Civ Pro Outline-hornstein-spring 2010

8/3/2019 Civ Pro Outline-hornstein-spring 2010

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CIVIL PROCEDURE OUTLINE

HORNSTEIN SPRING 2010

Personal Jurisdiction Definition the power of the court to enter judgment against a specific D or item of

property Two Distinct Requirements

Substantive Due Process the court must havepower to act, either upon givenproperty, or on a given person so as to subject her to personal liability 14thAmend. Due Process Clause imposes this requirement of power to act as amatter ofsubstantive due process

Procedural Due Process the court must have given the D adequatenotice ofthe action against him, and an opportunitytobeheard these taken together arerequirements ofprocedural due process also per14th Amend. Due ProcessClause

Pennoyer v. Neff, pg 71 No longer good law, but where it all started Facts: Neff served by publication in a newspaper in Oregon where he was not

present or a resident Holding: A judgment rendered by a court w/o personal JD violates

Substantive Due Process The person must have domicile

Territorial/power theory of personal JD Presence, Domicile and Consent are basis to execute JD Limits exercise of JD beyond territory of state Recognizes availability of quasi-in-rem JD based on presence of

property in forum Illustrates ability to collaterally attack judgment that is void Void judgment not entitled to full faith and credit

Three Types of JD one of the three mustbe presentfor the case to go forward In Personam JD exists when the forum has power over the person of a

particular D Can result in the entry of a court judgment that imposes a personal

liability or obligation on the D this is the most common type of JDexercisedby courts over a D

In a tort suit, the P seeks a monetary judgment against the tortfeasor-D that is, he seeks to impose a personal monetary liability on thetortfeasor

In Rem JD A judgment that affects the interests ofallpersons in a designatedthing or res (property) literally and theoretically the suit is against the res.

The suit does not result in any personal liability/obligation Ex) forfeiture actions and probate proceedings

Judgment doesnt bind anyone personally, it follows the land Quasi In Rem JD Judgment that affects the interests ofparticularpersons in

designated property Proceeding is brought against named Ds and only their interests in the

property are at stake Due Process

Procedural Due Process: Procedural fairness Substantive Due Process: there are certain types of rights that are fundamentalthat a person cant be deprived w/o a very compelling reason (process may befair, but the underlying action is unfair)

Full Faith and Credit Clause (Article IV) FF&C shall be given in each State to the public Acts, Records, & Judicial

Proceedings of every otherState Congress may, by general laws, prescribe the Manner in which such

Acts, Records, and Proceedings shall be proved, and the effect thereof


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The citizens of each State shall be entitled to all privileges andimmunities of the citizens in the several States

Hess v. Pawloski(not in book - Hornstein talked about it) 1st case that deviates from the territoriality concept ofPennoyer Express v. Implied Consent:by driving on MA public highways, D impliedly

consents to MA statutes appointment of the registrar as his agent upon whomall processes may be served relating to accidents or collisions that occur in MA.The registrar must then inform the D by registered mail

Consent Issue: Benchmark Case Here there is a balancing of MAs police power& the due process

allowed to non-residents This moves us away from the hard boundaries est. in Pennoyer Many States have a statute like the one applied in this case

Service of Process: Summons and Complaint Function = notice The procedural act that starts personal JD

Intl Shoe Co. v. Washington, pg. 85 Facts: Court held that Washington could collect $$ due based on the idea that

the company had minimum contacts that were systematic& continuous w/ theState sufficient to make it fair& just to require the company to defend itself in

the State Intl Shoe also benefitted from the protection of the laws inWashington, by virtue of the large volume of interstate business it conducted

The court also held that the courts of any state may exercise personalJD over D if they have such min. contacts w/ the State that it would befair& just to require them to return & defend in the State

The court suggested that whether JD is permissible depends on thequality and nature of the contacts w/in the State

Personal JD over non-residents was expanded by this case instead ofpresence& doingbusiness, JD can be based on due process, which requiresthat D have certain minimum contacts w/ the State such that the maintenance ofthe suit doesnt offend the notions of fair play & substantial justice.

New Benchmark Rule: Due Process only requires that in order to subject Dto a judgment in personam, if he be not present w/in the forum, he have certain

minimum contacts w/in the forum state such that the maintenance of the suitdoes not offend the traditional notions of fair play & substantial justice

Whether Due Process is satisfied must depend upon the quality &nature of the activity in relation to the fair & orderly administration ofthe laws which it was the purpose of the due process clause to insure

Minimum Contacts Test (Intl Shoe): When a D is not from the forum state, this is the only basis for

exercising personal JD Applies to individuals & corporations Limited to claims arising from (or related to the Ds contacts w/ the

forum state) The limitations on personal JD found in long-arm statutes are distinct

from the constitutional limit imposed by the minimum contacts test

I

t is clear that a D may have sufficient contacts w/ a state to supportminimum contacts JD there even though she did not act w/in the state Minimum contacts analysis focuses on the time when the D acted, not

the time of the lawsuitIntl Shoe: physical presence in the State or citizenship in the State is no longer

the basis for personal JD (Pennoyer) instead, personal JD is based on dueprocess (minimum contacts)

Minimum contacts being sufficient is decided on a case-by-case basis If JD in the case ofinpersonam orquasiinrem, the court may not

exercise that JD unless D has minimum contacts w/ the state that the


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court sits the requirement of min. contacts means that D has to havetaken actions purposefully directedtowards the forum state

Specific & General JD: Two Sub Categories of Personal JD Specific JD:

Single acts, b/c of their quality& nature ORcontinuous but limitedactivity will subject D to specific JD (ie: a car crash in FL while Ddriving thru GA)

A state can exercise JD when the Ds activities in the forum state giverise to the cause of action

General JD: A state can exercise JD irrespective of the nature of the claim; higher

min. contacts threshold When the lawsuit is unrelated to Ds contact in the forum state Appropriate when Ds activities in the state are so substantial &

continuous that he would expect to be subject to suit there on any claim& would suffer no inconvenience from defending there

General JD was created by Harvard Profs, not courts Allows P to go to multiple forums

Specific JD and State Long-Arm Statutes Long-Arm Statutes

Long-Arm Statutes are those that extend a states power to exercise personal JDover a nonresident D Does the state want the case?

Enumerated long-armstatutes: Enumerates the specific conduct thatwill subject a nonresident to JD in the state

Non-Enumerated: Will reach as long as due process clause permits If a State has a long-arm statute, the Fed. Courts that sit in that State mustapply

it long-arm statutes not needed for personal JD, but most states have them Two-Step Analysis for Personal JD Essay Question

Does Ds conduct fall w/in an applicable long-arm statute? Is the long-arm statute w/in the limits of due process?

Minimum contacts? Gray v. American Radiator & Standard Sanitary Corp., pg. 93 Specific JD long-arm case

Gray indicates that there are other considerations in addition to minimumcontacts

Introduces concept of long-armstatutes, where JD over a nonresidentD is conferred on a courtby a statute

Rule: If a corp. elects to sell its product for ultimate use in another state, it isnot unfair to hold it liable for defects in that State

This is theStream of Commercetheory This decision extends the boundaries of Due Process further Gray

teaches that personal JD requires us to have a two step analysis (seeabove #2)

McGee v. IntlLife Insurance Corp. pg. 100 M

cG

ee represents the outer bounds (most liberal extension) of personal JD Facts: State interest is a very important factor in this case, D had very limitedcontact w/ forum, but K served as substantial connections TX court refused toaccord FF&C to Cali judgment; the S. Ct. reversed and found valid exercise ofJD by Cali court over absent nonresident insurance co. that had no offices,agents, or any other contacts w/ the forum other than P

Bottom Line: It is sufficient that the suit was based on a K that had substantialconnection w/ that State

McGee Court looked at three things: D reached out to the forum,


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Forum States interest, Relatedness Ps claims arose from Ds contact w/ forum

McGeehad very little contact w/ CA but the K had substantialconnection

TheStates interestexplains the allowance of JD CA has aninterest in protecting its citizens from out of state insurers

Hanson v. Denckla, pg. 101 Donner of Penn. set up trust in DE& then moved to FL when she died the

daughters brought action in FL claiming the appointment of their sisterschildren as beneficiaries was ineffective D argued FL had no JD

FL court said they had JD over the trustee, & ruled in favor of P DE court ruled in favor of D S. Ct. held the trustees contact in FL was less than the minimal

requirements & that state couldnt assert personal JD over it DE wasjustified in refusing FF&C to FL decree

There must be some act which Dpurposefully avails itself (there was none here) DE bank didnt reach out to FL, P moved there D had no purposeful

availment Minimum contacts must be result of purposefulavailment by D

World-Wide Volkswagen Corp. v. Woodson, pg. 105 Facts: Ps bought an Audi from D in NY the next year they went to AZ&

on the way they were rear ended in OK the accident caused a fire that severelyburned Ps

Ps brought suit in OK D has never operated business there Ps claimed that there was personal JD based on the States long-arm

statute The court said there wasnt enough minimum contacts to est. JD no

purposeful availment & no foreseeablility that they would be sued there The mere foreseeability that one of their cars would drive into that state

doesnt cut the mustard the foreseeability is relevant when itrelates to Ds contacts & conduct in the forum are foreseeable;

such that he can be haled into court in that forum

There must be purposeful availment regardless of the fairness orconvenience

Put checks & limitations on use ofstream of commerce theory; put brakeson wide net thrown byIntl Shoe

Stream of Commerce is not alone sufficient Synthesizes rules developed inHansonandMcGee:

Unilateral contact of someone other than D not sufficient Sometimes state has an interest that weighs heavily in the factors

test Defines two concrete functions of minimum contacts

D can avoid the burden of distant or inconvenient locations (forums) Acts to ensure that the states, through their courts, dont reach out

beyond the limits imposed on them by their statutes as coequal

sovereigns

Two Elements in this case: Inquiry into whether there are contacts sufficient to enter DueProcess

Fairness and Reasonableness Two-Part Analysis: Would exercising personal JD offend traditional notions

of fair play & substantial justice? (Intl Shoe) Purposeful Availment: Requires that D intentionally avail himself

to the privilege of conducting activities w/in the forum state, invoking

the protections of its laws mustbe a unilateral, deliberate choice


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Reasonableness: Is the exercise of JD reasonable? JD may not beemployed as to make litigation so gravely difficult and inconvenientthat a party unfairly is at a severe disadvantage

Factors to determine Reasonableness after you have est.minimum contacts:

Burden on D States interest in adjudicating the dispute Ps interest in convenient in effective relief Interstate judicial systems interest in an effective

resolution

Shared interest in public policyReasonableness:Factors to Consider

Burden on theD

Burden depends on the ability of the D to litigate the case:

Distance Proving evidence/witnesses Familiarity with legal system Cost (effect on small corporation)

Must be a compelling or tremendous to defeat jurisdiction

Interest of theForum State

Answers why does the state want to keep the case:

Compensate residents Application of the forum states law Potential for other defective goods/services within the state Make sure state isnt incurring costs for medical bills

Ps Interest inObtaining

Relief

Answers the question as to why the P wants the case in the forum state:

Availability of witnesses/evidence Convenience Ability to travel with litigation

InterstateInterest in

Efficiency

Shared interest of several states in efficiency; obtaining the most efficient

resolution of controversies- consolidation vs. split

No efficiency argument with a foreign D.

Interest inPublic Policy

(Interstate)

Shared interest of the several states in furthering fundamental substantive

policies; Other states have the same interest in holding the D accountable for a

tortuous act; they may have the same defective goods/services in their state

Keeton v. HustlerMagazine, Inc., pg. 115 Facts: P brought suit against D, an OH corp. in NH b/c NH was the only

state where the action wasnt time-barred when it was filed P was a resident ofNY & had very limited contacts w/ NH (a magazine she helped to produce wascirculated there) Hustler sold 10,000 15,000 magazines per month in NH

Court: Regular monthly sales of thousands of magazines is sufficientminimum contacts also, NH had an interest b/c its citizens who purchased themags were damaged by reading a false story, and P suffered damage in NH

The Single Publication Rule (defamation/libel actions): P can sue in one state,& can recover in that one action all the damages sustained wherever the

publication was circulated This case rejected nonresident Ds argument thatPs lackof contacts w/ the

forumshouldbe basis to decline exercise of jurisdiction

D purposefully availed itself ofbenefitsby distributing publication inforum

Ps dont have to have minimum contacts, Ds do


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The relationship b/w D, the forum state, and the litigation = how the court decidesJD

Ps contacts w/ forum state are irrelevant for defeating personal JD,but may be relevant to the determination of Ds contacts w/ the forum

state

Kulko v. Superior Court, pg. 117 Facts: P filed suit in CA against D for child support modification agreement

children lived w/ their father (D) in NY 1 child moved to CA to live w/ mom(P) and later the 2nd also wanted to go to CA, & w/o Ds knowledge, P bought2nd child plane ticket to CA

Why is Superior Court a party to this case? This action proceeded by a writ tothe S. Ct. of CA; Mr. Kulko wanted S. Ct. to restrain lower court from exercisingJD over him

CA has a broad long-arm statute: On any basis not inconsistent w/ theConstitution

S. Ct. said there was no purposeful availment and no consent Ct. said his act of buying the plane ticket was volitional but not

purposeful b/c there was no showing of any benefit he received Ct. looked at the 5th factorof reasonableness (see above) it was

unreasonable to assert JD b/c he yielded to domestic tranquility

Calder v. Jones, note 1, pg. 118 Establishes the Effects Test in context of tort committed by nonresident D The effects test, under which purposeful availment may be present if the D

is alleged to have

Committed an intentional act; Expressly aimed at the forum state; Causing harm, the brunt of which is suffered & which D knows is

likely to be suffered in the forum state.

Do not have tostep in the forumstate just cause harmthere

The court said that the only source of protection in JD actions is the Due ProcessClause

BurgerKing Corp. v. Rudzewicz, pg. 119 Facts: D contracted w/ P (BK), a FL corp. to operate a BK franchise inDetroit, MI K said that all disputes would be governed by FL law The mere existence of a K in a forum doesnt give it JD in that forum

This K had a choice of law provision that FL law is controlling Choice ofLaw study of what laws apply another area to forum shop

This case is about JD arising out of Ks from Ks The courtsaid that contracts alone arentsufficient contacts

The court said that the JD should be in FL b/cDs reached out to them,they purposefully availed themselves to FL law

This is a Specific JD case An individuals K w/ an out of state party ALONE cannot automatically

est. sufficient minimum contacts in the other partys home forum

The burden is on the D to show that the forum is unconstitutional they must show that it is so gravely difficult and inconvenient thatyou are at a severe disadvantage

General Jurisdiction and State Long-Arm Laws AsahiMetal Industries v. Superior Court, pg. 129

Facts: Zurcher lost control of his crotch rocket when it collided with a truck he was injured & his wife killed - he filed suit alleging that a sudden lost of air

pressure in the rear tire caused the accident - he alleged the tire, seal & tubewere defective & filed a complaint against Cheng Shin (the maker of the tube).


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Cheng Shin brought a cross-claim underRule 13 against Asahi (wantedAsahi to indemnify Chen Shin) Asahi filed a motion to quashsummons

This is a plurality decision; 4-4 split, Stevens didnt side no one opinionwas accepted by a majority of the justices this decision does not have the

precedential value of a majority opinion (not all courts followAsahi)

Two-Prong Analysis: Minimum contacts w/ purposeful availment or direction: not the

product of purposeful direction 1st Prong Not Met Reasonableness inquiry (Five Factors Test): it would be

unreasonable under any circumstances forAsahi to be haled into CA

court 2nd Prong Not Met Brennan (Concurring): Placing a product in the stream of commerce is

enough to satisfy minimum contacts test. However, considering thereasonableness factors, in this case jurisdiction would be unreasonable andunfair

OConner (Concurring): You need to place the product in the stream ofcommerce but it must also be purposefully directed must have purpose toserve the states you are in

Mere product placement alone isnt enough This case shows that you need more than mere awareness, &

purposeful direction is required some indication of intent to serve

the forum actions must be directed

Perkins v. Benguet ConsolidatedMining Co.,pg. 138 Court approved exercise of general JD by OH court over Philippine corporation

Suit by Perkins (nonresident P) didnt arise from Philippine corpsmining activities in state, but activities in OH est. continuing &substantial relationship w/ forum sufficient to permit exercise of JDover D for unrelated claims

Only the S. Ct. has authorized exercise of General JD

Helicopteros Nacionales De Colombia, S.A. (HNC) v. Hall,pg. 142 Facts: HNC (D) provided helicopter transportation for WSH, a pipelinebuilding co. in South America one of the helicopters flying men into jobsite

crashed and killed all on board the families sued WSH, HMC and BellHelicopters in a District Ct. in TX

Contacts: HMC CEO flew to Houston, TX to negotiate K HMC bought helicopters, parts, etc. from Bell Helicopters in Fort

Worth, TX HMC sent pilots & servicemen to be trained in Fort Worth HMC was paid w/ checks drawn from Houston bank HMC began performing before agreement was formally signed

Specific JD was not tried in this case b/c the other side didnt dispute it Court refused to find General JD under the facts the court treated

cause of action as unrelated to HMCs activities in the forum theparties stipulated that there was no basis forSpecific JD HMCs CEO flying to TX, the purchase of its fleet, parts & training of its

pilots & mechanics & the presence of a banking contact did not est.

continuing & systematic activities that were substantial

The court refused to aggregate contacts (J. Brennan) Dissent says there is specific and general jurisdiction

Internet and Other Technological Contacts


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Zippo Manufacturing Co. v. Zippo Dot Com, Inc., pg. 155 The Zippo test is NOT a dispositive test or the standard now used by courts to

determine personal JD It is a reference only many courts replace w/ the CalderEffects

Test This is a tool NOT a rule of law, however, we need to know this

ZippoSliding Scale:Passive Websites ------- Interactive Websites ------- Active Websites

Passive Is the website passive? If so, JD is not appropriate based onthe website perZippo

Active Is the website active? If so, JD is appropriate underZippo Interactive Is the website interactive? If so, then JD will depend on

the degree of interactivity & the commercial nature of the website ahighly interactive commercial website will generally support personalJD

Sliding Scale is not a substitute for the minimum contacts test Facts: Dot Com posted info on a website that is accessible to PA residents

who are connected to the internet Dot Com did more than create an interactivewebsite through which it exchanges info w/ PA residents in hopes of using that

info for commercial gain later This is a doing business over the internet case

Court found that Dot Coms electronic commerce w/ PA residents constitutespurposefulavailmentof doing business in PA the intended object of thesetransactions has been the downloading of the electronic messages that form the

basis of this suit in PA Pebble Beach Co. v. Caddy, pg. 150

How to applypurposefulavailmentin regards to technological contacts The traditional rule of personal JD applies to Internet activity question is,

how? Facts: Pebble Beach Golf Club sues Caddy, the owner of a bed & breakfast inSouthern England for infringement Caddys website is www.pebblebeach-uk.com & Pebble Beach Co. website is www.pebblebeach.com

Rule: 3-Part minimum contacts test is satisfied when: D has performed some act or consummated some transaction w/inthe forum or otherwise purposely availed himself of the privileges

of conducting activities w/in the forum The claim arises out of or results from Ds forum-related activities,

AND The exercise of jurisdiction is reasonable

If any 3 fails then JD in that forum wouldbe a violation ofDue Process

Purposeful Availment & Purposeful Direction are two differentconcepts:

Availment action taking place in the forum that invokes the benefitsand protections of the laws of the forum

Direction a foreign act that is both aimed at&

has effect in the forum Rule: When a website advertisement does nothing other than register adomain name & posts an essentially passive website, & nothing else is done

to encourage residents of the forum state, there is no personal JD

Court held that Ds actions were not aimed at CA a passivewebsite doesnt constitute express aiming

A Refrain: Jurisdiction Based Upon Physical Presence Burnham v. Superior Court, pg. 175


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Facts: P and his wife lived in NJ In 1978, they decided to separate & agreedthe wife would take their two children when she moved to CA shortlythereafter they agreed to file for divorce on the grounds of irreconcilabledifferences.

In 1987, P filed for divorce in NJ state court on grounds of desertion He didnt serve his wife

Mrs. Burnham, after unsuccessfully demanding a divorce underirreconcilable differences, brought suit in the CA state court inJanuary 1988 & when visiting his kids and doing business in CA, P wasserved

The court said that if you are w/in the borders of that state & you are serviced w/process there, then you are subject to that service& that JD

Validates transient/tag JD (if D is found w/in the borders of the state&he is served, the state acquires personal JD)

J. Scalia (Opinion):Burnhamqualifies theShafferdecision by retaining thetraditional rule that physical presence = jurisdiction in this case, tradition =

due process. Doesnt use any type of test.

This case limits the scope ofShafferto quasi-in-rem & to absent Ds Another Basis of Jurisdiction: Consent

Insurance Corp. of Ireland v. Compagnie DesBauxites DeGuinee, Pg. 186 Recognized that the due process right implicated by personal JD concerns a

substantive liberty interest Est. power of court to deem JD facts admitted underRule 37 as discovery

sanction Thus, this case illustrates that a party can by conduct, consent to JD

Choice of Law = Part of K that designates which law is to be applied (see BurgerKing)

Has nothing to do w/ JD Forum Selection Clause = Part of K that designates which forum will hear any

disputed

Function: To acquire consent to personal JD in a particular forum Historically, such clauses were disfavored & there was a presumption against

enforcement Two cases: M/SBremen v. ZapataOff-Shore Co.&Carnival Cruise

Lines Inc. v. Shute

M/SBremen v. Zapata Off-Shore Co., pg. 188 Forum selection clause in K required disputes to be resolved in London Can avoid enforcement of forum selection clause if unjust, can show

overreaching, or if product of fraud/undue influence

Carnival Cruise Lines Inc. v. Shute, pg. 189 Facts: Ps were from Washington State & Ds HQ was in FL forum selection

clause required disputes to be litigated in FL P was injured in Mexico, & filedsuit in WA

Court found that even if forum selection clause is in an adhesion K, it is stillenforceable b/c: Cruise line has a special interest in limiting the place where it

potentially could be subject to suit Eliminates any confusion/doubt on both sides regarding where

litigation would be held more effective/cost productive Passengers who purchase tickets reap the benefit of cost savings in the

forum of reduced fares Consideration: fundamental fairness; reasonably communicated

Challenges to Personal JD


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Special Appearance Motion to Dismiss Rule 12(b)(2) If you challenge personal JD & lose, collateral cannot be attacked

Providing Notice and An Opportunity To Be Heard Mullane v. CentralHanoverBank& Trust Co., pg. 199

This is a case ofprocedural due process, as opposed to substantive due process Notice + Opportunity to be heard = Procedural Due Process (in this

case, notice is at issue)

The Due Process Clause requires at a minimum that deprivation of life,liberty or property by adjudication be preceded by notice & opportunityfor hearing

At issue in this case = property (money) The court held that notice in the newspaper was sufficient for unknown

beneficiaries for which D did not have an address. However, notice in the newspaper was not sufficient for known

beneficiaries, for which D had known places of residence Rule: The Constitutional Standard for Adequate Notice = notice

reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action & afford them an opportunity to present their

objections

Anderson v. SchoolBoard of Seminole County, (in additional reading index) R/L If you dont raise a claim of error at trial level, you cannot raise it at the

appellant level You waive your right to appeal that issue

Greene v. Lindsey, pg 208 The S. Ct. held that posting notice of eviction on a tenants door does not

satisfy due process

Key to Due Process: Is the notice reasonably calculated under all thecircumstances to apprise interested parties of the action & provide them anopportunity to object?

Due Process turns on the circumstances of the particular case Problems w/ posting notice & mailing is that the posting could be torn down &

letter could be destroyed

Service of Process Service must have:

Summons; and A copy of the complaint

Can be served by any non-party, over the age of 18 Function of Service of Process

Serve notice; and Triggers personal JD

Maryland State Firemens Association v. Chaves, pg. 215 Here, process was sent to D by certified mail D claimed that he never receivedit P recovered a default judgment against him

Service of Process must be effective under the Fed. R. Civ. P. before adefault judgment can be entered against the D

Rule 4: Summons Proscribes the manner of service of process (focus is at the initiation of the

lawsuit) Rule 4 permits different service depending on the JD

Rule 4(d) Waiving Service


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(1) Request for Waiver must: be in writing & be addressed:

to the individual D; or to an officer/managing agent/general agent

name the court where the complaint was filed; be accompanied by a copy of the complaint, two copies of a

waiver form, & a prepaid means for returning the form; inform D using text in Form 5, of the consequences of

waiving & not waiving service; state the date in which the request was sent; give at least 30 days to return the waiver (60 days if D is

outside of U.S.); and be sent by first class mail or other reliable means

Extended time to answer if waiver is sent before D is served: 60 daysfor domestic D & 90 days forIntl D

If a D in the U.S. fails to sign and return a waiver request, w/o goodcause, the court must impose on the D:

The expenses later incurred in making service; and The reasonable expenses, including attorneys fees, of any

motion required to collect those service expenses

Rule 4(d)(4) Results ofFiling a Waiver When a P files a waiver, proof of service is not required &

these rules apply as if summons & complaint had been servedat the time of filing the waiver

Waiver of service = D waives right to have P formally serve him (this is nota waiver Ds right to object to personal jurisdiction or venue, however)

Allows P to use the mail to effect service of process, and gives Dextra time to file his answer.

Penalty attaches if D chooses NOT to waive formal service ofprocess (cost of service and attorneys fees that occur after notice of

rejection of waiver)

Court will relieve D of this penalty if D can show good cause for notwaiving (blind, hospitalized, cannot speak English, etc.)

NationalEquipment Rental,LTD v. Szukhent, Pg. 221 A DE corp. with its principal place of business in NY. Lease dispute with

farmers in Michigan over a lease of equipment.

Appointed an agent who never met with the Ds and was a relative to someoneworking for P.

The purpose of an agent is that jurisdiction would be in NY. (Withoutconfrontation).

Ct. said due process was not an issue. J. Brennan (Dissent) Federal rather than state law should apply.

Rule 4(a): Summons Contents A summons must:

Name the court and the parties; Be directed to the D;


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State the name and address of the Ps attorney State the time within which the D must appear and defend; Notify the D that a failure to appear and defend will result in a default

judgement against the D for the relief demanded in the complaint;

Be signed by the clerk; and Bear the courts seal.

Substituted Service: can service the husband at the home even if the wife (the party inthe suit) isnt home. Mustbe done at Ds dwelling orusual abode mustbe someone ofsuitable age and discretion that resides there.

Rule 4(e): Serving an Individual within the United States Can serve by 4(e)(2), or by state law where district court sits or where service is

made.

Service can be achieved by doing any of the following: Delivering a copy of the summons and the complaint to the individual

personally;

Leaving a copy of each at the individuals swelling or usual placeabode with someone of suitable age and discretion who resides there; or

Delivering a copy of each to an agent authorized by appointment or bylaw to receive service of process.

Rule 4(f): Serving an Individual in a Foreign Country(3) Can use E-mail in some countries.

Rule 4(h): Service on a Corporation Can serve an officer, managing agent, general agent or other agent authorized by

appointment to receive process.

Fact Question: Is the person so integrated into the organization thathe/she would know what to do with the papers?

Rule 4(m): Time limit on service 120 days to file service after the complaint has been filed.

Rule 4(k)(1): Service provides personal jurisdiction over D: Rule 4(k)(1)(A): Piggybacks the long-arm statute of the state in which the

district court sits. (If you are subject to the jurisdiction of a court of general

jurisdiction in the state where the district court is located).

Rule 4(k)(1)(B): Bulge Rule: Permits the court to exercise jurisdiction overparties brought in (underRule 14 or 19) that are found within 100 miles of the

courthouse.


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Rule 4(k)(1)(C): when authorized by a federal statute. Rule 4(k)(2): a claim under federal law, service or waiver of service established personal

jurisdiction over a D if

(A) D is not subject to states courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the constitution.

Essentially a long arm statute. Only applies to suits under federal law. Focus on when a federal court uses a states long arm statute.

Return of Service- After the process server has delivered the papers, she must file areturn, which should disclose enough facts to demonstrate that D actually has been served

and given notice that he is required to appear in court.

Opportunity to Be Heard

Fuentes v. Shevin, Pg. 240 Case where they rented-to-own the stove, service policy and stereo.

They got a pre-judgment replevin. The D could only get them back on a hearing on the merits of

the case.

Sup. Ct. held that D didnt have an opportunity to be heard. Letting them be heard protects them from erroneous deprivation.

Any significant property interest triggers the due process clause. R/L In order to comply with procedural due process, notice and an

opportunity to be heard must be provided prior to seizure of any protected

property interest.

The govt can proceed ex parte in some cases. Ex. Mad cow,salmonella, kanker.

Ex parte replevin action. (Ex parte = only one side and without notice) Mitchell v. W.T. Grant Co., Pg. 249

R/L Statutes allowing for attachment or sequestration without a prioradversarial hearing do not violate procedural due process, if procedural

safeguards exist.

Sequestration- The process of attaching property pending the outcome oflitigation.

Five ways Mitchellis different from Fuentes. (DUE PROCESSIS A FLUID,ELASTIC CONCEPT!!)


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Required creditor to establish specific allegations by verified petition. Facts involved a vendors lien that would be extinguished if the

property was transferred.

A more extensive bond was required by the creditor. Judge had to pass on the issuance of a writ, not a clerk. Debtor can regain possession by posting bond at an immediate post-

seizure proceeding.

Connecticut v. Doehr, Pg.254 Dealing with an assault and battery, however the state superior court granted the

attachment of property.

The Sup. Ct. held that real estate may not be attached without prior noticeof hearing, without extraordinary circumstances, and without a bond-

posting requirement.

Matthews v. Eldridge: no right to a pre-termination hearing; 3 factor test(modified)

Consideration of the private interest that will be affected by theprejudgment measure.

An examination of the risk of erroneous deprivation through theprocedures under attack and the probable value of additional or

alternative safeguards.

Principal attention to the interest of the party seeking the prejudgmentremedy, with due regard for any ancillary interest the government may

have in providing the procedure or forgoing the added burden of

providing greater protections.

The court here found that: There was significant property interest. Risk of erroneous deprivation was sky high. Interest of creditor is small.

Government is minimal. Rule 5: Service and Filing of Pleadings and Other Papers

Governs the filing and service of a civil lawsuit, other than the filing of thecomplaint.

Does not apply to service of complaint Does not apply to filing of an ex parte complaint


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Does not apply if the court orders it not to be sent to everyone. Rule 5(d)(3) allows courts to accept filing that is sent and signed electronically. Rule 5.1 Allows for different means of filing.

E

x. By person, mail, electronic filing.

Generally to receive it by fax, the other side has to be in agreement to receive itthat way first.

Service is complete by mail when it is posted in the mail. IfFEDEX is used, this rule doesnt apply.

Every document filed must have a certificate of service. The certificate of service explains how and where it was sent.

Rule 5.2- authorizes parties to redact certain confidential information. Ex. Account numbers, minors name, S.S. numbers, etc.

Goldberg v. Kelly, (additional reading index) Welfare benefits were being taken away from beneficiaries in NY. There was

no requirement of prior notice before the termination of the financial aid. These

programs operated by the state and city.

Holding: Recipient of welfare benefits should have a pre-judgment hearing,since termination of benefits w/out notice effectively cuts of sustenance to these

recipients. Opportunity to present oral evidence, right to appear with counsel.

Exemplifies the principle that: Process varies depending on the nature and kindof interest at stake.

SubjectMatter Jurisdiction

FEDERAL COURTSMUST HAVE SUBJECTMATTER JURISDICTION OVEREVERY CASE THEY HEAR.

Involves the institutional authority of the court hear and adjudicate a particularKIND/CLASS of case.

Subject Matter Jurisdiction in state courts is determined by state constitutions, statestatutes, and judicial decisions.

Subject Matter Jurisdiction in federal courts is determined by Article III of theConstitution, federal statutes, and judicial decisions.

The only court authorized by Article III is the Sup. Ct. Gives congress the power to decide the bounds and limits of federal question jurisdiction. SubjectMatter Jurisdiction cannot be waived. Removal Jurisdiction = allows D to a limited right to transfer a case from state to federal

court.


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Forum Shopping = parties use the choice of forum made available through the grant ofdiversity jurisdiction for tactical purposes in order to gain an advantage from one forum

or another in a particular case.

Two principal areas of subject matter jurisdiction: Diversity Jurisdiction (28 U.S.C. 1332) FederalQuestion (28 U.S.C. 1331)

P must affirmatively invoke subject matter jurisdiction in the complaint he/she files.There is no requirement to invoke personal jurisdiction, although it is a good idea.

Subject Matter Jurisdiction is measured at the time the lawsuit is filed.Diversity Jurisdiction 1332

History / Background of Diversity Jurisdiction Judiciary Act of 1789: many original members of the Constitutional Convention

had a hand in this; no federal question jurisdiction granted.

Created District Courts and Circuit Courts District Courts now hear diversity and federal question (Circuit is the

Appellate).

What is purpose of Diversity Jurisdiction? J. Friendly: Protects creditors from state-to-state bias. Strengthening the federal government (more control over who composed juries

in fed. cases)

US Constitution, Article III, Section 2 = extends judicial power of the US tocontroversies between citizens of different states and between a state, or the citizens

thereof, and foreign states, citizens, or subjects. (initial source of federal jurisdiction)

Only court mandated by the Constitution is the Supreme Court. Dred Scott(J. Tawneyswore in Lincoln): Supreme Court held that descendents of

African slaves could not be citizens of the United States, and therefore could not invoke

diversity jurisdiction.

This case was also used to prohibit Congress from interfering with slavery in theNW territories.

Probably one of the most important Sup. Ct. Cases. Overruled by the 14th Amendment. Anyone born or naturalized in the US is

a citizen.

Elements of Diversity Jurisdiction Diversity Jurisdiction 28 U.S.C. 1332 limits forum shopping 1332(a) The district courts shall have original jurisdiction of all civil actions

where the matter in controversy exceeds the sum or value of $75,000, exclusive

of interest and costs, and is between


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citizens of different states citizens of a US state and citizens or subjects of foreign countries citizens of different states and citizens or subjects of foreign countries

who are additional parties.

For purposes of Diversity Jurisdiction: Domicile = Citizenship Domicile Two Elements:

Physical residence in state Mental intent to stay there

Common Elements to consider in determining Domicile Current residence, voting registration, auto registration, where is the property

you own, employment, where is business you own located, where are your bank

accounts, what is your address for tax purposes, drivers license state, wherereceive mail, where go to church, etc.

Married man considered to be domiciled where wife, children live. Voting registration can give rise to presumption of domicile. Minor considered to be domiciled where parents located. Military deemed domiciled at place before they entered service.

1332(c)(2) A nominal party, their citizenship will generally not be considered. Legal representative of an estate deemed to have the domicile of the

decedent.

Legal representative of a minor (infant) deemed to be domiciled whereinfant is domiciled

Territories (ie: Puerto Rico) are considered states for purposes of diversityjurisdiction.

To invoke, must be a citizen of a state (domiciled in a state) and a citizen of theUnited States.

In order for there to be alien jurisdiction there needs to be someone in the casethat is a U.S. Citizen.

One of the principal parties must be a U.S. Citizen. *A permanent resident Alien cannot sue in diversity because they are deemed

citizens for diversity reasons. Permanent residence alien v. permanent resident alien cannot sue under

diversity.


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1332(c)(1) A corporation is a citizen of (1) the state in which it is incorporated (canbe multiple states) and (2) the state in which it has its principal place of business (PPB).

There is only one PPB.

Three tests to locate a corporations principal place of business: Nerve Center test. (prevailing method)

Where corporate decisions are made. (Headquarters). Corporate Activities or Operating Assets test.

Where most stuff is done. (i.e., factories, etc.). Total Activity test. (A hybrid of tests 1 & 2)

If where stuff is done is in many different places, generallyuse nerve center test.

If where stuff is done in one place generally use operatingassets test.

For alien companies, look to their country.For un-incorporated businesses citizenship is judge made (must consider

citizenship of every member of the company.)

Jurisdictional Amount

Article III does not mention jurisdictional amount but says congress can dictate therequirements of jurisdictional amount.

Must exceed $75,000 exclusive of interest and costs.

Attorneys fees can count toward the $75,000 if that is allowed by a K or statute. American Rule:Each party bears its own costs, regardless of who

wins.

Exceptions: Express term in a K that states otherwise. A statute that provides party who prevails is entitled

to recover fees.

Fee shifting statute 42 USC 1988 Interest: can be included if part of initial claim and interest accrues.

Aggregate Rules If a single P has multiple claims against a single D, he can add them together to

exceed $75,000.

If there are two Ps with claims against a single D, they cannotadd claims aslong as complaints are separate & distinct.

If there was a common orundivided interest, they could add them. Where there are multiple Ps and only one has a claim in excess of $75,000, they

can proceed to sue in Fed. Ct. under supplemental jurisdiction (all are covered)

the other Ps can have lesser claims (P1 = $75k; P2 = $50k; P3 =$40k; allv. D)

if P1 is eliminated P1 & P2 must have a common or undivided claim

1359 - Parties Collusively Joined or Made (a.k.a. Collusive Joinder)


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The complete diversity rule says that there is no diversity jurisdiction if any P isthe citizen of the same state as any D, no matter how many parties are involved in

the litigation. Why? To avoid discrimination against out-of-state residents.

Domicile Standard

Residence + Intent to remain

Citizenship for Diversity Jurisdiction

Citizenship = Domicile = Residence + Intent to Remain

Notes: An individual can only have 1 domicile For seasonal residents look at drivers license, taxes, address on checks You do not lose your old domicile until you take up residence in a new state

with the intent to remain

Date for determining diversity is the date the suit was filed According to the 1332, an alien admitted to the United States forpermanent

residence shall be deemed a citizen of the State in which the alien is domiciled

To establish subject matter jurisdiction on the basis of diversity jurisdiction youmust have:

Diversity of citizenship and; Satisfy the jurisdictional amount.

SUBJECTMATTER JURISDICTION CANNOT BE CONSENTED TO ORWAIVED.

Personal Jurisdiction can be consented to or waived. Fed. Cts. have responsibility to make sure they have jurisdiction.

A.F.A. Tours, Inc. v. Whitchurch, Pg. 285 D had worked for P conducting tours. D went out on his own and used info he

obtained from P to try to find people willing to travel. Claim dismissed b/c

found the value of Ps claims did not exceed $50K (the jurisdictional amount at

that time). P appealed, claimed that court failed to give P an opportunity to show

it satisfied the jurisdictional amount and failed to apply the proper standard for

damages and injunctive relief.

Appeals court reversed. R/L The amount in controversy requirement for federal diversity

jurisdiction is satisfied if the P makes a good-faith estimate that the value of

injunctive relief, meets the required amount.


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Take Away: You dont have to demonstrate beyond a reasonable doubt atthe pleading stage, but it has to be shown that you can recover that much

(to a legal certainly).

IMPORTANT NOTE: Just because the jury does not return a verdict of over $50,000,you cant raise lack of subject matter jurisdiction on appeal (or motion to dismiss) you

dont have to prove recovery of over the amount, just that it ispossible that youcouldrecover this amount at the outset.

Exceptions to Diversity Jurisdiction: Domestic Relation Exception

Divorce, Alimony, Child Support, Visitation, Paternity actions. Cannot go to Fed. Ct. goes to State courts b/c of greater local expertise,

Fed Ct. less expertise to these matters

Probate Exception A will cannot be probated in federal court; actions to interfere with aprobate hearing, etc. also cannot be heard in federal court.

Greater state interests; judges have greater local expertiseFederalQuestion Jurisdiction 1331

History & Background Congress granted authority to create federal question jurisdiction by Article III,

2.

Congress has the ability to confer exclusive jurisdiction for federal questionsand have done so.

Ex.) bankruptcy and patent cases, federal anti-trust cases Citizenship is irrelevant and there is no jurisdiction amount to exclusive

jurisdiction.

No jurisdictional amount required for a federal question case Reasons why this exists:

To give litigants a judge that is specialized in federal law To provide litigants with a forum friendly to federal questions It promotes Uniformity

If state courts interpreted it would be chaos Federal Question Jurisdiction turns on whether the action may be said to be one

arisingunder the Constitution, laws, or treaties of the United States. (i.e.,Federal

Law)

Concurrent Jurisdiction


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You can bring a federal question in state court, not only to a federal court.(CONCURRENT JURISDICTION over Const. and federal questions).

On most matters under federal law you can bring your case to a statecourt.

28 U.S.C. 1331FederalQuestion Statute (Know by heart) also 15 USC 1692k(d) The district courts shall have original jurisdiction of all civil actionsarising

underthe Constitution, Laws, or treaties of the United States. (All cases

arising under federal law).

15 USC 1692k(d) an action to enforce any liability created by this subchaptermay be brought in any appropriate U.S. Court w/o regard to the amount in

controversy, or in any other court of competent jurisdiction, within one year from

the date on which the violation occurs.

Osborn v. Bankof the United States, Pg. 297 Facts: Suit brought by Bank of US to enjoin state auditor of Ohio from

collecting from the bank a tax alleged to be unconstitutional. Federal Court

granted temporary injunction. However, auditor forcibly entered the bank and

took the money owed. Court ordered the auditor return the money

taken. Officials appealed stating the court lacked subject-matter jurisdiction.

(J.Marshall): expansive, broad interpretation. B/c bankcreatedby laws of theUS, even if issue arisesunderstate law there is a linkto federal question.

(Art. 6)

Ingredient Test: If a federal law is even an ingredient of a lawsuit, federalquestion jurisdiction is triggered. only a reference inmodern times

This test sets the outer limits of for federal question jurisdiction.Throws the net very wide. (Most generous, expansive view, the

outrebounds ofFQJ.)

First major interpretation ofArticle III arising under language. A federal ct. can est. JD if there is any imbedded federal interest

American Well Works Co. v. Layne & Bowler(Holmes), Not assigned but important P manufactured and marketed a water pump. D held a patent on the pump;

claimed Ps pump infringed his patent. P filed suit in State Court, saying his

pump did not violate Ds patent and that D was driving away his customers and

trying to intimidate them w/threat of suit.

D exercisedremoval jurisdiction; moved from state to federal court b/c a patentcase (exclusive jurisdiction of federal courts).Can remove on 2 grounds:

diversity & fed. question


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Holmes Creation Test: A lawsuit arises under the law that creates the causeof action.

Court said that Ps real claim was for libel, which is a state action. (Dwas not the P, claiming patent infringement.) Under creation test, this is

a trade libel state cause of action. No federal jurisdiction.

Holmes intended his test as one for inclusion (what will invoke federalquestion jurisdiction) as well as for exclusion (what will not invoke federal

question jurisdiction).

More useful test for inclusion than exclusion. Not a useful test when there is a state claim with an imbedded

federal question.

Federal questions must appear on the face of the complaint and you cant utilize adefense made by the D to show there is a federal question.

Complaint must allege a federal issue. Note: you also dont look at counterclaims made by the D even if the counterclaim

alleges a federal question the complaint is the source to look at for determining federal

jurisdiction.

Artful Pleading Doctrine: a P who sues the D, cannot through artful pleading, maskwhat is a federal complaint.

(Cant keep the case in state court by artful pleading often seen in ERISAclaims that are exclusive to federal jurisdiction).

Reasons for FederalQuestion Jurisdiction Provide a Friendly Forum; remove from state hostility/bias Federal Judges are experts in federal questions Prevents 50+ different interpretations of federal law

Louisville & Nashville R.R. Co. v. Mottley, Pg. 299 Ps were involved in a RRaccident. As part of their settlement, they were given

free lifetime RRpasses. In 1906 Congress outlawed these types of lifetime RR

passes soRRstopped honoring Ps passes in 1907. P sued D in federal court for

specific performance. Is there federal question jurisdiction? In the complaint, P

stated Ds anticipated defense regarding the Federal law enacted by Congress.

P claimed statute unconstitutional, and even if it isnt, it doesnt apply to P

Problem: Ps original lawsuit in tort was settled. In this new lawsuit, Psought specific performance by D and alleged Ds breach of K (K =

settlement agreement).

Apply the Creation Test: K action arises under state law. Well-Pleaded Complaint Rule = Reason for federal jurisdiction must be

clearly set forth within the four corners of Ps well-pleaded complaint.

(Applies to ALL Fed.Ques. Cases).


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RULE: To qualify for federal question jurisdiction, the presence of afederal question must appear w/in the four corners of the Ps complaint.

Federal questions that arise as a defense (or counter-claims) do not

invoke fed jurisdiction. limits 1331

Prohibits P from anticipating a defense the D may raise in order thatthat defense will created federal question jurisdiction.

Exception: Complete Pre-emption (displacement of U.S. state law byU.S. Federal law).

Court found that this was not a well-pleaded complaint, and that Ps use of Dsdefense in the complaint was not sufficient to created federal question

jurisdiction. (Federal law D relying on was not an element of Ps cause of

action.)

**Neither party contested federal jurisdiction. Supreme Court raised the issuesua sponte.**

T.B. Harms v. Eliscu (Friendly), Pg. 303 Case regarding copyrighted music. This was essentially a K dispute, not an

infringement of a copyright. No interpretation of federal law required so no

federal question jurisdiction.

Action would only arise under if (1) complaint seeks a remedy expressly grantedunder Copyright Act (2) complaint states a cause of action that requires

interpretation/application of Copyright Act, or (3) there are certain federal

concerns/principles that should control the disposition of the lawsuit.

Shoshone Mining Co. v. Rutter, Pg. 308 Congress created a right for miners, prospectors right to sue to determine

mining rights when there are competing claims. This statute provided that courts

should make such determinations by applying local customs or rules.

A cause of action arising under federal question but court usedlocal rules to decided the case.

Satisfy Creation Test? Created by federal law, so federal jurisdiction should apply.

There was not a compelling federal interest sufficient to warrant hearingthe suits in federal forum.

Public Policy: Another reason for this outcome is that allowing suchsuits in federal court would place a burden on the federal courts.

Still good law Best seen as an exception of American Well Works


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Smith v. Kansas City Title & Trust Co., Pg. 308 P (MO citizen) owns stock in a MO corporation. Corp. plans to invest $ in

federal bonds. MO state law provided that any corp. chartered in state of MO

(satisfied here) could not invest corp. $ in unlawful securities. P sought to enjoin

D from the investment, arguing that the federal law authorizing the issuance of

the bonds was unconstitutional. P argued such investment violated state law.

Satisfy Creation Test? Cause of action created by state law, so no federalquestion jurisdiction.

Here, there is an embedded federal question, which renders theCreation Test of little utility.

RULE: If there is a state-created cause of action that includes an essentialelements that is federal issue/question that requires an

interpretation/application of a federal statute or constitutional provision

(and it is a substantial question) then federal question jurisdiction is

triggered.

R/L for this to be in Fed. Ct. the Fed. Issue must be essential to Ps claimor disposition of Ps claim Fed.Question Jurisdiction will be found.

Must be substantial Fed.Question. Private Right of Action a lawsuit brought by a private party against another private

party who is alleged to have violated a statute.

Legislatures can create an express right of action through judiciary acts. If thereis no express right of action, Courts must determine if Congress intended to

create one by implication.

Merrell Dow Pharmaceuticals Inc. v. Thompson, Pg. 309 (This is where to start when no private right of action!!!) Ps filed a multi-count lawsuit against D, who manufactured a drug ingested by

Ps that caused birth defects to Ps children. Count IV was negligence perse

claim for misbranding in violation of the FDCA. (FDCA does not give P a

private right of action to sue for misbranding)

Presence of a federal issue in a state-created cause of action. Negligence PerSe Fed. Statute/State Law.

No diversity b/c Ps were aliens and D corporation was citizen of OH. Lawsuitfiled in OH, so lawsuit cannot be removed to federal court (b/c of removal

jurisdiction rules).

Is Creation Test helpful? No, cause of action is created by state law. Partiesagree on this.


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ISSUE: Whether Congress, in enacting this statute, intended to permit federalcourts to hear such lawsuits, which otherwise would be a state cause of action.

RULE: Congressional determination that there should be no federal remedy forthe violation of this federal statute is equivalent to a congressional conclusion

that the presence of a claimed violation of the statute as an element of a state

cause of action is insufficiently substantial to confer federal questionjurisdiction.

Dissent (Brennan): The statutory question is one that discloses a need fordetermining the meaning or application of the FDCA. The claim raised is one

arising under federal law within the meaning of 1331. Smith should control.

In the absence of an express private right of action, where a P has brought a statecause of action that relies on a federal standard, there is no federal question

jurisdictionBUT subject to Grable.

(Chart) Merrill Dow raised the question whether incorporation of a federalstandard in a state law suit when Congress intended not to create a privateright of action,makes the action one arisingunder the Constitution, laws and

treaties of U.S. 28 U.S.C. 1331.

Court concludes: lack of private action and the absence of a federalremedy under the statute is tantamount to a finding by Congress

that the presence of federal issue in a state cause of action is not

substantial enough to confer jurisdiction. Court finds that

permitting federal question jurisdiction over a state-law claim in

such circumstances would flout congressional intent.

Merrell Dow generated a split in the circuits as to whether 1331 requires afederal private right of action for the exercise of federal question

jurisdiction or whether the presence of a substantial federal issue,

embedded in the state cause of action, suffices.

Know These: Exclusive Jurisdiction: Bankruptcy, patent, copyright matters (can only be

heard in federal court)

Concurrent Jurisdiction: Article III allows federal question cases to be heardeither in federal or state court.

Original Jurisdiction: Federal District Courts trial-level courts. Where casesare originally heard and decided. Article III 2 gives original jurisdiction in

diversity and federal question cases.

Grable & SonsMetalProducts, Inc. v. Darue Engineering & Manufacturing, Pg. 317 IRS seized and sold property belonging to Grable. Grable received actual notice

by certified mail. IRS sold the property to Darue, who received a quitclaim deed.

Five years later Grable brought a quiet title action in state court, claiming


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Darues title was invalid b/c IRS failed to notify Grable of its seizure in the

exact manner required by federal statute (personal service).

P believed he had to be served personally and not by mail. Holding: The national interest in providing a federal forum for federal tax

litigation is sufficiently substantial to support the exercise of federal questionjurisdiction over the disputed issue on removal.

Court (Souter): Merrell Dow should be read in its entirety as treating theabsence of a federal private right of action as evidence relevant to,but not

dispositive of, the sensitive judgments about congressional intent that 1331

requires.

4 Part Test: Courts should consider: Does a state law claim (1) necessarily raise

a stated federal issue, (2) is the federal issue actually disputed, (3) is

the federal claim/issue substantial, and (4) can the federal forum

entertain the lawsuit w/o disturbing any congressionally-approved

balance of federal and state judicial responsibility.

(use when the fed. Sta. does not allow a private cause ofaction).

Here, because the meaning of the federal statute is actually in dispute, federalquestion jurisdiction is triggered.

(Chart) Grable, likeMerrill, involved a statute that did not create aprivate right of action. It involved a state quiet title action. Grable limited

scope ofMerrell did not set fixed rule and did not involve a substantial

federal question. Established the 4 part test above.

Empire Healthchoice Assurance, Inc. v. McVeigh, Pg. 322 JM, a federal employee, was injured and eventually died as a result of the acts of

a third party. P, JMs private insurance carrier, paid for JMs medical care. After

JM died, the administrator of his estate sued the third party and received a

monetary settlement. P sued JMs estate in federal court to recoup the amount P

had paid for JMs medical expenses.

Ps contract w/ govt required P to take reasonable steps to recoup third-partymedical payments. District Court dismissed the case for lack of federal question

jurisdiction. Court of Appeals affirmed.

Court (Ginsberg): Congress had not created a federal right of action allowinginsurance carriers to seek reimbursement from beneficiaries in federal court.

Despite federal interests (b/c JM a federal employee), countervailing

considerations control. Congress did not extend federal jurisdiction to suits

involving reimbursement claims, though it DID extend jurisdiction to suits

involving benefit claims against the US.


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No federal forum b/c: (1) Ps reimbursement claim was triggered by thesettlement of a personal-injury action in state court; and (2) Ps claim is

fact-bound and situation-specific.

(Chart)- Empire Health illustrates facts closer toMerrill than Grable andhow the facts will drive the resolution of whether there exists federal

question jurisdiction. Here the federal statute did not create a private rightof action, but the insurer was required to take steps to recoup paid medical

benefits. There was a federal contract and federal interests. But, unlike

Grable, this only involved a pure question of law the lawfulness of federal

agencys actions under a federal statute. Grable involved a substantial

federal question that required a federal forum.

Supplemental Jurisdiction

28 U.S.C. 1367- Supplemental Jurisdiction When a claim does not qualify for original federal jurisdiction,

supplemental jurisdiction is an alternative. It is a way to get claims into

federal court by piggybacking state law claims onto federal claims inorder to bring the state law claims into federal court.

Passed in response to Finley.Replaced concepts of pendent and ancillaryjurisdiction with supplemental jurisdiction. Statute goes to the limit that

Article III 2 case or controversy clause permits. Only applies to additional

non-federal claims. Never applies if additional claims have independent basis

for federal jurisdiction. For supplemental jurisdiction there must be one

federal claim within the courts original jurisdiction.

Supplemental Jurisdiction = Ancillary and Pendant Jurisdiction Very frequently do Federal Courts hear cases with federal law and state law

claims.

This happens under the theory of supplemental jurisdiction. This is how a Fed. Ct. can hear a state claim.

Know the difference between original jurisdiction and supplemental jurisdiction. Original is FederalQuestion and Diversity. Supplemental is a claim that is not in the courts original jurisdiction.

To bring a supplemental jurisdiction claim, must have one claimwith it that meets a original jurisdiction claim.

Pendent Jurisdiction A court's jurisdiction to hear and determine a claim over whichit would not otherwise have jurisdiction, because the claim arises from the same

transaction or occurrence as another claim that is properly before the court.It arose

from a common nucleus of operative fact...


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Most commonly used when a P had a Fed. Claim and one or more non-Fed.Claims. If the P could show that the non-Fed claims were substantially

relatedto the Fed claim, the court would use pendent jurisdiction over them.

Pendent Party JD allows addition of parties over whom there is noindependent claim

Pendent Claim JD UnitedMine Workers of America v. Gibbs, Pg. 325 Pendant Claim JDIllustration

Cornerstone of pendent JD Gibbs sued UMW on both state and federal claims. Jurisdiction was premised on allegations of secondary boycotts under 303.

Jurisdiction for the state law claim was based upon the doctrine of pendant

jurisdiction.

RULE: Pendant Jurisdiction exists whenever there is a claim arisingunder Federal Law, and the relationship between that claim and the

state claims made in the complaint permits that THE ENTIRE ACTION

before the court comprises but one constitutional case.

GibbsFactors: (1) Were the federal claims dismissed before trial? If so, then

court should dismiss the state claims.

(2) If state-claim issues predominate (in evidence, remedy, scope)then court should exercise its discretion and dismiss.

(3) Other reasons, such as confusion of the jury, may warrantdismissal of the state claims.

Ct. determined that because they came from the same nucleolus ofoperative fact it can piggy back on to the Federal claim and be heard in

federal court.

(Chart) Established that a federal court has subject matter jurisdictionover state claims that derive from a common nucleolus of operative facts.

Both state and federal claims comprise but one constitutional case or

controversy under Art. III. Pointed out the doctrine of pendent

jurisdiction is discretionary.

Ancillary Jurisdiction This concept refers to claims that defending parties (partiesother than original plaintiffs) would raise in response to the complaint. (related claim)

Congress Response to Finley 28 U.S.C. 1367 Supplemental Jurisdiction Act(overruledAldinger andFinley)

Replaced concepts of pendent and ancillary jurisdiction withsupplemental jurisdiction.


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Remember this for the exam Only applies to additional nonfederal claims.Never applies if additional claims have independent basis for federal

jurisdiction. For supplemental jurisdiction there must be one federal claim

within the courts original jurisdiction.

Questions to ask when analyzing a Supplement Jurisdiction question Does 1367(a) give supplemental jurisdiction?

Must meet Gibbs Does 1367(b) take it away?

1367(a): Except as provided in (b) and (c) or as otherwise expressly provided bystatute, in any civil action of which the districts 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 ofthe same case or controversy under Article III. Such supplemental jurisdiction shall

include claims that involve the joinder or intervention of additional parties. Such

supplemental jurisdictionshall include claims that involve the joinder or

intervention of additional parties. overrules Finley and Aldinger (last sentence)

This casts the net of supplemental jurisdiction very far. 1367(b):In any civil action of which the district courts have original jurisdiction

founded solely on section 1332 (diversity) of this title, the district courts shall not have

supplemental jurisdiction under subsection (a) over claims by Ps against persons made

parties underRule 14, 19, 20, or 24 of the Fed. R. Civ. P., or over claims by persons

proposed to be joined as Ps underRule 19 of such rules, or seeking to intervene as PsunderRule 24 of such rules, when exercising supplementing jurisdiction over such

claims would be inconsistent with the jurisdictional requirements of section 1332.

(ONLY Ds CAN BRING THESE CLAIMS)

(Chart) This section only applies when jurisdiction is based solely ondiversity. It excludes certain claims by plaintiffs from supplemental

jurisdiction: Rule 14 claims by Ps against 3rd parties; claims by Ps against

parties joined underRule 19; claims by Ps against parties intervening under

Rule 20; claims against parties intervening underRule 24. Claims by persons

proposed to be joined as Ps underRule 19 that do not meet the

jurisdictional requirements of1332 and claims by plaintiffs who seek to

intervene under Rule 24 that do not satisfy the jurisdictional requirements of

1332 are excluded.

1367(c): The district courts may decline to exercise supplemental jurisdiction over aclaim under subsection (a) if

(1) The claim raises a novel or complex issue ofState law,


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(2) Whether the claim substantially predominates over the claim or claimsover which the district court has original jurisdiction,

(3) Whether the district court has dismissed all claims over which it hasoriginal jurisdiction, or

(4) In other exceptional circumstances there are other compelling reasons fordeclining jurisdiction. Executive Software v. United States District Court for the Central District of

California, Pg. 343

Employee sued for state and federal violations (discrimination, etc.) DistrictCourt declined to hear the employees three state-law claims.

Dist. Ct. viewed 1367(c) as allowing a very broad discretion. Ninth Circuit: Held that 1367 retains the basic divisions reflected in Gibbs.

A federal court has the power to hear pendant state claims under Article III. It

also has the discretion to decline to hear the pendant state claims. Congress

intended 1367(c) to provide the only means for a district court to

decline supplemental jurisdiction. Declining supplemental jurisdiction

outside of(c)(1-3) is the exception, not the rule. Here, the district court did not

give the basis for declining supplemental jurisdiction, but it appeared that the

court relied on Gibbs, not section 1367.

Most courts agree with the Dist. Ct. that they have discretion. 1367(d): Allows for tolling ofSoL for 30 days for dismissal.

30 day period can be longer if state law allows it Exxon Mobile Corp. v. Allapattah Services, Inc.

SubjectMatter Jurisdiction: Removal

28 U.S.C. 1441, 1446, 1447 28 U.S.C. 1441 (p. 260 in Supp.) : Actions Removable Generally General Rule

for Removal

In certain circumstances D can compel the P to litigate in forum not of theirchoosing.

Allows D to move a case to a Fed. Ct. from a State Ct. Suit goes along as if it was originally filed there (in Fed.

Ct.)

Removal is purely statutory process not constitutionally grounded. 1st included in Judiciary Act of 1789


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Purpose: to protect non-residents from local prejudice. Generally, removal statutes are strictly construed. D has the burden to show

that there is jurisdiction and that the removal statute has been complied

with.

There must be diversity jurisdiction or fed. question jurisdiction for removalto exist. Limitations on Removal

D cannot remove a state case to the federal court if they are citizens of thestate in which the district court resides. (P can choose to sue in that forum,

however.)

Theory: Local D would not be prejudiced by a state courtproceeding.

One-year limitation on removal in diversity cases for D. ( 1446(b)) If a D doesnt comply with all the statutory requirements the removal can be

set aside or remanded.

Only a state civil action can be removed. Only Ds can remove. Cases can only be removed to the Fed. Ct. Dist. where the state claim

was filed.

Presence of a local resident D precludes Removal in Diversity cases cannot remove

1441(a): In order to remove their has to be at least one claim that falls w/in the

courts original JD

All requirements must be met (Fed.Question, etc.) P cannot defeat federal diversity jurisdiction by (1) fraudulent joinder of a

party against whom P has no cause of action, (2) artful pleading (trying to

disguise a federal cause of action that would make the case removable), or

(3) complete preemption (certain causes of action are so exclusively

federal in character that EVEN IF P DOES NOT PLEAD THEM, they willcompletely preempt any state cause of actionERISA, for example

lawsuit filed under a disability benefit policy).

No fraudulent joinder if P can show reasonable basis for District Ct.predicting that the state law MIGHT impose liability on that D under the

facts involved case remains in state court

1441(b):


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Federal Question Cases citizenship is irrelevant Cannot remove solely on grounds of supplemental claim.

But if you have an original claim you can have additional claims.

Original Jurisdiction Needed for Removal

Removal Jurisdiction cannot be based solely on supplemental jurisdictionbecause supplemental jurisdiction is not within the courts original

jurisdiction. However, if there is a claim that falls under the courts original

jurisdiction, P can bring up supplemental claims.

1441(c): provides removal for cases w/ no original JD Whenevera separate or independent claim or cause of action within the

jurisdiction conferred by 1331 (federal question) of this title isjoined with

one ormore otherwise non-removable claims or causes of action, theentire case may be removedand the district court may determine all issues

therein, or, in its discretion, may remand allmatters in which State law

predominates.

Theory: efficiency; presents a constitutional problem, however,and is of little utility.

Creates conflict between Article III and supplemental jurisdiction. Was intended to be a general backstop for when P joins completely

unrelated claims together.

Morales v. Meat CuttersLocal, 778 Fed. Supp. 368The employee brought an action against defendants in state

circuit court alleging breach of a collective bargaining agreement

(CBA) against the union; breach of the CBA and intentional

infliction of emotional distress against the employer; and various

state law claims against named individuals. The employer filed a

notice of removal to the court under 28 U.S.C.S. 1441. Although

the court found that the case could properly be removed under

1441(c) where the employee's federal claims regarding his

termination under the CBA involved facts unrelated to his state

law claims, and the claims sought separate relief for distinct

wrongs, the court remanded the entire case back to the circuit

court. The court noted that pursuant to a 1990 amendment to

1441, 1441(c) conferred considerable discretion on the court to

remand the case back to the circuit court where the state law

claims predominated. The court noted that the employee had

seven state law claims that would require more judicial resources

to adjudicate than his two federal claims.


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1446: Procedure of Removal 30 day time limit for removal after service (formal service is triggering

eventORwithin 30 days after D has notice in a jurisdiction where the

complaint is not required to be served on D)

Actual notice (not formal notice) cannot trigger the 30 day period.(FourScenarios) 1. If complaint & summons served together, this

service triggers 30 day period.

2. If complaint not provided to D at time of summons(afterwards), 30 days runs from Ds receipt of the

actual complaint.

3. If local process does not require service of thecomplaint, 30 days runs from the filing of the

complaint (when it is available for D to get).

4. If complaint is filed in court before service ofsummons, 30 days runs from when D is served the

summons.

30 day period runs from when 1st D is served Modern trend isthat each individual D gets 30 day period (allows later served Ds

30 days later Ds may be able to persuade other Ds)

If case is initially not removable, but later becomes removable, Dhas 1 year in which to remove (starting from the time the lawsuit

was commenced). (APPLIES ONLY TO DIVERSITY

ACTIONS not in state courts*)

Notice of Removal Short plain statements for grounds of removal Can be amended within 30 days

After 30 days can change but only errors not jurisdictionalgrounds.

Immediately upon the filing of removal the state court loses authority overthe case.

The P has 30 days to ask to remand under procedural defects only. Right to removal can be waived by D. Venue Rule: The proper venue for a State Ct. removal to a Fed. Ct. is the

proper Dist. and Division.

1447: Procedure after Removal


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30 days after filing of the notice of removal is strictly construed Doesnt permit a base for motion to remand subject to a defect to be looked

at under appellant review.

Borough of WestMifflin v. Lancaster, Pg. 356 District Judge found that State law predominated and remanded the entire

case.

ISSUE: Under 28 U.S.C. 1441(c), can the federal judge send back boththe federal and the state claims?

Majority View: No. Judge can only remand state claims. 1441(c) provides for removal or remand only where the federal

question claims are separate and independent from the state law

claims with which they are joined in the complaint.

Writ ofMandamus Holding: B/c district court judge did not rely on any of the factors in

1367(c), all claims should remain in federal court.

Blackletter: A district courts discretion to remand under 1441(c) canpertain only to those state law claims which the district court could decline

to hear under 1367.

CHALLENGING THE SUBJECTMATTER JURISDICTION OF THE COURT

Subject Matter Jurisdiction cannot be waived Rule 12. Rule 12(b)(1) Defense Lack of subject matter jurisdiction. A lack of subject matter jurisdiction may be asserted at any time by any interested

party, either in the answer, or in the form of a suggestion to the court prior to final

judgment, or on appeal, and also may be raised by the court sua sponte (without

prompting or suggestion).

Direct Challenge challenge in the same case going vertically up the appellate chainof cts. Of review

Collateral attacks are lessoned on SubjectMatter Jurisdiction because ofRes Judicata.

General Rule: Collateral challenges are not frequent not subject tocollateral attack

Doctrine of Res Judicata- only get one bite of the apple. You are locked intothe finality of 1st judgment cannot file a 2nd suit to bring up new arguments.

Collateral Challenge- Challenge to judgment through a second suit.


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VENUE, TRANSFER, AND FORUM NON-CONVENIENS

VENUE 1391

Tells us which Federal Court (i.e., which Dist.) Venue is tied to districts, not to states

Ex.) Middle Dist. FL, Southern Dist. FL, etc. Venue can only be considered after personal and subject matter jurisdiction have

been established.

Subject matter jurisdiction is the only one of these that cannotbe waived, the others may.

Venue vs. Jurisdiction Venue does not implicate a courts power to decide a case or render a binding

verdict.

Venue is concerned with convenience of D and the proper allocation of casesbetween courts.

Venues paramount concern is protecting the D from Ps forum shopping(distant, difficult place).

Venue can be waived. Venue is NOTa constitutional concern. doesntbind or limit a courts

authority

Purpose and Function of Venue (From Decisional Chart) Venue is a distinct question from personal jurisdiction or subject matter

jurisdiction.

Venue does not involve the courts power to bind a litigant or to hear a class ofcases. Venue does not involve any constitutional concerns.

Venue in a specific sense refers to locality (where the lawsuit should be heard). Venue statutes channel lawsuits to an appropriately convenient court given the

claims raised and parties involved.

The key to venue is convenience. It focuses on convenience of witnesses andlitigants.

Venue statutes do not affect or alter the need to acquire personal jurisdiction. Venue needs to be proper as to each defendant and each claim.

ImproperVenue is a defense and basis I for dismissal. Rule 12(b)(3) Plaintiff is not required to select the most convenient venue if there is more than

one venue available.


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General Venue Statute is 28 U.S.C. 1391. It governs transitory action unless another law or special venue statute applies.Special venue statutes control over the general venue statute.

Reasor-Hill Corp. v. Harrison,Pg. 374 Farmer in MO, cotton crop was damaged by aerial insecticide spraying. The

spraying service sued the farmer to collect what he owed. Farmer cross-

complained against manufacturer of pesticide, an AK corporation. Facts show

that manufacturer could not have been sued in MO because of lack of personal

jurisdiction.

Local Action Rule = any lawsuit that involves a piece of real property canonly be brought where the real property is located.

Court: reasons for local action rule are no longer valid. These outdated reasonswere (1) courts not in a position to pass upon the title to land outside the

jurisdiction; (2) P should pursue his remedy before D leaves the jurisdiction; and

(3) reluctance to subject citizens to suits by aliens.

2 types of actions: Local action involving real property, obligates suit to happen in locale were

property is located. (in rem). (The rule most states use today).

Transitory a tort action or k action can be brought in multiple jurisdictions. TheReasorcase is a minority position getting rid of the locality rule; it is not the

majority position.

The Federal Venue Statutes dont have a local action rule provision, it is judge made. Livingston v. JeffersonNot found in venue statutes but it is continued to this day in Fed. Ct.

Livingston v. Jefferson President Jefferson ordered U.S. Marshals to seize property belonging toLivingston. Jefferson believed that the land belonged to the United States.Livingston brought suit in VA, where Jefferson lived, becauseLA had no

personal jurisdiction over Jefferson. Justice Marshall, though he hated Jefferson,

found that the local action rule precluded Jefferson from being sued in VA over

LA land.

1391(a): A

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