CIVIL PROCEDURE I MARKHAM Outline Chapter 1: Overview A. Introduction to US Judicial Systems: 1.

Court structure of federal courts: Federal District Courts (Trial), Court of Appeals for the Federal Circuit, and the U.S. Supreme Court. 2. States and Territories have their own court system, but several states have no intermediate appellate court. 3. There are 12 Federal Circuits, and the 13th most recently created one is the one for Patent Law. 4. Some Federal district courts hear both civil and criminal cases, but civil procedures here only apply to civil cases. B. An outline of Civil Action: 1. Selecting a proper court: (i) Personal Jurisdiction: Usually you would want to file a suit in a jurisdiction where the results could be legally enforced by the court that issued the judgment. (ii) Subject Matter Jurisdiction: The court must be authorized to hear the case with regards to what legal issues are raised by the facts. (iii) Venue: This refers to the how convenient and realistic a geographic location is for the parties involved. (iv) Timing: Statute of limitations will limit when you can sue. 2. Applicable Law: (i) Should federal or state law apply to a given situation? 3. Pleading and Joinder: (i) Once a venue has been decided, motions and pleadings will outline in which directions the case will proceed. 4. Discovery: (i) After the lawsuit has been suitably filed and shaped, the parties engage in compelled information exchange. The process is designed so that both parties will have access to all pertinent information available and may not conceal advantageous information. 5. Trials and Disposition without Trial (i) Summary Judgment: a judicial ruling that there is no material factual dispute between the parties warranting a trial; settled as a matter of law. (ii) Alternative dispute resolution (ADR) via mediation or arbitration and such. (iii) Default Judgment: when a defendant fails to appear entirely (iv) Declaratory relief: when a court makes a statement regarding something, as the remedy. 6. Judgments and Appeals (i) Judgments can be enforced in various ways, and appeals are a process that try the trial judge on the appropriateness his rulings. Chapter 2: Personal Jurisdiction

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- Personal Jurisdiction is sometimes known as Territorial Jurisdiction, and refers to the authority of the court to enforce actions A. Historical Roots of Civil Procedure 1. Case: Pennoyer v. Neff Rule established for personal jurisdiction, and also on how to get jurisdiction over nonresidents: (1) Presence in State to be served, (2) Consent B. Modern Personal Jurisdiction Doctrine 1. Case: International Shoe (1) Rule for jurisdiction to tax an out-of-state corporation that sells to residents of state, and (2) jurisdiction to serve process upon representatives of the company, and (3) jurisdiction to establish presence or minimum contact rules. If ... Nature of Contacts: Continuous Systematic Single Incident Isolated Activities give rise to ... Proper Jurisdiction If Cause of Action unrelated ... - if so substantial and of right nature, then action can be brought - Improper (no cause of action)

Depends (specific jurisdictio)

C. Specific Jurisdiction: Applying the Minimum Contacts Analysis after International Shoe, there was much litigation concerning what it means to do business in a state and also the standards for minimum contact.

1. State Long-Arm Statutes: the Statutory Authority for Personal Jurisdiction (i) International Shoe articulated the constitutional limits on exercises of personal jurisdiction, holding that jurisdiction is constitutionally permissible in circumstances where it can be said that the defendant has minimum contacts with the forum state such that the exercise of jurisdiction is fair and reasonable. After Hess, implied consent has been adopted by many other states for motor vehicles as well as other areas. Many states did this by enumerated jurisdiction-triggering contacts specifically, e.g. transacts any business within the state or contracts anywhere to supply goods or services in the state or owns, uses or possesses any real property within the state.

(ii) (iii)

2. Minimum Contacts: the constitutional authority for personal jurisdiction i) ii) CASE: McGee v. International Insurance Minimum contact is established through payments and contracts by mail. CASE: Hanson v. Denckla Minimum contact not established, just because the beneficiaries of a trust are residents in the forum state; or conversely, just because the trust to which the beneficiaries belong are out-of-state. The appointments made to the Deleware trust while the executor in Florida is a unilateral communication and is not enough contact. CASE: World-wide Volkswagen v. Woodson Minimum contacts did not exist, and

iii)

eventually the court ruled that the state of Oklahoma had no jurisdiction. But the dissenting opinion proposes a new framework that is much more suited to modern society with interstate commerce and travel being the norm and not the exception. iv) in Kulko v. Superior Court, a divorced mother who moved to California with her children from New York, was unable to exert jurisdiction over her ex-husband since he still resided in New York. She was suing for sole custody and increased payments, but since he was not a resident of California, and his consent to having his kids spend time in California during the school year and his child support payments were not considered to meet the standard for minimum contact. It was unilateral and not solicitive in nature. Who initiated this process? The mother left the state of NY and moved to California, so she initiated this contact, and not him. - passive acquiescence is not enough, there has to be some affirmative action (dad bought the ticket and sent daughter to California if we were to argue the other way). v) in Keeton v. Hustler, (1) forum shopping based on statute of limitations does not affect the basic question of jurisdiction; (2) Libel suits should not be restricted to the plaintiffs home state only. in Calder v. Jones, the exercise of jurisdiction in California for libel is allowable based on the effects of a Florida newspapers conduct. The National Enquirer had 600,000 copies a week circulating in California, and the reporter and president specifically targeted the article at a California resident, knowing and intending it would be read by other California residents. - sometimes the minimum contacts test and the purposeful availment tests dont encompass all avenues of harm, such as when a NH resident shoots a Vermont cow over the border. How can the farmer in Vermont recover since minimum contacts are not met in Vermont by defendant? No Availment? - the answer is The Calder Effects Test: Jurisdiction is proper when the intentional actions of defendant are specifically targeted at a state or within a state. vii) viii) in Burger King Corp. v. Rudzewicz: Choice of Law provision. RULE FOR MINIMUM CONTACTS: Minimum Contacts existed, AND the interests therein are reasonable.... so: Minimum Contact + Reasonableness = Proper Jurisdiction ix) The Asahi factors to test for reasonableness, the courts must consider: 1) the burden on the defendant 2) the interests of the forum State 3) the plaintiffs interest in obtaining relief 4) the interstate judicial systems interest in obtaining the most efficient resolution of controversies 5) the shared interest of the several States in furthering fundamental substantive social policies.

vi)

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2. Internet Contacts: (i) The high water mark was set in Inset v. Instruction Set when the court found that directing advertising at an internet audience does count as minimum contacts with the state of Connecticut. In a subsequent case, the court came up with a sliding scale framework in Zippo Manufacturing v. Zippo Dot Com Inc., when a dot.com company had paying subscribers in Pennsylvania, and in that state was also Zippo Manufacturing for lighters. The paying subscribers was enough contact. Sliding scale 3 Factors for web sites: 1) Actively Doing Business 2) Interactive 3) Passive D. ALTERNATIVES TO SPECIFIC JURISDICTION 1. General Jurisdiction i) General Jurisdiction is when a party has so much substantial presence within a forum state, it is held to have personal jurisdiction in matters that may involve disputes outside the forum state. It is different from Specific Jurisdiction where an incident may be isolated, but meets the minimum contacts and related criteria enough to warrant jurisdiction. A foreign company, that has its primary business activities abroad, may be subject to general jurisdiction in a forum state if it administers its business in the form of keeping bank accounts, holding meetings, writing paychecks, and managing the transfer of stocks within the forum state. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952) A foreign corporation who negotiates a contract in Texas, sends pilots and mechanics to be trained in Texas, does not meet sufficient contact for jurisdiction. In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984), it was held that the helicopter crash in Peru is so removed that the claim did not arise out of the forum state. The dissenting opinion by Brennan argues that the nationalized economy requires extensions of traditional jurisdiction, and that while the claim did not arise out of Texas, it is sufficiently related to Texas because buying aircraft and having pilots and mechanics trained in Texas is availment to the laws and benefits of the forum state.

(ii)

ii) iii)

iv)

2. Power over Property a. Pennoyer rules no longer apply after 1977, future jurisdictional questions should be under International Shoe and the rules of minimum contact: 1) Continuous & Systematic? 2) Purposeful availment? 3) Related activities? Shaffer v. Heitner. After Shaffer, the same tests apply for in personam and quasi-in-rem jurisdiction.

b.

3. Transient Jurisdiction Jurisdiction over a non-resident while temporarily in the State.

a.

Transient jurisdiction is constitutional. When a transient defendant enters a State, he is availing himself of the protection of laws and benefits of the State. It is only symmetrical (and traditionally so) that he be subject to the jurisdiction of the State, even on a matter unrelated to his particular visit. Burnham v. Superior Court, 495 U.S. 604 (1990).

4. Consent Parties may consent to a choice of forum. a. Barring substantial evidence of unreasonableness and inconvenience to a party, agreed upon forum-selection clauses, whether bilaterally negotiated or not, are enforceable. In Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991), a cruise vacation passenger bought a ticket and on the back of the ticket was the forumselection clause in fine print. The forum choice was in Florida, and the passengers were from Washington state. The court ruled that because there was not substantial evidence of inconvenience, the clause is enforceable. Choice of law (Burger King) and Choice of Forum (Carnival Cruise lines) are independent and different from each other.

b.

E. THE CONSTITUTIONAL NOTICE REQUIREMENT 1. The constitution requires that a defendant have received adequate notice so that he may have the chance to defend himself against his accuser. 2. Despite a New York statute that governed minimum allowable form of notice by publishing in a newspaper, the Supreme Court held that publishing in a newspaper is only sufficient notice for parties to a lawsuit without a known address. Where the address is known, the party must be served by mail to that targeted address. Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950). 3. Due process does not require heroic efforts to reach the party being served, only a reasonably calculated effort that is the best method in context. It is not required that the defendant have actual notice when it comes to forfeiture of his property. In Dusenbery v. U.S., 534 U.S. 161 (2002), a prison inmate contends that he was not given actual notice because guards handled the mail and it may not have reached him. 4. While heroic efforts at notice are not required, the State must take further action and responsibility when it has learned that its attempt at notice failed. It cannot resign to knowing it tried and failed. In Jones v. Flowers, 547 U.S. 220 (2006), the notice given by certified mail was returned as unclaimed. When the State learns of failed notice, it must do something else. Chapter 3: Subject Matter Jurisdiction The U.S. Constitution extends the judicial power of federal courts to (9) categories: 1. Cases arising under the Constitution, federal statutes, and treaties. 2. Cases affecting Ambassadors, other public Ministers, and Consuls. 3. Cases of admiralty and maritime Jurisdiction. 4. Controversies in which the United States is 6. Controversies between a State and Citizens of another State. 7. Controversies between Citizens of different States. 8. Controversies between Citizens of the same State claiming Lands under Grants of different States.

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a party. 5. Controversies between two or more States. A. Diversity Jurisdiction

9. Controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

1. Although the Constitution (Article III) has spelled out the areas of jurisdiction for federal courts, congress has enacted laws in U.S.C. Title 28 that further limit the jurisdiction of federal courts. 2. Under the Federal Diversity Statute, diversity jurisdiction exists if: (1) there is diversity of citizenship in one of the ways set forth in the statute; and (2) the jurisdictional amount in controversy requirement is satisfied. 3. The Federal Diversity Statute, 28 U.S.C. 1332: Diversity jurisdiction exists when litigants are... a. citizens of different States; b. citizens of a State and citizens or subjects of a foreign state; c. citizens of different States and in which citizens or subjects of a foreign state are additional parties; and d. a foreign state, defined in section 1603(a) of this title as plaintiff and citizens of a State or of different States. * Green card holders are deemed citizens of the state of domicile, and States include D.C., Puerto Rico, and territories. Exception is when the green card holder is on one side and there is a foreign citizen or a green card holder on the other side, then the green card holder is deemed to be an alien. 4. Diversity of citizenship can have the typical obstacles of: (1) Determining the partys citizenship for diversity purposes; and (2) understanding whether the right type of diversity exists. 5. For diversity jurisdiction, complete diversity is required, where no party on one side may be a citizen of the same State as any party on the other side. Strawbridge v. Curtiss, 7.U.S. 267 (1806). Parties P(VA) + French citizen v. D(NY) + German Citizen P(VA) v. German Citizen P(VA) v. D(NY) + German Citizen French citizen v. German Citizen French Citizen v. D(NY) + German Citizen P(VA) + French Citizen v. D(NY) + French Citizen Jurisdiction? Yes Yes Yes No No Yes

6. Time-of-Filing Rule: The diverse citizenship must exist at the time of filing the complaint, and changes in citizenship of the parties after does not affect that case. 7. Citizen of a State: Must be (1) a citizen of the United States (or green card holder); and (2) must have domicile in that state. 8. Domicile: Residence is not sufficient. A domicile means his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.

9. Domicile is not necessarily where a person maintains a residence, but the place she intends to return to and has a permanent establishment or base. A student who is studying in Louisiana, and keeps an apartment there, may be a resident but not a domiciliary of the State. Her familys home is in Mississippi and it is her intention to return there during the periods when school is not in session. Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974). Domicile Defined: residence within a state coupled with the intention to remain there for an indefinite period of time. Mas v. Perry. 10. A person may have multiple residences, but only one domicile for diversity jurisdiction purposes. 11. Diversity for Corporations: a corporation is domiciled in the state of incorporation as well as the state it has its principal place of business. Thus, a corporation can have two domiciles unlike a person. Courts have used 3 ways to determine the domicile of a corporation: a. Nerve Center test: where does the corporation make its decisions? b. Corporate activities test: where is the main location of production or service activities? c. Total activity test: a hybrid of the previous two approaches. 12. Unincorporated Associations: such as partnerships, LLCs, and labor unions, are not treated as corporations for diversity purposes. They are evaluated based on the citizenships of all of its members. 13. Legal representatives: The representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent. The representative of an infant or incompetent shall be deemed a citizen only of the same State as the represented. 14. Class action: the citizenships of the named litigants are considered but not the absent unnamed litigants. 15. Stateless Persons: there is no federal jurisdiction between an American v. a person who does not have citizenship from any state or country (e.g. a refugee). 16. Alienage Jurisdiction: in Saadeh v. Farouki, the court held that for the purposes of federal jurisdiction, a green card holder is not a US Citizen if there are green card holders or foreign citizens on the other side. 1332 wanted to limit federal jurisdiction, not expand it. 17. Amount-in-Controversy: to have federal jurisdiction, the claim must be for over $75,000. One can attach reasonable punitive damages to reach this limit, but not if the punitive damages are unrealistic. Del Vecchio v. Conseco, Inc., 230 F.3d 974 (7th Cir. 2000). Single plaintiffs may aggregate claims (related or unrelated) against a single defendant. Single plaintiffs may not aggregate claims against multiple defendants (this rule does not affect joint liability claims). Multiple plaintiffs may aggregate claims only if they are based on a common undivided interest. Multiple plaintiffs may not aggregate separate and distinct claims to reach the jurisdictional amount, even if factually related. P (Claim 1 + Claim 2) v. D = YES P(Claim 1) v. D1 + P(Claim 2) v. D2 = NO P(Joint Liability Claim) v. D1 + D2 = YES (P1 + P2)(Claim 1) v. D = YES P1(Claim 1) + P2(Claim 2) v. D = NO

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B. FEDERAL QUESTION JURISDICTION 1. 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. 2. In Osborn, Justice Marshall interprets Article III to mean that any ingredient in the chain of the claim is enough to bring it under federal jurisdiction. Osborn v. United States, 22 U.S. 738 (1824). Whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question, jurisdiction is proper. 3. Well-pleaded complaint rule: the complaint limits itself to a statement of its own cause of action when citing a federal jurisdiction. Federal questions appearing only as defenses raised in response to a complaint or anticipating of a response that involves a federal question, does not warrant federal jurisdiction. Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149 (1908). 4. Master-of-the-complaint Rule: the plaintiff is the drafter of the complaint so he may avoid federal question jurisdiction by exclusively relying on state law. 5. Artful-pleading doctrine: depending on how you write the complaint, you can avoid federal jurisdiction or make it appear that a federal question is to be considered to invoke jurisdiction. 6. Complete pre-emption doctrine: when the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of a well-pleaded complaint rule. 7. Counterclaim rule: a counterclaim that includes a federal question does not remove the action to federal court under federal question jurisdiction. 8. Holmes creation test: a suit arises under the law that creates the cause of action. 9. When a state-law claim necessarily raises a stated federal issue on which the claim depends, federal jurisdiction is proper if reasonable. In a quiet-title state action, a plaintiff contends a federal statute requiring notice by the IRS to seize property. Even though the title action is a state-law subject matter, it hinges on a federal question and thus federal jurisdiction is proper. Grable & Sons Metal Products, Inc. v. Darue Eng. & Mfg., 545 U.S. 308 (2005). C. SUPPLEMENTAL JURISDICTION 1. Original Jurisdiction: claims that qualify for jurisdiction under federal statutes may be brought initially into federal court, independent of any other claims. 2. Supplemental Jurisdiction: When a claim may not fall under federal jurisdiction on its own, but piggy-backed with either another claim, or the original claim having a federal avenue of relief, the claim may gain federal jurisdiction. 3. Pendent Jurisdiction: When a single claim has parallel grounds of relief in federal and state law, the case may proceed under federal jurisdiction with conditions.

a. Hurns test: if two parallel claims arising from one singular cause of action, has both state-law and federal-law grounds for relief, then federal jurisdiction is proper if the court deems the federal ground to be substantial enough. Even if the federal ground is not established as trial goes on, the federal court may still retain and dispose of the case upon the non-federal grounds. Hurn v. Oursler, 289 U.S. 238 (1933). b. The Gibbs standard: As a trial progresses, sometimes the federal question may be discovered that it is larger than initially though, or smaller. The pendent jurisdiction doctrine is not absolute, in that a judge may decide, based on weighing the important of the federal question including preemption, if federal jurisdiction is proper. United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966). The parallel grounds must still arise out of a common nucleus of operative fact. 4. U.S.C. 1367 (1990): Modern supplemental jurisdiction doctrine: a. 28 U.S.C. 1367(a): Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal Statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. b. 28 U.S.C. 1367(b) [paraphrased]: This set of claims by plaintiffs do not qualify for supplemental jurisdiction when plaintiffs sue: (1) third parties; (2) necessary parties; (3) permissive parties; (4) intervening parties, UNLESS the original jurisdiction concerned a federal question, admiralty, bankruptcy, or there is diversity jurisdiction. Also, plaintiffs joined by Rule 19 and 24 who are not diverse cannot or are intervening plaintiffs who add themselves onto a case in federal court that is between diverse parties, do not qualify for federal jurisdiction. i.Cannot add defendants joined by Rule 14, 19, 20, 24; or ii.Cannot add plaintiffs joined by Rule 19, 24. c. This limits diversity cases, to those that are truly diverse so plaintiffs cant game the system by adding parties later for forum shopping. 5. Joinder of parties under supplemental jurisdiction for the $75,000 requirement: a. A suit where one party meets the amount-in-controversy requirement has federal jurisdiction even if other parties joined under Rule 20 invoking supplemental jurisdiction do not satisfy the amount-in-controversy requirement. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005). b. insert comments from class on this very confusing case. 6. Declining Supplemental Jurisdiction: 28 U.S.C. 1367(c): (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if

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(1) the claim raises a novel or complex issue of State law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. D. REMOVAL JURISDICTION 1. Removal under 28 U.S.C. 1441(a): a. Federal Removal Rule: To be removable, an action must be one that would fall within the original jurisdiction of federal courts consistent with the requirements of the wellpleaded complaint rule and the artful pleading doctrine. This means, it could have been filed in Federal Court in the first place! b. The Federal Removal Statute: 28 U.S.C. 1441(a): (a) [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending . . . . c. Like in establishing original jurisdiction, a case filed in state court under state law cannot be removed to federal court on the basis that there are defenses based on federal law. Hays v. Cave, 446 F.3d 712 (7th Cir. 2006). 2. Removal based on claims by non-plaintiffs: For removal, the attributes analyzed must belong to the original complaint, not a counter-claim or a cross-complaint. This is identical to the regular original jurisdiction analysis. 3. Manipulation to Affect Removability: if a plaintiff, after the case has been properly removed to federal court, amends her complaint to eliminate the basis for federal jurisdiction, the federal court gets to keep the case ... no gaming allowed. 4. Limits of removal: 28 U.S.C. 1441(B): an action is not removable if any defendant is a citizen of the state in which the plaintiff initiated the action, unless there exists a claim that would qualify for federal question jurisdiction. a. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 5. Particularities of Removal: a. Reverse Removal from Federal State Court: there is no such thing. b. A federal court may decline jurisdiction to hear a case or remand it once federal jurisdiction has been disproved.

c. But once it starts the proceedings, there is no option to remove it to state court, unless subject matter jurisdiction is proven improper at any time before a final judgment is made. 6. No defendant may remove a lawsuit that is filed in a court of the state in which the defendant is domiciled. 7. Removal of unrelated state claims to federal court: 28. U.S.C. 1441(c): Whenever a separate independent claim or cause of action within the jurisdiction conferred by section 131 of this title is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. a. Section 1441(c) cannot allow the removal to federal court of state law claims which are factually unrelated to a separate and independent federal claim. Fullin v. Martin, 34 F. Supp. 2d 726 (1999). b. The court has overruled the part of 1441(c) that says you can remove unrelated claims where the federal court would not have jurisdiction anyway (unconstitutional). 8. Removal and Remand Procedures: a. Only defendants can remove a case to federal court. b. To remove a case, the defendant files a notice of removal with federal district court. Doing so automatically achieves removal and divests the state court of jurisdiction. The federal court then decides the propriety of the removal. c. Filing a notice of removal does not automatically waive any challenges of personal jurisdiction by defendant. d. A defendant may remove the case to federal court within 30 days of the receipt of the complaint filing, or within 30 days of notice when a change in the complaint (e.g. adding a party) gives the defendant the right to remove the case. Notwithstanding the 30 day rule, a defendant may not remove the claim after one year of the filing of the complaint. e. A plaintiff can file for remand within 30 days after the filing of the notice of removal unless they are seeking remand based on a claim that the federal court lacks subject matter jurisdiction. f. If the federal court decides to remand the case to state court, the defendant cannot appeal the decision. If the federal court denies the plaintiffs motion to remand, such a denial is reviewable but only on appeal of the final judgment in the case.

9. Class Action: Red Carpet Removal under CAFA (when the aggregate amount in controversy exceeds $5 million: a. CAFA actions are removable without regard to whether any defendant is a citizen of the State in which the action is brought; b. CAFA authorizes removal by any defendant without the consent of all defendants;

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c. Class actions removed under CAFA are not subject to the one-year time limit on removability that ordinarily applies to diversity cases; and d. Class actions removed under CAFA are not subject to the ordinary bar against appellate review of remand orders. CHAPTER 4: VENUE A. Original Venue: To select a convenient district to proceed and is separate from jurisdictional analysis. 1. Specific venue statute may trump or augment the general statute. Usually specific venue statutes expand where venue is allowed (e.g. for anti-trust courts). General venue in the federal system is governed by Title 28, 28 U.S.C. 1391: 28 U.S.C. 1391 General Venue Statute (condensed) a) A civil action founded only on diversity, unless provided for otherwise by law may be brought only in: (1) a district where any defendant resides, if all defendants reside in the same State; or (2) a district in which a substantial part of the events (or omissions) or a substantial part of property that is the subject of the action is situated; or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. b) A civil action not founded solely on diversity may be brought only in: 1) Same as (a) 2) Same as (a) 3) a district in which any defendant may be found (same thing as personal jurisdiction due to presence rule; Pennoyer), if there is no district in which the action may otherwise be brought. c) A defendant that is a corporation is deemed to reside in any district in which it is subject to personal jurisdiction. If there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. d) An alien may be sued in any district. 2. All districts conform to state lines except for Yellowstone National Park. This is done so that jurisdiction lines up for purposes of removal. 3. What is a substantial part? The receipt of a collection notice is considered a substantial part of the events giving rise to a claim under the Fair Debt Collection Practices Act, fulfilling 1391(b)(2). If the collection agency did not want a venue to be contested outside Pennsylvania, it could have put do not forward on the envelope. The harassment occurred when the notice was received by the plaintiff. Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992).

a. Proper venue is not limited to the district where the most substantial event giving rise to the complaint arose, but instead that the plaintiff may file his complaint in any forum where a substantial part of the events or omissions giving rise to the claim arose. 4. 1391 gives rise to multiple legitimate venues, and the choice is up to the plaintiff as long as the court has personal jurisdiction over all the defendants and subject to other restrictions. This allows the plaintiff to engage in some forum shopping. 5. The fallback provisions of 1391(a)(3) and 1391(b)(3) can only be used if the first two provisions fail. You cannot go to that provision first. 6. When a state has multiple districts within it, then 1391 has to satisfy both the defendants state and district in which he lives. 7. Individuals residence for venue is determined by the rules of domicile, but a corporations residence for venue is determined by anywhere they are subject to personal jurisdiction (i.e. by district). If using minimum contacts for corporation, the corporation must have had related contacts in that district. 8. Removal Venue: Removal is governed by 1441(a): cases may be removed to the district court of the United States for the district and division embracing the place where such action is pending. a. Because 1441(a) specifies which venue a case can be removed to, a challenge to improper venue is not available. 9. Local Action Doctrine (real property): disputes over real property may only be brought in the state where that property is located, regardless of the residency of the defendants. If the property is located in different districts within the same state, the action may be brought in any of such districts. 10. Challenging Venue: for a defendant to challenge venue, they must file a motion to dismiss for improper venue as the defendants initial response to a plaintiffs complaint, or it will automatically be waived via implied consent. 11. Burden of Proof: Plaintiff has the burden of showing that venue is proper, but defendant has the burden of showing that venue is improper. B. PENDENT VENUE: Attaching cases with improper venue to ones with proper venue. 1. When a case has multiple claims, each claim must satisfy the rules of venue individually unless pendent jurisdiction is warranted: Pendent Venue Rule: [a]ccording to which venue may be proper with respect to an improperly venued claim if the claim is joined to a properly venued claim, and the claims arise out of a common nucleus of operative fact. 2. Generally, where supplemental jurisdiction is available over a claim, the doctrine of pendent venue is also available.

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a.The exception is when there is a more specific statute governing the venue of a claim, e.g. 1400(b) for trademark infringement, then the specific statute should override the general doctrine of pendent venue. 3. Like jurisdiction, subsequently joined claims that are asserted against the original parties may not need to satisfy venue requirements and no venue objection is available. C. TRANSFER OF VENUE: What happens when the result is not proper venue, or when proper venue is established but the defendant finds it too inconvenient? 1. Change of Venue: 28 U.S.C. 1404(a): (a) 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. Change of venue can only go to a place where the case could have been brought properly at the time of filing. Even if defendants waive their contest to venue, it can only go to a venue that is originally proper. Hoffman v. Blaski, 363 U.S. 335 (1960).

2. Curing Defective Venue: 28 U.S.C. 1406(a): (a) The district court of a district in which a filed case is laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 3. Although when selecting initial venue, the plaintiff has the burden to show it is proper, if a defendant moves to change venue, the defendant now has the burden to show why the new suggested venue is proper. 4. The court weighs the following factors in deciding whether a transfer of venue is warranted: (a) (b) (c) (d) (e) (f) (g) the availability and convenience of witnesses and parties; the location of counsel; the location of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the plaintiffs choice of forum which is generally entitled to greater deference.

Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782 (S. Dist. Tex. 1996). (Kent, J. the funny). 5. A judge can transfer a case sua sponte if he deems it in the interest of justice (1404(a)), e.g. it should go to a district where the courts have expertise in international law (Washington D.C.) or because other like cases are being consolidated in that transferee district. Bolivia v. Philip Morris Companies Inc., 39 F. Supp. 2d 1008 (S. Dist. Tex. 1999).

D. FORUM NON CONVENIENS 1. Forum non conveniens: the doctrine that allows a federal court to transfer a case out of federal court because it would be better located in an adequate court outside of the federal system, e.g. a state court or a foreign court. 2. The Gilbert Rule: A plaintiffs choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiffs convenience, or when the chosen forum is inappropriate because of considerations affecting the courts own administrative and legal problems, the court may in the exercise of its sound discretion, dismiss the case. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The Gilbert Factors: 1) the relative ease of access to sources of proof; 2) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; 3) possibility of view of premises, if view would be appropriate to the action; and 4) all other practical problems that make trial of a case easy, expeditious, and inexpensive. 3. This is an adequacy balancing test: if the unfavorable chance in law to the plaintiff is not as significant as the interests of justice, then dismissal is proper. However, if the remedy provided for by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). a. the adequacy analysis for forum non conveniens dismissals may not include an evaluation of whether it makes economic sense (damage reward $$$) for the plaintiff to proceed in an alternate foreign jurisdiction. 4. Where the plaintiff may not re-file a case due to statute of limitations or lack of personal jurisdiction in the alternative forum, the court may only dismiss on the condition that the defendants consent to excepting the statute of limitations and consenting to jurisdiction of the alternative forum. CHAPTER 5: THE ERIE DOCTRINE A. APPLICABLE LAW PRIOR TO ERIE 1. Swift: In this early case, the Supreme Court decides that 1652 (The RDA) did not extend to claims dealing with contracts or other commercial instruments, so state law would not have to be used in those proceedings in a federal court. Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842). 2. Federal courts exercising jurisdiction on the ground of diversity need not, in matters of general jurisprudence, apply the unwritten law (common law) of the state as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the state isor should be. 3. In this stage of the U.S. judicial system, the common law was perceived as one body of law

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altogether between the states and the federal system. It was only after that a split developed where the federal body of common law was distinct from a states body of common law. 4. This eventually led to the precise effect that the Swift court was trying to avoid: federal courts would use federal common law and state courts would use state common law. B. ESTABLISHING THE ERIE DOCTRINE 1. The Swift doctrine is unconstitutional and should be reversed. A federal court cannot choose to ignore the common law of a state, nor can it choose to use federal law just because a state doesnt have an explicit statute governing the claim. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). a. The laws of several states include that of the common law and the statutory laws. b. The Swift doctrine led to mischievous forum shopping to get treatment under either federal or state law in diversity cases. 2. The Erie doctrine only applies to non-federal, diversity claims brought in federal court. If the claim arises out of a federal question in the first place, there is no need to consult the Erie doctrine. 3. Erie permits the application of federal procedural rules in diversity cases but not federal substantive common law rules. 4. Outcome-determinative test: Ideally, you want a case that is a diversity, state-based claim, to have the same outcome whether tried in federal court or in state court.