Civ Pro Final Outline (Moore)

8/10/2019 Civ Pro Final Outline (Moore)

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I. Subject Matter Jurisdiction

a. General SMJ Jurisdiction Rulesi. Burden of proof is on party claiming SMJ

ii. Subject Matter Jurisdiction Cannot Be Waiveda.

Capron v. BartonEven Plaintiff can challenge SMJ

b. Courts must raise the issue of the parties do not

c. Caproncreates an incentive for people to address SMJ early ond. Can raise SMJ on appeal, but generally not by collateral attack

iii.

You cannot trick someone into SMJmust have proper servicea. Tickle v BartonCannot use deceptive measures to entice someone into state to serve notice

iv. Res JudicataFinal judgment on the merits of a case is conclusive. Once a case has been decided, decision stands ( Fetter v. Beale)a. Three elements :

1.

Earlier decision on case

2. Final judgment on the merits

3. Same partiesv. Res Judicata v. SMJ (Des Moines Navigation)

a. Facts - Case originally brought into Iowa court and then removed and decided on by the Supreme court. P attempted to retry the casin state court on the grounds that the federal court lacked SMJ

b. Rules1. You cant collaterally attack SMJ2.

When there is a final judgment on the merits (after appeals process ends), case is over

3. Supreme court is of limited but not inferior jurisdiction Once the appeals process in one court is over, it cannot be

appealed anymore

4. Jurisdictional questions are within the federal jurisdiction to decide.c. In battle between the twoRes Judicata winsd. Even cases that have been decided without proper jurisdiction have res judicata value (if that lack of jurisdiction was never

appealed), at least until they are judicially annulled, vacated, or set aside

e. Distinguish between Capron1. Raised in a new case (in Capron, was on appeal)2.

Cant collaterally attackSupreme court of limited, but not inferior jurisdiction a

b. Subject Matter Jurisdiction in State Courtsi. Usually at least one state court in each state has SJM; contrast to limited jurisdiction of federal courts

ii. With few exceptions, states have concurrent jurisdiction with federal courts over cases arising under federal lawa. Patents, bankruptcy says federal courts have exclusive jurisdictionb.

Comes from Supremacy Clause - State courts are bound by Constitution so, issues of federal law can be heard in state courts

iii.

Usually state statutes set SMJ boundaries. Boundaries are often based on:a.

Amount in controversy

b. Type of case (e.g. domestic relations)c. Original v. Appellate jurisdiction

iv. Full Faith and Credit Clause - full faith and credit shall be given in each state to the public acts, records, and judicial proceedings ofevery other state (Can't discriminate against laws of other states, or federal law)

c. Federal Judicial Poweri.

US Constitution, Article III, Section 2

a. The judicial Power shall extend:

1. to all Cases in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, orwhich shall be made, under their Authority;

2. to all Cases affecting Ambassadors, other public Ministers and Consuls3. to all Cases of admiralty and maritime Jurisdiction;4.

to Controversies to which the United States shall be a Party;

5.

to Controversies between two or more States;

6. [to Controversies] between a State and Citizens of another State;

7. [to Controversies] between Citizens of different States8. [to Controversies] between Citizens of the same State claiming Lands under Grants of different States, and9. [to Controversies] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

ii. Statutes (Diversity Jurisdiction28 USC 1332)iii. Congressional Power to Create Courts (US Constitution, Article III, Section 1)

d. Diversity Jurisdictioni. Congress enacted 28 U.S.C. 1332statute establishing diversity SMJ for district courts

a. requires diversity of citizenshipb. requires amount in controversy exceeding $75,000c. Congress may exercise power up to the Constitutional limits, but may choose to narrow down authority


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ii. Arguments for Diversity Jurisdiction

a. Prejudice against out-of-state partiesb. Federal courts are appointed (most state judges are elected)c. Federal judges have lifetime tenure (only way to get off bench is resign/retire)d. Federal juries are selected from a wider areae.

Federal judges may be less locally oriented---think of themselves more of federalnot state

f. Federal judges may be better qualifiedas a group

g. Out of state investors may believe i.-iii. Are trueh. Even if 1-3 aren't true, if people think there is less bias

i.

Encourages state and federal courts to compete in quality and copy procedural improvementsiii. Arguments Against Diversity Jurisdiction

a. Crowds federal courts ( about 20% of federal caseload)b. Erie Doctrine means fed courts are applying state law to substantive issues anyway; state courts can do this betterc.

Interferes with state autonomy

d. Retards development of state law

e. Diminishes pressure for state court reform by influential pressure groupsf. Allows some litigants to use federal courts just because of luck.

iv. Proposals for Changing Diversity Jurisdictiona. Eliminate itb.

Increase amount in controversy requirement

c.

Exclude non-economic damages, including punitive damages from the amount in controversy calculation

d. Prohibit plaintiffs from invoking diversity jurisdiction in their home statese. Consider corporations to be citizens of every state in which they are licensed to do business

v.

Why Plaintiff May Prefer Federal Court

a. Procedural rules may be more liberal (especially discovery)b. Federal court may be more conveniently locatedc. Some think federal judges have more experienced.

Some think federal juries are less biased

e.

Less time until trial (sometimes)

vi. General Rules

a. Complete Diversity (Strawbridge)

1. Strawbridge v. Curtis (1806)

i. There is no diversity jurisdiction if any plaintiff and defendant are citizens of the same stateb.

Party asserting diversity jurisdiction has burden of showing it exits

c. No plaintiff can have the same citizenship of any defendant (Mas v. Perr y)

d. Diversity Citizenship determined at time complaint is filed.

e.

You can only be a citizen of one statef. Constitution requires at least one person to be a citizen of the US

vii. Determining Citizenship, Natural Personsa. For diversity purposes, citizenship means domicile; (Mas v. Perr y)

1. Mere residence in the State is not sufficient2.

A person's domicile is the "place of his true fixed, and permanent home and principal establishment, and to which he hasthe intention of returning whenever absence

3.

To change domicile, must 1) take up residence in a different state with 2) intention to remain there

i. Must have intent to remain (going to school doesnt change citizenship fordiversity)ii. Means that you cant change citizenship for diversity purposes

viii. Common evidence of citizenshipa. Current residenceb. Voter registration

c.

Auto registrationd. Location of personal or real property or other economic interestse. Location of bank accountsf. Place of employmentg.

Participation in civic affairs

h.

Membership in churches

i. Personal declaration of domicile (sometimes)ix.

Determining Citizenship, Corporations

a. Corporations shall be deemed citizen by any state by which it has been incorporate and of the State where it has its principal place ofbusiness

b. Corporate principal place of business3 possible tests:1. nerve center (where are decisions made/control),2. corporate activates (where are production/service centers),


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3. total activity (weighs the two).c. Unincorporated associationsare citizens of every state in which one of their members is a citizen

e. Alienage Jurisdictioni. 28 USC S 1332

a. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of

$75,000, exclusive of interest and costs, and is between

1. citizens of different States;2. citizens of a State and citizens or subjects of a foreign state;3. citizens of different States and in which citizens or subjects of a foreign state are additional parties.

b.

For the purposes of this section, . . . and section 1441, an alien admitted to the United States for permanent residence shal l bedeemed a citizen of the State in wh ich such ali en is domicil ed.

PFrench v. DGerman No No US citizen

PVA v. erman Yes Citizens of a state and citizens of a foreign state

PVA v. + erman Yes Citizens of different states and in which citizens or subjects of a foreign stateare additional parties

PVA v. DVA +DGerman

o Can't have citizens of same state on either side; also violates complete diversity

Pfrench v. DNY +DGerman

Maybe Courts splitmore no's than yes; no explanation b/c suits not between citizensof different stateno Americans on both sides

PVA +Pfrench

v. DNY + DFrench Yes Citizens of different states and in which citizens or subjects of a foreign stateare additional parties

f. Abuse of Diversity - Cant intentionally join parties to create jurisdictioni. 28 U.S.C. 1359

a. A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly orcollusively made orjoined to invoke the jurisdiction of such court.

1. Kramer v. Caribbean M il ls, In c., 394 U.S. 823

i. In this case, a Panamanian corporation assigned interest under contract with a Haitian corporation to Kramer, aTexas attorney; Kramer then assigned any net recover on the assigned cause of action to the Panamanian company;Kramer then filed suit with Haitian company

b. Facts Indicating Improper Assignment1. Assignee only a nominal party; assignor retains an actual, substantial interest in the suit

2.

Assignee does not possess an independent interest or right of action that existed prior to the assignment3. Assignor solicited the assignee to bring suit, contributed to litigation expenses, or controlled litigation conduct4.

Short time between assignment and filing of suit

ii. For diversity purposes, nominal parties dont count (Rose)

a. Federal courts must disregard nominal parties to the actions and determine jurisdiction based solely upon the citizenship of the real

parties to the controversy (Rose)

1. A real party is one who, by substantive law, has the duty sought to be enforced or enjoined2. Real party must have control over the litigation or financial stake in the outcome the Reds might lose Rose, which

would of course have a financial impact, but they would not be assessed damages in this suit

g. Amount in Controversyi. 28 USC 1332

ii.

Amt. in controversy must be over$75,000 (Generally no amount requirement for federal question cases)

iii. Interest counts only if part of underlying claima. If lending 70,000 for 80,000 in a few years, then interest countsb.

Attorney's fees don't count (normally) - Only if statute allows for it and if contract allows it

iv. Courts differ in valuing injunctionsa. Most go with what plaintiff allegingb.

Others say whichever is filing

v. Post-filing events are generally irrelevant

vi. If you lose the case for less, doesn't change

vii. IF complaint has 2 claimsfor more than requirementa. If there is a motion for summary judgment dismissing one of the claims, then still have SMJ because it happens after the filing

viii.

Often, not difficult to evade amount in controversy requirement

a.

Exceptions

1.

Arnold v. Tr accoli(amt requested must be in good faith)

i.

Liquidated damages1.

Some contracts put in fixed amounts


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2.

Courts generally enforcement3.

If you file asking for moreas a matter of legal certaintyyou can't recover more because limited to 50,000in contract

ii.

Punitive damages1.

Can't file punitive damages in contract cases

ix. Aggregation Rules for Amount in Controversy

D Single D Multiple

P Single Can aggregateeven if claims are totally unrelated Aggregate ONLY if Jointly liable

P Multiple Aggregate ONLY if plaintiffs have common, undivided interest Must have common undivided interest and D'shave to be jointly liable

x. Plaintiff can in theory be liable for defendant costsa. 28 U.S.C. 1332(b)

1. Except when express provision therefore is otherwise made in a statute of the United States, where the plaintiff who filethe case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75K,

computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and

exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on theplaintiff.

II. Federal Question Jurisdiction

a. Generallyi.

Exists when there is a federal cause of action requiring substantial interpretation or application of federal law

ii. Unless Congress gives federal courts exclusive jurisdiction, state courts have concurrent jurisdictioniii. Constitutional basis

a. Article III, 2: extends judicial power of the federal courts to all cases arising under the Constitution and federal statutes

iv. Statutory basisa. 28 USC 1331: federal courts have original jurisdiction of civil actions over questions arising under the Constitution, federal law

b. Rationale for Federal Question Jurisdictioni. Federal courts are in best position to understand and interpret federal law

ii. Federal courts are in the best position to enforce federal law especially when it is unpopular in the forum state iii. Federal courts are able to give federal law more uniform application than state courts

c. INGREDIENT THEORYi. When question to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in

the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it

a.

Osborn - fed jurisdiction because bank was founded on a charter given by Congress 1. Look at statutecharter creating the bank2.

Deemed to be a federal case because it required interpretation of Constitutionand charter said bank could be sued or suin federal court

3. Osborne is the standard for Constitutional arising under ingredient theory

b. Osborn not relevant today b/c courts interpret a lot more narrowly today

d. Well Pleaded Complaint Rulei. Federal question must be evident from the plaintiff's statement of the cause of action in a well-pleaded complaint.

a. Motley2 peopletrain tickets for life as long as dont sue Congress passes a statute that says cant do this1. only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution.

It is not enough that the plaintiff anticipates a federal question

2.

Anticipating defenses doesn't bring something into FQJ

3. Defenses in the answer that actually raise federal issues doesn't create FQJ 4. Counterclaims that raise federal issues don't create FQJ5.

Plaintiff generally choose not to bring a federal cause of action to avoid FQJ

ii. Advantagesa. Allows jurisdiction to be determined at the outset, rather than be contingent on what happens in the futureb.

Consistent with treatment citizenship and amount in controversy.

c. Gives Defendant incentive to raise federal defenses

iii. Disadvantagesa. Results in state courts deciding important federal issues in defenses and counterclaims or results in huge waste of time (e.g., Mottley

e. Artful Pleadingi. Can't use declaratory judgments to circumvent the well pleaded complaint rule

ii. Declaratory Judgmentsa.

Only a federal question if the coercive action that would have been brought in the absence of declaratory judgments would have beea federal question


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b. Declaratory Judgment - 28 U.S.C. 22011.

In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other legal relations of any interested party seeking such

declaration, whether or not further relief is or could be sought.

iii. Cant omit necessary federal questionsa. Bright v. Bechtel Petroleum

1.

Employee sues employer for breach of contract for, as legally required, withholding income taxes from his paycheck

f. Holmes Creation Testi. A suit arises under the law that creates the cause of action." (Holmes in American Well Works)

ii.

More useful for including claims than excluding claims iii. Federal cause of action = always a federal question iv. State cause of action = NOT necessarily a FQ, but could be

a. T.B. Harms v. Eliscu (1964)1.

Even though the claim is created by state law, a case may arise under a law of the United States if the complaintdiscloses a need for determining the meaning or application of such a law. . . .

b. Smith v. K.C. Title and Trust (US Supreme Court 1921)

1. where it appears [from the complaint] . . . that the right to relief depends upon the construction or application of [federallaw] federal courts have jurisdiction.

c. Merrel Dow1. P asserted that D's violation of the FDCA was direct and proximate cause of their injuries, a claim that caused D, Merell

Dow, to remove the case to federal court on basis of federal question jurisdiction

i. Court concluded that claims DID NOT arise under federal law because Congress had determined that thereshould be no federal private cause of action under the FDCA

ii.

"Presence of a claimed violation of the federal statute as an element of a state cause of action is insufficiently

'substantial' to confer federal question jurisdiction

d. Grable (standard today)1. Grable delinquent in taxes so IRS seized property; Grable sued person who brought property saying title not valid b/c IRS

did not serve notice properly

2. Grable ReinterpretsMerrel Dow on last issue3. Question is does a state law claim necessarily raise a stated federal issues, actually disputed and substantial, which

a federal forum many entertain without disturbing any congressionally approved balance of federal and sate

judicial responsibilities.

i. Is part of that claim a federal issue?ii. Don't over read necessarily

iii. If not disputeddoesnt need to be in federal courtiv. "substantial", in Grable, substantial is strong federal interestin Grable, IRS has strong interest in outcome b/c relie

on property seizures to pay of tax debt

v. If we allow case in won't cause flood of cases e. Overview of Federal Question Jurisdiction

Issue of federal law evident in well pleaded complaint?

No Yes

State Law State Cause of Action with no issue of federallaw

Most cases are here, accidents, breach ofcontract

State cause of action, but in well pleaded complaint is federalquestion

MaybeUse Grable Test

Is federal issue necessary to win case?

Disputed

Substantial

Would hearing it in federal court disrupt balance

of power

Federal Law Federal cause of action but no issue of federallaw

Shoshone Case

NO (?)

But hasn't been another case like it

not clear that if another case like thiscame out that court would come out thesame way

Federal cause of action and issue of federal law evident in well-pleaded complaint..

YES

Vast majority of federal questions in this category

III.SUPPLEM ENTAL JURI SDICTI ON

a. Generally


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i. How federal courts with SMJ over one claim (the independent claim) can also get SMJ over related claims that by themselves arejurisdictionally insufficient (supplemental claims

ii. Rationale: - Efficiency

iii. Gibbs case made it constitutional

b. Pendant Jurisdiction (now just supplemental)i. Pendant Claim

a. P asserts claim with SMJ against D(independent claim) and a 2 ndclaim against D w/o an independent basis for SMJ against the samD (pendant claim)

ii. Pendant Party

a.

P asserts a claim with SMJ against D (independent claim) and a 2 ndclaim w/o independent basis for SMJ against a different D(pendant party)

iii. (Distinction used to be importantbut not really anymore)

c. Joinder Rules (precondition for supp J)i. Suits by P against multiple Ds

ii. Counterclaimsa. Suit by D against P

1. Compulsoryif you want to make it, need to do it now2. Permissivecounterclaims you can make, but which you could also make later

iii. Cross-claimsa.

P sues D1 and D2 ; D1 sues D2

iv. Impleadera. P sues D1; D1 can implead a 3rdparty (normally P would then amend complaint to include 3 rdparty

d.

Uni ted M ine Workers v. Gibbsi. Facts: Gibbs a supervisor of mine; mine workers strike; and then 2ndary boycottunion workers pressure others not to work forGibbs;

Gibbs files suit;

ii. Issue : 2ndary Boycott is a federal issue; Interference/breach of contract is a state issue (state cause of action w/o federal issue) iii. Rule/Holding

a. Article III of constitution grants jurisdiction over cases not just claims (when claims closely related enough, well hear together)

b. State/Federal claims must arise from common nucleus of operative factiv. Established discretionary factors Gibbs Factors for establishing Supp J (later codified)

a. Federal issues are not resolved early in the case b. State issues dont substantially predominatec. State claim is closely tied to questions of federal policy d.

Other reasons that are independent of jurisdictional concerns (hearing claims together would confuse the jury)

e. (Later courts added) whether court would be required to decide sensitive or novel issues of state law

v. So2 part test to determine Supp J.

a.

Is it constitutional (common nucleus of operative fact) b. Go through Gibbs factors

e. Pendant Party Jurisdictioni. Aldinger

a.

Aldinger sued officers under federal civil rights and county under state claim (b/c statute said that county can't be sued under statute

b. Court said no Supp J b/c would circumvent Congressional intentwon't allow you to go through back door

1. Civil Rights act hasbeen interpreted and you cant sue counties under it2. Cant get to federal court through back doorwhen Congress has said it cant be done

c. Establishes that pendant party jurisdiction is narrower than pendant claimii. Owen Equipment v. Erection Co

a. P, citizen of Iowa, sued Omaha Public District, Nebraska corporation, for wrongful death of husband b.

D in response asserted an indemnity claim against a 3rd party (Owen equipment and erection company) NOT diverse from plaintiff

c. P amends complaint and adds state claim against Owen and argues Supp J.

1.

Common nucleus of operative fact present (allowing D1 and D2)d. BUTthere must be complete diversityallowing jurisdiction would be circumventing the Constitution!!

i i i . Finley

a. Facts: P's husband and 2 kids killed when plane hit power lines ; P (CA) Sued FAA under Federal Tort Claims Act (allows you to suthe government); Later, amended to include state law claims against city of San Diego (CA) and utility co. that maintained powerlines (would be no diversity J in 2ndcase)

b. P claims Supp J b/c federal courts have exclusive jurisdiction over FTCA claims c.

But SC says NO b/c FTCA confers jurisdiction civil actions against the USnot civil actions that include the USmeans the USand no one else

d. Bascially, the SC said Congress, if you want there to be jurisdiction, you have to say so

iv. In sum courts strongly restrict pendant party jurisdiction

f . MODERN SUPPLEMENTAL JURISDICTIONi . 28 USC 1367


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a. shall have supp. j over all other claims that are so related to claims in action within such original jurisdiction that theyform part othe same case or controversy under Article III

1. Codify the Gibbs factorsb. any action in which jurisdiction is based soley on 1332 (diversity) district courts shall not have supplemental jurisdiction

1. No Supp J if it destroys complete diversity2.

Codifying Owen

c. may decline to exercise jurisdiction over a claim under sub. A if:

1. the claim raises a novel or complex issue of State law,

i. state courts are more knowledgeable of state issues, and state courts can set precedent ( This is not in the Gibbsdecision)

2. the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

i. If you have to prove much much more under state claims, if you'll spend most time on state claim, it has a feel ofstate claim

3. the District court has dismissed all claims over which it has original jurisdiction, or

i. Doesn't say early in case, but courts interpret it that wayif beginning of case, much more likely to kick out stateclaim

4. in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

i. Catch allnot clearcourts differ on how broadly interpret thisd. period of limitationshall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law

provides for a longer tolling period.

1. If Supp. J dismissed, you are allowed to re-file in state court2. Makes states give you whatever time is left under statute of limitations plus 30 days

g.

Final Notes on Supplemental Jurisdictioni .

Courts differ on whether 1367(c) factors are comprehensive

a.

Courts differ on whether they are the only reasons courts can use to decline supp. J, or if they are just examples

b. Also differ on how broadly to apply (especially with #4)ii . Some courts confuse supplemental jurisdiction with aggregation of claims (e.g., Shanaghan v. Cahill)

a. P sued one D on 3 claims (3 debtsone for 40,000, one for 24K, and one for15Kthe amt. in controversy at time is 50,000b. Case was originally filed in federal courtafter discovery, court granted summary J on 40Kand then said would refuse supp.

jurisdiction on last 2 claims

c. Ruling: Aggregate claims that exceed $75,000 against a single D at the time of the case, if there is diversity of citizenship, are notconsidered to be supplemental claims

1. Thus, if the total falls below $75,000 if one claim is dismissed, a court may still assert PJ over D

h. Diversity Based Action Claims

i . Only class representatives (named plaintiff) citizenship matters

ii .

Generally cant aggregate across plaintiffs

a.

Ex - 100 people in class, and each has 1,000 in damage = 100,000 in damage

b.

In general, can't say amt. in controversy, because Multiple P suing single D P's must have common undivided interestandplaintiffs in controversy don't generally have common undivided interest

iii.

Class Action Fairness Act (2005) grants federal SMJ if aggregated claims exceeds $5 million and there is minimal diversity

a.

Even if you don't have common undivided interest

b.

For certain class actions, grants federal jurisdiction if:

1.

Minimal diversity (generally)

2.

Aggregate amount in controversy > $5 million

c.

Purpose: Allow removal of large class actions

d.

Effect: More removal and more class actions originally filed in federal court

iv.

Can use supplemental jurisdiction if facts satisfy the requirements for supplemental jurisdiction

a.

If P, suing for 100,000 and other 10 plaintiffs each suing 10Kso total is 200K (so not in class action fairness act)

1.

Can't aggregate b/c no common undivided interest

b.

BUT can get into federal court as long as one P is over amt. in cont. then and named plaintiff has to be diverse (1367 allow

for this)

c.

Must be one claim that by itself can get in federal court

d.

New rule: 28 U.S.C.1367 means can use supplemental jurisdiction in diversity-based class actions (Exxon Mobil v. Allapatta Servic(2005))

IV. REMOVAL JURISDICTION

a.

Generally

i.

DefinitionD having a case moved to federal court that could have been filed in federal court

ii.

RationaleGives both parties an equal chance to have the case in federal court

iii.

ConstitutionallySatisfies Article III, Section 2

iv.

Statutory Current removal statute, 28 USC 1441

v.

Removal is the Ds right

vi.

Improperly cases must be remanded


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a.

If federal courts dont have SMJ, cant hear the case

vii.

Ds burden of proof on remand motion

a.

If D removes, has burden of proof showing there is SMJ in federal court. Whoever wants it in federal court has burden of showingthat it should be there

viii.

The general removal statute applies to cases, not claims

a. Neither P nor D can dissect a single case and send only parts of it to the federal forum

b. However, the federal court may, in its discretion, remand or dismiss supplemental state law claims in appropriate cases (see 28 USC1367(c))

b.

The Statute28 USC 1441

i.

28 USC 1441a - Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the districcourts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the UnitedStates for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, thecitizenship of defendants sued under fictitious names shall be disregarded.

a.

VERY BROAD

1.

All Ds have to agree to go to Fed

2.

Must go to federal district court that encompasses the state

ii.

28 USC 1441b - Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under theConstitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Anyother such action shall be removable only if none of the parti es in i nterest properl y joined and served as defendants is a citi zen of the

State in which such action is brought.

a.

Federal Question Cases can be removed

b.

For diversity cases, special criteria

1. If a D is sued in his home state, he may not remove on the basis of diversity

i.

D has no need to be protected from local prejudice2. Otherwise, in a non-diversity claimthe case can be removed without regard to citizenship3. A lot of people don't like this

i. Rationale for exception: If there is any bias, it's going to be in your favorno reason to allow you to remove itiii. 28 U.S.C. 1441c - Whenever a separate and i ndependent claimor cause of action within the jurisdiction conferred by section 1331

(federal question ) of this title is joined with one or more otherwise non-removable claims or causes of action, the enti re case may beremovedand the district court may determine all issues therein , or, in its discretion, may remand all matters in which State law

predominates.

a. Purpose of 1441(c):1. Prevent P from joining removable and nonremovable claims in state court just to prevent removal by the D.

i. Can still remove FQ and State claim togetheralso allows for possible separationb.

1441(c) allows removal of cases not removable under 1441(a) & (b).

i. If claims had a common nucleus of operative factand if you have original jurisdiction over entire casecanremove under 1441.

c.

Giving discretion to the district court to remand the nonremovable claims allows the court to determine whether the Ps

reasons for joinder were legitimate.

d. However, FEDERAL COURT NEVER ALLOWED TO REMAND A CLAIM OVER WHICH FEDERAL COURT HAS SMJ

e. Claims without SMJ are NOT required to be remanded back1. Does not satisfy Gibbstest for common nucleus

f. Purpose is prevent P from joining removable and nonremovable claims in state court just to prevent removal by Dg. In order to be removed, there must be a separate and independent claim

1. Separate when separate recoveries are sought

i. P sues D for failing to pay overtimeFQ, breach of contract for firing (state claim)most courts would say 1441 (does not apply because there is a common nucleus of operative fact related enough for supplemental jurisdiction

1. even though separate recoveries

2. even though different situation

ii. P sues D for failure to grant family leave FQ, infliction of emotional distress because of it (state claim), interferin

w/ contract for badmouthing employee to next potential employer (state claim unrelated to first two) first twclaims are NOT separate and independentsupplemental jurisdiction applies1. third claim IS separate and independent from the other two

2. (a lot of courts would disagree with this though would find that they all derive f/ employer/employerelationship = common nucleus of operative fact)

iii. P sues D for violating Ps federal civil rights (FQ) and breach of contract for fail ing to pay for goods in his sto(unrelated state claim)separate and independent - although they involve the same parties, there is no efficiency bhearing these cases together

2. Independent when the claims arise from different facts

c. Procedure for Removali. 28 U.S.C. 1446

a. (1) Within 30 days of receiving the complaint that justifies removal, D files a notice of removal in the fed court in the district anddivision where the state action is pending. [1446(a)-(b)]


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1. Notice must contain a short and plain statement of the grounds for removal2. Must attach a copy of all process, pleadings and orders served on Ds

b.

(2) All parties must be notified, and a copy of the notice must be filed with the state court clerk [1446(d)]

c.

(3) The state case stops unless the case is remanded[1446(d)]

ii.

Plaintiffs complaint generally determines removal

a.

P can prevent removal by:

1.

Failing to assert federal question claim

2.

Joining a non-diverse defendant in a diversity case

3.

Demanding no more than $75,000 in a diversity case

iii.

Limits on ComplaintControlling Removala.

Fictitious Ds (and nominal parties) cant prevent removal based on diversity jurisdiction

b.

Cant omit necessary federal questions

c.

Fraudulently joining a non-diverse plaintiff

1.

No cause of action against the non-diverse D

2.

Some courts say also if no evidence supporting claim against the non-diverse defendant

3.

Some courts say also if plaintiff doesnt intend to obtain a judgment against the non -diverse defendant

iv.

Effect of Plaintiffs Post-Filing Actions on Removal

a.

Voluntary Action by plaintiff can make case removable

1.

Voluntarily dismisses a non-diverse def.

2.

Add a FQ claim

b.

Courts split on whether action by court not Pcan make the case removable

1.

Court dismisses a non-diverse D

c.

If P seeks to join an additional D after removal which would destroy diversity, courts have discretion to deny joinder and allow it or

remand it to state court1.

Courts often skeptical about this

v.

Defendants lack of control over removal

a.

Well-Pleaded complaint rule applies to removal

1.

Cant remove on thebasis of a federal issue in the answer

2.

Cant remove on the basis of a counterclaim

3.

d. Procedure for Remandi.

28 U.S.C. 1447

a.

P can file a motion to remand on any basis other than lack of SMJ within 30 days

1. e.g. failure to remove within 30 days

b.

Orders remanding case (generally) cannot be appealed

c.

Federal courts must remand if at any time prior to final judgment it appears that fed courts lack SMJ.

e. Borough v. West M if fl in (interplay 1441a and 1367c)i.

What did the original court do wronga. 1441c shouldn't apply at allhas NOTHING to do with it b/c FQ claim and state claim are not separate and independent because

have a common nucleus of operative facts (the events in the mall) HUGE MISTAKE

ii.

So, assume that you could remove under 1441cstill made another mistake

a.

1441c only allows you to remand "matters in which state claim dominates"

b.

CAN"T send back federal question matter

c.

Can't remand back whole case

iii.

So, could the case have been removed?

a.

Yes, under 1441ageneral removal statuteyou can remove a case that courtshave original jurisdiction

1.

Civil Rights Claim is a federal question federal clause of action under 1331

2.

And then have original jurisdiction over state claimsunder 1367 b/c supplemental jurisdiction and "common nucleus ooperative fact"

b. But can't remove under 1441c

iv.

Now that it is in federal court, can the court REMAND any of it back?

a.

Perhapsunder 13671.

Can court sent back FQ civil right claim

2.

No way to get rid of FQ claim

3.

HAS to be in federal courto

BUT you can get rid of state claimso

You can refuse to exercise supplemental jurisdiction under 1367co

Courts can refusediscretionary

Does it raise a novel or complex issue of state law?

Does the claimsubstantiallypredominate over the claim or claims over which the district court hasoriginal jurisdiction?

o

Has the district court dismissed all claims over which it has jurisdiction?

V. VENUE


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a. Generallyi. DefinitionVenue rules are statutes that allocate cases among the same type of courts within a given judicial system. The rules usually

divide cases among counties in states and among districts and divisions in federal court

ii. Venue only an issue after PJ and SMJ establishediii.

PurposeChannel litigation into those specific courts that are convenient for litigants and witnesses and efficient from a judicialadministrative standpoint

a. Does this by ensuring that the lawsuits location has some logical relationship either tothe litigants or subject matter of the dispute

b. KEY: In addition to satisfying venue rules, the court must have SMJ over the case and PJ over the parties

c. Each court system has its own venue rules

b.

State Venue Rules

i. Generallya. States differ in the factors used to determine where venue should be laid in a given type of action.

b. Some jurisdictions have onefactor as the exclusive basis of venue.1.

EX - some states say that for car accident, it must be where accident occured

c.

In some jurisdictions, it is sufficient that any one of many factors be satisfied.

1.

Ex - some say for car accident, can be where it occurred or where one lives

d.

Many rules say venue depends upon:

1.

The type of action

2.

Who the defendant is (could be a different rule if a corporation/natural person/gov't)

3.

Who the plaintiff is

ii. Typical State Venue Rulesa.

MOST COMMON: Where the D resides, does business (if cause of action arises out of this business), or retains an agent.

b.

Where the subject matter of the action is located (when real property is the subject matter)c.

Where the cause of action arose (e.g., where accident occurred)

d.

Where the P resides

e.

In suits involving government parties, where the seat of government is located

c. More Venue Factsi. Objection to improper venue is waived if not properly asserted. Thus venue is usually determined at the beginning of the case.

a. You can waive venue by not objectingii.

Motions to transfer venue (from one proper venue to an even more convenient venue) can be made at any time.

iii.

Parties can stipulate to or contract for an otherwise improper venue.

a.

Common to see in contracts "all suits arising out of this contract must be brought in XXX district"

iv.

Improper venue often can be cured by transferring a case to another court in the same judicial system.

v.

If a P amends the complaint, the amended complaint is treated as a new action for venue purposes.

a.

Let's say drops defendant and now venue isn't proper

vi.

Transitory Action---Where occurrence could take place anywherevii.

Local action Rulecan only occur where land liesalmost always involves land

a.

Venue is ONLY proper where property is located

b.

Reasor-Hill Corp. v. Harrison

1. Courts not in position to decide who owns land outside jurisdiction2. Suit should be filed before D leaves jurisdictional area3. Unfair to subject states citizens to suits by outside citizens

1. Federal Venueo 28 USC 1391a (Diversity)

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law

be brought only in

a judicial district where any defendant resides, if all defendants reside in the same State,

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 that is the subject of the action is situated, or

a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there no district in which the action may otherwise be brought. (only applies if no district that satisfies one or two)

o 28 USC 1391b (Non-Diversity)

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided

by law, be brought only in

1.

(1) a judicial district where any defendant resides, if all defendants reside in the same State,

2.

(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 that is the subject of the action is situated, or

3. (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwis

be brought.

i.

This is the one that is different from above

ii. But no one knows why it is differentmost often interpreted as the same thing

iii.

Found = wherever personal jurisdiction


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iv. Reside = Domicile (most courts)

1. Some courts say "reside" is where your house is

2. Rationale (more convenient to be sued where you live)

o 28 USC 1391c (Corporations)o

For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to residein any

judicial district in which it is subject to personal jurisdiction at the time the action is commenced.In a State

which has more than one judicial district and in which a D that is a corporation is subject to PJ at the time an

action is commenced, such corporation shall be deemed to reside in any district in that State within which its

contacts would be sufficient to subject it to PJ if that district were a separate State, and if there is no such distric

the corporation shall be deemed to reside in the district within which it has the most significant contacts. EXPLAINED

Personal jurisdiction is to states (not particular districts)

Corporations are residents of the states they have personal jurisdiction in

Need to pretend each district in state is separate stateo

NC has 3 districts Only district matters for venue ( All this does is define residence for purpose of applying 1391a and b. Only applies if want to have it

where corporation residesdont need 1391c if want to have venue based on where a substantial partof the activities occur)

o 28 USC 1391d (Alien Defendants)

o

Alien may be sued in any districto

28 USC 1400(b)Specialized Venue Statuteo

Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or

where the defendant has committed acts of infringement and has a regular and established place of business.

In general, treated as supplemental to general venue statutejust one more place you can bring it 3. Some Federal Venue Facts

o Improper venue must be asserted by pre-answer motion or in the answer itself, or it will be waived (FRCP 12(h)(1))

o (2) Federal venue requirements need not be met in cases that are removed to fed courts

o

(3) Increasingly, federal venue requirements need not be met for claims that fall within the supplemental jurisdiction of

fed courts

Rationalsupplemental jurisdiction, efficiency concerns are so much, that we are even going to fanagle

SMJ..venue isn't as near as important as SMJso not as important to establish for each supplemental claims

o (4) Federal venue requirements need not be met for counterclaims and cross-claims.

4. Transfer of Venue

o

28 U.S.C. 1404(a) (if venue proper in the first place) o

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil

action to any other district or division where it might have been brought.

May not must

It is judges discretion

"where case could have been brought"can't use this to circumvent personal jurisdiction o

Choice of Lawo

Use the transferee courts rule of procedure

o In diversity cases, you use the choice of law that the transferring court would have used.

Use the substantive law that the transferring court would have used

o In federal question cases, you use the interpretation of federal law of the transferee courts

o

28 USC 1406(a) (where venue wasnt proper in the first place)

o The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, o

if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

i. This venue statute is dealing with a case that is filed in a district where venue ISN"T proper (versus

1404a deals with transferring when venue was proper when it was filed)

ii. You can file a motion to dismiss, or you can just transfer it to another court

iii.

This ONLY applies to federal courts, but most state courts have similar provisions

iv. Under 1406, use tranferree's choice of law courts

i. Otherwise, you are setting yourself up for plaintiffs screwing around

ii. It was per you to file there, so we aren't going to pay attention to that law

v.

In 1404, it was proper to file in original court, so we can still use that law.

vi. Like under 1404(a), transfer must be to a district where venue is proper and PJ would be obtainable

over the D

vii. Supreme Court has held that transfer is allowed under 1406 even if PJ over D is also lacking in the

original district

viii.

Some courts have held that 1406 also applies if venue is proper but PJ is lacking

i. SC has never ruled on this

ii. Venue and or SMJ


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VI. FORUM NON CONVENIENS

a. DefinitionD can ask court to dismiss the case when the case has little or no connection with the place where the P has filed it, eventhough the P meets the PJ and venue requirements.

b. RationaleThe burden on the court system and the inconvenience to the parties and witnesses of a trial where P has filed may dictate thatthe action be dismissed and tried elsewhere

c. Key Factsi. Is a judicially-created doctrine

ii. Is a discretionary doctrine

iii. Case is dismissed and can be refiled elsewhere (Court has no authority to transfer)

iv.

Technically, case (almost always) must be able to be filed, and complete relief must be attainable, in a better forum

a. Reality: FNC often kills the case

v. Strong presumption against it (contrary to Piper), especially if original forum is Ps home state.

a. Courts view their courts as providing plaintiff's a convenient place to sue

vi. Has become much less important in federal courts because of 1404 (transfer of venue)

vii. Courts look at same factors as transfer, but generally more willing to transfer than grant FNC

d. Factors Courts Weigh when considering Forum Non Conveniensi. Interest of the Litigants

a. Ease of access to sources of proof

b. Availability of compulsory process for attendance of unwilling witnesses

c. Cost of obtaining attendance of willing witnesses

d. Chance for jury to see location (if it would help)

e. Enforceability of a judgment if one is obtained

ii.

Public interest

a. Less congested court

b. Jury duty and other expenses shouldnt be imposed on a community that has no relation to the litigation

c. Local interest in having local controversies decided locally

d. Diversity cases should tried in the state whose law will apply in the case

e. Piper Aircrafti. Facts: Plane crashed in UKsuit brought in USlaws more favorable in US

a. BUT, Wreckage was in England, maintenance to aircraft in Scotland, investigators to accident in Scotland, Piper properly assertedthat the witnesses, and any third parties to implead, were beyond the reach of compulsory process.

b. Would be really confusing for jury to apply one law in one part, and Scottish law in another

c. Case is really about Scotland

ii. Importance: Possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forumnon conveniens inquiry

VII.

Personal Jurisdiction

a.

General

i.

Definition: Jurisdiction over the particular parties or property involved in the case

ii.

Personal jurisdiction can be waived

a.

Plaintiff waives jurisdiction by filing the case

b.

MUST bring it up earlyif you start talking about substance of the case, deemed to have waived it

c.

U.S. Constitution sets the outer bounds of personal jurisdiction. States can choose if they wish to go up to this outer bounds (via statstatute or state constitutional provision)

d.

PJ in statesthey can exercise PJ, but dont have to (must have long-arm statute)

e.

Personal jurisdiction is statewide

b.

Territorial Theory

i.

D was physically present in the state when served with process

ii.

D consented to jurisdiction in the state (If they show up to defend themselves)

a.

The above two allow in personam jurisdiction (PJ overthe person)

iii.

D owned property in the state

a.

All In Rem or Quasi in rem jurisdiction (PJ over the property)

1.

In Rem - dispute about who owns the land, to decide who owns the land

2.

Quasi in rem - based on fact that you have land in state, but suit not about ownership of property, only using property toget PJ

iv.

Important to distinguish:

a.

In rem - can only enforce to the value of the property

b.

In personam - can enforce to full extenteven in other jurisdictions

v. Justified by SCOTUS and Constitutiona. Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territoryb. No state can exercise direct jurisdiction and authority over persons or property outside its territoryc. Full Faith and Creditonly applicable when state had PJ to begin with


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vi.

Pennoyer v. NeffTerritorial Theory

a.

Facts: Neff claimed land in Oregon; Hired an attorney to fill land patent; attorney sues Neff for attorney fees; Attorney wins b/c Nedoesnt show up; To enforce judgment, sells property at auction to Pennoyer; Neff now back in Oregon and wants his land back;

Neff claims first judgment invalid b/c no PJ

b.

Principles Established/Significance

1.

Establishes/Reaffirms territorial theory of PJ (see above)

2.

Interprets ConstitutionDue process requires that a courts have PJ over a person

3.

Interprets full faith and credit - must have PJ to for judgment to be enforced in other states

c.

Society Changes

i.

Increased mobilitymoving across state borders, the automobilea.

Hess v. PawloskiP drove across border into MAdetermined that the states power to regulate the use of its highways extends tononresidents as well as residentsstate may declare that nonresidents approve of service being accepted by an agent in MA if theychoose to drive in the state (no difference between formal and implied appointment of an agent to accept process for you)

1. All non-resident drivers who operate motor vehicles on state roads impliedly give consent to PJ within the state2. Incident in question must involve that operation of motor vehicle

ii. Increased interstate commercea. Well into 1800s, corporations could only be sued in states where incorporated or where held property (which worked well whe

corporations were small and did business in just one state)

b. But then expandedc. First used the Consent Approach (like in Hess v. Pawloski)

1. Had to appoint an agent to conduct local business in the state2. If didnt appoint an agent, were deemed to implicitly appoint a state official as an agent for accepting process in sui

arising out of local business

d.

Problems with Consent Approach1. Cant require consent for interstate commerce2. Consent is obvious legal fiction

e.

Then tried Doing Business Approach

1. Corporations are deemed to be present in a state if they are doing business in the state

f. Problems with Doing Business Approach1. Became a very fact-based test that turned on distinctions attempting to measure the level of a corporations activities in

state.

2. Paid little attention to burden on corporation of litigating in a state.3. Could stop activities that constituted doing business before being served.

iii. Technological processinternetads, defamation

d.

Minimum Contacts Test is Born (VERY IMPORTANT!!!)

i.

Established in I nternational Shoe

a.

Due process requires only that in order to subject a D to judgment in personam, if he be not present within the territory of the

forum, he have certain minimum contacts with such that the maintenance of the suit does not offend traditional notions of fairplay and substantial justice.

ii.

Set outer bounds of PJ (states create long arm statutes if wish to limit)

iii.

Types of Contacts with the State

a.

Substantial and Continuous, systematic

b.

Sporadic or casual

iv.

Quadrant Approach to Establishing PJ under MC Test

Does the COA arise from Minimum Contacts?

Types

Of

Contacts

Yes No

Substantial, Continuous,

Systematic1. Yes (use specific)

2. Yes

Sporadic or Casual 3. Maybe 4. No

v. Led to Long Arm Statutesa. (b/c most states thought that this expanded the territorial theory)b. States didnt HAVE to extend PJ this fartest just said thatthey couldso now need a statutec. Statutes establish PJ over non-residents based on their MConacts to the stated. range from very broad (up to limits of Constitution) to narrow that only carve out part of their Constitutionally allowed power (e.g.

require the doing of business or an act within the state)

e.

EG) McGee v.insurance company, only one client in CA sent renewal notice to CAenough minimum contacts to subjectcompany to PJ in CA

1.

sporadic and casual contacts

2. CoA does arise from those contacts


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f. McGee shows how EXPANSIVE the MC test isone, single contact is enough to get PJ

e. How to Apply the Minimum Contacts Test on Exami. Two Step Test: (Burger King)

a.

1stprong(sovereignty) Do Minimum contacts exist?

1. Standard is Purposeful Availment

i. There must be some act by which D purposefully availsitself of the privilege of conducting activities within theforum state, thus invoking the benefits and protections of its laws. (Hanson Denkla)

ii. Foreseeability- The foreseeability that is critical to due process analysis is not the mere likelihood that a productwill find its way into the forum state. Rather, it is that the defendant's conduct and connection with the forum state

are such that he should reasonably anticipate being haled into court there. (WWVolkswagon)1. Taha doesnt like thissays it is a circular and doesnt answer the question

b. 2ndprong(fair play) does exercising PJ offend traditional notions of fair play? 1.

Go through factors

i. Burden on Dii. Forum states interest in dispute

iii. Ps interest in obtaining convenient and effective reliefiv. Interstate judicial systems interest in obtaining the most efficient resolution of controversiesv.

Shared interest of several states in furthering fundamental substantive social policies

c.

If sovereignty prong is satisfied, fairness factors must be substantial to defeat PJ

f. Applying Min imum Contacts Test in Cases (4 Fact Pattern s)i. Unilateral movement on one of the parties

a.

Hanson v. Denkla1.

Facts: DE trust with PA citizen; Woman moves to FL; She was the only client in FL; Estate probated in FL;

2. Holding: No PJ over DE trust company in FL

i. No purposeful availmentii. DE trust entered into contract with PA citizen who unilaterally moved to FLTrust company never REACHED

OUT to have contacts with FL.1. As opposed to McGee who reached out to have contract with CA resident

3. There must be some act by which D purposefully avails itself of the privilege of conducting activities within the forumstate, thus invoking the benefits and protections of its laws

4. Single contact IS ENOUGH, but it must be PURPOSEFULb.

WW Volkswagon

1. Facts: Ps purchased a car in NY; moved to AZ; while passing through OK, tank exploded and Ps injured; Ps sued VWregional distributer, and local (NY) dealership in OK

2. Holding: No PJ in OK b/c companies didnt purposefully avail themselves to forum state

i.

In order for PJ to be proper, Ds conduct and connection wi th the forum state must be such that he coul d

reasonably anticipate being brought into cour t there

ii. Unilateral movement of one of the parties for the states is not enough to get the other party PJ iii. They sold the car to a NY citizen, in NYnot purposeful availment of OK

3. HYPOS

i. What if Ps had come into NY Dealership with OK tags and talked in an OK accent?1.

Nope. Robinsons UNILATERALLY came to NY; Dealership didnt advertize in OK; Even thoughdealership know the car would go back to OK, no purposeful availment in OK

ii. What if dealership advertized in the NY Post, circulated to NJ, and someone in NJ sees the and comes to NY to buythe car and the car blows up in NJ

1. Yes. The dealership knew that the Post was circulated in NJ, so, can say the purposefully reached out to NJcitizens

iii. What if advertized in NY times?

1.

Could go either way2. National audience, so know its circulated in OK3.

but didnt intend and certainly didnt expect that someone in OK would drive to NY to buy a car just b/c ofthe ad

c. Kulko v. Superior Court

1.

father w/ two childrenone wanted to go to live with mom in CA father bought her a plane ticketsecond also left tolive with her mom

2. CA has no PJ. although father may have benefited financially, no purposeful availment merely causing an effect in theforum state will not support jurisdictionand exercising jurisdiction would impose an unreasonable burden on familyrelations

i. POLICYcourts dont want to punish dad for acquiescing to daughters desiresii. Publication in a State

a. Hustler


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1. P (NY) filed libel claim against D magazine (OH corp) in NH; Ds connection with NH were 10-15,000 copies ofmagazine (very small %)

2. Holding: Yes, selling into a state is purposeful availment, even if a very small percentage

i. And also, even if P has minimal contacts with state (Ps contacts dont matter for establishing PJ over Dii. KEYthe harm arising from the publication was in NH

b. Calder v. Jones1. Jones sues National Enquirer for Libel in CA; Equirer a FL corp; also sued Calder (editor) and reporter both FL citizen

i. Different from Hustler b/c article written in FL but effects in CA 2. Holding: PJ over editor and reporter primarily b/c article was targeted at a CA residentand about her;

i.

Actions in question occurred in CA; sources in CA; woman suffers libel in CA

ii. Jurisdiction proper based on effects of their conduct with state3. Significance: Calder Effects Test (specific jurisdiction)

i. PJ exists over1. Intentional actions2. Expressly aimed at the forum state3. Causing harm the D knows is likely to be suffered in the forum state

ii. Must individually target a known forum resident 4. Apply the Calder Effects Test in:

i. Libel Cases; written slanderii. Some business torts

iii. Internet Cybersquatting; buying website before someone else can

c.

Cybersquatting1. Factors in determining whether ownership of domain name was expressly aimed at plaintiff:

i. whether the registrant has a preexisting, legitimate use for the domain name; ii. likelihood of confusion that is created by the domain name itself as to who controls the domain.

iii. whether the domain name registrant has registered domain names incorporating other protected marks; iv. whether the trademark owner has been directly solicited to purchase the domain name;v. whether the domain has been offered for sale by the current registrant and, if so, the price sought.

iii. Contract Casesa. Burger King

1. purposeful availment by franchisees of BK who operated a restaurant in MI in FL; BK headquarters in FL although

MI franchisers acted in response to BK officials in MI

2.

Having a contract with a forum-state resident will not give that state PJ over you alone

3.

Must be additional factors (even if D reached out to forum state to form contract) to determine whether there waspurposeful availment

i. Factors (Apply in all contract cases to determine MC)1. Prior negotiations- who contacted who2. Contemplated future consequences; paying fees, receive supplies3. Terms of the contract; governed by state law4. Parties actual course of dealing

ii. Must look at totality of four factors if cause of action is contractiv. Stream of Commerce Cases

a. when D sells its product or component to another distributor or reseller, who then sells it to forum state

b. Asahi1. P Motorcycle driver in accident; sues manufacturer of tire valve

i. Tire valve made in Japan (Asahi) Sold to a Taiwanese company who put it into a tireTires sold in CA

1.

Stream of commerce b/c Asahi NOT selling into CA2.

Plurality decision, so apply both tests

3. Stream of Commerce

i. Just putting something into the stream of commerce is enough if: 1. D purposely puts goods in stream of commerce2. D knows that products are ending up in forum state3. Must be regular and anticipated flow of products to that state

ii. Most likely applies to finished products (probably have more control over where a finished product goes than withcomponent parts)

1. EXproduct sold to distributors who sell in forum state (like cars)

4. Stream of Commerce PLUS

i. Finding of minimum contacts must come about by an action of D purposefully directed toward the forum 1. Designing the product for the market in the forum state


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2. Advertising in the forum state3. Establishing channels for providing regular advice to customers in the forum state 4. Selling the product through a distributor who has agreed to be a sales agent in the forum state

a. Stevens says that volume, value, and nature of product must also be considered

ii. Most likely applied to component parts (like Asahi) v. Internet Cases

a.

E-mail and phone calls

1.

Courts treat them like letters

2. Key is WHO sent the e-mail (or initiated the phone call)

i.

Calling someone is different than receiving a callb. Inset Systems

1. Inset (CT) and Instruction Set (MA)2. Inset had inset as trademark; Instruction Set got inset.com; Inset sued Instruction Set for trademark infringement in

CT

3.

Court says PJ in CT

i. Advertising on the Internet and toll free # - so targeting CT people ii. Satisfies fairness prong

4. VERY BROADthis is an early casec.

Zippo

1. Zippo Manufacturing and Zippo.com (DC) News Service (CA corp) 2. Manufacturing has Zippo trademark; Sues DC for use of trademark in PA 3. Court says YES, PJ over DC

i.

DC enters into contracts with customers in PA for news service ii. DC has contracts with 7 internet providers in PA

iii. DC is purposefully engaging with customers in PA (if they had denied contracts with PA residentsthat would bedifferent)

4. Court Interprets Web Sites

i. The likelihood that PJ can be exercised in a state is directly proportionate to the nature and quality of commercialactivity that the entity conducts over the internet

ii. Spectrum of Websites1. Activeclearly does business over the internet, enters into contracts with residents of a foreign jurisdictio

that involve the knowing and repeated transmission of computer files over the Internet, PJ is proper2. PassiveWhere a D has simply posted information which is accessible to users in a foreign jurisdiction. I

it does little more than make information available to those who are interested in it is not grounds forexercise of PJ

3. InteractiveWhere user can exchange with the host computer, where the exercise of jurisdiction is

determined by level of interactivity and commercial nature of the exchange of information that occurs on thWeb site

d. So, Whats the Law? (ON the exam)1. Courts use variation of Zippo requiring

i. Intentional, forum specific targeting or express aiming at forum and/orii. Interactions via website with residents of the forum state

iii. SOME require additional conduct w/ forum state (some say related to the cause of action) 2.

Examples of Factors in Targeting or Aiming

i. Disclaimers such as that the website is intended for a limited geographic audience;ii. Statements posted on the website directed only at residents of a limited geographic audience;

iii. Designing the website so that it wont interact with users of the forum state; iv. Use of forum-selection or choice of law agreements.

3.

Examples of Interactions w/ forum statei. Searching of the website

ii. Accessing customer service via the websiteiii. Ordering via the websiteiv. Tracking orders via the websitev. Both ability to do these via the website, and the actual numbers of residents in the forum state who do so, are

relevant.

4. Rationale

i. Internet is so accessible (around the world), that a passive website really has no target audience ii. Calder v. Jones(effects theory) requires some intentional targeting of a particular state.

iii. Intentional interactions via website with residents of a forum state are a sign of targeting or aiming towards a forumg. General Jurisdiction


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i. GenerallyWe dont know a whole lot; only 2 SC decisions and both on different extremesii. Required with cause of action does not arise from connections with forum state

iii. What we DO know:a. Must have much greater contacts than for specific jurisdiction.b. Contacts must be continuous, systematic and substantialc. Courts are reluctant to find general jurisdiction, but less reluctant if forum is Ps home state

iv. Perkinsa. Philipiines mining company during WWII; moved all business to Ohio b. P had unrelated claim about stockscause of action did not arise out of contacts with that state

c.

RULING: PJ over the mining company1. Even though the case does not arise out of the local assets, continuous contacts with Ohio can give general jurisdiction. 2. Rationale: jurisdiction by necessity? Nowhere else to bring suit!!

v. Helicopterosa.

Plane crash in Peru; Ps (TX) sues Helicol (Columbian corp) inTXclaim pilot error

b. Court said NO PJ over Helicol b/c not continuous, systematic and substantial

1. Even though the company had purchased materials in TX, trained pilots in TX, officers had traveled to TX to signcontracts

c. Bottom Line1. Purchases of goods and services in that state is not enough, even if occurring over an extended period of time 2. Mere solicitation, marketing, sales, and related trips normally will not be enough, even when sales reps are living in the

forum state

d.

NOTEDissent says could have decided this with specific jurisdiction b/c cause of action significantly related to contacts in state

1.

This is a commonly accepted approachif cause of action significantly related, just apply specific jurisdiction rather tha

general2.

Test for Related to Contacts

i. But For Causation - the cause of action would not have occurred but for the Ds contacts with the forum stateii. Proximate Causation -- the cause of action was proximately caused by the Ds contacts

iii. Sliding ScaleThe more contacts, the less causation needed.iv. Note: Sliding scale may eliminate the distinction between specific and general jurisdiction.

vi. What we STILL DONT KNOWa. What exactly does continuous and systematic and substantialmean?

1.

Mere purchases and related trips are probably not enough

2. Mere solicitation, marketing, sales and related trips normally will not be enough, even when sales representatives areliving in the forum state.

3. Most courts require at least an agent for service of process, a local office, or the pursuance of business from a tangiblelocale within the state

4.

Many courts seem willing to find general jurisdiction only in a businesss state of incorporation or the principal place ofbusiness.

b. Must the Reasonableness/Fairness prong also be satisfied?1. BUT IN EXAM, GO THROUGH IT

c. Also don't know if this applies to persons1.

Generally doesn't come up, because if you have continuous, systematic, and substantial contacts, you will be in the state alot

h. How to answer a PJ Question on the Exami. Make sure there is a Long Arm statute (If not, then no PJ)

ii. Does the cause of action arise from (or is significantly related to) Ds contacts with forum state?a. If YES, then only need specific jurisdiction

1. Do you have purposeful availment (sovereignty branch)

i. BK standard for contract cases

ii.

WWV standard for selling into a state1. If YES, PJ (still go to reasonableness prong)2. If NO, go to reasonableness prong

2. Would PJ offend traditional notions of fair play? (reasonableness prong)

i. Go through factors1. Burden on Dhow inconvenient is it for D?

2.

Forum state's interest in adjudicating the case

3. Plaintiff's interest in obtaining convenient and effective relief

4. Interstate judicial system in obtaining most efficient resolution of controversies. efficiency of hearing case

5. Shared interest of several state in furthering policies

ii. If YES (did it satisfy aboveif yes, then good to goif NO, then factors must be really important to outweighabove)

iii. If no, then no PJ


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b. If NO, then will need General Jurisdiction1. Are there continuous, systematic, and substantial contacts?2. No, no PJ

3. If Yes, do fairness prong

i. Burden on Dhow inconvenient is it for D?ii. Forum state's interest in adjudicating the case

iii. Plaintiff's interest in obtaining convenient and effective reliefiv. Interstate judicial system in obtaining most efficient resolution of controversies. efficiency of hearing case?

v.

Shared interest of several state in furthering policies

i. In-Rem and Quasi-in-Rem Personal Jurisdictioni. Generally

a. In Rem disputes over the ownership of land; judgments can only be enforced in that particular forum 1. In rem jurisdiction stems from idea that states have control over land within borders (territorial theory from Pennoyer)

b. Quasi-in-remjurisdiction b/c property in state, but CoA not about the property1. D can only enforce up to value of the property

ii. How to establish jurisdiction todaya.

Apply the minimum contacts test

1. all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoeand it's progeny Shaffner

b. But the MC test is applied strangely, because with quasi-in-rem, can make an argument for specific jurisdiction

iii.

So, what satisfies International Shoe?a. In-Rem b/ccause of action about who owns the property

1. Satisfies minimum contacts test (owning property in a state means you expect to enjoy benefits in the state (purposefuavailment)

2. When suit about property, cause of action ABOUT that property

3. State interest in having ownership clear of property (to know who to tax, if it can be sold)

4. Efficiency - property in the state, and witnesses, records probably in the state

b. Quasi -in -Remwhere P's claim relates to rights and obligations arising out of the D's ownership of local property

1. e.g., P injured on D's local property

2. Not a big deal b/c have specific jurisdiction in statedon't need quasi-in-rem

i. Better to have specific jurisdiction b/c full faith and creditcan take judgment to any other state

ii. Jurisdiction that is only Quasi-in-rem, can't take judgment anywhere elseiv. What Fails International Shoe?

a.

Quasi-in-rem over property where P's claim is completely unrelated to the propertyv. Still unclear if there are exceptions

a. Especially quasi-in-rem over REAL property, even if P's claim is completely unrlated to the property

b. (Majority's language is ambiguous; Powell and Steven's concurrences explicitly don't decide this)

1. Some lower courts have allowed this exception

j.

Transient Jurisdiction

i.

Bur nham Case1. Facts: A man goes goes to CA on business, also visits his kids; while there, served with divorce proceedings. For

him to litigate in CA would be inconvenient (he is from NY). Further, the CoA didnt arise out of him going toCA.

2. Issue: Is physical presense in a state enough to have PJ after International Shoe?

3. RULING:a. SC said that it is fine to be served with process in a statethat its valid

b. You dont have to apply MC testMC test was designed for when defendant NOT

PHYSICALLY present in the statec. Presence alone is grounds for jurisdiction

ii. What we still dont know

1. Domicleif you are domiciled in a state, but don't live there anymore, you still can generally get sued in

domicile state, but SC has never ruled on it

2. Really transient presence flying in airplane and served with process in airSC has never addressed it (But a

district court has ruled that thats ok

a. Problem - no way these are continuous, systematic, or substantial contacts

b.

No guarantee that courts will reach same decision

k. Consent as a basis of PJi. TraditionalConsent

a. Sued in a state, show up and start to argue (not a special appearance)


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b.

You've deemed to consent to PJ

ii. Contract Consent

a. Clauses that say you choose the forumforum selection clauses

iii. Forum Selection Clausesa. Strong presumption of enforceability, especially when the parties to the contract were both represented by competent counsel an

had equal bargaining power

1. If courts didnt enforce these clauses, foreign companies would be less likely to want to do business with Americancompanies.

b. Generally, person challenging clause must show the clause is unreasonable in the circumstances of the case, or that it was

obtained unfairly:1. Clause was the product of fraud or overreaching (i.e. unequal bargaining power / absence of meaningful choice on the

part of one of the parties)

2. Party would be effectively deprived of his day in court because of the great inconvenience or unfairness of the clausesforum

3. Enforcement of the clause would contravene a strong public policy of a state

4. Some courts distinguish permissive vs. mandatory clauses

l. Personal Jurisdiction in Federal Courtsi.

FRCP 4(k)(1) - Territorial Limits of Effective Service.

a.

In General- Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

b. who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

1. Look at state long arm statute2.

And Minimum contacts test

c.

who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 milesfrom where the summons was issued;

1. Rule 14 - 3rd party defendants

2. Rule 19 - counter claims or cross claims

d. when authorized by a federal statute.

ii. FRCP 4(k)(2) -Federal Claim Outside State-Court Jurisdiction

a. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over adefendant if:

1. the defendant is not subject to jurisdiction in any states courts of general jurisdiction; and

2. exercising jurisdiction is consistent with the United States Constitution and laws.

iii. If there is PJ in a state court, generally will be PJ in federal court

VIII. Notice

a.

Why Importanti. If you dont have sufficient notice, due process is violated

b. Standard for Constitutional Notice: Mullane Testi. "Notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.

ii. The means employed must be such of one desirous of actually informing the absentee might reasonably adopt to accomplish it

iii. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itselfreasonably certain to inform those affected,or, where conditions do not reasonably permit such notice, the form chosen is not

substantially less likely to bring home notice than other of the feasible and customary substitutes.

iv. Publication by notice in paper is a legal fiction

v. Not requiring ACTUAL notice

vi. Balances the needs to notify people who have an interest in the case against the cost of notice

vii. *This is a very straight forward standardbut the devil is in the details*

c.

Examples and Applicationsi. Eminent Domain

a. If you have the names and addresses of the people who own the property, you should send mailposting on door not enough

ii. *Generally, if you have names and addresses of people, notice on a door (or in paper) isnt enough

iii. Greene v. Lindsey If you know that kids are going to tear down postings on a door, posting on door isnt enough (b/c process serverswere aware)

iv. If you send certified mail and it comes back, send it through regular mail

a. Because when you get it back, you know that they werent notified

v. Bottom Line: Mullane Test

IX.

Choice of Law in Federal Courts

a. 28 U.S.C. 1652 (Rules of Decision Act) Current


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i. The laws of the several states, except where the Constitution or treaties of the U.S. or Acts of Congress otherwise require or provide,shall be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they apply.

a. (basically saying that in diversity cases, use state law)

b. Old Standard: Swift v. Tysoni. Federal courts could use whatever law they deemed appropriate

ii. Interpreted the rules of decision act to mean that they only had to abide by state statutory and local laws BUT NOT state common law

a. At the time, trying to have horizontal uniformity between the states

b. Also courts trying to encourage interstate commerce

c. Lack of out of state reporting systems made it difficult to determine state common law

c.

Problems with Swift v. Tyson

i. Late research indicated it may have been inconsistent with Congressional intent

ii. Lack of uniformity of law

a. Inconsistent decisions about what was "local" v. "general" Q

b. Fed courts failed to develop uniform fed. Common law

c. Even in clearly general Q's, many federal courts used common law decisions of the jurisdictions in which they sat

iii. State courts frequently failed to follow federal common law decisions

iv. Inconsistency of law between federal and state courts encouraged forum shopping; especially removal by corporation D's

v. Substantive law adopted by fed. Courts generally less favorable to injured plaintiffs

a. Combined effect: needy plaintiffs typically forced into small settlements

d. Erie v. Tompkinsi. Facts: Tompkins walking along RR tracks in PA; injured by hanging door (took his arm off); He brought suit in NY b/c his lawyers were

there and Erie incorporated there

ii.

KEY ISSUE: Which law do you apply? PA law or federal common law

a. If PA law, then Tompkins cant bring suit b/c deemed a trespassor

b. BUT, if use federal common law, then he can recover

iii. Supreme Court Ruling

a. OVERTURNED SWIFT V TYSON

b. The laws of several states INCLUDE state common law

iv. Why did they over turn it?

a. No such thing as federal common law (didnt develop as they would have hoped)

b. Unconstitutional because generally no equal protection (But they really didnt say way, this is just a guess)

v. Twin Aims of Erie

a. Limit forum shopping

b. Provide for the equitable administration of the law

e. How far does Erie extend?i.

Guaranty Trust Co:

a. Dealt with Statute of Limitations issue- Is it a substantive or procedural issue?

b. Issue: If claim brought it state court, it would be barred by SoL, but if brought in fed court (which it was) fed court can hear it

c.

Holding: Outcome Determinant Test: Would it significantly affect the result of a litigation for a federal court to disregard a law of

a State that would be controlling in an action upon the same claim by the same parties in a State court?

1.

Doesnt matter if procedural or substantive

2.

ApplicationFederal practice in question must significantly affect the lawsuits result

3.

Viewed Erie as an attempt to achieve vertical uniformity; reflected desire to eliminate forum shopping betweenstate/federal courts in diversity cases

4. Limits on the Test Fed courts could still provide traditional equitable remedies (such as injunctions) that werent

available in state court

5.

Problems with test Very subjectiveopens up a lot of questions because every rule could be considered outcomedeterminative (Even a silly rule like hole punches)

f.

If there is a conflict between a federal constitutional provision and state law

i.

Constitution applies even if they conflict with state law, substantive or procedural, because we all agreed to that back in 1789 (supremacyclause, article 6, 2)

g.

If Conflict is between federal practice/common law and state law

i.

Byrd v. Blue Ridge

a.

Facts: Dispute over who should decide status of a person for a worker comp claim: state law says judge; fed law says jury

b.

Holding: Divided Law into 3 categories

1.

Rules defining state rights and obligations

i.

Use STATE law

2.

Rules bound up within state created rights and obligations (Does it further the substantive goal?

i.

Procedural rules which are tied to substantive policies

ii.

EXburden of proof in title claims

iii.

Use STATE law


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3.

Rules of form and mode (procedural)

i.

Generally use FEDERAL law

ii.

Only use state law if:1.

Failing to do so would produce a substantial likelihood of different outcomes in state and federal courts(outcome determinative test)

a.

It will always cause a different outcome, but only looking at the beginning of the case2.

Federal counter veiling considerations dont exist that are sufficient to outweigh the Erie policy of gettingduplicate outcomes between state and federal courts

a.

Examples of Counter veiling considerationb.

Federal preference for something (iehaving trial judges determine verdicts)

c.

Byrd is an example of category 3, so court would only need to apply the state law if:

1.

failing to do so would give a different result (probably wouldnt judge or jury would probably decide the same thing

2.

fed concerns dont exist that outweigh Erie considerations (here, fed concerns probably DO outweighConstitutiongives right to a juryfederal concern to have juries decide cases (states decision just administrative not policy-driven

d.

so federal court can apply federal law in this case

h. If there is a conflict between FRCP and state law

i . Use FRCP as long as it is 1) in the Rules Enabling Act and 2) Constitutional

ii . 28 U.S.C. 2072Rules Enabling Act

a. The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases the U.S. district courts (including proceedings before magistrates thereof) and courts of appeal.

b. Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with s

Civ Pro Final Outline (Moore)

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