).

(a) Is there purposeful availment? (International Shoe)i. To determine purposeful availment, see if -(A) D has substantial connection with state.(B) D deliberately engages in significant activities within state.(C) D creates continuing obligations between himself and

residents of state.(D) D avails himself of privilege of conducting business in state.(E) Ds activities are shielded by the benefits and protections

of states laws.(F) The cause of action must be related to the contacts with the

forum state. Not random, fortuitous or attenuatedcontacts.

ii. Does placing product intoStream of Commerce constitute purposeful availment - due toa S.Ct. plurality, there are 3 approaches as to what is neededunder a stream of commerce to establish minimum contactsand purposeful availment with the forum state - none areauthoritative.

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(A) Placement of a product in the stream of commerce is notsufficient alone to satisfy minimum contacts underpurposeful availment; also, need an intent or purpose toserve the market in the state, such as advertising in thestate or creating the product specifically for use in thatstate, mere awareness that the product would be used in

that state is not enough. [OConnor ](B) Jurisdiction premised on the placement of a product in thestream of commerce is sufficient; litigation should comeas no surprise if D benefits economically from the forumstate and indirectly benefits from the States laws thatregulate and facilitate commercial activity. [Brennan].

(C) It is not possible to draw a line between mere awarenessand purposeful availment; jurisdiction depends on thevolume of product distributed and the hazardous characterof the product Established in Burger King, applied in Asahi: D showed a

compelling case that jurisdiction would put D at seriousand grave disadvantage, also involved substantive socialpolicy saying U.S. courts will use great care and reserveis exercised when extending jurisdiction to a foreign (of the U.S.) corporation.

(D) Exceptions: stream stops when consumer purchases theproduct and carries it to other states [Justice White inWoodson.]

iii. Foreseeable is it foreseeableto the D that he may be hailed into court?

iv. Contract as purposefulavailment usually a contract alone cannot establish minimumcontacts need to have contract plus [Burger King]:

(A) What is nature of contractual relationship? [priornegotiations, future considerations, establishing a long-termnexus with residents in state].

(B) Does contract have choice-of-law provision? [choice of lawprovision alone will be insufficient Burger King establishedchoice of law analysis ie other considerations, whichalthough in and of themselves may not be sufficient whencombined with the choice of law provision constituteminimum contacts.

(C) Carnival Cruise Lines: forum selection clauses are subject to judicial scrutiny for fundamental fairness. Will only beenforced if it passes the test.

(b) What are other compelling factors, considerations that mightinfluence the exercise of personal jurisdiction? (reasonableness of D litigating in the forum state).

i. Burden on the D.ii. States interest in adjudicating the dispute.iii. Ps interest in obtaining convenient andeffective relief.iv. Interstate judicial systems interest inobtaining most efficient resolution of controversies.

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v. Shared interest of the several states infurthering substantive social policies.

(2) Exceptions- sliding scale:(a) If compelling factors weigh soheavily in favor of jurisdiction, then courts sometimes can establish

jurisdiction with a lesser showing of minimum contacts.(b) If D shows a severe disadvantageor burden based on compelling factors, than regardless of howstrong minimum contacts are, court will not have cause to establish

jurisdiction.

2) Transient Jurisdictiona) Service within the stateb) gotcha theory - if a person (not applicable tocorporations) is within a states territory, that state can assert personal

jurisdiction over the D (1) Regardless of how brief the Ds presencein/contact with the forum/state.(2) Regardless of the whether the Ps cause of actionis related or unrelated to those activities [established in Pennoyer;reaches extreme dimensions in Grace v. McArthur (1959); also seeBurnham (1990)].

c) Jurisdiction Based Upon Physical Presence(1) Rule: the traditional rule of transient jurisdiction is still good law. If an

individual is physically present in the forum state then the state has jurisdiction over the individual (Burnham upholds transient jurisdiction).

(a) If mere property is not enough for in rem jurisdiction, thenhow can mere presence be enough for in personam jurisdiction?

(b) Scalias response in Burnham There is a distinction b/w absentand present D.(c) What are Scalia and Brennans approaches to this issue.

d) Exceptions:(1) Rule: (Wyman) judgment procured fraudulently lack jurisdiction andis null and void.(2) Rule: (Tickle) where service of process is procured by fraud that factmay be shown and if shown seasonably the court will refuse to exercise its

jurisdiction and throw the plaintiff out of court. The law will not lend itssanction or support to an act otherwise lawful which is accomplished byunlawful means.

3) Voluntary Appearance

a) D (non-resident) may consent to the personal jurisdictionof a states courts. The party may volunteer to appear in an action even inadvance of litigation [Pennoyer].b) Special appearance - D can make a special appearancein a court where his appearance is limited to a challenge of the courts

jurisdiction, without adhering to courts jurisdiction and arguing his caseon the merits.

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(1) Ds only other option is to ignore service, takerisk on jurisdictional validity when he does not appear in court,because a default judgment will be made against him (Pennoyer).

4) Consenta) A party(non-resident) may consent to the personal jurisdiction of a

states courts. b) Implied consent : theory of jurisdiction that said, by carrying onbusiness in a forum, a corporation implied its consent to the forums

jurisdiction (even if they did not appoint an agent for service of process) -started with corporations, then to individuals regarding physical injury andthen to individuals regarding economic injury.

5) [?] Domicilea) State court may establish in personam jurisdiction over a D who is a

permanent resident of the state but who cannot be found in the states jurisdiction (living abroad, vacationing).

b) A person can only have one domicile (Mas v. Perry)a. Your permanent residence (true, fixed, and principle establishment)b. In which you have the intention of returning to when gonec. A change of domicile may be effected only by combination of two

elements:i. Taking up residence in a different domicile with,

ii. The intention to remain there.

d. HISTORY 1) Pennoyer v. Neff (1896).

a) Established that the Due Process Clause of the 14 th imposesconstitutional outer limits upon the exercise of such jurisdiction by statecourtsb) Established rule that power of a state court to exercise

jurisdiction over the person of a D is founded upon the physical power of

the state as sovereign over all persons within its territory (territoriality).(1) Conversely, no state can exercise jurisdiction beyond its territory.(2) Consequently, a state court could enter a binding personal (inpersonam) judgment against a non-resident D only if (1) D waspersonally served with process within the state or (2) D voluntarilyappear before the court; HOWEVER, there are several exceptions.

(a) P could assent or consent to a state courts jurisdictionby (1) voluntary appearance or (2) in advance consent or (3)under required consent.(b) status - state court has jurisdiction to determine statusof one its residents (even against a nonresident D).

b) Under Pennoyer there is no service required for aresident: courts emphasis on Ds non-residency, implied that a state could

exercise in personam jurisdiction over a resident even in the absence of service or process within the states territory.c) Jurisdictional rules developed from Pennoyer to IntlShoe:

(1) transient jurisdiction (gotcha).(2) residence or domicile: Pennoyer hinted thatresidence of D (this does extend to foreign corporate entities) in theforum state might be an independent basis for personal jurisdiction[Milliken v. Meyer (1940)](3) implied consent

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(4) present and solicitation plus(5) status

d) Milliken v. Meyer (1940)e) As economy grew, corporations crossed state lines,individuals drove across state lines, it became difficult to apply this theoryof territoriality; instead, the exceptions outlined in Pennoyer (especially

the idea of implied consent) will form the basis of state courts attempts toextend/expand the reach of their jurisdictions.

2) Intl Shoe (1945)a) After the Intl Shoe decision, the exercise of in personam jurisdiction isproper when a person or foreign corporation has sufficient contacts oractivities with forum State such that the suit does not offend traditionalconcepts of fair play and substantial justice (would also weigh relatednessof c/a). Intl Shoe created a new and fundamentally difference approach tothe subject of personal jurisdiction.

(1) General Jurisdiction :in some instances, a state court may establish jurisdiction when thereis (1) a substantial (systematic and continuous) enough level of contact/activity in the forum even though (2) the Ps c/a is unrelated tothat activity in the forum (first mentioned in dicta of Intl Shoe andthen held in Perkins v. Benguet Mining Co. (1952), rejected in Helicol).(2) Specific Jurisdiction : astate court may establish jurisdiction when there is (1) single, isolatedcontact b/w D and forum and (2) Ps c/a is related to those contacts;substantive relevance standard [established in Intl Shoe (1945),applied in McGee]. [?]

(I-Shoe Spectrum)

Extent of Contacts

NoContacts

Casual/Isolated

SingleAct

Continuous butLimited

Substantial orPervasive

JuisdictionalConsequences

No Jurisdiction

No Jurisdiction

No jurisdiction

Specific Jurisdiction

General Jurisdiction

4 J URISDICTIONAL S ITUATIONSRelatedness of Cause of ActionRelated c/a Unrelated c/a

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D e g r e e o f

A c

t i v

i t y

Systematic &continuous

Jurisdiction = YES Held in Intl Shoe (1945)

Jurisdiction = MAYBE Dicta in Intl Shoe (1945) Held in Perkins (1952); not in

Helicol Established doctrine of general

jurisdiction

Single &isolated

Jurisdiction = MAYBE Dicta in Intl Shoe (1945) See Gray Held in McGee (1957) Establishes doctrine of

specific jurisdiction.

Jurisdiction = NO Dicta in Intl Shoe (1945)

3) Burger King v. Rudzewicz ( 1985)a) Significant transformation from Intl Shoe to BK, what happens withminimum contacts?

International Shoe v. Washington (1945) (specific jurisdiction)Systematic and continuous contacts, arising out of thoseactivities, enjoyed benefits of state law protection (expansiveview of minimum contacts)

Perkins v. Benquet Consolidated Mining Company (1952)(general jurisdiction)

Cause of action did not arise in the state and did not relate tothe corporations activities there. Court holds that this may notbe necessary to establish minimum contacts for jurisdictionalpurposes. (more expansive view)

McGee v. International Life Insurance Company (1957) (specific jurisdiction)

Although not systematic and continuous, the cause of actionarose directly out of their activities with the state. Nature of theactivity (insurance) is deemed to have a substantial affect onpublic good. Policy behind it is that the state has an interest inprotecting its citizens without making them travel to otherstates. (more expansive view)

Hanson v. Denckla (1958) (general jurisdiction)Minimum contacts would require D to purposefully availthemselves to the privilege of conducting activities within theforum state, thus invoking the benefits and protections of itslaws. Quality and nature means purposeful availment. (moreexpansive view, possibly too expansive).

Gray v American Radiator (1961) (specific jurisdiction)Cause of action arose out of tortiuos act in the state eventhough the company had no actual actions within the state.(expansive view)

World-Wide Volkswagen (1980) (general jurisdiction?)it was foreseeable that their car would end up in Oklahoma, butthe dealer has 1) not sold cars there, 2) not advertised there,3) not cultivated Oklahoma customers, 4) or deliberatelyfocused on Oklahoma as a market, therefore they had not

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sought any direct benefits from Oklahoma activities sufficient torequire it to submit to jurisdiction there. (shrinks view)

effects test: personal jurisdiction can be predicated on 1)intentional actions, 2) expressly aimed at the forumstate, 3) causing harm, the brunt of which was sufferedand D knows was likely to be suffered, in the forum

state. Helicopteros Nacionales de Columbia, SA v Hall (1984) (general jurisdiction)

No minimum contacts even though purchases occurred atregular intervals because the cause of action was not related tothose purchases. (shrinks view a bit by pulling back Perkins)cannon disagreed and said they have had jurisdiction

Burger King (1985) (specific jurisdiction) Jurisdiction is presumptively reasonable when D has purposelydirected activities towards the forum state. Must makecompelling case that other considerations can make jurisdictioncontradict fair play and substantial justice.

Asahi v. Superior Court (1987) (general jurisdiction)Example of case where compelling case was made in whichother consideration can make jurisdiction unfair. Even if minimum contacts established it would be unreasonable toexercise jurisdiction on the unusual facts of the case. (shrinkingthe view a little with an exception to the rule).

e. COMMENTS1) Due Process has 2 functions:

a) To protect D from unreasonable litigationb) Limitation on states with its sister states

2) Full Faith and Credit Clause of Constitution - Full Faith andCredit shall be given in each state to the public acts, records, and judicialproceedings of every other state.

a) Each state must give Full Faith and Credit to the courtdecisions in other states unless that state did not have jurisdiction overthe litigant.b) Same effect : under FF&C, state II has to enforce state Is

judgment, giving it the same effect as it would receive were the judgmentenforced in state I.c) Suing on the judgment : under FF&C, P can take a judgmentfrom state I to another state (state II) and state II has to honor that

judgment (if issues of jurisdiction are not disputed) [was old way beforePennoyer].d) jurisdictionally valid judgment :

3) [?] Compare the but for and proximate cause tests-a) But for test - test to establish c/a relatedness when in personam

jurisdiction; established by Brennan in Helicol dissent.a. If greater contacts, but for might be good enoughb. Would not have happened, but forb) Proximate cause test - to assess degree of relatedness whendetermining in personam jurisdiction.a. If lesser contacts, then proximate cause might be required.

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4) Terms: assumed notice : common law assumes that individuals are aware of status of their property, therefore, by seizing property of D, the courthas effectively served notice and can establish jurisdiction over D. collaterally attack : D can only collaterally attack a judgment on

jurisdictional grounds, not factual grounds.If you ignore the lawsuit, and let a default judgment be enteredagainst you, when P brings it to your state and tries to get the courtto uphold it based on FF&C, you can only collaterally attack

jurisdiction of the first court, you cannot argue on the facts. (eggson one basket)

You can appeal that decision in saying that they should havedismissed in the first place based on lack of jurisdiction of the first court.

If you do not ignore the lawsuit, you can specially appear and argue jurisdiction, if you lose, then you have to argue on the facts, you nolonger can collaterally attack jurisdiction. (no more second bite of the pie)If dont ignore the lawsuit, and you argue on the facts, and then Pbrings the judgment to your state, you cannot defend on

jurisdictional grounds, FF&C will be upheld because arguing thefacts instead of jurisdiction was an acceptance of jurisdiction.If dont ignore the lawsuit, and you argue on the facts, and youlose, you can appeal that decision on jurisdictional grounds inaddition to any errors of law which may have occurred.

present and solicitation plus :(put to rest in Int Shoe, it was the idea that solicitation within a

state by the agents of a foreign corporation plus some additionalactivities there... was required to subject the foreign corporationto the states jurisdiction.)

residence or domicile : Pennoyer hinted that residence of D (this doesextend to foreign corporate entities) in the forum state might be anindependent basis for personal jurisdiction [Milliken v. Meyer (1940)]

f. QUESTIONS1) [?] Does purposeful availment have to meet degree of activity withinforum or relatedness of c/a? Yes, under purposeful availment, the c/a must berelated to the contacts with the forum state, not random, fortuitous orattenuated contacts.

I.A.2. Jurisdiction Based on Power Over Property a. General Rules

1) Rule: to establish in rem jurisdiction, court must show D has minimumcontacts with the state (purposeful availment) and that the exercise of

jurisdiction comports with traditional standards of fair play and substantial justice ( due process ) - the mere presence of property in the state isnot enough to establish in rem jurisdiction when the c/a is unrelatedand the D has no other contacts with the state (Shaffer, 1977).

a) Definition: in rem - jurisdiction over the property ownerbased upon property's presence in forum state.

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b) There must be a connection between the P's claim andthe property.

2) Rationale for expand Intl standard to in rem:a) In Rem is really an action against the person. It deprives theD against property.

(1) judicial jurisdiction over a thing is a customaryelliptical way of referring to jurisdiction over the interests of personsin a thing (all proceedings really against persons). Restatement,Second, Conflict of Laws, Section 56 :

(a) It follows that to exercise jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising jurisdiction overthe interests of persons in things.(b) Therefore, we should use standard in Intl.

(2) It is a fiction that an assertion of jurisdiction overproperty is anything but an assertion of jurisdiction over power of property owner, this is an ancient form without modern justification,will lead to unfairness to D.(3) Ex. Shareholder's derivative suit.

b) While the presence of property alone will not be sufficientto support state jurisdiction, presence of property can constitute acontact under Intl minimum contacts test.c) If we adapt Intl to in rem cases, it will leave most intact,however there will be some cases where in rem will no longer work.d) Shaffer is clear illustration of argument that there shouldonly be ONE standard to establish jurisdiction.e) Counter arguments to apply Intl Shoe:(1) Wrongdoer can move away. [FF&C will negate this problem].(2) In rem avoids uncertainty of Intl . [fairness standard of Intl can be

easily applied in majority of cases, the cost of simplifying litigationcould be sacrifice of fair play and substantial that cost is too high].

(3) Significance of long history of jurisdiction based on property.

3) Theoretically, in rem judgments are only against the property not theperson.

a) See Harris v. Balk, where the MD courts judgment onlycovered the part of the debt in MD, not the rest of the debt owed, b/c if the

judgment over the property (upon with the suit was based) went anyfurther, it would be an in personam judgment (which the court was notauthorized to exercise).4) Debt accompanies person wherever he goes.5) Power of the garnishee confers jurisdiction on the state6) The debt can be recovered if debtee is given personal service and

opportunity to defend in that state (original situs of the debt isirrelevant).

4) What is left of traditional In Rem jurisdiction?

a) when property in the state is the centerof the controversy.b) when an individual is injured on the landof the owner.c) However, both of these two traditionalrules support In Personam jurisdiction also, making in rem jurisdiction

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superfluous. This list is not necessarily exhaustive, just two examplesgiven by Marshal)

5) Decision in Shaffer concerningminimum contacts should not be extended to real estate/land (arguments of

concurring opinions by Powell and Stevens).

b. History1) In rem jurisdiction not tamperedwith at all following Intl Shoe; no courts tried to expand rules from Intl to inrem jurisdiction however, there were some commentaries calling for onestandard for all jurisdictional questions.

2) Before Shaffer, there were only 3requirements for exerting in rem jurisdiction:

a) Presence of res within its borders.b) Seizure of property at thecommencement of proceedings.c) The opportunity of the owner (D) to beheard

3) Shaffer (1977) overturned Harris (1905), holding that nonpersonal jurisdiction must also pass the reasonableness standard and that the merepresence of property in a state is not sufficient to establish in rem jurisdiction.

4) What has been judicial reaction to Shaffer?a) Most courts abandoned in rem jurisdiction.b) Some interpret Shaffer to only apply to intangible property(following Justice Powells and Justice Stevens concurring opinions inShaffer).

c. Forum Selection Clauses1) Definition: contractual provision that states whichstate courts will have exclusive jurisdiction over matters arising from thecontract; agreement that any disputes will be litigated only in a certain court.2) Result

a) D can consent to the jurisdiction of a ct. even thoughhe may not be under the jurisdiction.b) Confers jurisdiction on one certain court.c) Ousts jurisdiction of all other courts that might havebeen able to exercise jurisdiction.

3) Traditionally, courts did not like forum selectionclauses; now most federal courts hold forum selection clauses to beconstitutional, absent certain exceptions. Most state courts also now acceptforum selection clauses.4) See Zapata (1972) and Carnival Cruise v. Shute(1991) upholding a forum selection clause.

5) Refer to rule on page 3 under contracts

c. Comments1) The more restrictive in personam

jurisdiction becomes, the more we have to rely on in rem jurisdiction;

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conversely, the more expansive in personam jurisdiction becomes,the less we need to rely on in rem jurisdiction .2) Situs3) Intangible v. tangible forms of property.4) Feder

d. Questions1) Is there a constitutionalrequirement that the property be seized?2) Does a state need a long armstatute to exercise in rem jurisdiction? The majority in Shaffer seems to beambivalent about this.3) Does minimum contacts (1) replace[in place of] or (2) supplement [in addition to] personal presence?

I.A.3. Jurisdictional Reach of the Federal District Courtsa. Rules (see Rule 4(k) - Territorial Limits of Effective Service).1) Federal district courts act like state courts with regard to in

personam jurisdiction.

2) Rule 4(k)(1) - Service of summons or filing of a waiver is effective to establish jurisdiction over the person of a D

(A) Who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located (in absenceof a federal statute, federal district court can use long arm statute of thestate within which it sits to establish in personam jurisdiction), or(B) Who is a party joined under rule 14 or 19 and is served at aplace withina judicial district of the United States and not more than 100 miles from

the place from which the summons issues, or(C) Who is subject to the federal interpleader jurisdiction under 28 1335,or(D) When authorized by a statute of the U.S.

3) Rule 4(k)(2) (created in response to Omni) - Ensures at least one federalforum open to P raising a claim under federal statute or law:

a) To apply Rule 4(k)(2) following conditions must be met:(1) Exercise must be consistent with Constitution.

(a) Much confusion on what consistent means, U.S. S. Ct. hasnot ruled on this, 3 approaches used by lower courts:

i. Pure national contacts D must have minimumcontacts with national as a whole (aggregate_ - no need forfairness assessment [most federal courts follow this].ii. National contacts plus (1) minimum contactswith nation as a whole, and (2) fairness, substantial justice(similar to Brennans Burger King test) [11 th Cir.].iii. ??? minimum contacts only with forum of thecircuit, not the nation as a whole [8 th Cir.].

(2) There must be a federal question (cannot be a state law question ormerely a diversity case).

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(3) D cannot be subject to any other court of general jurisdictionin any of the state (b/c of necessity rule in Rule 4(k)(1)(a).

(a) Preference is for such issues to be resolved in state court orby general long-arm statutes.(b) This is a last-chance rule.

b) Rule 4(k)(2) applies to a limited group of Ps :(1) Alien (non-American)(2) American citizen living abroad.

b. Comments1) Congress tied the geographic structure of the federal court system to

state lines no federal district court crosses state lines (with exception of Yellowstone).

a) Significant consequences of geographical structure:(1) Federal district courts can use state long arm statutes to same extentthat a state court can.(2) Conversely, federal district courts can reach no further than a state

court - When a federal district court uses a state statute to exercise inpersonam jurisdiction over a non-resident D, it effectively becomes astate court, and is subject to all the constraints (statutory andconstitutional) that a state court is subject to.

(a) Burger King is good example of how a federal court is subjectto the constitutional (14 th ) restraints of a state court.(b) Omni is good example of how a federal court is subject to thesame statutory (not fully reaching long-arm statute) restraints as astate court.

(3) In effect, federal district court becomes a state court with regard to inpersonam jurisdiction.

I.B. Notice and Service of Process.

I.B.1. The Constitutional Requirement of Noticea. General rules:

1) Due process requires that the parties be given reasonablenotice of the lawsuit .2) Notice may be given by either (1) actual notice (personal service), or(2) notice that is reasonably calculated to reach the D (substituted service).

a) Personal service of process within the jurisdiction is theclassic form of notice always adequate in any type of proceeding(Pennoyer).

(1) Service of process upon an agent appointed by the partyfor that purpose is the equivalent of service upon the party.3) For those who cannot be identified or located, constructive service in the form of publication is acceptable (Mullane).a) P must do best they can.b) The forum chosen must not be substantially less likely to bring notice to D

that any other substitute (cannot put notice in bottle and throw in river).

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4) If appointment for service of process on D is made by statute, then thestatute must require that the notice be communicated to the nonresident bymail or otherwise or the statute is invalid

b. History:1) Old : Only the substitute that is most likely to reach the D

is constitutionally acceptable (McDonald v. Mabee) very strict standard.2) New : Only the substitute reasonably calculated to reachthe D under all the circumstances (Mullane).

a) Pick the best method which is one that is not less likely than the othermethods.b) If notice is not received, but there was a reasonable likelihood to reachthe person then notice is valid.

c. Comments1) The Court attaches great importance to the notice requirement courts will

take a very fact specific look at adequacy of notice in each case if not madeby personal service.

2) When something less than personal service of process is used, the court willtake a very fact specific look as to practical likelihood that the D under thecircumstances of the case will receive actual notice (see Corey, McDonald,Dobkin, Greene).

3) Notice must be 1) done correctly by procedure, and 2) comply with DueProcess.

I.B.2. Service of Processa. Rules (see Rule 4 Summons)

1) Rule 4 - Federal Rules of Civil Procedure(a) Form - a summons not properly issued by the clerk of the ct. willnot confer jurisdiction even if properly served.(b) Issuance - a summons not properly issued by the clerk of the ct.will not confer jurisdiction even if properly served.(c) By Whom - any person not a party over 18 may serve process -copies of complaint and summons.(d) Waiver of Service ; Duty to Save Costs of Service; Request toWaive. (Rule 4d)

If D fails to return a receipt (indicating that he waived process), then P must employ other means to ensure notice(see Chaves).

(e) Service Upon Individual within a Judicial District of the U.S. (1) Service may be effected pursuant to the law of the state in which dist. ct. is located,

or See Chaves where federal court followed state law regardinghow service of process was to be mailed. (first class v. priority mail,picking wrong mail was equivalent to no service at all) If followedfed rule, could have mailed through any reliable means. Rule 4(d)(1)(b)

(2) by delivering a copy of the summons and complaint to the individual personally or byleaving copies at the individuals dwelling house or usual place of abode with someperson of suitable age and discretion then residing therein, or by delivering . . . to anagent authorized by appointment or by law to receive service of process.

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Under Rule 4(e)(2), the D himself must have intended toconfer such authority upon the agent (see Szukhent).

The parties to a K may agree in advance to submit to the jurisdiction of a given ct. (Carnival), to permit notice to be servedby the opposing party, or even to waive notice altogether

(f) service to internationals - Hague convention agreement or law of the country(g) service on infants or incompetents 4(g) follows the state law inwhich service is made.(h) service on corporations 4(h) by subdivision e(1) or deliveringto an officer, managing or general agent, or any other agent authorized byappointment.

Executive secretary has received summonses too.(i) service upon U.S., its agencies, corporations, officers, oremployees. reasonable time for service of process due to multiple officers(j) service upon foreign, state, local governments.(k) Territorial limits of effective service.(l) proof of service. to the ct. affidavit(m) time limits for service. 120 days after filing the complaint(n) In Rem jurisdiction

2) Statutes of Limitations may effect service a) Depend on when suit is considered commenced

(1) When complaint is filed (majority).(a) Rule 3 a civil action is commenced by filing a complaintwith the [district] court.

4) [?] A federal court must dismiss without prejudice any action when the D hasnot been served within 120 days of the filing of the complaint unless P showsgood cause (P may request extensions).

5) When service of process is invalidated, courts do not usually dismiss thecomplaint, they merely quash the service, P can try to serve again correctly.

b. Comments1) Service of process serves 2 functions in a lawsuit:

a) It is the act by which the ct. obtains jurisdiction over the D.b) Gives the D notice of the lawsuit so that individual will have an

opportunity to appear and defend interests.2) Rules in every American jurisdiction treat personal service as the optimum

method of service of processc. Questions

1) How does Wuchter compare with Szukhent. How does Burger King(constitutional question, governs all courts cannot be changed by Congress)compare with Szukhent (interpretation of a statutory question Congress canchange, only govern federal courts).

I.B.3. Immunity From Processa. Rules

1) Generally, non-resident litigants, witnesses, and attorneys are immune fromservice of process when they are in the forum solely for the purpose of participating in a judicial or quasi-judicial proceeding.a) Rationale - the attendance of these nonresidents cannot be compelled, it

is believed to be in the public interest to encourage their voluntaryattendance at judicial proceedings to promote the efficient administrationof justice

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2) Immunity rule - a person confined in jail or a criminal charge or imprisonedon conviction for such charges is subject to civil process, irrespective of thequestion of residence, at least if he was voluntarily in the jurisdiction at thetime of the arrest and confinement (see Sivnkdty v. Duffield).a) If extradited then no civil service.

3) Fraudulent service rule - if service done in fraudulent manner, court willgenerally not exercise jurisdiction (2 rationales).a) B/c court lacks jurisdiction (see Wyman).b) B/c court should not exercise jurisdiction in such situations (see Tickle).c) Rationale does not matter if D raises the fraud service issue before default

judgment entered against him, but it might matter if he does not raise theissue until after the default judgment is entered.

4) These are only common law rules, not required by due process orconstitutional provision in any way.

5) These are old rules may no longer be viable in light of International Shoeand its progeny.

I.C. Challenges to Jurisdiction Over Persons and Propertya. Rules 3 ways to challenge jurisdiction

1) Ignore the action - a default judgment will be entered against the individual.a) The default judgment would be taken to Ds home state in order to collect

on the judgment.b) D mounts a collateral attack on personal jurisdiction.c) The home state may or may not follow the Full Faith and Credit Clause.d) Problems: Very risky. If lose in home state then never get to try case on

merits. Cannot do if have property in the original forum.

2) Raise the jurisdictional question directlya) special appearance - every state permits at least this - D appears specially

for the sole purpose to challenge jurisdiction (appearing and challengingthe jurisdiction of the court without adhering to the jurisdiction) - mustlimit self to jurisdictional issue.

b) general appearance - if argue on merits then a voluntary submission to thect.

c) Problem - if lose under special appearance, may not be able to appeal -depend on type of decision:(1) Final decisions of courts - courts of appeals shall have jurisdiction of

appeals from all FINAL decisions.(2) Interlocutory decisions exceptions - many states must wait until

final order - if dismissed based upon jurisdiction then a final order - if not dismissed try case first.

(3) Many states (PA) hold that question of jurisdiction is an appealableorder.

d) Problem - if lose under special appearance, then cannot assert a collateralattack upon jurisdiction in home state.

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3) Limited Appearancea) Defend the case on the merits based on the property at stake. Limit affect

of the judgment on the seized property - not a general appearance.b) Some courts, if D gains more property then P can try the claim again on

that property - other courts, follow res judicata (claim already decided).

4) How to challenge jurisdiction in a federal ct.a) Rule 12(b) - may assert certain defenses in responsive pleading or by motion.b) Rule 12(g) - in motion must assert defenses in 12(b) only.c) Rule 12(h) - waiver or preservation of certain defenses - (h)(1) 4 defenses may be

waived if not asserted at the beginning - Lack of juris. over person, improper venue,insufficiency of process, or insufficiency of service of process - if not included inmotion is waived - is waived if not included in a responsive pleading or under anamendment under Rule 15(a) as a Matter of Course.

d) Rule 15(a) - may amend a responsive pleading within 20 days as a matter of courseresponsive pleading - 12(a) - 12(b) - 12(h) - 15(a)

I.D. Subject Matter Jurisdiction

I.D.1 Subject Matter Jurisdiction Generally a. General Rules:

1) Test for subject matter jurisdiction = competency of the court to determine controversies of thegeneral class to which the case present for consideration belongs.2) Subject matter jurisdictions isconferred by constitutional provision or statute.3) Exclusive jurisdiction:

a) Particular subject matter ( e.g. , Probate Court for the administration of wills and estates).b) Jurisdictional amount - amount of money in controversy ( e.g. , small

claims court).b. Comments

1) Subject matter jurisdiction in state courts is relativelystraightforward (fairly easy); however, subject matter in federal courts iscomplicated.

I.D.2. Subject Matter Jurisdiction in the Federal Courtsa. General Rules

1) Federal courts are courts of limited jurisdiction , not general

jurisdiction.a) 2 limits on federal courts abilities to exercise subject matter jurisdiction:(1) Constitution

(a) Power to establish subject matter jurisdiction is based upon ArticleIII section 2 there are 9 categories of cases or controversies overwhich the federal courts have power (federal courts are confined tothese 9 categories).

i. 2 most important categories of subject matter jurisdiction.

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Federal Question Jurisdiction Diversity Jurisdiction

(2) Statute(a) Congress can define the jurisdiction of those courts which it creates

(by statute).i. Although it has been suggested that

Congress is obligated to confer the full reach of constitutional jurisdiction on some federal courts, that suggestion has notprevailed and Congress has never done so.

b) Rationale for doctrine that federalcourts are courts of limited jurisdiction:(1) Presents a limitation on federal power over the states.(2) Limits the federal governments ability to expand its power and

control.(3) This is not a doctrine of efficiency (for an example see subsequent

history of Mottley case).(4) [?] Is this rationale true for both federal question and subject matter

jurisdiction.

3) Subject matter jurisdiction is determined at the time (the instant)the Complaint is filed ; subsequent events do not change subject matter

jurisdiction.

4) The party asserting subject matter jurisdiction has the burden of proving its existence, once it is challenged.

5) Concurrent jurisdiction is the rule, not the exception.a) Exclusive federal jurisdiction exception : there will beoccasional instances of exclusive federal jurisdiction over certain subjectmatter.(1) If congress does make federal jurisdiction exclusive, a state court is

obligated by the Supremacy clause to dismiss the action.

I.D.3. Federal Question JurisdictionGeneral Rules

1) 28 1331 - The district courts shall haveoriginal jurisdiction of all civil action arising under the Constitution, laws, ortreaties of the U.S.

2) Statutory limitations on federal question jurisdiction (these are not constitutional limitations):

a) AdequateFederal Element - federal question must be an essential element of thePs Complaint (see Mottley).b) Well-pleadedComplaint Rule - federal question must appear on the face of the PsComplaint.(1) FRCP 8(a) Claims for relief

(a) A pleading which sets forth a claim for relief, whether an originalclaim, counterclaim, cross-claim, or third-party claim, shall contain:

i. A short and plain statement of the grounds upon whichthe courts jurisdiction depends , unless the court already has

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jurisdiction and the claim needs no new grounds of jurisdictionto support it,ii. A short and plain statement of the claim showing that the

pleader is entitled to relief , andiii. A demand for judgment for the relief the pleader seeks .

(2) Cannot be based on anticipated defense or artful pleading (seeMottley).

c) Substantiality rule the basis of the federalclaim must be non frivolous in order to avoid dismissal on jurisdictionalgrounds (see Black Letter p128). Criticism: some have argued that federalquestion jurisdiction should be determined after the Ds Answer but this isnot the law (see casebook p.271)

3) FRCP 12(h)(3) whenever it appears bysuggestion of the parties or otherwise that the court lacks jurisdiction of thesubject matter, the court shall dismiss the action.

a) Parties cannot, by agreement or

waiver, confer jurisdiction on the federal courts; the case will be dismissedif subject matter jurisdiction is lacking (see Capron v. Van Noorden (1804)[p21 casebook]).

4) At any level, at any point in theproceeding, the courts has to raise the issue of federal question jurisdiction(see Mottley and FRCP 12(h)(3).

5) Burden is on the P to prove federalquestion jurisdiction if challenged.

6) Federal question jurisdiction isdetermined at the time (the instant) the Complaint is filed; subsequent events

do not change federal question jurisdiction.

7) Other relevant statutes:b) 28 1334 - Bankruptcy cases andproceedings - dist. courts. shall have original and exclusive juris. of allcases under title 11c) 28 1337 - Commerce andAntitrust regulations - dist. courts. have original juris. over any act of Congress regulating commerce or protecting trade and commerce againstrestraints and monopoliesd) 28 1338 - Patents, plant varietyprotection, copyrights, mask works, trademarks and unfair competition -Dist courts. have original juris. of any civil action arising under any act of

Congress related to patents etc.e) 28 1343 - Civil Rights and electivefranchise - dist. courts. have original juris. of any civil actionconcerning civil rights deprivationf) 28 1345 - U.S. as P - dist. courtshave original juris. of all civil actions commenced by U.S.g) 28 1346 - U.S. as D - dist. courtshave original juris. in certain civil actions

b. History

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1) Osborn (1824) [p267 casebook] offereda broad interpretation of arising under language; Mottley (1908) [p269casebook] responded with a more narrow interpretation, added somelimitations.2) Pre-1981: federal question jurisdictionhad a jurisdictional amount requirement and was also limited by specific

jurisdictional statutes (so that they could only hear certain types of federalquestions).3) In 1981, congress amended the federalquestion jurisdiction statute 1331:

a) Effect - eliminated jurisdictional amount requirement.b) Rationale there should always be a federal forum at least available toa case arising from a federal questions (similar to Congress reasoning forextending the federal courts to claims involving alien D see Omni).

I.D.4. Diversity Jurisdictiona. General rule: 28 U.S.C. 1332 bestows jurisdiction only incertain cases of "complete diversity" where the matter in controversy exceeds$75,000; and is between:

citizens of different states; citizens of a State v. citizens or subjects of a foreign state; citizens of different States and in which citizens or subjects of a foreignstate are additional parties; and a foreign state, defined in section 1603(a), as P and citizens of a Stateor of different States.

1) Rationale: to prevent the bias or fear of bias against non-resident litigants.2) Established by Justice Marshall in Bank of U.S. v. Devereaux(1809).3) There is much debate about whether there is any use fordiversity jurisdiction today (see Casebook p249-253)

a) Congress keeps narrowing the scope of diversity jurisdiction through:(1) Increasing jurisdictional amount requirement.(2) Constant proposals to amend 1391(a) so that P cannot bring suits to

federal courts in their own states.4) Basis:

a) Constitution seems to only require "partial diversity" (which is satisfiedin any action that involves a state citizen as a party when any opposingparty is of a difference citizenship).

(1) Congress has broad power to bestow diversity and alienage jurisdiction on federal courts.(2) However, congress has neither bestowed on the federalcourts the whole range of diversity jurisdiction and alienage jurisdictionnor made federal jurisdiction exclusive.

Complete diversity:General definition: there is no diversity if any P is a citizen of the same state as any D, no

matter how many parties there are involved in the litigation.[?] Rationale: not b/c the court does not have jurisdiction over the parties but b/c the court

does not have jurisdiction over the case as a whole.

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Basis: complete diversity is not mandated by the Constitution or Statute:Chief Justice Marshall in Strawbridge v. Curtiss interpreted the statutory language more

narrowly to mean only complete diversity.i. (Strawbridge v. Curtis ) C. J.

Marshall said- diversity J requires"total diversity"

1. No P can be a citizen of the same state as any Dii. (State Farm Fire & gas Co. v.

Tashire ) 1967 qualifiedStrawbridge- and made MINIMALDIVERSITY the requirement forinterpleader actions ONLY.Strawbridge is only a statutoryrequirement congress could getrid of, so far only has inInterpleader Act.

1. "minimal diversity, that is,diversity of citizenship btw 2

or more claimants w/oregard to the circumstancethat other claimants may beco-citizens"

2. Recently made statutesallowing for minimaldiversity in 2 categories

a. Catastrophicaccidents w/ >75deaths. For civilactions involvingminimal diversitybtw adverse parties.

b. Class action fairnessact 2005- jurisdictionon district cts overclass actions inwhich "any memberof a class of plaintiffsis a citizen of a statedifferent from anydefendant." if class>100 people & over$5 mil.

c. As well asinterpleader actions

Congress has power to change (b/c Marshall was interpreting statute not Constitution) butCongress has not altered the concept and probably will not do so.

Defining Citizenship:Generally:Domicile = residence (true, fixed, and permanent home and principal establishment) +

indefinite intention to stay (Max v. Perry).b) Citizenship is determined at the time the action iscommenced; cannot be changed by subsequent actions.c) Every person has a domicile at all times.

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d) A person has only one such domicile at all times look toplace of employment, voter/vehicle registration, drivers license, currentresidence, presence of property or intangible interests, bank accounts,club memberships, mailing address.e) Domicile continues until changed by another domicile; toacquire a new domicile, a person must:

(1) Be physically present in a new place.(2) With the intention to make his home there indefinitely.

Individual:Must be a U.S. citizen.Must be domiciled in a U.S. State. (mere residence is not sufficient)American citizen state where person lives with indefinite intent to remain.American citizen living abroad - an American domiciled abroad can never sue or be sued

in a federal court under diversity jurisdiction.Married women

(1) Traditional rule: same domicile ashusband.

(2) Exception: does not apply when husband

is a foreign, non-U.S. alien - [?] What if heis a permanent resident alien?(3) Rationale: prevent absurd consequences

(see Mas v. Perry).Children - domiciled where their father is domiciled.Student out of state same domicile as before school (usually familys domicile)

(1) usually considered as not having the requisite intention to stay,therefore not considered domiciled.

3) Alien :a) 28 1332 (a): for purposes of diversity jurisdiction, an alien admittedto the U.S. for permanent residence shall be deemed a citizen of the Statein which the alien is domiciled.b) Test - to determine whether an alien can invoke diversity jurisdiction,have to make 2 inquiries:

(1) Has alien been admitted to the U.S. for permanent residence?(2) Where is aliens domicile (use same domicile rules as apply toindividuals)

c) Resident alien (non-American citizens) domiciled instate on same basis as American citizens.d) Non-resident alien can sue or be sued in any federalcourt under alienage jurisdiction.e) Whether a permanent resident alien can bring suitagainst another permanent resident alien in federal court is stillundecided.

(1) Would seem to violate Article III.2) May be an example of the law of unintended consequences b/c this was not congress intent.

(3) Citizenship of foreigners

CorporationCorporation shall be deemed a citizen for purposes of diversity jurisdiction.Dual citizenship (28 1332(c)(1): corporations shall be deemed to be a citizen of:

1) the State of incorporation, and2) the State of its principal place of business (there is only one principle place of business.

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(a) 3 different tests to determine a corp.'s principalplace of business

i. Nerve center : locus of corporate decisionmaking authority and overall control [criticism: unrealistic].ii. Corporate activities or operating assets(center of gravity test ): location of a corporation's

production or service activities - where is bulk of companysemployees, activities, assets [since only one state can fit thisdescription, will present a problem b/c many companies havemultiple centers in many states it would be unrealistic to pick

just one].iii. Total activity : hybrid examines both thehome office location and the bulk of activities, employees andassets. In application, if there is one center of gravity, thenchose that, if not, then fall back on nerve center [criticism:nebulous, however this is recently popular in federal courts].

Congress has not defined principle place of business.S.Ct. has not decided on any one test.Which test should be applied is left to the lower federal courts.

Unincorporated associations citizenship of every state where any member is acitizen.

This rule sharply diminishes chance of diversity jurisdiction ( e.g. , labor associations,International Brotherhood of Teamsters Union!).

Legal representative ruleLegal representative of a decedent or infant or incompetent shall be deemed to be a

citizen only of the same State as the decedent or infant orincompetent (28 1332(c)(2)).

(1) Before 1988 amendment to 1332, legalrepresentatives had the citizenship of their state (regardless of state of who theywere representing); it was commonpractice to pick a legal representative tocreate diversity jurisdiction (seeMcSparren).

Also note 28 1359 regarding improper creation of diversity.

Efforts to create diversity jurisdiction (Manufacturing diversity jurisdiction):28 1359: parties collusively or improperly joined or made do not create diversity.General rule: federal court shall not have jurisdiction over a civil action in which any party by

assignment or otherwise has been improperly or collusively joined toinvoke the jurisdiction of such court.

Test for improperness look to motive : if assignment or legal representation is for solepurpose of creating diversity jurisdiction, then it is improper.

See Kramer v. Caribbean Mills, Inc. and McSparren v. Weiss.Because it is difficult to determine motive, Congress amended 28 1332(c)(2) to create

black letter law for infants, incompetents and decedents; however this stillleaves door open for other improper creations.

Efforts to defeat diversity jurisdiction

There is no statutory converse of 28 1359.Some courts have invoked an inherent power to reject artificial devises that would defeat

jurisdiction - fraudulent joinder doctrine.

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Example: one party joins another party whose citizenship is same as opposing parties.

Jurisdictional Amount Requirement:28 1332 (a) limits diversity jurisdiction to cases where the matter in controversy exceeds

the sum of $75,000 , exclusive of interest and costs.Rationale: intended to keep petty controversies out of the federal courts but very

complicated to apply, are of statutory origin.Burden is on P to show that amount exceeds $75,000.If P makes requisite jurisdictional amount allegation in Complaint and D challenges it, how

should the Court determine whether that amount is truly incontroversy ?

a) Cannon suggests 3 test (all unsatisfactory) on. Judicial answer at this point: unless the law gives a different rule, the sum claimed by the P

controls, if the claim is apparently made in good faith . It must appear to alegal certainty that the claim is really for less than the jurisdictionalamount to justify dismissal.

Statutory caps can defeat diversity jurisdiction.28 Sect. 1313(b) - If a diversity P recovers a judgment for less than the pleaded

jurisdictional amount, the court may refuse to allow him costs, and may

impose costs against him; however, courts have been unwilling to imposethis sanction when P apparently made his allegation in good faith

g. Miscellaneous1) There is the special provision in 28 U.S.C.A. 1335bestowing jurisdiction for interpleader actions involving partial diversity,where the amount in controversy equals or exceeds $500.2) Exceptions to diversity jurisdiction: probate matters anddomestic relations cases are left up to state courts.3) 3 questions to ask to verify if the case is in the proper ct.(diversity cases)

a) Does the ct. have subj. matter juris? 28 Sect.1332

b) Is the Venue correct?c) Does state law permit service of process?

I.D.5. Supplemental [Pendant and Ancillary] Jurisdictiona. General Rules - 1367

1) 1367(a): Except as provided in subsections (b) and (c) or as expresslyprovided otherwise by federal statute, in any civil action of which districtcourts have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims within suchoriginal jurisdiction that they form part of the same case or controversy underArticle III . . . Such supplemental jurisdiction shall include claims that involve

the joinder or intervention of additional parties.a) Test to establish so related (codifies Gibbs):(1) Is there a common nucleus of operative fact?

(a) Do the claims come from the same factualsetting?

(2) If we put the jurisdictional issue to the side, would Pordinarily be expected to try all the claims in one judicial proceeding?

a) 2 Questions

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(1) Do we have supplemental jurisdiction under 1367(a)?

(a) Is there a common nucleusof operative fact?

If no, then this isend of inquiry do not have to see if it falls under 1367(b).

(2) If yes, does the claim fall under 1367(b)? If no, then court may exercise. If yes, court may not exercise.

a) Pendant v. ancillary- pendant: plaintiff brings first claim in fed court, then attaches second

related claim which would not normally be heard in a federal court.- ancillary: plaintiff brings first claim in a fed court. Then Defendant

counterclaims with a related claim which would not normally be heard in afed. Court.

2) 1367 (b) - Limitations on reach of 1367(a) (codifies Kroger).a) Carves out supplemental jurisdictionover some claims in 1367(a)b) Only applies to pure diversity actions those claims based solely upon 1332, and alienage.

(1) In federal question actions, court canexercise jurisdiction to the fullest constitutional extent permissible.

b) Only applies to P claims in diversity actions(1) Does not bar any efforts by D to invoke supplemental

jurisdiction.(a) Courts will assess efforts by D and P to invokesupplemental jurisdiction differently. (b) Rationale (see dicta in Kroger):

i. P voluntarily chose the forum.ii. D has no choice of forum.iii. Allowing the D to assert supplement

jurisdiction does not open the door to a scenario wherecomplete diversity is swallowed up.iv. The Ds subsequent suit (implead, cross-claim, counter-claim) is logically related to, dependent uponand derived from the Ps original suit; subsequent suits by D willdisappear if Ps suit disappears.

(c) P usually will not be allowed to invokesupplemental jurisdiction while most courts will uphold most claimsby D to invoke supplemental jurisdiction.

c) Only applies to certain kinds of P claims to invoke supplemental

jurisdiction in diversity actions.(1) Courts do not have authority to exercise supplemental jurisdiction overclaims by P against persons made parties under Rule 14, 19, 20,24 . . . when exercising supplemental jurisdiction. over such claimswould be inconsistent with the jurisdictional requirements of 1332.

(a) Rule 14 - impleading a 3rd party D - D impleads.(b) Rule 19 - 3rd party has interest after claim was filed.(c) Rule 20 - same facts and issues in law give rise to two claimsto two different people.

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(d) Rule 24 - allows someone to intervene when they have aninterest in way case is decided.

(2) Only P can destroy diversity in supplemental jurisdictioncases.

(e) If P (a new Yorker) brings claim against D (a Pennsylvanian)and D impleads C a (new yorker), then P amends complaints

and adds claim against C, this destroys diversity.3) 1367(c) Discretion :

a) If a case is not excluded by (b) then (c) says that jurisdictionmust be asserted unless a factor specifically listed in (c)applies. i.e. one of the following 4 exceptions.

a) Statutory language: district courts may decline toexercise supplemental jurisdiction over a claim under subsection (a) if:

(1) the claim raises a novel or complexissue of State law,(2) the state claim substantiallypredominates over the claim or claims over which the district court hasoriginal jurisdiction,

(3) the district court has dismissed allclaims over which it has original jurisdiction, or(4) in exceptional circumstances there areother compelling reasons for declining jurisdiction.

b) [?] The issue of whether pendant jurisdiction hasbeen properly assumed discretion - is one which remains openthroughout the litigation.c) Discretion narrowed: commentaries suggest thatrather than codifying Brennans opinion in Gibbs, Congress in 1367(c)substantially narrowed(1) Post Gibbs, district courts had broad authority to decline to exercise

supplemental jurisdiction whenever the court was persuaded thatdoing so would promote (1) judicial economy, (2) convenience, (3)fairness to litigants, and (4) of comity on balance argue against federal

jurisdiction. It is not the plaintiff right to have the court exercisesupplemental jurisdiction.

(2) Does 1367(c) command the court to exercise supplemental jurisdiction if power exists under 1367(a) and if power is not strippedby 1367(b) and none of the factors in 1367(c) apply?

4) 1367(d) Extending the Statute of Limitationsa) Statutory language: the period of limitations for any claimasserted under 1367(a) and for any other claim in the same action . . .shall be tolled while the claim is pending and for a period of 30 days afterit is dismissed unless State law provides for a longer tolling period(basically, P will have at least 30 days to refile in state court even if

statute of limitations has run when claim is dismissed under 1367).b) Purpose: To address cases like Mrs. Kroger and Mrs. Finleywho by the time they got to state court, the Statute of Limitations had run.c) Is this constitutional?

5) FRCP have nothing to do with subject matter jurisdictionb) See Owen where Court held that even though Pcould use 14(a) to amend her complaint, this has no standing on whether

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or not she could established supplement jurisdiction or subject matter jurisdiction).

b. Rationale:1) Provides a basis for subject matter

jurisdiction when there is not an independent basis of subject matter

jurisdiction2) Judicial economy.3) How do you square the efficiencyrationale for supplemental jurisdiction with the Constitutional principle thatfederal courts are courts of limited jurisdiction - See Brennans majorityopinion in Gibbs (Gibbs test- common nucleus of operative fact)

a) If claims are closely enoughrelated, they can be viewed as one constitutional issue for the purpose of Article III (p290 Casebook, 3 rd full paragraph).b) Stated another way, if claims are closely related enough that they permit the conclusion thatthe entire action . . . compromises one constitutional case.

c. History1) 1367 is firststatutory basis for supplemental jurisdiction; before then, all was judge-madelaw.2) See Gibbs (1966),Kroger (1978), Finley (1989)(not good law anymore) and Aldinger (1976) (notgood law anymore)3) 1367 codifiesmost of Gibbs and Kroger.4) 1367 overturnsFinley and Aldinger b/c neither case was based solely upon 1332 (diversity

jurisdiction); both had federal questions elements.5) [?] when didCongress enact 1367 - 1990

d. Comments1) In federal questionclaims courts may exercise supplemental jurisdiction to the fullestconstitutional limit; in diversity actions court is limited in its ability to exercisesupplemental jurisdiction.2) Two questions forall federal cases:

a) Does the federal court have subject matter jurisdiction?b) If yes, do the Rules of Federal Civil Procedure permit the court to dowhatever certain act it is that the court wants to do?

3) Supplemental = substitute.4) Know arguments for dissent and majority in Kroger.

I.D.6. Removal Jurisdictiona. General removal statute 28 1441:

1) Actions are generally removable for -a) (Except as otherwise expressly provided by Congress), anycivil action brought in a State court of which the district courts of the U.S.have original jurisdiction, may be removed by the D or Ds to the district

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court of the U.S. for the district and division embracing the place wheresuch action is pending.

(1) Any federal question claim may be removed regardlessof citizenship or residence of the parties.(2) Diversity claims are only removable if none of the Dparties are citizens of the State in which the action is brought (

1441(b)).(a) [?] Anomaly Congress treats the question of theD and diversity totally differently depending on whether a party istrying to establish a district courts original jurisdiction or trying toremove the case to district court.

b) If a separate and independent claim under federal question jurisdiction is joined with one or more otherwise non-removable claimsthen the entire case may be removed ( 1441(c)).

c) Foreign states may remove any civil action - upon removal itis tried without a jury - time limitations of 1446(b) can be waived for cause(1441(d)).

d) Federal court may still hear a removed claim even if the statecourt did not have jurisdiction ( 1441(e)).

2) 28 1446 - Process for removala) D files a notice of removal in the district within which such action ispending (dist. ct in which the state ct. sits) - file states the grounds forremoval.b) If the pleading is served on the defendant, then the removal must befiled within 30 days after. If the pleading is filed in court and does not haveto be served on Defendant, than the removal must be filed within 30 daysafter the service of summons.(1) If case stated by initial pleading is not removable but becomes

removable then removal may be filed 30 days after a receipt of anamended pleading - a case may not be removed on the basis of 1332 jurisdiction more than 1 yr. after commencement of the action.

a) Ds shall give written notice to all adverse parties afterfiling the removal and file a copy of the notice with the clerk so removalcan be effected - state ct. shall take no further action until the case isremandedb) All defendants must join in the removal in order for it tobe effective.

3) 28 1447 - Procedure after removal generally, remanda) 1447(a) - In a case removed from state court: districtcourt may issue all necessary orders and processes to bring the properparties before it, whether served by process issued by the state court ornot.b) 1447(b) - District court may require the removing partyto file with the clerk copies of all records and proceedings in such State ct.or cause the same to be brought before it by writ of certiorari.c) 1447(c) - A motion to remand the case on thebasis of any defect other than subject matter jurisdiction must bemade within 30 days after the filing of the notice of removalunder 1446(a)

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(1) The district court can remand the case at any time, before final judgment, if it appears there is a lack of subject matter jurisdiction.

(a) An remand order may require paymentof just costs and actual expenses incurred as a result of theremoval.(b) A certified copy of the remand shall be

mailed by the clerk of the court to the clerk of the State court; theState court can then proceed with the case.(2) Are the grounds stated for remand in 1447(c) exhaustive or are there

others?(2) The whole point of 1447(c) was about timeliness it does not

purport to identify appropriate grounds for remand. This wasskewed when it was amended under the 1998 judiciary act.

(3) It can be used now for grounds for removald) 1447(d) only remandorders issued under 1447(c) and invoking the grounds specified thereinare immune from review under 1447(d). or that it was removed originallyunder 1443 (civil rights cases). *so essentially, you can only review aremand if it was remanded by the district court on the basis of subjectmatter jurisdiction (that the federal court lacked the jurisdiction to hearthe case in the first place), so it was improperly removed.*e) 1447(e) - If P seeks to join3 rd parties after removal that would destroy subject matter jurisdiction, thedistrict court may deny joinder, or permit joinder and remand the action tothe State court.f) There is much debate overwhat is covered by the any defect language in 1447(c) is thislanguage inclusive of every possible case or are there cases outside thelanguage of this provision.(2) In light of the argument that 1447(c) and 1447 (d) should be read

together, then:(a) If apply new language literally then no

remand order is reviewable.(b) If you read defect to imply some typeof limitation, then there may be some remand orders that arereviewable.i. defect could be read to mean an actual defect in the matter

or law, or a defect in the procedure. Has to be one or the other.In which case some orders could be reviewable.

ii. defect could be read to mean anything (aka, your lawyer is a jerk, I dont want to take the case)

4) Are remand rulings appealable? No.

b. Comments

1) Removal is not a separate ground for federal jurisdiction it does notadd to Article IIIs list of cases and controversies; removal is a procedural device that permits the D to shift into a federal court a state actionwhich the P could have originally brought in federal court .2) DO NOT SAY MOTION TO REMOVE SAY NOTICE TO REMOVE.3) Anomaly permits D to reverse the Ps choice of forum.4) Is of considerable tactical importance to litigants5) Removal is purely a creature of statute.6) Only D can remove a case to federal court; a Ps counterclaim cannotremove the case to federal court.

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7) All Ds must agree to remove unanimously.8) The removing D has the burden of demonstrating that a party wasfraudulently joined to defeat removal and it is a heavy burden of persuasion.9) There is no judicial participation (no requirement of judicialapproval) for a case to be removed under 1446(a) this is a pure

administrative , mechanical act; Judiciary only gets involved if andwhen the removal is challenged by the P (motion for remand) - it is atthis point that the court will decide whether the case was properlyremoved by the D .

e. Questions1) What is the proper basis for remand? Is a forumselection clause?2) Where do Thermatron and Cohill fit in?

1442: is special removal rule for federal officers sued in a state court.

1443: special removal rule for instances where the law you are being sued underprovides for equal rights.

I.D.7. The Federal Rules of Civil Procedurea. The Federal Rules of Civil Procedure

1) Not statutes but have statutory force -promulgated pursuant to statutory authority.2) 28 2072 - Civil Rules Enabling Act:gave the S. Ct. the power to prescribe general rules governing the practiceand procedure of the district courts in civil actions.a) Significant limitation rules cannot abridge, enlarge or modify any

substantive right (creates problem of distinguishing b/w a substantive and

a procedural rights).(1) A number of Rules have been challenged as invalid substantiveregulations beyond the authorization of the Act, but the S.Ct. hasrejected the challenge in each instance.

3) Only apply to federal courts no application to proceedings in state courts.4) Act provided the legislative power to create F.R.C.P.

I.E. Venue

I.E.1. Venue Generally a. Rules

1) Venue regulates the geographical allocation of business within a

judicial system (jurisdiction)2) Now, venue is primarily based on statute in nature and courtsare bound by these written rules.

a) This was not always the case venue used to be judge-madelaw.b) Even on the federal level today there are elements of venuethat are still judge-made, imposed upon the courts even though notexpressed in the any statutes ( i.e. , although 1391 makes no mention of the local action rule, the federal courts abide by it.)

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3) Venue includes considerations of equity, fairness,convenience and expediency.4) Venue rules vary by jurisdiction, by type of action and byparties to the suit.5) Special venue statutes are controlling overgeneral venue statutes.

I.E.2. The Local Action Rulea. Rules

1) Majority rule - Local Action Rule - actions concerning property (realand chattel) must be brought in the jurisdiction where the property is located.

a) Enshrined by Livingston v. Jefferson.2) Core location action cases occur where the action involves a disputeover title to the property (contests as to ownership, action in ejectment, title,foreclose a mortgage, conflicting claims to interests in land).

b. Rationale

1) There is a strong rational for local rule in core localaction types of cases b/c:a) Witnesses are in same district where land islocated.b) Land officers ( public record of who ownsproperty) are in it district as where is located.c) Only a court located where the land is locatedcan enforce the judgment (see dissent in Reasor-Hill).

1) If you confine the local action rule tocore cases, it is a good rule b/c there will always be a court open to the hearthe case (due to function of in rem jurisdiction).2) However that rationale disappearsfor cases involving trespass to land:

a) See Reasor-Hill and Livingstonwhere if courts applied the local action rule and if court in the jurisdictionwhere the land is situation cannot establish personal jurisdiction over theD, then the P will have no ability to recover.b) However, these types of cases arenow rare b/c of more permissive personal jurisdiction reach due to longarm statutes.

c. Comments1) [?] Is local action rule an issue of venueor subject matter jurisdiction?

2) An issue of subject matter jurisdiction because only that one venue hasthe subject matter jurisdiction to try the case given the nature of realproperty, you are not picking the proper venue in which to try it.

1) [?] Improper venue is a thresholddefense.2) [?] Improper venue can be waived.

I.E.3. Venue in the Federal Courtsa. Rules

1) The general venue statute for the federal courts is 1391

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a) 1391(a) Diversity Jurisdiction(governs venue in diversityactions) - a civil case, where jurisdiction is founded solely upon diversity,may be brought only in:(1) a judicial district where any D resides, if all Ds reside in the same State

- residential venue.(2) a judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred or a substantial part of property thatis the subject of the action is situated - transactional venue.

(a) There may exist some ambiguity as to constitutesa substantial part.

(3) A judicial district in which any D is subject to personal jurisdictionat the time the action is commenced , if there is no district in whichthe action may otherwise be brought - fall-back venue.

(a) Dependent upon the long-arm statute of thatState.(b) Limits of application:

(i) Applies only if no other judicialdistrict is available.(ii) Applies only when court has personal

jurisdiction over the D at the time the action is commenced - acivil action is considered commenced upon the filing of acomplaint with the court.

P (a citizen of the E.D. of PA)commences an action against D (a foreign citizen) for apersonal tort injury that occurred in Mexico in the federaldistrict court for the E.D. of PA when D is visiting his niecethere. P files his complaint on Monday. D enters the E.D. of PA on Tuesday to visit his niece. P serves D with process on

Tuesday does the court have personal jurisdiction over theD at the time the action is commenced? There is someambiguity.(the court could decide to apply rule 3, thefederal rule, or the state rule)

(c) The fall-back venue provision will generally applyto cases where there are multiple Ds not residing in the same state(therefore, there is no judicial district available under 1391(a)(1))and where there is a foreign-based cause of action (therefore,there is no judicial district available under 1391(a)(2)).(d) The fall-back venue provision may also apply tocases where there is a foreign-based cause of action and the Dresides outside the U.S.(e) Rationale attempt by Congress to ensure that aclaim within the subject matter jurisdiction of the federal courts hasat least one federal court open to it (similar to policy rationales forOmni and ?).

(i) Created to address foreign-basedcauses of action.

b) 1391(b) - Federal Question Jurisdiction (any other civil casebesides diversity) - a civil case, where jurisdiction is not founded solelyupon diversity, may be brought only in:(1) a judicial district where any D resides, if all Ds reside in the same State

- residential venue .

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(2) a judicial district in which a substantial part of the events or omissionsgiving rise to the claim occurred or a substantial part of property thatis the subject of the action is situated - transactional venue .

(3) A judicial district in which any D may be found , if there is no districtin which the action may otherwise be brought - fall-back venue .

(a) Dependent upon the long-arm statute of that State.

(b) Compare to parallel section in 1391(a)(3) - eliminates the issubject to personal jurisdiction at the time the action iscommenced language from.

c) 1391(c) - Corporation residence a D corporationshall be deemed to reside in any judicial district in which it issubject to personal jurisdiction at the time the action iscommenced.(1) Multi-district states - just because a corporation has significant

contacts with a state, doesnt mean that it is subject to personal jurisdiction in all of the districts of that state. It is only subject topersonal jurisdiction in the districts with which it has significantcontacts

(2) Fall-back venue provision - if there is no such district, the corporationshall be deemed to reside in the district within which it has the mostsignificant contacts.

(3) This is not a rule, this is only a definition of corporate residence for thepurposes of the venue statute.

b. Comments1) Specific venue statutestrump general venue statutes.2) Venue provisions protectthe Ds against the risk that a P will select an unfair or inconvenient place of trial.3) It is possible that a

substantial portion of events is in more than one district.4) Impact Theory theoryargued by the P in Great Western that the judicial district in which the injuryoccurred is proper venue.

a) The majority inGreat Western rejects this notion b/c the purpose of the venue statute is toprotect the D.

(1) If we accept impact theory, then in most cases (especiallyeconomic cases), the district court where the P resides becomes anacceptable and permissible venue - would this serve the real purposeof the venue statute?

c. Questions1) What constitutes substantial injury?2) What does events and omissions mean?

I.E.4. Forum Non Conveniensa. Rule

1) Federal court may dismiss a case even when the court has propervenue and jurisdiction.

a) Two types of interest served by FNC:

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(1) Private interest of the litigant to changethe forum

(a) Relative ease of access to sourcesof proof.(b) Availability of compulsory processfor attendance of unwilling.

(c) Cost of obtaining attendance of willing witnesses.(d) Possibility of view of premises, if view would be appropriate to the action.(e) All other practical problems thatmake trial of a case easy, expeditious and inexpensive.

(2) Public Interest(a) Administrative difficulties whenlitigation is piled up in a ct.(b) Jury duty is a burden not to beimposed on people of a community who have no relation to thelitigation.(c) Hold trial in view of people which it

touches the affairs of rather than in remote parts of the country.(d) Local interest in deciding localizedcontroversies at home.(e) Appropriateness in having the trialof a diversity case in a forum that is at home with the state law thatit must govern - rather than having a ct. in another forum untangleproblems with the law.

b) A Ps choice of forum should rarely be disturbed qualification on consideration of public and private factors.c) Alternativeforum does not have to be a U.S. forum (see Piper).

2) An available alternative forum is a prerequisite to the dismissalof a case on FNC grounds.a) Minority view courts can dismiss cases even if no other forum is open - (Ex. Islam), see p356C.

3) In applying FNC, a change in law is not a factor to be consideredunless alternative forum clearly provides no remedy at all (see Piper).

a) Rationale b/c then courts would have to assessthe law in every alternative forum on every single point of law timeconsuming and inefficient process.b) Exception there may be some circumstanceswhere the difference in law is a substantial consideration.

(1) If the remedy provided is noremedy at all b/c it is so clearly inadequate.(2) Exception expanded in aPiper footnote - if remedy is so unsatisfactory that it s

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The Holy Grail-1