Civil Procedure

Personal Jurisdiction
Person Based Jurisdiction A. Traditional Bases: the state has personal jurisdiction over people and things w/in its boundaries 1. presence (a) ∆ is served w/ process in the forum (b) Pennoyer v. Neff (1877): very mechanical, wooden, ∆ in the state then have personal jurisdiction (c) Burnham (1990): is presence still enough to establish personal jurisdiction if served personally without trickery. (i) justices split (four said presence still enough / four said PJ must apply minimum contacts (Int'l Shoe)) 2. domicile (a) state has general jurisdiction over ∆ domiciled w/in its borders (b) Milliken v. Meyer (1940): party is amenable to suit w/in state of domicile (c) domicile - two factors (i) present in the state (ii) intent to make that your permanent home (d) you only have one domicile at a time (i) retain that domicile until you establish a new one 3. consent (a) coerced consent: Pennoyer - state can require official act as agent for non-residents w/ business w/in the forum state (b) implied consent: Hess v. Pawloski (1927) ∆ was entitled to benefits and protections of forum; subject to jurisdiction B. No traditional bases for jurisdiction: absent, non-resident, non-consenting ∆ 1. Does the statute itself assert jurisdiction over this particular ∆? (a) every single state has a long-arm statute (specific jurisdiction / "sky's the limit"(specifies arising out of or derives substantial revenue)) 2. Is the assertion of jurisdiction constitutional? LONG ARM STATUTE constitutional? (a) International Shoe Co. v. Washington (1945) (i) the state has jurisdiction if the ∆ has such minimum contacts w/ the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice (ii) two parts to the minimum contacts test 1. systematic, continuous contacts 2. fairness (iii) The Shoe Spectrum General ("all over", systematic&continuous)|---------| Specific ("arising from", one contact) • the more contact the ∆ has with forum, the less directly related the claim needs to be "quality and quantity" (b) tests for minimum contacts (i) McGee v. International Life Insurance (1957) One insurance contract ... specific "arising from" (ii) Gray v. American Radiator (1961) (IL St. Sup. Ct. view only but never overruled) • putting products into the stream of commerce with the expectation that they will be purchased in the forum state is sufficient contact (p. 122-123) (c) ∆ must purposefully avail himself of contact with the forum state, not just unilateral association (i) Hanson v. Denckla (1958) to be relevant contact, must result from ∆’s purposeful availment (not unilateral) (ii) the family law exception Kulko v. Superior Court of Ca (1978) sending child to visit mother not purp'fl avail (d) foreseeability and ∆ contact with the state - Foreseeability alone is not enough to establish jurisdiction. (i) World-Wide Volkswagen Corp. v. Woodson (1980) it must be foreseeable that ∆ would get haled into forum (ii) Asahi v. Ca (1987): the stream of commerce split (e) is there a foreign relations concern Helicopteros, Asahi (f) is the forum unfair/inconvenient? (i)reasonableness of the forum depends on several factors: 1. burden on ∆ 2. interests of the forum state 3. π’s interest/ability in obtaining relief 4. is there another forum out there for the π (ii)Burger King v. Rudzewicz (1985) burden is on ∆ to show unfairness of the forum 1.minimum contacts and really convenient vs lots of contacts and really inconvenient 3. Fed courts have personal jurisdiction wherever state courts do R 4(k)(1)(a) 4. Fed courts have PJ over foreign ∆ if not enough contacts with any particular state but enough with US as whole 4(k)(2) Property Based Jurisdiction – acting against ∆’s property 1. in rem: the case itself is about who owns the property 2. quasi in rem: where the dispute has nothing to do with what person owns the property (1) it’s attached as a means to collect or (2) used in absence of in personam jurisdiction(NO MORE) 3. Still need to go through the two part analysis (a) there must be an attachment statute by the state (i) allowing the court to grab property that ∆ owns or claims to own (b) Would jurisdiction be constitutional? (i) Pennoyer said attachment had to be at time of service (ii) Shaffer v. Heitner (1977) ∆ must still meet minimum contacts test and all assertions of state court jurisdiction must be evaluated according to minimum contacts. Cannot attach property (debt, ins policy) if not "arising from

property itself is in the jurisdiction and therefore meets Shoe in in rem actions Notice and the Mechanics of Service of Process 1. Forum non Conveniens (a) court dismisses case because there’s a far more appropriate court somewhere else (b) factors considered for dismissal under forum non (FN 6. Piper v. but could choose whether to apply PA or MS procedural law (Statute of Limitations ruled procedural law here) . get statute of limitations there. etc. Transfer A. Venue 1. etc to someone of appropriate age. 1391(b)(3) 3. Venue. Central Bank (1950) (a) service must (i) be reasonably calculated under all circumstances to inform parties of action and afford an opportunity to respond . governed by Rule 4 2. may lay venue (i) diversity: in district where any ∆ subject to personal jurisdiction. Why do litigants care about choice of forum? (a) convenience (b) values and bias (c) procedural advantages (d) choice of law (i) state can apply its own procedural laws B. Transfer Within the Federal System (a) must be w/in the same judicial system (i) fed to fed or state to state • transferee court must be a proper venue must have personal jurisdiction over the ∆ (b) use the substantive laws of the transferor court (i) don’t get a change of law w/ a change o/ forum. Forum Selection. cost. Mullane v. Reyno) (i) those pertaining to private interests of litigants (witnesses. 1391(c) (ii) may lay venue in any district where a substantial part o/the claim arose (c) where neither of the two options can be met.(iii) in rem cases may mean that attachment of property is enough to meet minimum contacts test. afford reasonable amount of time to respond (ii) be served by individual of appropriate age. then transfer to Pa Pa has to apply Miss substantive laws (Handoff case). practical concerns) (ii) those pertaining to public interests 4. has to do with allocation of cases within a court (b) Choice of law based on forum having interest in litigation 2.Van Dusen • Ferens: go to Miss. may lay venue in any district w/in that state ⇒ reside usually means same as citizenship for individuals ⇒ a corporation resides in all districts where its subject to personal jurisdiction at time the action is commenced. 1391 (a)(3) (ii) FQ: in a district where any ∆ may be found. The constitutional standard for giving notice. Generally (a) not a function of the power of the court . Forum Selection 1. reasonably convey required information. Basic provisions for venue (a) governed by § 1391(a) for diversity and 1391(b) for FQ (b) gives the π two basic choices (i) may lay venue in any district where all ∆s reside • if all ∆s reside in diff districts of the same state.

000. citizenship of representative suits 1332(c) (a) look to their citizenship not that of the representative (i) decedents (ii) minors (iii) incompetents (iv) insurance companies (b) look to the citizenship of the person being represented • Amount in Controversy 1. court must consider citizenship of each partner for purposes of Diversity citizenship (f) all named members of a class action must be diverse (un-named need not be diverse) (g) indispensable parties must be considered for diversity (h) can’t create diversity. determined by: nerve center: where decisions are made 4. laws or treaties of the United States… 2. limited partnerships and unincorporated associations. Aggregation of claims? Merging multiple into one? (a) Can aggregate claims if there is one π v. Article III. Arkoma Associates (1990) (ii) could not drop individual partners.2 exceptions to Diversity rules (i) § 1359 says no jurisdiction where parties improperly or collusively joined.S. Congressional Authorization: 28 U. § 1332 3. Diversity Jurisdiction 1. authority is Article III of the Constitution and 28 U. Federal Question must appear in the complaint… part of the cause of action. 1332(b) 4. Federal Question Jurisdiction 1. court jurisdiction authorized • Exxon Mobil v. π’s ultimate recovery is irrelevant to SMJ (a) district court may impose costs on π for recover less than $75K. Curtiss (1806)] (a) there is no diversity if any π is a citizen of the same state as any ∆ (b) very mechanical (c) draw a line btwn πs and ∆s. arising under interpretation: very grudging approach.000. π’s claim governs unless clear to a legal certainty she can’t recover that much 3. must exceed $75. (unless interpleader) 1. not counting interest on the claim and costs 2.C. can others w/out required amount (i) an attempt to get the others in via supplemental jurisdiction (ii) traditional approach says no • Zahn: each member in class action need have requisite amount ⇒ can’t aggregate claims • CAFA 2005 law says as long as total claim over $5 million. how do we determine citizenship of a person (a) Physical Presence and an intent to remain there indefinitely (b) a person is a citizen of the state where she is domiciled (c) domicile is a test for a person’s citizenship 3. to determine citizenship of a corporation: 1332(c)(1) (a) a corp is a citizen of all states where it is incorporated (b) also a citizen of one state where it has its principle place of business (i) can only have one principle place of business. Section 2 of the Constitution (a) judicial power extends to controversies between citizens of diff sts 2. shenanigans rule (ii) improper joinder of nominal parties not allowed to defeat diversity 2. Allapatah (2005) permits supplemental jurisdiction over claims in class action as long as the named plaintiff's claim is over $75. (a) The Well-Pleaded Complaint Rule: look only at the claim (i) is the π enforcing a fed right? (ii) a well-pleaded claim must assert fed law (Mottley 1908) . no one may be from the same state (d) will take into account limited partners for diversity (i) Carden v. Supreme Court Interpretation • Complete Diversity Every Plaintiff must be of diverse citizenship from every defendant. § 1331 – The district courts shall have original jurisdiction of all civil actions arising under the Constitution. fed. If a P and a D share a state in common there is no complete diversity.C.S. complete diversity requirement [Strawbridge v. one ∆ (b) Cannot aggregate claims if there are multiple parties on either side (c) joint claims may look to total value of the claim (i) claims against joint tortfeasors or joint liability (d) what if one π exceeds the amount.Subject Matter Jurisdiction A. B.

§ 1367(a) (a) the key to allowing supplemental claims is the factual similarities of the claims: they must arise out of the same common nucleus of operative facts (i) same common nucleus if arise out of same transaction or occurrence (b) decision to join the state claim is discretionary (c) R 13(a) compulsory counterclaims: may be heard because they arise out of the same transaction or occurrence (d) R 13(b) permissive counterclaims: may not be heard because they do not arise out of the same transaction or occurrence 2. Removal 1. the well-pleaded complaint rule may be loosened (Smith v. Oct. v.did not create cause of action. but need to fed law to prove that right the Smith exception (ii) beyond Holmes. but still faithful to Mottley • the court still looks at what the π must establish as part of her case (d) Federal Interest in the case may allow for jurisdiction. the federal law mandates the use of state law • Shoshone Mining Co. even if Federal law doesn't create the claim (i) where there is more at stake for the federal government.e. Supplemental Jurisdiction • we now get a hospitable view as opposed to FQ jurisdiction • Is there a common nucleus of operative fact between the jurisdictionally sufficient and insufficient claims? • Will taking the insufficient claims create fairness and judicial economy? 1. can join other parties unless they do destroy diversity (a) won’t allow claims made by πs under that destroy diversity under (i) R 14: π bringing in 3d party (ii) R 19: indispensable parties (iii) R 20: permissive joinder (iv) R 24: intervention D. § 1441: ∆ can remove any case that would have original federal court jurisdiction (a) can remove any claims that could have been filed in fed in 1st place (b) not in diversity where sued in home state (c) entire case can be removed. Can be unpredictable whether Smith or Merrell Dow will apply. federal Statute said to look to State law (c) exception to Holmes: jurisdiction where fed law doesn’t create cause of action (i) where vindication of a right under state law necessarily turned on some construction of federal law (Franchise Tax Board on Smith) • π’s asserting state right. Rutter. can join other claims that form part of the same case or controversy. 6 notes. Be aware of exclusive federal jurisdiction (a) §1338: patent infringement (f) Some Foreign State Cases (b)§1334: Bankrupcy Proceedings (g) §1339: Postal Matters (c) §1351: Cases with Consuls and Vice Consuls (h) §1340: Internal Revenue (d) Antitrust Cases (i) Securities Exchange Act (e) Some Admiralty Cases (j) FTCA: federal tort claims act 4. so can't use it to create federal arising under jurisdiction.• the federal issue must be necessary to the proof of π’s claim (b) Holmes Creation Test: suit arises under law that creates the cause of action (i) cause of action: the right to sue (ii) beware of the flip side of the Holmes test: cases where the federal law creates the remedy but state law is used as the standard • i."a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantive questions of federal law"). but judge can remand separate and independent claims that do not have their own independent jurisdiction (i) we need § 1441(c) so ∆ can remove fed claim with attached but unrelated state claims because removal of those state claims would be unconstitutional . Kansas City Title. on exam argue both 3. upheld in Grable. an FQ summary (a) jurisdiction under arising under statute must be based on π’s claim (b) case satisfies arising under test if it satisfies the Holmes creation test (c) have jurisdiction if proof of state claim requires proof of proposition of fed law (d) may not have arising under jurisdiction if fed law mandates use of state law (e) may not have jurisdiction if fed law doesn’t create implied private right of action C. but this is an exception not the standard law • also must not present a floodgates problem if FQ jurisdiction granted (e) Congress must intend fed action for violation of statute (Merrell Dow) (i) court no want to create fed remedy where Congress didn’t intend to do so.

2. By Plaintiffs (a) R 18 does not require any transactional relationship between the claims (i) free to assert as many claims. only the original ∆ can effect removal removal is a one-way street (a) no such thing as removing from fed court to state court (b) fed court may remand back to state court if case never should have been there removal only to the fed district embracing the state court where case was filed remove only w/in 30 days of service of document that makes case removable (a) 30 days runs from service two exceptions where a case cannot be removed (a) no removal if any ∆ is a citizen of the forum state. 3. (ii) R 13(b) permissive counterclaims: pleading may state any counterclaim not out of the same t/o • better bring it though if it might be related (iii) Severance: R 42(b) separate trials if needed Guedry (b) cross-claims (i) R 13(g) cross-claim against co-party: must arise out of the t/o as subject matter of original transaction or that of a counterclaim (ii) permissive only. whether related or unrelated (ii) but if not related. 6. Joinder of Parties (a) permissive joinder and consolidation (i) R 20(a) permissive joinder: πs are allowed to join parties as long as • πs claim against joined ∆s arises out of same t/o or series of t/o • and if any common question of law or fact will arise • Severance: R 20(b) separate trials if needed • once permissive joinder established. N38). etc. though watch out for the jaws of preclusion (iii) Severance: R 42(b) separate trials if needed 3.diversity only (b) can’t remove a case more than one year after it was filed in state court § 1446: procedure for removal (a) 1446(b) says notice of removal must be filed within 30 days upon receipt by defendant of initial pleading upon which π’s action is based Joinder of Claims and Parties A. 5. 4. Prof. 7. Real Parties in Interest 1. may be dismissed for lack of supplemental jurisdiction (iii) permissive rather than compulsory • but rules of preclusion act as rules of compulsory joinder ⇒ better join claims related enough to be precluded later (b) Severance: R 42(b) separate trials if needed 2. new evidence. Joinder of Claims 1. R 18 allows claim free-for-all ⇒ but still need SMJ on every claim (ii) R 42(a) consolidation: court may order joint hearing or trial when pending actions involve a common question of law or fact . By Defendants and Co-Parties (a) counterclaims (i) R 13(a) compulsory counterclaims: must assert counterclaims that arise of the same t/o that is the subject matter of opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction • 9th Cir: claims have to have factual relatedness ⇒ Grumman’s claim that DG violated Ca antitrust act arises out o/ same facts as DG suit for copyright infringement (B30. R 17(a) requires that lawsuit be brought in name of the “real party in interest” (a) in the name of the person in possession of the substantive right to recover (i) prevent relitigation of claims (b) fed courts look to the citizenship of the real party in interest for diversity B. Williams prefers this interpretation • 6th Cir: claims have to have legal relatedness ⇒ Grumman’s claim is not a compulsory counterclaim because it has a different legal argument/basis • R 13(f) may allow you to amend if you forget or such • R 60(b) may be relieved of final judgement for neglect.

court has discretion whether to allow absentee in • still need SMJ • • . πs had adequate remedy: state court (c) impleader: bringing in 3d parties (i) governed by R 14 (ii) refers to this as 3d party practice (iii) ∆ joins party who owes indemnity or contribution on underlying claim (iv) R 14(a): claims in all directions must arise out of same t/o as original • still need SMJ for everything (d) intervention: absentee joins herself (i) governed by R 24 (ii) intervener chooses whether to be a π or a ∆ • court has the power to realign (iii) two types of intervention • R 24(a): intervention of right ⇒ must show that absentee’s interest may be harmed if not joined ⇒ and that interest is not adequately represented now. Columbia Gulf (N40). now Pimentel a. or Fed.judge may hold joint hearing on any or all matters notice only requires common question not same t/o ⇒ much broader than 20(a) (iii) Severance: R 42(b) separate trials if needed (b) compulsory joinder: necessary and indispensable parties (i) indispensable parties are those necessary that can’t be joined (ii) R 19(a): party shall be joined if • in the person’s absence complete relief cannot be accorded • the person has an interest in the suit and her absence will ⇒ impede person’s ability to protect that interest OR ⇒ subject ∆s to multiple or inconsistent obligations • those refusing joinder can be made a ∆ or an involuntary π (iii) R 19(b): factors for what to do if indispensable party can’t be joined • extent judgment in that parties absence will prejudice those already party • extent to which prejudice can be avoided by protective provisions • whether judgment in that person’s absence will be adequate • whether π will have an adequate remedy if the action is dismissed ⇒ Broussard v. Statute allows 24(a)(1) • R 24(b): permissive intervention ⇒ show absentee has at least one question in common w/ the case a. judgment in absence inadequate because she had interest c. π could not drop out of case to create diversity because she was necessary party b.


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