Fall Final Outline

Monday, November 22, 2010

7:49 PM

Personal Jurisdiction
1. State Long Arm Statute
a. Laundry list
b. Constitutional
2. Constitutional Jurisdiction
Pennoyer (consent, resident, agent, physical presence, property through in rem)

If no,
Min. Contacts (Shoe)

Quality and nature

A. Purposeful Availment (Hanson) to benefits protections of law in forum state.
Cannot be unilateral random, or isolated.
Foreseeability of being hailed into court. (WWV)

B. Relatedness
General Contacts must be Systematic/Continuous

Specific contacts must be significant.

Only one may be needed (McGee)
C. Fairness (Reasonable)
Not offend traditional notions of fair play and substantial justice
Burden of defendant weighed against
1. Forum states interest in dispute
2. Plaintiff interest in convenient/effective relief
3. Judicial systems interest in efficiency
4. Shared social interest of states

Cases

McGee: manifest interest in protecting citizens

Hanson: purposefully avail to benefits privileges of state

Gray: stream of commerce

WWV: foreseeability alone is not enough

Keeton: substantial interest in cooperating with other states to provide efficient litigation

Calder: 1. Defendant must aim conduct towards state 2. Effects must be felt in forum state

Burger King: contract alone not enough.

Asahi: Stream of Commerce

Brennan (4): mere awareness is enough

O Connor (3) Mere awareness is not enough

Fairness: burden severe if distance is great

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Fairness: burden severe if distance is great

Helicol: mere purchases at regular intervals not enough to establish general

Shaffer: min contacts for in rem

Burnham: tag jurisdiction allowed even without min. contacts.

Notice and Opportunity to be Heard

1. Mullane: Local newspaper was only notice. What is proper differs from circumstances. Known
beneficiaries were not sent letters. Was unreasonable not to send letters to known defendants.
2.
3. Rule: 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.
4.
5. Triad: DHUPA must have sufficient indicia of permanence and courts prefer person to be residing
there while being served.

Subject Matter Jurisdiction

Limited Federal Subject Matter Jurisdiction

1. Constitutional requirement Article III
2. Statute Law (28 U.S.C)

Matters Addressed by the Courts

1. Federal Question 18 USC § 1331
2. Diversity 18 USC §1332
3. Alienage 18 USC § 1333
4. Admiralty 18 USC § 1333
5. Dispute between states, counsels, ambassadors

28 U.S.C §1331 Federal Question

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

Checklist
1. Claim arises under constitution, laws, or treaties
2. Satisfies Well Pleaded Complaint Rule
Federal question must arise in the core of the complaint and must arise in the plaintiffs main
allegations not counterclaim or defense.

When a Federal Issue is embedded in a state question apply Grable Test

Grable Test requires court to address whether substantial federal question exists
1. State Law claim raises a federal issue
2. Federal issue is disputed and substantial
3. Veto Element: Balance of federal and state judicial responsibilities
If the federal court may entertain the claim without disturbing any congressionally approved balance
between federal and state responsibilities.

Note: No amount in controversy requirement.

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Note: No amount in controversy requirement.

Diversity of Citizenship and Alienage 28 U.S.C. §1332

Alienage Jurisdiction
Citizen of state v citizen of foreign country

1. Complete Diversity Rule

(1) No plaintiff is a citizen of same state as any defendant.

1. Date: diversity determined date action was instituted

2. Citizenship

A. Persons: A person is citizen of state if he is domiciled there.

Domicile is (1) physical presence (2) intent to remain
*Domicile is determined at time of filing

B. Corporation
For diversity purposes corporation is a citizen in its (1) state of incorporation and (2) principle place of
business
Determining PPB
Hertz Nerve Center Test- state where executive decisions are made and are operating. Generally where
HQ is located.

C. Non-Incorporated (L.L.C, union, partnerships)

Citizen of everywhere where members are citizens

1. Amount in Claims Must Exceed 75,000

Plaintiff good faith; must be disproven by legal fact (statute limitations) actual amount awarded
irrelevant.
Aggregation means plaintiff can add any claim he has against defendant, but cannot add different claims
against different defendants to reach number
Cannot create collusively joined parties
1P v 1D
Aggregated claims exceed 75,000.
Multiple Parties
At least one Plaintiff must have claim exceeding $ 75,000 against joint tortfeasor defendants.
Class Action
Claim of every member in class exceed 75,000
Claim also total in more than 5 million

Venue
Underlying policies: judicial efficiency, limit forum shopping, convenience of parties.

§1391(a) Venue in diversity cases

1. District in which any defendant resides, if all defendants reside in same state
2. Judicial district in which substantial part of events giving rise to claims occurred
3. Any district in which defendant subject to pj at time of action, if no other district
§1391(b) Venue all other cases
1. District in which any defendant resides, if all defendants reside in same state
2. Judicial district in which substantial part of events giving rise to claims occured
3. Any district in which defendant may be found, if no other district.
§1391© Venue of Corporations

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§1391© Venue of Corporations
1. Any judicial district corporation subject to personal jurisdiction at time of action.
2. Resides in district with most significant contacts
*Non incorporated are applicable to 1391(c)
1391(d) Venue for Aliens
1. Aliens may be sued in any district

Notes:
*Forum selection clauses relative but not absolute
*"except as provided by law" - some additional statutes may provide law instead
*Local rule: venue where land is located. In rem, remedy (claim to quiet title, damages to land, trespass,
waste, enforcement)

Transfer of Venue
§ 1404(a) Change of Venue
For convenience of parties and witnesses, or interest of justice, district court may transfer to any other
district where it might have been brought. Transferee court must have PJ, SMJ, Venue
*Federal Courts never transfer to state courts. Vice versa.

Choice of Law: Diversity Cases Only

Laws of transferring state applies unless venue was improper, that case state receiving applies own laws.

1406(a) Cure of Waiver of Defect "Goldlawr Transfers"

a. District court in which filed case laying venue in wrong district may dismiss or transfer where it
may have been brought.
Permits transfer of cases in an improper venue

Forum Non Conveniens

28 USC §1412
District court may transfer case to another district court in interest of justice or for convenience of
parties.
Courts balance convenience to plaintiffs choice of forum. Defendant needs to show compelling reason
for change.
Courts factor convenience factors of public and private interests
Private interests of litigants include
1. Ease of access of proof (documents)
2. Subpoenas
3. View of premise
4. Change in substantive law which affects plaintiff
Public Factors
1. Administrative difficulties
2. Court congestion
3. Local interest in having disputes resolved locally
4. Lack of legal expertise (familiarity with law)
5. Jury Burden on citizens

*Courts will not grant FNC unless Alternative forum exists

Removal
Removal Jurisdiction 28 U.S.C. § 1441, 1446, 1447
Defendant may choose to remove case to federal court to avoid local bias
1. State to Federal Only

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 1. State to Federal Only
2. May only remove to federal district "in the district"
3. All defendants must consent
4. Removal is discretionary
5. Defendant has right to remove to federal court if they had subject matter jurisdiction in the first
place.
No Removal for In-State Defendants in Diversity Only Cases
§1441 General Actions
a. US original jurisdiction cases removable
b. Arising under claims removable regardless citizenship of defendant
In State Defendant Rule: defendant's cannot be citizens of states removed
If Federal Question with state issues then court can keep or remand
c. If case has claim arising under and is joined with one or more non removal items entire case may
be removed and district court may determine all issues or may remand matters in which state law
dominates.
§1446 Procedures
a. Defendant files statement for grounds of removal and copy of all documents of lower court
proceedings.
b. Must be filed 30 days after service
If new subject matter jurisdiction created then defendant has 1 year to remove
c. Prompt notice to all adverse parties and verification that removal is correct
Notes:
*Circumstances where you can remove 30 days after: filing amended complaint; new federal subject
matter jurisdiction
*Removal must take within 30 day of services
*Addition of new defendant does not reset 30 day rule of removal (Noble)

§1447 Procedure after removal

a. District court right to control all parties through service
b. File copies with court
c. Any defect other than SMJ must be made within 30 days of filing
d. Remand order cannot be appealed unless civil rights issue
e. If plaintiff seeks to add parties that would destroy SMJ court can permit and remand or deny.

How a Defendant May Object to Plaintiffs Selection of Forum

Traditional method was special appearance; defendant only able to challenge personal jurisdiction
Modern rule is Federal Rule 12
Abolishes difference between general and specific appearances by allowing defendant to raise several
defenses at once.
Definitions
Responsive Pleading: answer to pleading

Rule 12 Defenses and Objections

(a) Time to Serve Responsive Pleading
(1) In General
(A) defendant must serve an answer
(i) 21 days of being served summons/complaint or
(ii) timely waives service within 60 days after request for waiver sent, or within 90 days if defendant
outside US.

12(4) Effects of a Motion

(A) if court denies motion responsive pleading served within 14 days after notice of court's action or
(B) if courts grants motion for more definite statement, responsive pleading served 14 days after served.

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12(b) How to Present Defenses
Every defense to claim for relief in any pleading must be asserted in responsive pleading if one required.
Party may assert following by motion:
(1) lack of SMJ
(2) lack of PJ
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state claim upon which relief can be granted
(7) failure to join party under Rule 19

Motion asserting any of these defenses must be made before pleading if responsive pleading is allowed.
No defense or objection is waived by joining it with one or more defenses or objections in a responsive
pleading or in a motion.

12(g) Joining Motions

(1) Right to Join
Motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions
Except as provided in Rule 12(h)(2) or (3) party that makes motion under this rule must not make
another motion under this rule raising a defense or objection that was available to the party but omitted
from its earlier motion.

12(h) Waving and Preserving Certain Defenses

(1) When Some are Waived
Party waives any defenses listed in Rule 12(b)(2)-(5) by
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule

(3) Lack of Subject Matter Jurisdiction

If court lacks SMJ may dismiss at any time

12(i) Hearing Before Trial

If party moves any defense listed in Rule 12(b)(1)-(7) whether made by pleading or motion and motion
under 12© must be heard and decided before trial unless court orders deferral until trial.

Collateral and Direct Attacks on Personal Jurisdiction

Apply direct attack when wishes to attack personal jurisdiction before merits are decided. Disadvantages
is finding an attorney licensed to practice in jurisdiction.
Collateral attack is attacking personal jurisdiction after a default judgment has been entered. Risky,
because defendant unable to challenge case merits. Allows plaintiff to stay at litigate at home and save
travel expense)
*Can only challenge personal jurisdiction once under Doctrine of Res Judicata

Challenging Federal Subject Matter Jurisdiction

Defendant may challenge Rule 12(b)(1)
Or remand case § 1447©
Defendant can only litigate subject matter jurisdiction once.

Federal Diversity Choice of Law

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Federal Diversity Choice of Law
The Supremacy Clause Article IV § 6
Shall be supreme law of the land

Choice of Law for Federal Court in Diversity

Judiciary Act 1989 (Rules of Decision Act)

"laws of several states except where constitution… shall be regarded as rules of decision in civil actions
in the courts of the US, in cases where they apply."
Rules Enabling Act: gave judicial branch power to create FRCP.

Hanna Prong and Erie Prong

Apply Federal Rule on Point (Authority: REA, Supremacy Clause)

(I.g. FRCP)
Hanna Prong
Test

1. Validity: within delegated authority of REA which cannot abridge, enlarge, or modify any
substantive right.
2. Must be Arguably Procedural
• Courts have never found invalid rule
3. On Point: was rule intending to govern or control issue at hand?
Analyze whether rule is on point (i.g. permit v require or forbid)

No Federal Rule on Point

Erie Prong
Test

1. Clearly substantive then apply state law

2. No clarity, apply outcome determinative test
If not outcome determinative apply federal provision
3. If Yes, look for countervailing and overriding federal interest that requires following federal law.
If yes, apply federal law
4. If no, apply state law
• In applying balance test/OD test, consider twin aims of Erie to prevent
5. Forum shopping
6. Inequitable application of law
Note: Forward looking analysis

Deweerth Holding: When applying state law in federal court if state law is unclear predict what outcome

Claim Preclusion
1. Claim Preclusion/ res judicata (thing has been decided)
Affirmative defense raised by defendant in 2nd lawsuit.
Answer/Responsive Pleading: this claim is precluded because it has already been decided in
lawsuit #1.

Elements
1. Both cases must involve same claim or cause of action

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 1. Both cases must involve same claim or cause of action
Majority View: single wrongful act defendant or arising from same transaction or occurrence.
Minority Test: Primary Rights Violated
2. Party or those in privity must be identical/configuration
3. Final judgment on merits

4. Issue Preclusion/collateral estoppel: will allow 2nd lawsuit but certain issues will be precluded.

A. How to Determine Same Claim

Majority Rule

1. Plaintiffs single wrongful act

2. Primary Rights of plaintiffs theory

Minority Rule (Holding in Carter v Hinkle)

Claim Preclusion
1. Same Claim or cause of action
2. Same parties in configuration
3. Valid final judgment on merits

A. Same Parties in Configuration

Parties or Persons in Privity

1. Any party in privity will be bound by lawsuit. (representative, guardian, executor, fiducia
2. Substantive legal relationships between litigant and nonparty can justify binding nonparty.
(successive owners or contractual rights i.g. assignor/assignee)

***Define first lawsuit by first lawsuit to reach judgment.

A. Valid, final judgment on merits

a. Valid: court had valid personal and subject matter jurisdiction.
b. Final: all issues have been decided
c. Merits: based on validity of the plaintiffs claim rather than procedural
(i.g. dismissal)
***Can decide on default judgment and summary judgment

Rule 41
41(a)(I)(B): Effect: If voluntary dismissal without prejudice not on merits.
*parties can agree with prejudice
2nd voluntary dismissal dismissed on the merits.

41(b)
Involuntary Dismissal
(i.g.) Plaintiff had not proceeded timely
Assumption is with prejudice unless court order states otherwise
If dismissed for lack of jurisdiction (pj, smj) , improper venue, or failure to join party, not on
merits.

***majority of state courts lawsuit when on appeal is still considered final.

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Semtech Case: reduces Rule 41 restrictions for dismissals

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