civil procedure outline~fall '09

8/14/2019 Civil Procedure Outline~Fall '09

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I. AN OVERVIEW OF PROEDURE No assignments.

PART A: THE CONSTITUTIONAL FRAMEWORK FOR U.S. LITIGATIONA. Approaching Civil Procedure

B. Constitutional Limits in Litigation1. The Idea of Jurisdiction: the power of a court to render a judgment that other courtsand government agencies will recognize and enforce.

2. Jurisdiction and the Constitutiona. Personal Jurisdiction: The power of a state court to render a judgment binding

someone who may never have set foot in that court. b. Subject Matter Jurisdiction: Power of a federal court to decide certain kinds of

cases.c. Both personal and subject matter jurisdiction are necessary ingredients of any

courts power to render a binding decision in a case; that is, a court must have both subject matter and personal jurisdiction to render a valid judgment.

d. Because the federal Constitution defines the lines of authority among thecompeting centers of power, courts look to the Constitution for their basicframework in deciding issues of judicial jurisdiction.

e. 3 parts of the Constitution bear on jurisdiction:i. Article III: Authorizes the establishment of the system of federal courts and

in Section 2 sets the limits of federal judicial authority. Federal courts cannotexceed those jurisdictional boundaries, and Congress has the power in manyinstances to restrict the scope of federal judicial authority more narrowly thandoes the Constitution. The constraints imposed by Article III and thelegislation implementing it are the focus of subject matter jurisdiction.

ii. Article IV, Section 1: Requires that Full Faith and Creditbe given in

each State to judicial proceedings of every other State. The Supreme Court hasinterpreted this clause to require that one state recognize and enforce judgments of another state. This clause has an important unstated condition such judgmentsare entitled to full faith and credit only if the court rendering them had jurisdictionto do so.iii. Fourteenth Amendment, Section 1: Provides that no State [shall] depriveany person of life, liberty or property without due process of law. This clause,the Due Process Clause, has proved one of the cornerstones of modernconstitutional and procedural theory. It derives its relation to jurisdiction from

Pennoyer v. Neff .3. The Constitution and Choice of Law: Beyond personal and subject matter

jurisdiction, the Constitution shapes U.S. litigation in a third way: it sometimes dictateswhich set of laws a court must apply to a dispute. There are two key ways in which theConstitution dictates choice of law:

a. Article VI provides that the Constitution and federal laws shall be the supremeLaw of the Land; and the Judges in every State shall be bound thereby, any Thingin the Constitution or Laws of any State to the Contrary notwithstanding. This

provision is commonly referred to as the Supremacy Clause. The clause meansthat if Congress has validly enacted a statute dealing with a particular subject,


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both federal and state courts are required to enforce the federal statute, regardlessof whether there is a contrary state statute or state common law rule.

b. In the absence of a controlling federal statute, the federal court system is requiredto respect both the statutory and common law rules of the several states. Focus of this is the Erie problem.

II. PERSONAL JURISDICTIONA. The Origins : Personal jurisdiction is a part of the U.S. constitutional law

because of Pennoyer . Some definitions necessary for understanding: a. writ of execution: Obtained by the sheriff from the court, when a victories

plaintiff tries to collect judgment from the defendant who declines to pay, to seize any property belonging to the defendant, sell it, and give the resulting money to the plaintiff (upto the amount of the judgment). When that sell occurs, the sheriff gives to whoever buys thedefendants property a sheriffs deed as evidence of title.

b. constructive notice: Generally means fictional or pretend. Defendantsgenerally receive service of process, but if the defendant cannot be found, they are given

constructive notice. Such notice can be accomplished by notice in a newspaper. Service, inthose conditions, is constructive because it is highly unlikely that the defendant willactually see it.

c. attachment: Legal term for an officially sanctioned seizure of property: realestate, cars, and other property may be attached. Sometimes attachment means literalseizure; other times it means posting notices on property or on records of title so that

prospective buyers know it cannot be sold.1. Pennoyer v. Neff : The great-grandparent of personal jurisdiction; made the question

of what we now call personal jurisdiction part of the Constitution.i. Facts: Mitchell was Neffs attorney. Neff failed to pay him so Mitchell

sued Neff in Oregon. At this time Neff was a non-resident so he wasnt personally served and didnt appear in court. Default judgment was enteredagainst him in not answering the complaint based upon constructive service tohim through publication. After the jgmt. was entered, Neff acquired 300 acresof land in the federal govt. To satisfy the jgmt., Mitchell had the sheriff seizeand sell the land. Pennoyer bought the land and received sheriffs deed asevidence of title. Sheriff then returned proceeds of sale to Mitchell. Neff thensued in Oregon federal court to recover possession of the land. Neff pointed tooriginal govt. deed as evidence of title. Court entered special jgmt. in favor of

Neff b/c prior jgmt. was invalid by defects in affidavit. Pennoyer sued out thiswrit of error.

ii. Rule: A state has exclusive jurisdiction over people and property withinits borders. No state can exercise jurisdiction over people or property in other states. Judgments in personam without personal service of process shall not beupheld. Judgments in rem with only constructive service may be upheld. TheFull Faith and Credit clause of the Constitution only applies when the courtrendering the judgment had jurisdiction of the parties and of the subject-matter.

Holding: The original verdict of Mitchell v. Neff was invalid because thestate of Oregon did not have jurisdiction in personam over Neff. Therefore, the

judgment shouldnt have happened and the property should have never been


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sold. Consequently, the court upheld the decision in Neffs favor.

Reasoning: Constructive service is only substantial regarding in rem proceedings. When purpose of action is to determine in personam jurisdiction proceeding, constructive service upon a non-resident is ineffectual for any

purpose because if, w/o personal service, jgmts. in personam, obtained by ex parte against non-residents and absent parties, upon mere publication of process,which, in the great majority of cases, would never be seen by the partiesinterested, could be upheld and enforced, they would be the constant instrumentsof fraud and oppression.

2. Pennoyer introduces three basic concepts that are still important today:(1) Power jurisdiction is power, and the power of states or other jurisdictions

(federal courts) to make you do what you might otherwise not do; plus limits to that power imposed by the Constitution itself.

(2) Consent If you consent to jurisdiction, these black and white rules go out thewindow.

(3) Notice the concealed strand of Pennoyer . This will eventually become aconstitutional requirement. At the time of Pennoyer , we have sort of a duality of notice. For in personam jurisdiction, you need personal service of process within the state. For in rem or quasi in rem actions, you can be served by publication.

3. Pennoyer sets forth two jurisdictional categories:a. In personam jurisdiction: An in personam action is also known as personal

jurisdiction. This has to do with jurisdiction over a person and their personal rights andliabilities. You would want to seek this first, then turn to in rem because the limit is theextent of the assets no matter where they are.

b. In rem jurisdiction: An in rem is an action where the court is trying to decidethe rights in a piece of property itself (in the thing ). Limited b/c the jurisdiction reaches onlyas far as the value of the value of the seized property located in the jurisdiction.Conceptually, think of in rem as land. If you stop thinking about in rem as land, youll get introuble.

i. Quasi in rem determines the rights of a person in a thing . Propertyisnt part of the lawsuit; property is used only to obtain jurisdiction. Must attach property atthe outset of the lawsuit. Not the rights of the world in a thing, but the rights of specificindividuals in a thing. There are two kinds of quasi in rem :

(1) True quasi in rem : trying to secure a preexisting claim in the property, or extinguish someone elses.

(2) Substitute for personal jurisdiction where you apply adefendants property to satisfy a claim that is unrelated to property.

4. Traditional Bases of Personal Jurisdiction:1. personal service in state Pennoyer 2. consent (implied, express, contract, statute, appearance/waiver) Pennoyer 3. attachment of property from outset Pennoyer 4. domicile (have a residence there and intent to return or remain) Milliken v. Meyer

4. The Modern Constitutional Formulation of Power


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1. Redefining Constitutional Power: Pennoyer gets confusing if you try to apply itto corporations. Corporations dont have physical reality, so they cant be present toreceive process in a fundamental sense. They also cant (in the conventional sense)consent to a courts power.

a. International Shoe Co. v. Washington

i. Facts: International Shoe is a Delaware company with its mainoffice in St. Louis, Missouri. They have some salesmen oncommission in the state of Washington but dont have any officesthere. Washington is trying to get the company to ante up for itsunemployment fund. Washington served Shoe notice of assessment by

personally delivering it to one of their salesmen in Washington as wellas sending registered mail to their home office in St. Louis.ii. Rule: A corporation that is protected by the laws of a state

shall besubject to personal jurisdiction in that state.iii. Holding: The Supreme Court upheld the lower courts ruling

for the state of Washington. Shoes activities resulted in them receivingthe benefits and protections of the states laws, which included theright to resort to the courts for the enforcement of its rights. Service of

process was valid since it was delivered within the state to anauthorized agent of the corporation, thus establishing presence. Thestate may maintain the suit in personam to collect the tax laid upon theexercise of the privilege of employing Shoes salesmen within thestate.iv. Reasoning: The court interprets the due process clause and theFourteenth Amendment to mean that if a company has sufficientcontacts in a state, they may be subject to being sued in that state.

b. Traditional Bases of Personal Jurisdiction:1. personal service in state Pennoyer 2. consent (implied, express, contract, statute, appearance/waiver) Pennoyer 3. attachment of property from outset Pennoyer 4. domicile (have a residence there and intent to return or remain) Milliken v. Meyer International Shoe added minimum contacts as a Modern Base of Personal

Jurisdiction:5. minimum contacts (minimum contacts with the forum state such that maintenanceof the suit does not offend traditional notions of fair play and substantial justice.

c. Two questions arise from minimum contacts:1. Is extent of contacts single/isolated/sporadic OR continuous/systematic?2. Does COA arise out of contacts OR unrelated to contacts?


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RELATEDNESSSPECIFIC JURISDICTION GENERAL JURISDICTIONCOA arises out of contacts COA unrelated to contacts

C O N T A C T S

C o n t i n u o u s /

s y s t e m a t

i c

Never been doubted Maybe

E X T E N T O F

S i n g l e /

I s o l a t e d

/

S p o r a

d i c

May be deemed sufficient Almost never


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2. Absorbing In Rem Jurisdictiona. McGee v. International Life Insurance Co.

i. Facts: The plaintiff is the beneficiary of a life insurance policy for which thedefendant refused to pay a claim. The defendant was based in Texas, but the

premiums were sent by mail from California.ii. Rule: If the contact between the defendant and the state of California isminimal, such contact must be closely related to the claim in order for the stateof California to have jurisdiction.

iii. Holding: The court finds that the life insurance policy in question hadsubstantial connection with the state of California. The K was delivered inCA, the premiums were mailed from CA, and the insured was a resident of CAwhen he died. Furthermore, the court holds that the state has an interest in

protecting its citizens without making them travel to other states. b. Hanson v. Denckla

i. Facts: A family fought over the estate of Mrs. Donner, who had established a

trust in Delaware but had then moved to Florida and died there. If Florida had jurisdiction, one daughter would get everything, while if Delaware had jurisdiction, three daughters would share.

ii. Rule: If there are only minimal contacts between a state and a defendant,then the contacts must be closely related to the claim.

iii. Holding: The court rules that Florida does not have specific jurisdiction over this matter. The court says that the contacts were not sufficient in volume,nor were they sufficiently related. The unilateral activity of those who claimsome relationship w/a nonresident defendant cannot satisfy the requirement of contacts w/the forum state.

iv. Reasoning: The court concedes that the trust paid income to her in Floridaand she did a little bit of work on administering the trust from Florida, but thecourt says thats not enough.

McGee v. International Life Insurance Co. Hanson v. Denckla

-yes jurisdiction-Franklin (insured) was in forum state at timethe relationship began-insurer reached out to McGee, establishingrelationship between them and forum state-purposeful availment by insurancecompany through solicited business to aresident of that state

-no jurisdiction-relationship was pre-established when Mrs.Donner entered forum state-unilateral activity of Donner moving thatrelationship between trustee and forum state-purposeful availment=none b/c onlyrelationship was by Donner moving there

c. Harris v. Balk i. Facts: This case would be decided differently today. Epstein sues in

Maryland to get Harris to pay him. Then Balk sues Harris in NorthCarolina. Harriss defense is that hes already paid his debt to Epstein,such that Balk should get his money back from Epstein.


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ii. Rule: A state can acquire jurisdiction over persons whenever their debtswere present in that state by attaching the debts (quasi in rem

jurisdiction).iii. Holding: North Carolina, the Supreme Court rules, must enforce the

Maryland judgment, because personal jurisdiction was obtained over Balk

when Harris entered Maryland.iv. Reasoning: Result makes creditors liable (to extent of amounts owed tothem) in any state in which their debtors set foot.

d. Shaffer v. Heitner i. Facts: Heitner was a shareholder in Greyhound who sued a number of

officers of the company. He moved to sequester their property in Delaware.This property included the defendants stock in Greyhound and other financialinstruments. The motion was granted.

ii. Rule: The Shoe model should be applied to jurisdiction in rem as well as in personam . The true test of jurisdiction is the relationship among the defendant, the forum,

and the litigation. This had been the test for in personam jurisdiction since Shoe , and theCourt says it should be extended to quasi in rem actions.iii. Holding: The Court rules that Delaware does not have jurisdiction over the

defendants, and therefore, it reverses the ruling of the Delaware SupremeCourt. Theres no indication of purposeful availment on behalf of thedefendants.

iv. Reasoning: The Court argues that no in rem action is, strictly speaking,thing-related. There is always a person behind the thing they own who will beaffected. The Court suggests that apply minimum contacts standards to in rem actionswont change anything, because the simple fact that you own land or other big-time

property in a state can be seen as sufficient proof that you have more than minimalcontacts there. The Court says that quasi in rem jurisdiction is going to have to change.The difference with quasi in rem is that the property in question isnt really related to thesubject of the plaintiffs lawsuit. The Court will no longer allow the states to assert

jurisdiction merely because somebody owns some property in that states.e. Soooo, post-Shaffer, our Bases of Personal Jurisdiction looks like this:

Traditional Bases of Personal Jurisdiction:1. personal service in state Pennoyer

2. consent (implied, express, contract, statute, appearance/waiver) Pennoyer 3. attachment of property from outset Pennoyer *This doesnt necessarily mean attachment of property cant ever be used again;

you could do so if they hope it will satisfy the jgmt. in their favor..4. domicile (have a residence there and intent to return or remain) Milliken v.

Meyer International Shoe added minimum contacts as a Modern Base of Personal

Jurisdiction:5. minimum contacts (minimum contacts with the forum state such that

maintenance of the suit does not offend traditional notions of fair play and substantial justice.

-purpose availment of (likely that min. cont. are present)


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-not unilateral activity (not likely that min. cont. are present)Specific Jurisdiction: The Modern Cases

a. Specific jurisdiction can exist when single acts, because of their quality andnature, will support specific in personam jurisdiction, that is, jurisdiction over claims arising out of that single act (M cGee ). Continuous but limited activity in

the forum state, such as the ongoing business relationship in Burger King , willalso support specific jurisdiction, that is, jurisdiction over claims arising out of that continuous activity.

b. World-Wide Volkswagon Corp. V. Woodson (ADDS PURPOSEFULAVAILMENT & FORESEEABILITY)

i. Facts: Somebody bought a car from a car dealership in New York. They gotinto a car accident in Oklahoma where the fuel tank exploded. They started a

product liability suit against the present appellants and others in Oklahoma.The car dealer and regional distributor put in a special appearance to argue thatOklahoma did not have jurisdiction under the Due Process Clause of theFourteenth Amendment. The Supreme Court of Oklahoma denied their writ

and the appellants went to the U.S. Supreme Court.ii. Rule: In order for a state court to exercise in personam jurisdiction over adefendant, there must exist minimum contacts between the defendant, forum,and claim. Defendants contacts with the forum state must be such thatmaintenance of the suit does not offend traditional notions of fair play andsubstantial justice. Foreseeability isnt the mere likelihood that a product willfind its way to the forum state. Instead, its the defendants conduct andconnection with the forum state are such that he should reasonably anticipate

being hauled into court there. The Due Process Clause, by ensuring theorderly administration of the laws, gives a degree of predictability to thelegal system that allows potential defendants to structure their primary conductwith some minimum assurance as to where that conduct will and will notrender them liable to suit.

iii. Holding: The court rules that the appellants have no contacts with Oklahomaand thus it reverses the judgment of the Supreme Court of Oklahoma. TheAudi dealer, Seaway, hadnt purposely availed itself of the opportunity toconduct activities in Oklahoma, although it could foresee that its buyers mighttake its cars there. It hadnt sold cars there, advertised there, cultivated OK customers, or deliberately focused on OK as a market. Thus, it had not soughtany direct benefit from OK activities sufficient to require it to submit to

jurisdiction there.iv. Reasoning: The court finds that the contacts between the defendant and the

forum are not sufficient to sustain jurisdiction. They argue that if they allowthe defendants to stand trial in Oklahoma for problems with their car, anyonethat sells anything will have to be subject to jurisdiction anywhere that the

products might go.c. Asahi Metal Industry Co. v. Superior Court (STREAM OF COMMERCE)

(***NOTE: This is NOT a majority opinion, its a plurality opinion=An opinionlacking enough judges' votes to constitute a majority, but receiving more votesthan any other opinion.)


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2. consent (implied, express, contract, statute, appearance/waiver) Pennoyer

3. domicile (have a residence there and intent to return or remain) Milliken-generally a corporations domicile is the state of its incorporation and its

principal place of business

4. International Shoe(1) minimum contacts *apply these to(a) purpose availment specific personal(b) foreseeability/not unilateral activity jurisdiction.*

(2) fairness(a) burden on (b) s interests(c) forum states interests(d) interstate judicial systems interest(e) shared interest of states

Burger King Corp. v. Rudzewicz

i. Facts: The defendant started a Burger King franchise. Things went sour andBurger King sued in federal court in Florida to terminate the franchise.Rudzewicz challenged the courts personal jurisdiction. The district courtrejected the defendants jurisdiction challenge, and at trial Burger King won.The Eleventh Circuit overturned the verdict, accepting the jurisdictionalargument. Burger King appealed to the United States Supreme Court.

ii. Rule: In considering whether a contract creates a contact, there are four factors to be considered:

1. The nature of prior negotiations between the parties2. The contemplated future consequences of entering into the contract3. The terms of the contract4. The course of dealing between the parties

iii. Holding: The Court reversed the ruling of the Eleventh Circuit, and thusupheld the ruling of the trial court. The Court also says that the Court of Appeals erred infinding factually that Rudzewicz lacked fair notice because the District Court found that the

business was basically done cleanly, and the FRCP says that you cant set aside the findings of fact of a lower court under theyre clearly wrong.

iv. Reasoning: The Court argues that the four criteria it establishes to measurethe connectedness of a contract with a state are met in this case:

1. Rudzewicz chose to negotiate for a franchise with a Florida company when he could havechosen to establish a franchise of a company based in Michigan or many other states.

2. Rudzewicz knew that he would derive many benefits by being affiliated with Burger King because of its national reach.

3. The terms of the contract clearly indicate that Burger King conducts its operations out of Miami.

4. Rudzewicz clearly learned from his dealings with Burger King that the decision making power lay in the Florida headquarters and not the Michigan district office.

The Court says in its dicta that its decision doesnt mean that all defendants who are parties tocontracts with big corporations can be haled to remote forums. The Court basically says that


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each case must be weighed individually. In particular, the Court says that jurisdiction cant be based on a contract obtained through fraud or other wrongdoing.Justices Stevens and Powell dissent, saying that the result is unfair because Rudzewicz lackednotice that he could be haled into Florida court. They especially note the power differential

between the parties and claim that Rudzewicz was financially unprepared to defend a suit in

Florida. g. Pavlovich v. Superior Court i. Facts: Pavlovich worked on defeating DVD copy protection and put up a

web page with information about the DeCSS program. DVD CCA broughtsuit against Pavlovich in California alleging that the defendant hadmisappropriated its trade secrets. The defendant moved to quash service

based on a lack of personal jurisdiction in California. The Court of Appealfound that California had jurisdiction, and the defendant appealed.

ii. Rule: In order for a state to exercise specific jurisdiction over a foreign only if: (1) the has purposefully availed himself/herself of forum benefits;(2) the controversy is related to or arises out of the s contacts w/the forum;

(3) the assertion of personal jurisdiction would comport with fair play andsubstantial justice.iii. Holding: The court reversed the appellate courts decision, finding that

California had no personal jurisdiction over the defendant.iv. Reasoning: A s knowledge that his tortuous conduct alone may harm

industries centered in CA is insufficient to establish express aiming at theforum state as required by the Calder effects test (conduct in one state having atortuous effect in another state can establish the necessary minimum contactsto support the exercise of jurisdiction over non-resident s). The onlyevidence suggesting express aiming is Pavolichs knowledge that his conductmay harm industries centered in CA, due process requires the Court to decline

jurisdiction over his person.4. General Jurisdiction: Appropriate when the s activities in the state are so substantial and

continuous that she would expect to be subject to suit there on any claim and would suffer noinconvenience from defending there. General jurisdiction requires continuous and

systematic contacts . You must have more of a relationship with a forum to constitute general jurisdiction than to be subject to specific jurisdiction. Think of general jurisdiction as super contacts.

a. Helicopteros Nacionales de Columbia, S.A. v. Hall i. Facts: Helicopteros is a Colombian company that was operating in Peru providing transportation for a Peruvian counterpart to a U.S. company. One of their helicopters crashed and four U.S. citizens were killed. Their decedentssued Helicopteros (AKA Helicol), among others, for wrongful death in thestate of Texas. Helicol made a special appearance and argued that Texas statecourt did not have personal jurisdiction over the company. The motion wasdenied by the trial court, and Helicol lost at trial. They appealed on the basisof lack of personal jurisdiction, and the Texas Court of Civil Appeals reversedthe judgment on that basis, while the Texas Supreme Court in turn reversed theruling of the intermediate appellate court. Helicol appealed to the UnitedStates Supreme Court.


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ii. Rule: In order for the forum to exercise personal jurisdiction, the defendantmust have certain minimum contacts that do not violate fair play.

iii. Holding: The decision of the Texas Supreme Court was reversed, and it wasfound that Texas did not have jurisdiction.

iv. Reasoning: The Court cites two cases, Perkins and Rosenberg , to justify

finding a lack of minimum contacts. The Court argues that the present case ismore like Rosenberg (where the only contacts were purchases and related trips)than Perkins (where Ohio courts were found to have jurisdiction over aPhilippine corporation due to continuous and systematic contacts).

v. Dissent: Brennans dissent uses the doctrine of purposeful availment to arguethat there were indeed minimum contacts between the defendant and theforum. Brennan disagrees with the courts use of Rosenberg because he says itmay be outdated given more recent decisions and advances in communicationsand transportation. Brennan argues that the contacts between Helicol andTexas are significant because they show that Helicol received benefits fromdoing business in Texas, and thus should be on notice that they may face

obligations there. Brennan claims that the present case is distinguishable from both Perkins and Rosenberg in that the contacts are highly related to the claim.Thus, the possibility of being sued in Texas should have been foreseeable toHelicol. Finally, Brennan says that the Court in this decision limits specific

jurisdiction too strictly. b. Coastal Video Communications Corp. v. The Staywell Corp.

i. Facts: is a VA corp. engaged in business of producing employeehandbooks which they sell to companies throughout the U.S. is an affiliatedcompany of Krames (a DE corp. w/its principal place of business in CA; it hascopyright to publish one of s handbooks) but its purpose in this lawsuit isthat its website claims it is the exclusive creator and publisher of AmericanRed Cross health and safety training programs and manuals. sought adeclaration in VA that its handbook does not infringe on copyrighted materialin s handbook. A motion to dismiss for lack of personal jurisdiction wasfiled, pursuant to FRCP 12(b)(2).

ii. Rule: Even when an action doesnt arise from s in-state contacts, courtmay still exercise personal jurisdiction over if it has general jurisdiction, inwhich the requisite minimum contacts between the and the forum state arefairly extensive. Only when the continuous corporate operation within a stateis thought so substantial and of such a nature as to justify suit against it onCOAs arising from dealings entirely distinct from those activities may a courtassert general jurisdiction over a corporate .

iii. Holding: must seek discovery of information relevant to issue of courtsgeneral personal jurisdiction over within 15 days of date of this order.Within 75 days of this order, parties are directed to set a hearing w/calendar clerk on s motion to dismiss.

c. Burnham v. Superior Court (TRANSIENT JURISDICTION)i. Facts: The Burnhams were getting divorced. Mrs. Burnham sued for divorce

in California. While Mr. Burnham, the appellant, was in California briefly hewas served process. Burnham made a special appearance in California to try to


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quash service of process on the grounds that California did not have personal jurisdiction over him due to insufficient contacts. The Superior Court deniedhis motion, and the California Court of Appeal agreed. Burnham appealed tothe United States Supreme Court.

ii. Rule: NO MAJORITY RULE. Scalias bunch says that it is sufficient that

the defendant be physically present for California to have personal jurisdiction.Brennans bunch agrees that California has jurisdiction, but in deciding thisyou must consider minimum contacts and fair play factors.

iii. Holding: State of CA had jurisdiction over . There is tag jurisdiction here because his physical presence in forum state.

iv. Reasoning: Scalia says that most of the big cases have asked the SupremeCourt to find out whether a state has jurisdiction over an absent defendant.

Now they have to figure this out for an actually physically present defendant.Scalia says that courts basically have always had jurisdiction over physically

present defendants and ought to continue to have such jurisdiction. Scalia alsorejects the argument that Shaffer says that all questions of personal jurisdiction

should be evaluated according to Shoe . Scalia points to the language inShaffer and says it only applied to absent defendants.

Brennan says that just because something has been the law for a long time doesntmean its just or right. Brennan interprets the ruling in Shaffer to mean that really all

personal jurisdiction rules must be evaluated according to minimum contacts and fair play, even ancient rules. The fact that physical presence has been sufficient for personal jurisdiction for so long, Brennan argues, means that someone who goes toCalifornia has clear notice that they can be served process there. Brennan further saysthat by being in a state at all, you get some benefit from the protection of its laws, and itsclear that it was convenient for you to travel there at least once. Thus, he argues, its onlyfair that you be subject to its jurisdiction.

Scalia counters by saying that the benefits which Brennan mentions are too cheap, or elsecould be plausibly cheap in such a way that you couldnt draw a clear line. Scalia finally saysthat if people want physical presence not to constitute jurisdiction anymore, the legislatureshould pass a law, and the judiciary shouldnt meddle.

Stevens basically suggests that he wouldnt have granted cert because it is such an easy case.

GENERAL JURISDICTION SPECIFIC JURISDICTION

-automatically if COA is unrelated to thecontacts-contacts must be continuous and systematic-doesnt mean purposeful availment andforeseeability are irrelevant, but the court hasnever applied them here.-fairness:

As a you wouldnt want to apply it

-COA arises out of the contacts-contacts:

Purposeful availment Foreseeability

-fairness: Burden on s interest in obtaining relief Forum states interest
http://lawschool.mikeshecket.com/civpro/shaffervheitner.htmlhttp://lawschool.mikeshecket.com/civpro/internationalshoecovwashington.htmlhttp://lawschool.mikeshecket.com/civpro/internationalshoecovwashington.htmlhttp://lawschool.mikeshecket.com/civpro/internationalshoecovwashington.htmlhttp://lawschool.mikeshecket.com/civpro/shaffervheitner.html


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b/c you would say that if contacts arecontinuous and systematic then

jurisdiction is fair. As a you would want to apply it

Choice of LawClause

Consent as aSubstitute for Power

Forum-selectionClause

Cognovit Clause

Dont purport to saywhere suit shall be

brought but do provide that the

substantive law of a particular jurisdictionwill govern disputesarising under the K.K in Burger King contained such aclause. You could

bring suit in another jurisdiction, but FLlaw will still govern.

The parties agree thatany litigation arisingout of this agmt. shall

be governed by thelaw of Fl.

If you have an agentrepresenting you, thatagent can accept

personal service for

you. It doesnt requirethat suit be brought inthat jurisdiction.

Sarah Low appointsKristi Walker, residingin Miami, Fl, as her agent for service of

process.

Contractual provisionsin which partiesestablish the

place/forum for

specific litigation btwn. Them.

The parties agree thatany litigation arisingout of this agmt. shall

be brought in Miami,Fl.

A K that authorizesan attorney toconfess jgmt.against person(s)

signing it. Itdoesnt deprivesigner of a hearing,

but it does meanthat any hearingwill come only if that signer brings anaction to set aside

jgmt. authorized bythe cognovits.

Kristi Walker appoints Sarah Lowas her agent for the

purpose of confessing jgmt.

a. Consent as a Substitute for Power1. Carnival Cruise Lines, Inc. v. Shute

i. Facts: The Shutes went on a cruise. On the ticket, there was a forum selectionclause that said any litigation related to the cruise must be tried in Florida. They departedfor their cruise from Los Angeles and the ship sailed to Mexico and back to Los Angeles.

Mrs. Shute slipped on the ship and hurt herself. The Shutes sued in Washington andCarnival moved for summary judgment due to the forum selection clause. At trial, theShutes conceded that they had notice of the forum selection clause. The suit was first

brought in the Western District of Washington. The Ninth Circuit refused to enforce theclause, and the cruise line appealed to the United States Supreme Court.

ii. Rule: Courts have the responsibility to determine whether forum selectionclauses in form passage contracts are fair.

iii. Holding:


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iv. Reasoning: The Court says that the ticket contract was a routine commercial passage contract. It was not negotiated, and the parties did not have equal bargaining power.

The Court enumerates several good reasons for a forum selection clause in a cruise ticketcontract:

1. A cruise will have passengers from all over the country, and absent a forum selectionclause, the cruise company could be subject to suit in all sorts of places.2. A forum selection clause eliminates uncertainty about the forum and avoids costly

pretrial motions.3. Forum selection clauses mean lower fares for passengers because the cruise company

passes along savings from limiting the forums where the company must defend itself.The Court says that the key question is whether the clause is fair. In evaluating the fairness of such clauses, the Court must consider whether Carnival was, in bad faith, discouraging legitimateclaims from its passengers. The Court says that because Carnival does business primarily inFlorida and has a lot of cruises that depart from Florida, they didnt include the clause in badfaith.

v. Dissent: Stevens, in his dissent, refers to two strands of contract law thatcome into play in this case.1. Courts look closer at contracts made between parties with unequal bargaining power,

especially take it or leave it contracts.2. At least in the past, forum selection clauses have been found to be counter to public

policy. In particular, they are not enforced if they (1) were not freely bargained for, (2)create additional expense for one party, or (3) deny one party a remedy.

b. The Constitutional Requirement of Notice1. FRCP 4: Deals with Summons. States what is required in a summons, service of

summons, etc. See page 15-22 of FRCP. The following is a brief summary:

A summons and a copy of the complaint must be served at the outset of the lawsuit. Must be contained in the summons: it must identify the court and the

parties; be directed to the ; state name and address of s attorney or if unrepresented, to the ; state time within which must appear anddefend; it must notify that failure to do so will result in a jgmt. bydefault against for relief demanded in complaint.

Service may be effected by any person who isnt a party and at least 18yrs. old

Service can be effected by: delivering a copy of summons and complaintto individually personally; leaving copies at individuals dwelling house or

usual place of abode w/some person of suitable age and discretion thenresiding there; by delivering copies to an authorized agent; pursuant to lawof state in which district court is located.

Waiver of Service: a who waives service doesnt thereby waive anyobjection to venue or to the jurisdiction of the court; to avoid costs, a may notify the of commencement of action and request

to waive service; a has a duty to avoid unnecessary costs of service and if they fail to do so the court will impose costs if effecting


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service on unless good cause is shown; if timely returns waiver,before being served w/process, isnt required to answercomplaint until 60 days after date request was sent, or 90days after if is outside any judicial district of U.S.; when files request the action shall proceed as if a summons and

complaint had been served at time of filing of waiver, andno proof of service shall be required.o Notice and request: be in writing and addressed directly to

or authorized agent; 1 st class mail or other reliable means;include copy of complaint and identify court where it has

been filed; inform of consequences of compliance or failure to comply; set forth date on which request was sent;allow reasonable time to return waiver (at least 30 daysfrom date request was sent, or 60 days from request date if

is outside any judicial district of U.S.); extra copy of notice and request and prepaid means of compliance.

Service upon Foreign Residents: by any internationally agreed uponmeans of service; if not internationally agreed upon means of service thenin manner prescribed by law of that foreign country, or as directed byforeign authority, delivery to individual personally, or by mail requiringreturn receipt.

Service upon Corporations and Associations: in judicial district of U.S. pursuant to law of state in which district court is located; delivering copyof summons and complaint to an officer, managing or federal agent, or anyother agent authorized by law or appointment to receive process, and bymailing a copy to if agent is authorized by statute and so statuterequires.

Service upon U.S., its Agencies, Corporations, Officers, or Employees:delivering copy of summons and complaint to U.S. attorney for district inwhich action is brought or to Asst. U.S. attorney or clerical employeedesignated by U.S. attorney in writing filed w/clerk of court, or by sendingcopy of summons and complaint by registered/certified mail addressed tocivil process clerk at office of U.S. attorney; by registered/certified mail toAttorney General of U.S. at Washington, D.C.

Territorial Limits of Effective Service: over who could be subjected to jurisdiction of a court of general jurisdiction in state in which district courtis located; party joined under Rule 14 (3 rd party) or Rule 19 (joinder) whois served at place within a judicial district of U.S. and not more than 100miles from place from which summons issues; authorized by U.S. statute.

Time Limit: if service and complaint isnt made upon within 120 daysfrom filing of complaint, the court, upon motion or its own initiative, shalldismiss action without prejudice to that or direct that service be effectedwithin a specified time; if shows good cause for failure, court shallextend time for service for an appropriate period.

2. Mullane v. Central Hanover Bank & Trust Co.


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i. Facts: Dont know, and dont care. No, seriouslytheres this fund, andthis stuff, and then something happens. There are people who they can find, and peoplewho they cant find. They publish something in a newspaper in New York without their names, just letting them know that something is coming up in court with regard to thiscommon trust fund. An attorney who is appointed to represent the interests of absent

beneficiaries tries to argue that this constructive notice is unconstitutional. The NewYork Surrogates Court held that the notice given was okay. This decision was affirmed by the intermediate appellate court and the Court of Appeals of New York. The appellantappealed to the Supreme Court.

ii. Rule: An elementary and fundamental requirement of due process in any proceeding, which is to be accorded finality is notice reasonably calculated,under all circumstances, to apprise interested parties of pendency of action andafford them an opportunity to present their objections. A method of service of

process must either be (1) of such nature as reasonably to convey requiredinformation; and (2) it must afford a reasonable time for those interested tomake their appearance.

ii. Holding: The Court ruled that constructive notice for unknown persons isConstitutionally OK, but that constructive notice for known persons isunconstitutional. The case was reversed and remanded for further proceedings.

iii. Reasoning: The Court says that you cant just go through the motions, youactually have to try to let people know somethings going on in court theyought to pay attention to.

c. Self-Imposed Restraints of Jurisdictional Power: Long-Arm Statutes,Venue, and Discretionary Refusal of Jurisdiction

i. Long-Arm Statutes as a Restraint on Jurisdiction: statutory authority giving jurisdiction over nonresident s. Authorizes state courts to exercise jurisdiction over cases arising out of contacts such as committing a tortuous act within the state,

transacting business in the state, or owning property in the state.a. Gibbons v. Browni. Facts: Brown and her husband got into an accident with Gibbons. Browns

husband was driving, and Gibbons allegedly gave him bad directions, causingthe accident. Gibbons, a Texas resident, sued Mr. Brown in Florida. Twoyears later, Mrs. Brown sues Gibbons in Florida, alleging that Gibbons issubject to jurisdiction in Florida because of the suit she filed there earlier onthe same subject matter.

ii. Rule: Florida shall have jurisdiction over a defendant who is engaged insubstantial and not isolated activity in Florida. This is construed to be ahigher standard than the federal constitutional one.

iii. Holding: The court dismisses Mrs. Browns lawsuit.iv. Reasoning: The court assumes that the first lawsuit is over, and thus finds

that Gibbons is not currently engaged in any activities in Florida. The courtsays that brining a lawsuit in Florida shouldnt hang over your head for the restof your life.

b. Gee v. Reingold i. Facts:

ii. Rule:


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iii. Holding:iv. Reasoning:

ii. Venue as a Further Localizing Principlea. Venue specifies a specific court within a jurisdiction where parties can litigate.

For example, lets say you know you have jurisdiction in Texas, but there are four

federal district courts there. Venue tells you where exactly youre going to doyour trial. b. 1391: Venue Generally

(a) A civil action wherein jurisdiction is founded only on diversity of citizenshipmay, except as otherwise provided by law, be brought only in (1) a judicial district whereany defendant resides, if all defendants reside in the same State, (2) a judicial district inwhich a substantial part of the events or omissions giving rise to the claim occurred, or asubstantial part of property that is the subject of the action is situated, or (3) a judicialdistrict in which any defendant is subject to personal jurisdiction at the time the action iscommenced, if there is no district in which the action may otherwise be brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of

citizenship may, except as otherwise provided by law, be brought only in (1) a judicialdistrict where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to theclaim occurred, or a substantial part of property that is the subject of the action issituated, or (3) a judicial district in which any defendant may be found, if there is nodistrict in which the action may otherwise be brought.

(c) For purposes of venue under this chapter, a defendant that is a corporationshall be deemed to reside in any judicial district in which it is subject to personal

jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed toreside in any district in that State within which its contacts would be sufficient to subjectit to personal jurisdiction if that district were a separate State, and, if there is no suchdistrict, the corporation shall be deemed to reside in the district within which it has themost significant contacts.

(d) An alien may be sued in any district.(e) A civil action in which a defendant is an officer or employee of the United

States or any agency thereof acting in his official capacity or under color of legalauthority, or an agency of the United States, or the United States, may, except asotherwise provided by law, be brought in any judicial district in which (1) a defendant inthe action resides, (2) a substantial part of the events or omissions giving rise to the claimoccurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional personsmay be joined as parties to any such action in accordance with the Federal Rules of CivilProcedure and with such other venue requirements as would be applicable if the UnitedStates or one of its officers, employees, or agencies were not a party.

The summons and complaint in such an action shall be served as provided by theFederal Rules of Civil Procedure except that the delivery of the summons and complaintto the officer or agency as required by the rules may be made by certified mail beyondthe territorial limits of the district in which the action is brought.


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(f) A civil action against a foreign state as defined in section 1603 (a) of this titlemay be brought

(1) in any judicial district in which a substantial part of the events or omissionsgiving rise to the claim occurred, or a substantial part of property that is the subject of theaction is situated;

(2) in any judicial district in which the vessel or cargo of a foreign state issituated, if the claim is asserted under section 1605 (b) of this title;(3) in any judicial district in which the agency or instrumentality is licensed to do

business or is doing business, if the action is brought against an agency or instrumentalityof a foreign state as defined in section 1603 (b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.

(g) A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which asubstantial part of the accident giving rise to the action took place.

c. Possible Bases for Venue under U.S.C. 1391:

1. Where resides if all s in same state.2. Where substantial part of events giving rise to claim occurred.3. Where any is subject to personal jurisdiction or found IF no venue under

(1) or (2).****IMPORTANT: To turn to 1391(b)(3) , you MUST eliminate 1391 (b)(2) in that

none of the events occurred in the U.S.d. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd.

i. Facts: The plaintiffs are American companies suing foreign companies. Thedefendants challenged personal jurisdiction and venue.

ii. Rule: The foreign defendants may be sued in any district. The Americandistributors can only be sued in districts where they can be found.

iii. Holding: The court rules that the plaintiff must make a showing that venue is proper in the Eastern District of Virginia or else the proceedings would betransferred to the Western District of Virginia.

iv. Reasoning: The court looks at the contacts of the American defendants inVirginia and finds that some of the American distributors can be found in theEastern District of Virginia, though some may only be found in the WesternDistrict of Virginia.

i. Declining Jurisdiction: Transfer and Forum Non Conveniensa. Forum Non Conveniens

- Piper Aircraft v. Reynoi. Facts: There was a plane crash in Scotland. The plane was manufactured by

a Pennsylvania company with parts made in Ohio. A representative of thedecedents, who lived in Scotland, filed lawsuits against the two companies in theUnited States because the laws here are more favorable to plaintiffs than inScotland. The defendants had the case removed to federal court in California,then transferred to Pennsylvania and finally tried to get a forum non conveniensdismissal. The federal district court granted the motion, but the Third Circuitreversed on the ground that forum non conveniens mustnt be applied if it will
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cause the plaintiff to go to a forum with less favorable law for the plaintiff. Thisdecision, in turn, was appealed to the Supreme Court.ii. Rule: A court has the authority to decline jurisdiction if the suit may be

brought more appropriately in another forum.iii. Holding: The judgment of the Court of Appeals was reversed.

iv. Reasoning: In deciding whether to dismiss for forum non conveniens, a courtmust follow the rule of Gulf Oil Corp. v. Gilbert , which says: When the plaintiff chooses a forum, you shouldnt mess with their choice unless you

have a really good reason. One reason to change the forum is if the burden and oppressiveness to the defendant is

out of proportion to the convenience of the plaintiff. It seems that a court may decline jurisdiction if its docket is overloaded. (?) Finally, the court must consider and balance certain public interest factors and private

interest factors.The Court finds that the district court applied the test correctly. In particular, it finds that forumnon conveniens cannot be inflexibly defeated merely on the basis that the alternative forum

would have laws less favorable to the plaintiff. The district court also ruled correctly that theinterests of foreign plaintiffs should be weighted less heavily than the interests of domesticdefendants.Finally, the Court acknowledges that Scotland has many contacts with the litigation and that itwould be best if it moved there.

b. Transfer under 28 U.S.C. sections 1404, 1406, and 1631- Hoffman v. Blaski

i. Facts:ii. Rule:

iii. Holding:iv. Reasoning:

1404: Change of Venue(a) For the convenience of parties and witnesses, in the interest of justice, a district court maytransfer any civil action to any other district or division where it might have been brought.(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civilnature or any motion or hearing thereof, may be transferred, in the discretion of the court, fromthe division in which pending to any other division in the same district. Transfer of proceedingsin rem brought by or on behalf of the United States may be transferred under this section withoutthe consent of the United States where all other parties request transfer.(c) A district court may order any civil action to be tried at any place within the division in whichit is pending.

(d) As used in this section, the term district court includes the District Court of Guam, theDistrict Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, andthe term district includes the territorial jurisdiction of each such court.

1406: Cure of Waiver of Defects(a) The district court of a district in which is filed a case 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.


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(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involvinga party who does not interpose timely and sufficient objection to the venue.(c) As used in this section, the term district court includes the District Court of Guam, theDistrict Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, andthe term district includes the territorial jurisdiction of each such court.

1631: Transfer to Cure Want of JurisdictionWhenever a civil action is filed in a court as defined in section 610 of this title or an appeal,including a petition for review of administrative action, is noticed for or filed with such a courtand that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of

justice, transfer such action or appeal to any other such court in which the action or appeal couldhave been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which itwas actually filed in or noticed for the court from which it is transferred.

Forum Non Conveniens(inter-system) Transfer(intra-system)-older version of Transfer under 1404-common law doctrine-can move from state to federal or federal toanother country-dismissal requires that there be an alternativeforum in which suit can be prosecuted-private interest factors affecting convenienceof litigants: (1) relative ease of access tosources of proof; (2) availability of compulsory

process for attendance of willing witnesses; (3) possibility of view of premises, if view would be appropriate to action; (4) all other practical problems that make trial of a case easy,expeditious, and inexpensive.-public interest factors affecting convenienceof forum: (1) administrative difficultiesflowing from court congestion; (2) the localinterest in having localized controversiesdecided at home; (3) interest in having trial of a diversity case in a forum that is at home withlaw that must govern the action; (4) theavoidance of unnecessary problems in conflictof laws, or in the application of foreign law;(5) unfairness of burdening citizens in anunrelated forum w/jury duty.

-1404 only applies to transfer from federalcourts to other federal courts-1404 (a) where it might have been brought,this means that district court to where you aretransferring must have:(1) venue, AND(2) personal jurisdiction-difference btwn. 1404 and 1406:

1404=venue is proper

1406=venue is improper -to decide which to use (1404 or 1406), ask iscurrent venue proper?, you would then turn

back to 1391-in determining transfer, you look at:(1) convenience of parties(2) convenience of witnesses(3) interest of justice*this is from 1404
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III.SUBJECT MATTER JURISDCITION OF THE FEDERAL COURTSA. The Idea and the Structure of Subject Matter Jurisdiction

Personal jurisdiction is people. That is, personal jurisdiction determines whether a court hasthe power to render a judgment against a particular defendant.

Subject matter jurisdiction is all about limiting the power of the federal government. Thereare two big political compromises in the Constitution:1. Creating courts lower than the Supreme Court was left up to Congress. This was done to

mitigate the concerns of those who feared an overly powerful federal government.2. If a case doesnt fall into one of the categories set out in 2 of Article III, the federal

courts cant hear it. However, Congress can choose what jurisdiction to give to the lower federal courts.

Therefore, federal courts are courts of limited jurisdiction. This leads to two questions:1. Is the case at hand listed in Article III 2?2. Has Congress allowed the federal courts to hear such a case?

Its important to note that federal courts share most of their jurisdiction with state courts .This is called concurrent jurisdiction . 28 U.S.C. 1331 says that federal courts will haveoriginal jurisdiction 1[1] over any case dealing with the Constitution, federal statutes, or U.S.treaties.

28 U.S.C. 1332 says that diversity jurisdiction is also concurrent. We definitely saw caseswhere people from different states went to state court.

There are also several areas of jurisdiction that Congress has given exclusively to the federalcourts:

1. Admiralty (boats) 28 U.S.C. 13332. Bankruptcy 28 U.S.C. 13343. Antitrust 28 U.S.C. 1337

Why might Congress grant exclusive jurisdiction to the federal courts over patents andcopyrights but not over trademarks? Maybe trademarks tend to be more local. For example,you could have The Columbus Caf suing The Caf Columbus (not ) in Ohio courts, andthats fine because its a local dispute. However, patents and copyrights are probably goingto be used throughout the country and its important that theres no bias towards a locallitigant.

Original Jurisdiction Appellate Jurisdiction

1331 gives district courts original jurisdictionof all civil actions arising under Constitution,laws, treaties, etc. Basically gives the power to hear a case FIRST.

District courts have the power to hear a caseAFTER its been appealed.

1
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General Jurisdiction Limited Jurisdiction

No limits on cases that a particular court canhear.

Article III, 2 limits federal courts to thoselisted.

Exclusive Jurisdiction Concurrent Jurisdiction

Limits juris. Only to federal courts.Examples are above (admiralty, bankruptcy,antitrust)

1331 doesnt grant federal courts exclusivity;cases arising under this statute can be

brought in state courts as well as federalcourts. Diversity jurisdiction is concurrentvia 1332.

What are some reasons that an attorney or litigant might want a case either in federal or statecourt and not the other?

1. Some federal courts have a rocket docket!2. A defendant may get more sympathy from a local judge than a big city federal judge.3. A federal jury, which is drawn from a different pool, may be more or less likely to award

higher or lower damages.4. A federal judge may feel more secure in reducing a large jury award because he or she

has lifetime tenure.5. A federal judge may be more likely to enforce an arbitration agreement.6. The opposing lawyer may be more comfortable in state court than federal court.

Federal judges are shielded in two ways:1. Lifetime tenure insulates them from political pressure.

2. Limited jurisdiction insulates them from an overly broad caseload.

The take-home message is that it matters whether youre in federal or state court, and thatswhy subject matter jurisdiction is important.

Personal Jurisdiction Subject-matter Jurisdiction

-limits both state and federal courts inrelation to particular s. If s lack requisiteconnection w/forum state, due process

prevents courts in that state from rendering

jgmt. on s.-is a waiveable defense

-decides what type of cases belong in whichcourts, state or federal.-Rule (h)(3) allows a court to dismiss anaction for lack of jurisdiction of the subject

matter, either by suggestion of the parties or the court.-isnt a waiveable defense

B. Federal Question Jurisdiction : Today, 28 U.S.C. 1331 gives federal district courts jurisdiction over cases arising under the Constitution, statutes, or treaties of the federalgovernment. The problem is that nobody quite knows what arising under means.
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1. 28 U.S.C. 1331 . Federal Question The district courts shall have original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States.2. Louisville & Nashville Railroad v. Mottley

i. Facts: The facts are actually irrelevant, but the Mottleys got a lifetime free

rail pass to settle a claim against the railroad. Later, Congress outlawed alllifetime rail passes and the railroad refused to honors the Mottleys passanymore. The Mottleys sued in federal court for specific performance to keeptheir pass. They basically anticipated that the defense of the railroad would beto say that Congress forbade them from honoring the pass but that such aninterpretation of the statute violated the Fifth Amendment, and thats why theMottleys brought suit in federal court. The federal court granted specific

performance to the Mottleys and the railroad appealed to the Supreme Court.ii. Rule: A suit arises under the Constitution and laws of the United States only

if the original statement of the plaintiffs cause of action shows that it is basedon the Constitution or federal statutes. (A federal court cant have jurisdiction

just because the defendant might use a federal law or the Constitution todefend himself.)iii. Holding: The case is reversed and remanded to the federal district court

which is directed to dismiss the case for lack of subject matter jurisdiction.iv. Reasoning: The court cites two cases, Tennessee v. Union & Planters Bank

and Boston & Montana Consolidated Copper & Silver Mining Company v.Montana Ore Purchasing Company . These cases set up the rule stated above.The basic reason for this rule is that it is unnecessary for a plaintiff to answer their own complaint.

3. Well-pleaded complaint rule: From Mottley . A suit that arises under Constitution andlaws of U.S. is only so when s statement of his own COA shows that it is based upon

those laws or that Constitution. It isnt enough that alleges some anticipated defense tohis COA and asserts that the defense is invalidated by some provision of U.S.Constitution. Although such allegations show that very likely, in course of litigation, aquestion under Constitution would arise, they dont show that the suit, that is, s originalCOA, arises under Constitution. FEDERAL CLAIM MUST APPEAR AS A PART OFTHE COMPLAINT.

4. Two tests for determining Arises Under:(1) American Well Works: a suit arises under the law that creates the COA(2) Smith v. Kansas City Title: law that created COA was state law, federal law was

only an element but there is federal jurisdiction arises under b/c there was a substantialfederal interest.

***NOTE: These arent conjunctive tests! You dont have to use both to satisfyfederal question; theyre separate tests!

C. Diversity Jurisdiction : This is one of the oldest grants of jurisdiction to the federalcourts. It has become controversial. We dont know why the Framers of the Constitutionchose to allow (but not mandate) federal court jurisdiction over controversies betweencitizens of different States and between a State, or the citizens thereof, and foreign States,citizens or subjects. One view is that we didnt want an out-of-state defendant to experience


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bias in the local court. A minority view is that the federal courts were seen as qualitativelysuperior and thus ought to get as many cases as possible. Statutory authority is 1332.

1. 1332. Diversity of Citizenship; Amount in Controversy; Costs.a) The district courts shall have original jurisdiction of all civil actions where the matter incontroversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

(1) citizens of different States;(2) citizens of a State and citizens or subjects of a foreign state;(3) citizens of different States and in which citizens or subjects of a foreign state are additional

parties; and(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States.For the purposes of this section, section 1335 , and section 1441 , an alien admitted to the UnitedStates for permanent residence shall be deemed a citizen of the State in which such alien isdomiciled.(b) Except when express provision therefor is otherwise made in a statute of the United States,

where the plaintiff who files the case originally in the Federal courts is finally adjudged to beentitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interestand costs, the district court may deny costs to the plaintiff and, in addition, may impose costs onthe plaintiff.(c) For the purposes of this section and section 1441 of this title (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporatedand of the State where it has its principal place of business, except that in any direct actionagainst the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall

be deemed a citizen of the State of which the insured is a citizen, as well as of any State bywhich the insurer has been incorporated and of the State where it has its principal place of

business; and(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of thesame State as the decedent, and the legal representative of an infant or incompetent shall bedeemed to be a citizen only of the same State as the infant or incompetent.(d)(1) In this subsection (A) the term class means all of the class members in a class action;(B) the term class action means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be

brought by 1 or more representative persons as a class action;(C) the term class certification order means an order issued by a court approving the treatmentof some or all aspects of a civil action as a class action; and(D) the term class members means the persons (named or unnamed) who fall within thedefinition of the proposed or certified class in a class action.(2) The district courts shall have original jurisdiction of any civil action in which the matter incontroversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is aclass action in which (A) any member of a class of plaintiffs is a citizen of a State different from any defendant;
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(6) In any class action, the claims of the individual class members shall be aggregated todetermine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusiveof interest and costs.(7) Citizenship of the members of the proposed plaintiff classes shall be determined for purposesof paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint, or,

if the case stated by the initial pleading is not subject to Federal jurisdiction, as of the date of service by plaintiffs of an amended pleading, motion, or other paper, indicating the existence of Federal jurisdiction.(8) This subsection shall apply to any class action before or after the entry of a class certificationorder by the court with respect to that action.(9) Paragraph (2) shall not apply to any class action that solely involves a claim (A) concerning a covered security as defined under 16(f)(3) [1] of the Securities Act of 1933 ( 15 U.S.C. 78p (f)(3) [2]) and section 28(f)(5)(E) of the Securities Exchange Act of 1934 ( 15 U.S.C.78bb (f)(5)(E) );(B) that relates to the internal affairs or governance of a corporation or other form of businessenterprise and that arises under or by virtue of the laws of the State in which such corporation or

business enterprise is incorporated or organized; or (C) that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 ( 15 U.S.C. 77b (a)(1) ) and the regulations issued thereunder).(10) For purposes of this subsection and section 1453 , an unincorporated association shall bedeemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized.(11)(A) For purposes of this subsection and section 1453 , a mass action shall be deemed to be a classaction removable under paragraphs (2) through (10) if it otherwise meets the provisions of those

paragraphs.(B)(i) As used in subparagraph (A), the term mass action means any civil action (except a civilaction within the scope of section 1711 (2)) in which monetary relief claims of 100 or more

persons are proposed to be tried jointly on the ground that the plaintiffs claims involve commonquestions of law or fact, except that jurisdiction shall exist only over those plaintiffs whoseclaims in a mass action satisfy the jurisdictional amount requirements under subsection (a).(ii) As used in subparagraph (A), the term mass action shall not include any civil action inwhich (I) all of the claims in the action arise from an event or occurrence in the State in which theaction was filed, and that allegedly resulted in injuries in that State or in States contiguous to thatState;(II) the claims are joined upon motion of a defendant;(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specificallyauthorizing such action; or (IV) the claims have been consolidated or coordinated solely for pretrial proceedings.(C)
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-1http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-1http://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.html#f_3http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.html#f_3http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-2http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-2http://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078--bb000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078--bb000-.html#f_5_Ehttp://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.html#a_1http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.html#a_1http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001453----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001453----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001453----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001711----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001711----000-.html#2http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-1http://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078---p000-.html#f_3http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001332----000-.html#FN-2http://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078--bb000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000078--bb000-.html#f_5_Ehttp://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000077---b000-.html#a_1http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001453----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001453----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001711----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001711----000-.html#2


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(i) Any action(s) removed to Federal court pursuant to this subsection shall not thereafter betransferred to any other court pursuant to section 1407 , or the rules promulgated thereunder,unless a majority of the plaintiffs in the action request transfer pursuant to section 1407 . (ii) This subparagraph will not apply (I) to cases certified pursuant to rule 23 of the Federal Rules of Civil Procedure; or

(II) if plaintiffs propose that the action proceed as a class action pursuant to rule 23 of theFederal Rules of Civil Procedure.(D) The limitations periods on any claims asserted in a mass action that is removed to Federalcourt pursuant to this subsection shall be deemed tolled during the period that the action is

pending in Federal court.(e) The word States, as used in this section, includes the Territories, the District of Columbia,and the Commonwealth of Puerto Rico.

2. Redner v. Sandersi. Facts:

ii. Rule:

iii. Holding:iv. Reasoning:3. Saadeh v. Farouki

i. Facts: The plaintiff is a Greek citizen. The defendant is a permanentresident of the United States residing in Maryland but whose citizenship is Jordanian.The plaintiff sued for breach of contract in federal court, citing diversity jurisdiction, and

prevailed on the merits at trial. The defendant appealed on the merits. The Court of Appeals asked the parties to write briefs on jurisdiction.

ii. Rule: The statute states that at least one of the parties in a dispute must bea citizen of a State in order for the federal courts to have diversity jurisdiction.Furthermore, the statute says that for the purposes of the section in question an alienadmitted to the United States for permanent residence shall be deemed a citizen of theState in which such alien is domiciled.

iii. Holding: The case was dismissed for lack of subject matter jurisdiction.iv. Reasoning: The court chooses to liberally interpret the statute because it

feels that a literal reading would cause an undesirable and unintended result, that is, thatfederal diversity jurisdiction could exist over a dispute involving only foreign litigants . Thecourt uses the legislative history to interpret the amendment to the statute as a move tonarrow federal diversity jurisdiction rather than broaden it. The statute apparently wasintended to reduce the federal caseload. The court finds that the statute was intended toeliminate federal diversity jurisdiction between a United States citizen and a resident alienliving in the same state as that United States citizen.4. Complete Diversity Rule: Established in Strawbridge v. Curtiss ; No one party on oneside of a suit may be a citizen of same state as any party on other side.

v.

(MX) (Japan)

No

v.

Yes
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001407----000-.html


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(CA) (MX) (Japan) v.

(CA) (MX) (N.Y.) (Japan)

Yes

v.

(CA) (MX) (Japan)

No

5. Citizenship: Individuals=by domicile (their residence with they intend to remain) Corporations=state of incorporation or state of its principal place of business. Determined at the time a suit is filed.

6. Minimal Diversity=established by Congress which says that at least one of the parties oneach side must be diverse.7. Amount in controversy rules -- it must appear to a legal certainty that the claim is really for less than the juris. amountto justify dismissal.-P mere hope for punitive damages cannot be the sole basis for jurisdiction.(1) a single P, with two or more unrelated claims against a single D MAY aggregateclaims to satisfy that statutory amount(2) if 2 P each have claims against a single D, they MAY NOT aggregate their clams asthey are regarded as separate and distinct(3) if 1 P has a claim in excess of the statutory amount and a 2 nd P has a claim for lessthan the statutory amount, both against the same D, the 1 st P can sue in federal court. The2nd P can invoke supplemental jurisdiction where the claims are related.(4) with multiple Ps or Ds with a common undivided interest and single title or right,the value of the total interest will be used to determine the amount in controversy. This is

not the case if the claims are considered separate and distinct(5) class actions- at least some members must have claims that exceed the statutoryamountcannot just aggregate all claims to satisfy the statutory amount 8. Counterclaims-*when a Ps claims exceeds $75,000 (1) compulsory counterclaim (if not brought before final judgment, it is barred)may beheard regardless of the amount(2) permissive counterclaim (one which maybe asserted, but if not asserted, it is not lost)

requires and independent jurisdictional basis

D. Supplemental Jurisdiction : The prior two jurisdictional concepts we went over,diversity jurisdiction and federal question jurisdiction, tend to narrow the caseload of thefederal courts. This one tends to broaden it somewhat. In 1990, we got 28 U.S.C. 1367 which codified stuff that had previously just been judge-made law. Luckily for us, things aremuch simpler now than before 1990, because there used to be two branches of supplemental

jurisdiction: (1) pendant jurisdiction and (2) ancillary jurisdiction.1. Exists whenever theres a claim and relationship btwn. That claim and claim outside

constitutionally enumerated jurisdiction of federal courts permits the conclusion that the


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entire action before court comprise but one constitution case. Federal claim must havesubstance sufficient to confer subject-matter juris. State and federal claims must derive froma common nucleus of operative fact. But if, considered w/o regard to their federal or statecharacter, a s claims are such that he would ordinarily be expected to try them all in one

judicial proceeding, then, assuming substantiality of the federal issue, theres power in

federal courts to hear the whole case. United Mine Workers v. Gibbs.2. 28 U.S.C. 1367 . Supplemental Jurisdiction (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federalstatute, in any civil action of which the district courts have original jurisdiction, the districtcourts shall have supplemental jurisdiction over all other claims that are so related to claims inthe action within such original jurisdiction that they form part of the same case or controversyunder Article III of the United States Constitution. Such supplemental jurisdiction shall includeclaims that involve the joinder or intervention of additional parties.(b) In any civil action of which the district courts have original jurisdiction founded solely onsection 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24

of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of suchrules, when exercising supplemental jurisdiction over such claims would be inconsistent with the

jurisdictional requirements of section 1332 .(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (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 courthas 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) The period of limitations for any claim asserted under subsection (a), and for any other claimin the same action that is voluntarily dismissed at the same time as or after the dismissal of theclaim under subsection (a), shall be tolled while the claim is pending and for a period of 30 daysafter it is dismissed unless State law provides for a longer tolling period.(e) As used in this section, the term State includes the District of Columbia, theCommonwealth of Puerto Rico, and any territory or possession of the United States.

3. In applying 1331 so related, it would be that claims are so related and are directly inline with federal claim; common nucleus of operative fact.

4. 1367(b) is on

civil procedure outline~fall '09

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