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1CHECKLIST: CIVIL PROCEDURE Personal Jurisdiction: In Personam ___ Is there a Long Arm Statute? ___ Do the facts fall within the LAS? ___ If no, find another way: Quasi In Rem ___ Is Quasi In Rem allowed? (if its not excluded, it is constitutional, since state courts are courts of general jurisdiction and can hear anything but what they are told they cant) ___ If yes, is it constitutional? ___ Evaluate by going to the 14th amendment evaluation (pennoyer replaced by international shoe, expanding) ___ Minimum Contacts- describe the contacts with the forum state: Purposeful and Related (*MC articulates the requirements of the due process clause, and after Shaffner, is required for all basis of PJ, not just in personam- except physical presence which is what minimum contacts is replacing) ___ What are the Quality and Nature of the contacts (are they isolated, continuous, systematic, casual, substantial???) ___ Did the Defendant Purposefully Avail himself of the forum state? ___ Contracts: what is the duration of the contract? Amount of $? Who reached out? Hanson v. Denkla: Purposeful Availment BK: 20 yrs, millions of $, choice of law clause - foreseeable McGee: they reached out to CA resident, very important to plaintiff because it was insurance, States interest was Huge Chalek v. Klein: active v. passive buyer (mere purchase not enough, should be purchase plus addition activity, like checking out the facility or negotiating, etc.) ___ Stream of Commerce: Do they derive benefits from the forum state, foreseeable? Titan Valve: more than just the valve in question were presumed found in the state, so substantial benefits... (quantity of good) VW: there was no purposeful availment- nothing directed at Ok, only 1 car there Keeton v. Hustler: magazines into stream of commerce and NH has an interest in protecting its citizens from reading libelous material Asahi: OConnor says need Stream of Commerce PLUS, Brennan says Stream of Commerce is enough ___ Effects Test: did they direct a harmful act toward the forum state? (Have to show 1. Intentional Act, 2. Aimed at the state, 3. Focal Point of the Harm) Kulko: this is meant to subject wrong-doers to jurisdiciton, the effect here is not harmful, so it is not enough Calder v. Jones: works because they directed acts towards CA that they knew would cause harm in CA Panavision: he knew he was harming a CA corp., plus correspondence by letters so it works here ___ Internet: how active is the website? -1-

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Zippo v. Zippo dot com: distinction between doing business and passive websites Zippo Test: no jurisdiction for passive info based sites, yes jurisdiction for very active business sites, maybe jurisdiction for inbetween- depends on the level of interactivity and commercial nature of exchange of info In determining Purposefulness, was it Foreseeable that they would have to defend in court there? Is the Cause of Action Related to the Contacts? ___ Does it Arise Out of? ___ Was it a but for proximate cause, such as in Nowak v. Tak How? ___ Helicol: relatedness, D-F-L is what is needed... not necessarily arise out of ___ are the defendant, the forum and the litigation related? If yes on C/A, then specific jurisdiction If no, then must establish General Personal Jurisdiction: Are they Doing Business? ___ Are there bricks, are they at home in the forum state? Perkins v. Benguet: running the business from OH during japanese occuption, they have bricks, they have presence, General Jurisdiction OK Helicol: no bricks, not enough for GJ, shouldve argued specific jurisdiction ___ Solicitation and Sales + Necessity? Mieczkowski v. Masco: very extreme case of GJ, the beds company now had a website and sold 5.7 million in goods to TX over internet in last 6 years (solicitation, sales and interactive website) ___ specific) ___ Is Personal Jurisdiction Reasonable? (If GJ, presumably yes... this question is more for Gestalt Factors: consider 1. Burden on Defendant 2. The forum states interest in adjudicating the dispute 3. The plaintiffs interest in obtaining convenient and efficient relief 4. The interstate judicial systems interest in the most efficient resolution of controversies 5. The interests of other states in furthering their substantive policies Heavy burden on defendant to prove (Asahi only case to overturn on this)

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Personal Jurisdiction: Quasi in Rem and In Rem ___ Are there Minimum Contacts, as defined by D-F-L (Shaffner requires this for all PJ except physical presence) ___ In Rem cases... because the property is the cause of action, there is a connection between Defendants interest in the property, the forum, and the litigation... so In Rem is not effected by this Shaffner ruling ___ Is Quasi in Rem the only way the Long Arm Statute lets you get to the 14th amendment? (This is the only time to use Quasi in Rem since it is a closed box, not preferred) ___ Tricky! -2-

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Lary v. Moe (skydiver case): the property got them past the long arm statute problem, the evaluation of minimum contacts was cake, jurisdiction: Vairo is not so convinced this works Personal Jurisdiction: Physical Presence ___ Was the defendant voluntarily in the state? ___ If yes, valid jurisdiciton Burnham: Minimum Contacts is a substitute for physical presence, so how can physical presence be unconstitutional, very traditional focus on precedent (in contrast to Shaffner) ___ If at all not clear, argue both voluntary and yes jurisdiction or involuntary and no jurisdiction Notice and Service: Federal (so think 5th amendment, not 14th) ___ Refer to Rule 4 for Service, Rule 4k specifically for territorial limits of service ___ Was there waiver to service? ___ If yes, great and defendant gets more time to respond ___ If no, defendant has to pay the cost of service ___ Rule 4k is like the federal Long Arm Statute: service of process is sufficient to establish jurisdiction over a defendant Generally when: ___ The state in which the federal court is located can exercise jurisdiction (Rule 4(k)(1)(a)) ___ If basis, can be served anywhere ___ Does the defendant fall into one of the exceptions to that general rule? ___ Is the defendant an impleaded (brought in) party (brought in under rule 14 or rule 19 indispensible party rules) served within 100 miles of the courthouse? (Rule 4(k)(1)(b)) (Buldge Rule) ___ Are the parties subject to interpleader jurisdiction? (Rule 4(k)(1)(c)) ___ Court can take over dispute over property ___ Minimal diversity is necessary ___ Does the defendant have MC with the US but not any one state AND it is a federal question case? (Rule 4(k)(2)) ___ Is there any Federal Statute that provides that service suffices to support jurisdiction for a particular type of case? (Rule 4(k)(1)(d)) ___ Is Notice Reasonably Calculated to get to the defendant? Was due process satisfied? Mulane case (the international shoe of service): use any information you have, notice must be reasonably calculated to get to them, publication is a last resort... ___ For service details refer to the rest of Rule 4 ___ Federal: personal service is required ___ CA: service by mail is okay Green v. Lindsay: not good enough to post summons and complaint to apartment door (could be ripped off!)

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Subject Matter Jurisdiction ___ Is it a State Court: general jurisdiction (can hear anything but what it is told it cant) ___ Is it a Federal Court: limited jurisdiction (can only hear what it is told it can) ___ Article III 2 establishes 9 types of cases fed can hear (this is the max amount of SMJ allowed... then congress vests the power through statutes, to the extent it wants to, and has never been all of it) ___ Title 28 (1300s = district court jurisdiction provisions, 1200s = appellate court jurisdictional provisions) ___ Federal Question: Arising out of ___ constitutional: potential federal ingredient case Osborn case: any potential federal ingredient satisfies this (this is the constitutional limit of federal question) ___ 1331: Creation Test Shoshone case: if federal law creates the cause of action, then you can be in federal court, unless congress tells you not to ___ the law can expressly or impliedly create the cause of action ___ congressional intent? ___ Essential Federal Ingredient Test (when state law claims can be federal question) ___ Can the claim go forward without proving a federal question (not essential) ___ The claim cannot be proved without proving the federal question, then essential Smith Case: cannot prove the breach without proving that the bond issue law was unconstitutional Merrell Dow Case: looks at the impact of the decision... if it is so inconsequential as to only effect one or a few people, then it is not substantial enough of a federal question ___ Well Pleaded Complaint Test Mottley Case: the federal question has to be in the plaintiffs prima facie case, not in the anticipated defense ___ What does the Constitution allow for diversity cases? ___ Minimum Diversity, no minimum Amount ___ Article III 2: look for the type of cases ___ 1332: Is the controversy for at least $75k? ___ 1332: Is there Complete Diversity? (Strawbridge rule: interprets language to need complete diversity) ___ Always refer to pg. 313 of fed book... use exact language and evaluate diversity ___ Determining Citizenship ___ Individuals: physical presence + intent to remain, for the time at least Lundquist v. Precision Valley: NH or FL- close call focused on: register to vote, addresses on corporate and government forms, property Elizabeth Taylor: US citizen but domiciled abroad, no diversity jurisdiction because have to be a citizen of either a state or a foreign state, not a country ___ Corporations: citizen of ANY state in which it is incorporated, and the one state where it has its Principal Place of Business

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Tubbs v. Southwestern Bell: Total activity Test (Nerve Center Test or Place of Operations Test... use Operations unless it is so far flung in which case makes more sense to use nerve center test) ___ Forum Doctrine minimum rule 1332 (c)(1) if a corp. if incorporated in more than one state and is sued in one of those states is only considered citizen of that state and not the other state (Vairo doesnt think this makes sense) ___ Partnerships: is a citizen of every state of which its members are citizens Is diversity Complete? Is there any way to avoid diversity jurisdiction (since it generally is not wanted except in very complicated cases) US corps with PPB abroad? Most courts treat them as citizens of US only, to encourage diversity jurisdiction, since this is the type of case where we want it Foreign corps with PPB in US? Most courts treat them as citizens of both- to avoid diversity jurisdiction (not type of case we want) Dual Citizens? Growing number of courts are only using US citizenship to protect them Aliens in US? ___ For Complete Jurisdiction can consider an alien resident a citizen of the state in which he is domiciled... BUT cant do this for MINIMUM diversity (because it is unconstitutional... so have to use the foreign citizenship) Eze v. Yellow Cab: no diversity because Aliens on both sides ___ Courts will interpret alien citizenship in the way that defeats diversity if possible... Decedent, infant or incompetent: only citizenship where they are citizens, not where rep is Amount in Controversy ___ interests and costs dont count ___ Legal Certainty test (if to a legal certainty they couldnt recover that much...) ___ Amount in Controversy is established at time of filing ___ Is it a subsequent event (no effect) or a subsequent revelation (if they knew or shouldve known) ___ Aggregation of AIC ___ multiple defendants: you can add up the amounts sought after one defendant by one P Exception: when there is a single title or right, can aggregate as to all (when parties have an undivided interest) ___ what about multiple plaintiffs: BIG SPLIT: ___ each plaintiff has to meet AIC- 3rd, 8th, 10th ___ doesnt require R 20 plaintiffs to meet AIC - 4th, 5th, 7th, 9th ___ focuses on language of last sentence of 1367a ___ Measuring AIC for declaratory or injunctive relief ___ Plaintiffs view point ___ Either view point- CA(look at how much the cost of relief is to either side) -5-

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Supplemental Jurisdiction: 1367 (passed as a reaction to Finnley which said congress had to expressly give jdx, not just not negate it): *ALWAYS look for jurisdiction on its own first (diversity, federal question, interpleader) Are you allowed in under 1367(a)? ___ First part codifies negation test in Kroger and Aldinger (if you meet CNOF, you can do it, as long as congress doesnt say no) ___ Shall have strong language, like language in 1332 and 1331 ___ Related to MENTION BOTH: ___ Codifying Gibbs, CNOF (narrow) ___ Or, arguably more broad, plain meaning argument (logical relationship test?) Are you limited by 1367(b)? (codifies Kroger) ___ is 1332 the sole basis for jurisdiction? ___ is the claim being brought by a Plaintiff? ___ BUT, did this codify Kroger? Kroger allowed a P to assert supp claim from a defensive position! Are you limited by 1367c? (Discretion) ___ Address on exam: is the list of discretionary inquiries exclusive or no? Gibbs had more... codifying or no? Gibbs also considered jury confusion... 7th circuit follows Gibbs Are you limited by a federal statute? ___ Congress can expressly say no supplemental jurisdiction Removal Jurisdiction ___ Procedurally: ___ remove within 30 days since when you learned it was removable ___ diversity cases, regardless of when you discover, have to remove within 1st year ___ all defendants must join in removal (Does are disregarded but later if they come in and destroy diversity, it gets remanded) you dont waive a PJ objection by joining in removal ___ Has to be removed to the district court for the district and division where case first is ___ Artful Pleading, to avoid removal is okay generally ___ D just removes (its not a motion that needs to be granted, he just does it in good faith) ___ 1441(d) does not let a judges decision to remand or not be appealed (end game playing) ___ Substance ___ generally, if a case couldve been brought in federal court originally, its removable ___ have to find a 1300... ___ 1441(b): original jurisdiction cases other than 1331 are not removable if ANY of the defendants are citizens of the state in which the case was brought ___ 1441c : CRAZY!! Only use if you cant use 1441(a) ___ If state law claims arent removable based on 1367... then argue they are separate and independent, and then you can argue discretion to the judge to keep or remand the whole case (they can look at what predominates) ___ May indicate that 1367 was meant to codify CNOF, and this broadens it for removal ___ Permissive language: may -6-

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Eastus suggests that plaintiffs have to prove the whole case is dominated by state law to get the whole case back under 1441c ___ In a close case, keep federal questions, remand diversity ___ 1441(d) only applies for lack of SMJ or removal defects, whereas 1441c is discretionary for remand Venue : this is about convenience ___ Local v. Transitory Actions (local: c/a is over RP, so have to bring it in county where RP is) If both claims are in a case, Local trumps ___ 1391 - liberalizing venue ___ 1391(a): Venue for Diversity Cases ___ (1)if all Ds reside in same state, then district where any D resides ___ (2) where a substantial part of the events or omissions took place (old venue language used to be where the claim arose, which is more restrictive) ___ (3) fallback provision: in any district in which any defendant is subject to PJ at the time of filing of suit note: Tag jurisdiction will never satisfy this b/c of timing issues ___ 1391(b): Venue for non-diversity cases ___ (1) if all Ds reside in same state, then district where any D resides ___ (2) where a substantial part of the events or omissions took place ___ (3) fallback: where any defendant is found (in a 5th amendment sense) ___ Transfer of Venue: 1404 (burden for transfer is heavy, b/c depriving P of their choice) ___ 1404: you can transfer from one district court to another, for convenience to parties and in the interest of justice ___ where is the evidence? witnesses? Is there a prejudice in a venue? ___ 3rd party defendant added has no PJ in that venue, but does in another proper venue-good reason to transfer ___ Can only transfer to another venue where P could have brought it originally (D cant waive PJ to make it proper) ___ If Transfer is granted: Van Dusen Rule (substantive law follows the case from original venue) note: this is only true for state claims, since federal law should be consistent, even though there are jurisdictional splits on certain issues Transfer of Venue: 1406 ___ 1406: when venue is improper initially, can transfer venue (dont have to dismiss it) note: in this situation, the Van Dusen Rule does not apply (so P wont bring suit in wrong venue just to get the rules they want ___ Goldwater Rule: if PJ and Venue are wrong, then transfer. If just PJ is lacking, then dismiss. Transfer of Venue, for Multi-district litigation: 1407 ___ if there is one or more question of fact, in different districts, 1407 allows them to all be transfered to one district for discovery coordination and pretrial proceedings (for efficiency) Forum Selection Clauses ___ generally enforced, unless strong public policy: a states particular interest in adjudicating ___ If not in the agreed forum, make a motion to dismiss and a motion to transfer -7-

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Forum Non-Conviens (common law doctrine) ___ Transfer is always available in US, so Forum Non Conviens is a dismissal, with the only option to refile abroad ___ most likely: foriegn plaintiff with a foreign cause of action ___ must be an Adequate Available Forum As long as they have their day in court (Piper: doesnt matter that Scottland doesnt recognize the c/a, it has to be impossible to get a remedy: political upheaval, no due process) ___ in return for granting FNC motion, court requires Ds to waive any PJ problems in foreign court ___ Slight exception: Alien Tort Claim Act trumped FNC ___ R 8: short, plain statement (may want to plead more facts-more specific, more likely to get disc.) ___ always need to plead jurisdictional basis and claim for relief ___ R 8e2 : can plead alternately, or inconsistently, or hypothetically different theories of case ___ R 9: certain matters need to be plead particularly specifically (fraud...) ___ R11: sanctions on attorneys ___ R 12b6: instead of answering complaint, move to dismiss for failure to state a claim (if granted, most starts give leave to refile) ___ R 12e: motion for a more definite statement of claim ___ R 15: can amend a complaint ___ R 15c Relation Back doctrine (date of amended comp dates back to original, provided that the original gave notice) Discovery: R 26- 37 ___ 26a: without other side asking, have to provide what you feel would be helpful to their claims/defenses ___ 26(b)(1): more restrictive than before 1990s... relevant to claim or defense of any party (as opposed to relevant to the subject matter) ___ Limitations: A-C privilege (unless attorney needs to protect from R 11 or if client didnt pay), Work product ___ Supplemental disclosure is required for new material ___ R 37: compels discovery ___ R 33a: max # of interrogatories is 25, without leave of court

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Joinder of Claims ___ R18: can join as many claims as you have to a claim ___ Beware: SMJ doesnt allow for every claim (for diversity SMJ, can aggregate) ___ R13a: compulsory counterclaim against someone who has asserted a claim against you ___ Same transaction or occurrence (since its compulsory, its more narrow, so 1367 is met) ___ If you dont assert a 13a claim it is waived ___ Hart: cant sue on a debt when debtor is suing for federal fair collection- not 13a, no SMJ -8-

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___ Semmes: does the counterclaim exist at the time the claim is made (1st of 20 days?) ___ R13b: permissive counterclaims ___ If they are 13b, have to have their own SMJ (can still argue 1367, since 13a is arguably a narrower test than cases and controversies...) ___ R13g: cross complaints ___ cross claim, contribution and indemnity (note R14 is for bringing in a party for that purpose, if they are already in the lawsuit, just use 13g) ___ Transaction or Occurrence (same test) ___ SMJ? (1331? 1367? 1332? - if co-party not diverse, and no other basis, have to drop it) ___ RMG: if there is a cross claim for a substantive claim (not just indem), then a co-party will become an opposing party, and so 13a will come into play b/n them ___ Restriction: 13g has to be in a pleading ___ 5th circuit ignores the pleading language, 3rd circuit follows language ___ Ps asserting claims against each other: make arguments they are or are not joined under R20 (matters for 1367b b/c if Ps are from same state, in a diversity suit) ___ Can also add unrelated cross claims to cross claims using R18 Joinder of Parties (added parties cant object to venue, but need PJ and SMJ and R) ___ R17: Who can be a P, who can be a D (capacity/real party in interest/standing) ___ Green: insurance had paid Green, so he wasnt real party in interest, 17 allows for cure ___ 17b allows a rep to sue on incapacitateds behalf ___ Is there an assignment of interest?: beware of collusive assignment to control diversity (1359 prevents this, sua sponte) ___ R20: permissive joinder of parties (plaintiffs tool) ___ Same transaction or occurrence, OR series of transactions or occurrences: BROAD ___ Stromberg again: 7th circuit says that b/c P2 was joined under R20, they can have supp jurisdiction even if they dont meet AIC as to the defendants (Abbot labs overruled this, but still split in jurisdictions) it is important to know who is a P and who is joined by R20 ___ Joinder of Parties by Defendants- R13h and R14a and R19 ___ R13h: can add, as long as they meet either R 19 or R 20, with a counter or cross claim. ___ since they have to satisfy R20, are they a R20 party for 1367b... up to courts ___ R14a: bring them in for indemnity or contribution (note, joint tortfeasors have 14a claims, but not R19 claims) ___ R14b: P can use R14 when a counterclaim has been asserted against them, and a D would be allowed to under the rule (this is when 1367b most blatantly doesnt codify Krogers defensive position- could cause problem, note problem, note diff w/ kroger) ___ Indispensable Party R19: ___ D makes 12b7 motion to dismiss for lack of joinder of a R19 party ___ Are they R19? ___ Are they a necessary party? (If no, motion denied) ___ (without them, can relief be granted?) ___ (do they have an interest relating to subject matter of action, and going without them would impede or impair their ability to protect that interest?) -9-

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(without them, is any party subject to substantial risk of incurring double, multiple or inconsistent obligations?) ___ If yes, is it feasible to join them? (If yes, then join them) ___ Can they be served? PJ? SMJ? Venue? ___ If no, are they Indispensable? ___ Factors: Ps interest, Ds interest, 3rd partys interest, efficiency ___ likely 19b scenario: co-ownership of something (so that complete relief cant be granted without a judgment being binding on both owners) Intervention: R24 (neither party added them, but they want in) Procedurally ___ File a timely application, with a proposed pleading (complaint or answer) ___ You can intervene as either P or D Substantively ___ Claim an interest that is the subject of action ___ Legally protectable interest? ___ Is that interest being adequately protected by existing parties? Interpleader, Statutory 1335 ___ Is its own SMJ ___ Minimal Diversity ___ Jurisdictional Amount $500 ___ PJ is easer (2361 allows for service in any district, 4(1)(k) interpleader exceptions) ___ Venue is where any claimant resides (1397) ___ 2361 also allows court to enjoin other law suits Interpleader, Rule 22 ___ Only use on a cross claim or counterclaim ___ Must have traditional SMJ, PJ and Venue ___ Use Defensively: the one with stuff is sued, so they bring in rest of people with R22 ___ 1367 gives SMJ (same property) ___ Watch out for PJ ___ Use Offensively: if you dont have minimal diversity for 1335, but P is not a claimant ___ Cant use R20 to join them, b/c there is no real claim or right to relief Class Actions- Rule 23 ___ Not named parties bound by a judgment- this is huge! ___ Only binding when your interest was adequately represented how they argue due process

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Summary Judgment- R56 ___ No genuine issue of material fact ___ Constitutional cases are questions of law and so usually SJ decides it ___ Trilogy: Celotex (burden of proof stays with P for SJ), Anderson (court should view evidence through prism of standard of proof), Daubert (District courts are gatekeepers of expert witnesses- CA doesnt follow this) Erie (reverses Swift v. Tyson) -10-

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Evaluate Erie issue by issue... Horizontal Erie: which states law is applied ___ NY method for choice of law: interest analysis Vertical Erie: want the result to be the same in federal and state court different forum, same deal ___ Normally, apply federal procedure and state substantive: gets sticky, check category ___ Refer to Vairos sheet, place issue in a category ___ Is there a federal LAW, or Federal Common law that still applies? ___ If yes, Category I and VII, respectfully (and apply fed) ___ Otherwise there is state substantive law, apply that (Category II) ___ If State procedural law is outcome determinative, it is treated as substantive, and it applies (Category III), if not outcome determinative, then Fed applies (Category VI) ___ Determine if state procedural law is outcome determinative (on the merits) ___ Summ Judgment is not outcome determinative (its not definite fed judge will rule differently) ___ SOL is outcome determinative ___ When there is an FRCP that is valid, it will apply ___ R23: not certain a judge will certify a class, and that doesnt determine if they win ___ BUT, even if state procedural rules are outcome determinative, if the federal interests outweigh states interest, then apply Federal procedure (Category IV- very rare, huge like state is denying a jury trial) ___ If there is a FRCP, it applies over state rules of procedure (still have to decide if the states rules are really substantive, and then weigh interests) (Category V) ___ When you can, Harmonize state and federal procedural rules (Category VII)

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Res Judicata / Claim Preclusion ___ Was there a prior judgment (only way to trigger this) ___ Elements of Claim Preclusion ___ Judgment, which is Final, Valid, and On the Merrits ___ Mutuality: same parties, or their privies ___ Applies to claims that were raised, or COULD HAVE BEEN raised (why you want to assert all your 13a counterclaims, otherwise they are waived and res judicata) Collateral Estoppel / Issue Preclusion ___ Elements of Issue Preclusion ___ Issue was Fully, Fairly, Finally and Necessarily litigated ___ DONT need same parties ___ Offensive Non-mutual Collateral Estoppel ___ Defensive non-mutual collateral Estoppel Appeal ___ Can only appeal after a final judgment, unless ___ injunctive relief, if the issue is controlling and judge will certify it for appeal, writ of mandamus, order that is collateral to merits, but effectively unreviewable, R23f class actions are immediately reviewable