Civ Pro Outline 2012

7/30/2019 Civ Pro Outline 2012

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PERSONAL JURISDICTION1. Aspects of Personal Jurisdiction

a. Power defined in terms of the sovereign statei. In Personum a court can impose a personal liability or obligation

on a defendant, or require a defendant to act or refrain fromacting. (over natural persons or corporations)

1. Need Minimum contactsii. In Rem declares the rights to all persons over things (claim of

title)iii. QUASI IN REM

1. Quasi In Rem I

a. Related to property, issue b/t A & B as to who has title

(J is good b/t 2 parties)

2.

Quasi in-Rem II + Minimum Contacts-

a. COA is unrelated to property

b. Person has property in jx so given as J J is limited to

value of property

c. This must meet the Intl shoe, minimum contacts test!!

iv. Traditional JX Pennoyer1. State resident or non-residents w/o property in the state

before litigation, or presence in state

b. Presencei. Transient Jurisdiction (TAG Jurisdiction) a defendant served

with process while physically present within a state is normallysubject to the personal jurisdiction of the trial courts within that

state.1. exception is if the defendant was forced or induced by

fraud into the jurisdictionii. An agent of you or your corporation can be served

iii. Service on an airplane flying over the jurisdiction is sufficientiv. Burnham v. Superior Court of California - the Court upheld the

constitutionality of transient jurisdiction, obtained y service on anon resident temporarily within the state [may not hold true ifpresence is involuntary] even though the business trips wereunrelated.

v. Immunity from Process witnesses, attorneys on unrelated

matters, parties and public officials on official business.c. Domicile (residency with intent to remain)d. Consent

i. Express1. Forum selection clause you give consent where you form

a contract2. Choice of Law clause (Burger King) entering into an

ongoing contract via the internet communications usually


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should suffice to support jurisdiction at the forum of eitherparty for an action alleging breach of contract against theother.

ii. implied consent a defendants in state activities are sufficient tojustify service

1. for suits related to the activities, despite doubts about thepower to forbid them.2. Hess v. Pawloski driving within a state is implied consent

to suit in that state on claims arising from that driving.Appointed a state officer as agent of driver must still begiven notice.

iii. Waiver

2. Minimum Contact Standard [expanded in personum jurisdiction]a. International Shoe Co. v. Washington held that to subject a defendant to a

judgment in personam, due process requires only that he have certainminimum contacts with the forum, such that the maintenance of the suitdoes not offend traditional notions of fair play and justice.

i. Purposeful availment there are limitations there must besome act by which the defendant purposefully avails itself of theprivilege of conducting activities within the forum state, thusinvoking the benefits and protections of its laws.

ii. Reasonableness1. Does the exercise of PJ comport with fair play and substantial

justice? Is it reasonable?a. 5 factors (World wide VW)

i. inconvenience to defendant,ii. forum states interest in the matter,

iii. plaintiffs interest in the forum andiv. location of the evidence,v. interstate interest in efficient resolution,

vi. interests of the several states in furtheringsocial policies

2.

No Contact Casual/ Isolated Contact Continuous

Contact

Substa

Contact

Single Contact

No Jurisdiction Specific Jurisdiction General Jurisdiction

Helicopteros Nacionales de Colombia v. Hall

Plaintiffs sued in Texas to recover for the deaths of workers killed in a helicopter crash in

Peru. The helicopter was operated by defendant, a Colombian Co. The parties conceded

that the claims did not arise out of defendants contacts with Texas, and so there was no

basis for specific jurisdiction. Neither did the court find a basis for general jurisdiction


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A.Long Arm Statute (1) statute (2) constitutional1. General Statute (sky is the limit) states allow the exercise of jurisdiction

whenever it would not violate the constitution. In such states, the onlyquestion that need be considered is the constitutionality of jurisdiction. Do notneed to look at statutory interpretation as long as activities are so substantialas to not violate the concept of traditional notions of due process and fairness.

2. Specific Statute specific acts warrant the exercise of jurisdiction - - - arisingfrom

a. The transaction of any business within the State

b. The commission of a tortuous act within the Statec. Ownership, use, or possession of real property, or risk located in the

state at the time of contractingd. The maintenance of marital domicile in the state in an action for divorce

3. Gray v. American RadiatorThe court read the Illinois statutes provision ofjurisdiction for the commission of a tortuous act within this state to cover themanufacture in Ohio of an allegedly defective valve that was shipped to amanufacturer in Pennsylvania and incorporated into a boiler made there. [theystretched the stream of commerce approach here.]

4. World Wide VW v. Woodson - under due process, there must be foreseeabilitythat one will be under jurisdiction. [Plaintiffs bought a car in New York and

drove it to Oklahoma, where they were in an accident and suffered severinjuries allegedly caused by a defective design and placement of the cars gastank. This action by plaintiffs did not establish a contact between the NewYork retail seller and Oklahoma.] *Defendants conduct and connection withthe forum state are such that he could reasonably anticipate being hauled intocourt there

5. Hensla v. Denkla there must be purposeful conduct on the part of thedefendant. Purposeful availment, some voluntary action by the defendantestablishing a relationship with the forum. Gives notice of jurisdiction, thatthey can be hauled into court - - - benefit is protection.

B. Stream of Commerce

presence +1. placing a product in the stream of commerce is not sufficient and that some

additional conduct by which the defendant indicates an intent to serve theforum state is essential. The circumstances under which a manufacturer willbe found subject to jurisdiction in a state because its product is sold thereremain unclear.

a. 2.. Began by looking at traditional notions of fairness2. Asahi look at the reasonableness


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a. burden on defendantb. interest in the forum statec. plaintiff interest in obtaining relief

3. Burger King v. Rudzewicz A Michigan defendant entered into a 20-yearfranchise agreement with a Florida fast food corporation that required him to

adhere to a detailed set of specifications in the operation of his franchisedrestaurant, to send payments to Florida, and to agree to the application ofFlorida law in construing the contract. The Court stated that Florida

jurisdiction was proper because the defendant reached out beyond Michiganand negotiated with a Florida corporation for the purchase of a long-termfranchise and the manifold benefits that would derive from affiliation with anational organization.

a. long-term relationship with forum state can constitute minimumcontact

b. as a commercial actor (sent payments and notices) this constitutes apurposeful availment

c. must balance minimum contacts and other elements to determinereasonableness of suit

d. Once minimum contact is established defendant must prove thatforum is so unreasonable that he will be at a gross disadvantage

4. But For Test they cannot benefit but for the laws of the state (adopted throughstatute by the state)

C. Property Based Jurisdiction1. Shaffer v. Heitner the minimum contacts test applied in International Shoe can

be applied to property but liability is limited to the amount of the propertya. Statute passed after Shaffer: every non-resident who accepts

appointment as a director, trustee, or member of the governing body of

a corporation organized under the laws of this state is deemed to haveconsented to appointment of the registered agent of such corporation ashis agent upon who the service of process may be made in all civilactions or proceedings brought in this State by or on behalf of, oragainst such corporation, in which any action for, trustee, or member isa necessary or proper party, or in any action against such director,trustee or member for violation of his duty in such capacity.

D. F. Choice of Law [Why?!?]1. Convenience2. Values and Bias

3. Procedural Advantages4. Choice of Law

A. Personal Jurisdiction Technical Defenses1. Affirmative Defenses

i. Immunity of parties cannot be served if in state for judicial reasons


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ii. Fraud or duress Cant entice someone or fraudulently pull someoneinto jurisdiction

2. Affirmative Defensesi. Immunity of parties cannot be served if in state for judicial reasons

ii. Fraud or duress Cant entice someone or fraudulently pull someone

into jurisdiction

3. Procedural Challenges Look at pleadings sectioni. Counterclaims under Rule 13

1. If they are compulsory - 13(a) courts have held that D is notwaiving PJ if he brings this up as well

2. If they are permissive 13(b) courts have held that D iswaiving PJ defense b/c D is asking court to rule on an issue inconsistent with lack of juris. request.

ii. FRCP LOOK TO RULE 12 Must raise most defenses at onceiii. Within 20 days you must make a motion or an answer the seven 12b

defenses can be raised either in the answer or in a motion.1. Personal Jurisdiction defense automatically waived if

Defendant omits in 12b motion OR is not made in theanswer to the complaint

iv. Special appearance only in some jurisdictions in state court D canobject w/o subjecting himself to PJ showing up for the hearing isnot basis for PJ and you cannot serve someone who shows up to makespecial appearance

1. Limited to contesting PJ2. Abolished in fed. ct. only possible in state court3. Some courts allow D who loses special appearance to defend

on merits w/o losing right to appeal juris. issue4. Other courts require D to default or attack collaterally after ordefend on merits and then appeal juris. issue

5. MUST BE CAREFUL NOT TO WAIVE PJ dont argueanything on the merits

v. D must raise in answer AND follow up as a motion to dismiss (seeRule 12c)

4. Collateral attack default in original suit and then defend when Pattempts to enforce much more available

i. D may argue that first court lacked PJ or SMJ over himii. Ds failure to appear was due to Ps fraud or duress

iii. Loses right to challenge on the merits

5. Direct Attack Challenge to the jurisdiction ruling is made on appeal either interlocutory or after the final judgment

Five options for Personal Jurisdiction defenses:

1. D appears, defends on the merits and loses court enters judgment for the P D has waived defense of lack of

he can appeal the case only on the merits

2. D makes a special appearance 12b2 motion to dismiss for lack of PJ court agrees and says it lacks juris. eit

dismisses or orders P to fix (give proper service) P may then refile in court with proper PJ if SOL has not run

3. D makes a special appearance 12b2 motion court disagrees and upholds juris. D then defaults enforcing c

must enforce because the court has already rendered a decision about PJ D can only appeal this decision

4. D loses on objection to PJ defends on the merits and loses he appeals


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NOTICE & Procedural Due Process1) Rule - Due Process required be given proper notice and a chance to be heard

a. Look @ content of notice & how notice is given

b. Statutory Service of ProcessFRCP 4i. Process consists of summon and a copy of the complain (two pieces of

paper), summons is an official court governmental notice that you get

from clerk of the court

ii. Rule 4(c) Service of process can be made by any non party who is atleast 18 years old (very liberal)

iii. How do we serve an individual?1. Start with rule 4(e)(2) three alternatives which are always

okay

a. Personal service you hand it to the person and it can beanywhere in the state

b. Substituted service you are serving a substitute, itsokay if its at usual abode or dwelling house AND you

must serve someone of suitable age and discretion who

resides there (babysitter would not work)

c. Serve the s agent you can appoint the agent bycontract or by law

2. 4 (e) (1) allows us to use any method for serving process thatis allowed by state law (even though this is federal court)

a. Depends on the state in which the court is located or thearea in which service is effects

b. Fed rules say to look at state laws to determine what isacceptable

iv. How do we serve a corporation4(h) we have to serve and officer ormanaging or general agent of that corporation [4 (e)(1) also applies

here]

v. Waiver of service of process Rule 4(d)1. This is NOT service of process by mail, its a waiver of service of

process2. If returns it, it gives an extra 40 days to file so if you wouldrather only give them 20 days then you need to serve in person

3. If she does not waiver service then she may have to pay forpersonal service of process

4. just has to show they acted in good faith to get it to the vi. Geographic limits of service of process

1. 4(k)(1)(a)we can serve process throughout the state


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a. A federal court in lower CA can serve process through theentire state of CA

b. A federal court can only service outside the state, if astate court could (we incorporate the state long arm

statute to serve process outside the forum)

2. 4(k)(1)(b) bulge rule, but only for ADDING parties, but not

available to serve process on a regional basis3. 4(k)(1)(d) long arm statutes4. 4(k)(2)DEFAULT rule serving summons establishes

personal jurisdiction in federal court over a who is not subject

to jurisdiction in any court of general jurisdiction of any state

vii. 4m Time limit for service after youve filed you get 120 days

c. Constitutional standard for serving processi. Pennoyer v. Neff(todays version)

1. Publication notice would not have been adequate2. If P could prove that N was avoiding him then the court may have

allowed for publication service3. Differences in facts lead to competing ideas about when this isfair

ii. Mullane (Unreasonable notice)1. Compilation trust published in paper just the names of the trusts

even though they had previously sent things in the mail to people

2. Due process constitutional minimum - Notice must bereasonably calculatedunder all the circumstances to apprise the

of the suit

a. All of the rules under 4 are constitutionally sufficienteven though the may never have gotten the notice(since they are all considered to be reasonably

calculated)b. Reasonable is going to differ with the nature of the case

(but there will be a minimum level)

c. Reasonableness is part of great balancing on SCOTUSi. Takes s individual interest into account

ii. cant put unreasonable obstacles in front of 3. notice must be of such nature that it reasonably conveys the

required information, and must afford a reasonable time for thoseinterested to make their appearance

4. To those beneficiaries who are known and represented byappellant, but whose whereabouts can not be ascertained by duediligence publication within the statutory notice requirement is

sufficient.5. There are some cases where publication may be okay but itshould be a last resort

6. At the minimum you need an opportunity to be heardiii. Green v. Lindsay (unreasonable notice)

1. Eviction notice left on door2. D knew that notices were sometimes removed from doors3. The reasonableness of the notice provided must be tested with

reference to the existence of feasible and customary alternatives


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4. The statute does not provide that one must make a second attemptfor personal service but failure to do so on the first try hardlysuggests that the tenant abandoned his interest in the apartment

5. Mail would have been an efficient and inexpensive alternative 6. J for P b/c Defendants failed to afford Plaintiffs adequate notice of

the proceedings against them before issuing final orders of eviction

iv. Dusenberry (Notice was sufficient)1. Inmate claims he did not receive the certified mail notice sent to him

in prison & sent to his mom 2. Court says a State must attempt to provide actual notice, not that it

must provide actual notice.v. Jones v. Flowers (Insufficient notice - send another form of notice)

1. P lost his home b/c he didnt pay prop taxes. State send multiplenotices that were returned undelivered

2. If an individual actually desires to provide notice learns thathis method of serving the notice has failed, then that personwould follow up with a different method. Failure to do so

would be unreasonable, despite the fact that the firstmethod was reasonable determined to provide service.

Procedural Due Processi. Goldberg v. Kelly (Statutorily determined rights- Notice &

hearing)3. A welfare recipients benefits were terminated without an

evidentiary hearing.

4. Certain entitlements (e.g.,welfarepayments, governmentpensions,professionallicenses), are a form of "new property" that require pre-

deprivation procedural protection, doing away with the traditionaldistinction between rights and privileges.5. the recipient must be provided with timely and adequate notice

detailing the reasons for termination, and an effective opportunity todefend by confronting adverse witnesses and by presenting his ownarguments and evidence orally before the decision maker

ii. Matthews v. Eldrige (statutorily determined rights & Procedural dueprocess)

6. Ps social security benefits were terminated w/ no hearing7. SS is a statutorily determined property right b/ must determine how

much due process is due

8. In determining the amount of process due, the court should weigh

three factors:

a. The interests of the individual in retaining their property, and

the injury threatened by the official action

b. The risk of error through the procedures used and probable

value, if any, of additional or substitute procedural

safeguards; (concern about accuracy)
http://en.wikipedia.org/wiki/Welfare_(financial_aid)http://en.wikipedia.org/wiki/Welfare_(financial_aid)http://en.wikipedia.org/wiki/Pensionshttp://en.wikipedia.org/wiki/Pensionshttp://en.wikipedia.org/wiki/Pensionshttp://en.wikipedia.org/wiki/Licenseshttp://en.wikipedia.org/wiki/Licenseshttp://en.wikipedia.org/wiki/Licenseshttp://en.wikipedia.org/wiki/Licenseshttp://en.wikipedia.org/wiki/Pensionshttp://en.wikipedia.org/wiki/Welfare_(financial_aid)


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c. The costs and administrative burden of the additional

process, and the interests of the government in efficient

adjudication

SUBJECT MATTER JURISDICTION

A. Concurrent jurisdictioncases arising under federal law can be broughteither in state or federal court

B. Exclusive JurisdictionCongress has made federal court the exclusiveforum for certain actions such as bankruptcy and antitrust cases

C. Diversity of Citizenship28 USC 1332(a)(1)creates federal courtjurisdiction over controversies between citizens of different states andcitizens of a state and foreign citizens (codifies Art III 2) where amount indispute is > $75,000

i. Citizens of different states1. Complete diversity rulethere is no diversity if any P is a

citizen of the same state as any D (Strawbridge v. Curtiss)

a. Diversity across the v.b. Article III sec 2 only requires minimal diversity2. Citizenship

a. US citizens are citizens in the state of their domicile(only one domicile at a time, everyone has one, retain olddomicile until you get a new one)

i. Presence in the stateii. Intent to make that state your permanent home

b. Foreign Citizens:i. 28 USC 1332(a) was amended in 1988 to

provide that an alien admitted to the US forpermanent residence is deemed a citizen of the

state in which he is domiciled.ii. US citizens who reside in foreign countries maynot claim diversity jurisdiction.

c. Citizenship of a corporation: defined by statute 1332(c)(1)

i. All states where it is incorporated


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ii. One state where it has principle place of business(only one principle place of business)Nervecenter test

d. Legal Representatives 1332 (C)(2)i. Legal representatives of an estate acquire

citizenship of person representing

3. Rationale: people would have themselvesrepresented by people in favorable jurisdictions

D. Fed. Ct. Forum Shopping to create diversityi. USC 1359A district court shall not have jurisdiction

over parties improperly or collusively madeii. Rule 17 aEvery action shall be prosecuted in name of the

real party in interest1. e.g. Rose v. Giamatti Rose wants to sue MLB in

Federal Court but cannot because MLB has membersin all states. He sues manager and brings in MLB.Improper under Rule 17

2.a.

E. Amount in Controversy 1332(a)(1)i. amount must exceed $75,000 not counting interest and

costs (must be $75,000.01)does include punitive damagesii. Courts view the allegations in the pleading as controlling

and do not speculate about the likelihood of P collectingwhat is asked for; must appear to legal certainty thatclaim is for less than statutory amount to dismiss. St.Paul Mercury Indemnity v. Red Cab Co.

1. Ps ultimate recovery is irrelevant to jurisdiction1332(b) may have to pick up the other sides costs if

the judgment is under $75Kiii. Aggregationadding two or more claims to exceed amountin controversy

1. Aggregate claims if it is one P versus one D (even forunrelated claims)

a. But NOT if there are multiple parties on eitherside

2. Mutiple Ps with a common interest or single title/right are aggregated (total value of interest in theamount in controversy)

iv. Counterclaims:1. Compulsorymay be heard regardless of amount

when s claims meets statutory requirement2. Permissiverequires independent basis forjurisdiction (supplemental under 1367)

II. Federal Question28 USC 1331A. Article III sect 2federal question need only be an ingredient in

the caseB. Case must arise under federal law (federal statute or Const.

claim)


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i. Well Pleaded Complaint Rule1. look only at the Complaint2. it is the Ps claim that must arise under federal law

ii. For exam, ask:1. is plaintiff asserting a federal right?2. If a state based COA, does it depend on the application or

interpretation of federal law where a SUBSTANTIALfederal interest is at stake?

a.

Lousiville Nashville v. Motley(1908): husband and wife settled for lifetimepasses on the RR; Congress passes a statute that says RR cannot give lifetimepasses (federal law); they said the fed rule the RR will assert does not apply tothem; are the Motleys enforcing a federal right? Notheir claim is simplybreach of contract, the federal issue is an anticipated defense; Alleging that adefense will be based on federal law is not sufficient to raise a federalquestion

iii. Federalizing Warpquestion that arises under state lawbut contains federal interest or turns on interpretation offederal law may be allowed in federal court.

1. Declaratory judgmentfederal courts can hear caseswhere a P seeks a declaration of rights

a. If the parties were reversed and the D hadmade that claim, would a federal questionarise?

iv. Other circumstances of original jurisdiction1. Patents, copyrights, trademarks, unfair competition,

1338

2. Note: This grant is not as expansive as it mayappear. Many of these issues revolve aroundcontract disputes, not federal question.

a. e.g. Harms v. Eliscu Dispute over ownershipof copyrighted material. Original cause ofaction was contract, not copyright.

3. Civil Rights 13434. US as P 13455.

III. Supplemental Jurisdiction28 USC 1367when a federal court hasproper original jurisdiction over a claim, it may hear all other claims thatform part of the same case or controversy including cases involving

joinder or intervention.A. Federal claim must support federal question jurisdictionB. Federal and non-federal claims must arise from the same nucleus

of operative facts such that they can be tried in one proceeding.

United Mine Workers v. Gibbs( ): is a citizen of TN; is a citizen of TN; hastwo claims against the same one is FQ the second is a state law claim

Claim #1 is a federal question (qualifies for federal court)
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Claim #2 does not invoke federal question because its based on state lawand no diversity

Supreme Court said federal court can hear Claim #2 because it hassupplemental jurisdiction (pendant) over that claim because it shares acommon nucleus of operative fact with Claim #1 (similar to sametransaction or occurrence)

i. Discretionary factors:1. Issue of state law predominates over issue of federal

law2.Judicial economy and fairness to the litigants

(prejudicial)

Jin v. Ministry of State Security(2003): federal RICO claim and state defamationclaim (no diversity b/c foreign on both sides) - share a common nucleus ofoperative facts, supported by judicial economy, convenience and fairness

C. TEST: when we see a non-federal claimi. Does 1367(a) grant supplemental jurisdiction? Yesif itmeets the Gibbs test of common nucleus of operative fact

1. Gibbs Testa. Step 1: Original claim (anchor claim)must

invoke either federal question or diversityjurisdiction

b. Step 2 (Gibbs): Additional claims must arisefrom a common nucleus of operating fact.

i. Rationale: Must arise out of same case(and controversy)

c. Step 2.5 (when working with p-party, Aldinger,

Owen)Look at congressional intent todetermine if jurisdiction should apply toadditional claim.

d. Step 3 (Gibbs): Apply additionalconsiderations?

i. Were federal claims dismissed beforetrial?

ii. Do state issues predominate?iii. Is the sate claim closely tied to

questions of federal policy? (JustifyingF. pre-emption)

iv. e.g. F. law predominates on workers

issues, i.e. Gibbsv. Will addition of claims confuse the

jury?e.

ii. Does 1367(b) remove supplemental jurisdiction?1. if original jurisdiction is based on diversity: no

supplemental jurisdiction over claims by againstpersons made parties under 14, 19, 20, or 24


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D. Exercising Supplemental Under USC 1367Step 1. Does it meet the requirements of (a)?

(a)Shall, except as provided in (b, c), have supplementaljurisdiction over all other claims that are so related that theymake up same case or controversy.

Step 2. Is it limited by (b)?(b)In diversity cases, courts shall not have supplemental

jurisdiction over claims brought by plaintiffs under rule14 (3 party e.g. Kroger),19(joinder), 20(permissivejoinder), 24(intervention), (all devices by which partiesare added) or by people seeking to bejoined asplaintiffs under rule 19, or seeking to intervene asplaintiffs under rule 24, when exercising s/j would beinconsistent with the jurisdictional requirements of1332 (when it beats diversity)

1. Rationale:a) Concern is about plaintiff defeatingdiversity

b) D can still implead others because he didnot get the benefit of choosing the partiesand the forum.

2. Hypos:a) Will s/j extend to third party claim

against P? Yes. B only applies to P.b) What if P counterclaims against third

party (no FQ, no Div.)? Probably not.When P in position of D, he is still barredfrom s/j

Step 3. Should the district court decline under the factors in (c)?May decline if:

1. Raises novel or complex issue of state law (*not inGibbs)

2. State law claim predominates3. DC has dismissed all claims over which it has

jurisdiction4. Exceptional circumstances providing other

compelling reasons (*not in Gibbs) Note: Congresss use of word other indicates

that the additional reason is along the samelines as 1-3. Executive Software (4. is theexception, nut the rule, court must clearlyarticulate, not just say that is an exceptionalcircumstance)


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2. Liklihood of jury confusion from hearing cases jointly

IV. Removala D in state court can have the case transferred to federal courtif the case could have originally been brought in fed. Court.

A. 1441i. (a) Removal is a one way street. D cannot remove from F.

court to S. courtii. Only Ds can remove. (all Ds must join) P cannot remove

on counterclaim (1441(a)iii. Case can be removed only to the federal district embracing

the state court where the case was filed (1441(a)iv. If the matter is of diversity, D cannot remove if any D a

resident of state where suit originally brought (1441(b))v. If the matter if of federal question, D has a right to remove

irregardless of citizenship (1441(b)vi. If the case contains a separate and independent claim

based on FQ, D may remove the whole case.B. 1446

i. Notice of removal must be filed within 30 days of service(1446(b)).

ii. If a case becomes removable, the case may be removedwithin 30 days of the date is becomes removable, but notmore than one year after it was brought in state court.

C. Error! Hyperlink reference not valid.:i. (c) motion to remand must be filed within 30 days except if

its because of lack of SMJ which can be remanded any timeii. (d) remand order is not reviewable by appellate courtiii. (e) if after removal seek to join s that would destroy SMJ

the court can deny joinder or permit and remand to state ctD. Rules of Removal:i. Supplemental: dist court has discretion to hear

Caterpillar v. Lewis(1996): If the Dist Court fails to remand a case whereremoval was improper, thejudgment will be upheld if the federal

jurisdiction requirements are met at the time judgment is entered;considerations of finality, efficiency and judicial economy
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PERSONAL JURISDICTIONIN PERSONAM JURISDICTIONcourt has power over herself

d. Tickle v. Barton (fraud)

i. 2 modes of service

1. 1

st

attempt of service was on a non-resident motorist on a publichighway, b/ issue was whether the accident actually happened on

private property and therefore falls outside of statute

2. 2nd issue was the means by which D was served the second time

alias process

a. Alias process- sheriff served barton in W. Va

b. Tickle sued in W. Va., but Barton is from Va

c. D responds to this sort of service of process by filing a plea

in abatement( procedure that allows a party to challenge

the form or timing of ??? a way to raise objections to

personal jx) (raised objections to personal JX) stating that he

was tricked into going to W.Va for a ceremony where he

was served so he claims he was served using fraud.

d. Court does not like the use of trickery

e. Trial court overruled the demurrer and founds that service

was not proper b/c it was induced by trickery.An

interlocutory appeal was placed

f. Appellate court does not like the trickery b/c it undermines

the process, the appellate court also thinks that the service

was fince however does not want to rule that way b/c the

trickery undermines the process.

3. Insufficient Service of process vs. Insufficient process (summons w/

defective content)

a. ISP Refers more to the Lack of personal jx (courts ability tobring

b.e. Pennoyer (Traditional Jx)

i. power of the state to have power over people and the property withinits boundaries, still important b/c it gives us

ii. Traditional basis of personal jurisdiction1. is served with process while in the forum give general

jurisdiction (presence

2. s agentwas served in the forum3. is domiciled in the forum gives general jurisdiction4. consents to jurisdiction (you can waive jurisdiction and

consent)iii. How could you fight this in federal court?

1. 12 (b)(2)motion to dismiss for lack of jurisdiction over theperson

2. This can be alone or with other motions but it must be in the 1stmotion you submit to the court

3. Once you submit any other motions youve waived the questionof jurisdiction


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4. Anything other than 12(b) 3, 4, or 5 it forfeits your chance to filethem later

5. State rules call this a special appearancef. Millikan v. Meyer

i. is a permanent resident of WY and sues him in WY but serves himoutside WY

ii. Under Pennoyer this doesnt work since service has to be in the stateiii. Once we get to IS, it doesnt matter where the person is served,

residency or domicile in the state would be enough

g. Hess v. Powloski (Single meaningful contact, Specific jx, Long armstatute)

i. Court wants to expand it and so it expands basis (H is in a car crash andgets out of the state before hes served but MA has a statute non

resident motorist statute if you drive into the state and get into a crash

youve consent to the secretary of state as your agent for process in thestate)

ii. It is consistent with Pennoyeriii. There was service of process in the forum on the s agentiv. The agent was appointed by operation of lawv. Expands consent to IMPLIED consent as a state agent for the service of

process

h. International Shoe (Minimum contacts, Continuous & systematicSpecific Jx)

i. Lawsuit for back taxes for company selling shoes out of stateii. Shift from territory (Pennoyer) to contacts

iii. courts exercise of jurisdiction over a nonresident comports with dueprocess so long as the nonresidents activity in the forum state gaverise or relate to the lawsuit and maintenance of the suit would notoffend traditional notions of fair play and substantial justice.

iv. TEST (2 parts)1. Minimum Contacts

a. One unrelated act not enough to be suedb. One sufficiently related contactmay be enough fro

specific jurisdiction

c. Several related contacts enough for specificjurisdiction

d. Systematic and continuous contact yes for generaljurisdiction

2. Fair Play & Substantial justice once weve establishedcontacts then we want to start looking at fairness

a. Evaluate burden on D

b. Forum states interest in adjudicating the issuec. Ps interest in obtaining convenient & effective reliefd. Shared interest of several states in furthering

fundamental substantive social policies


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Nature of contacts Related Unrelated

Continous &

systematic

Jurisdiction General Jx if contacts are

substantial (any claim)

Isolated & sporadic Specific Jx if purposeful

availment & reasonableness

requirement satisfied

No jx

v. Holdingthe contracts b/t int shoe & MA were continuous and systematic

throughout the years and resulted in a large volume of interstate business

which the company received the benefits & protection of the laws of the

state

vi. The nature & quality of contacts w/ the state- are they meaningful enough

to justify the establishment of PJ?

vii. If contacts were casual & isolated, it may not be enough however, it is a

qualitative not quantitative a single meaningful contact may count to

establish PJ.

viii. General v. Specific Contacts/JX1. General JX- sufficient contacts to warrant JX on all matters (intl

shoe)

2. Specific JX contacts have to be significant and related to the suit

(ex. Hess v. Pawlaski)

i. Gray v. American radiator (Long arm statute)i. Ohio company makes radiator that injures someone in Ill

ii. Ill has a statute saying If there is a tort committed in the state then they can

grab D

iii. D argues that they did not commit a tort in Ill, and if they did anything

wrong it was in OH not Ill so the statute doesnt reach them

iv. Ill says the harm happened in Ill so the tort was committed in Ill

v. What type of contact is this? Court says there is no record of how many

valves make it to Ill bu the court also assumes that there is substantial use

of this product in the state and that D is enjoying the benefit & protections

of the state and therefore they can exert jx

1.j. McGee (1957) (single meaningful contact)

i. defendant reached out to CA resident by mailing thecontract to California forum and by accepting premiumsfrom California resident Suit was for breech of K sorelated

ii. solicited the K from P in CA (it reached out)iii. s claim arose from s contact with CA relatednessiv. CA had an interest in providing for remedy for its citizensv. Court says there is so much more business occurring across state lines b/c of

mail & telephone making it easier to reach across state lines and enjoy the

benefits so it makes no sense to limit contacts for only in person contacts

vi. It was constitutional for CA to exercise jx over a non-resident by soliciting

the relationship from CA, and accepting the payments from CA, also court


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had a strong regulatory interest in regulating that area evidenced by the

statute.

1.k. Hanson (1958) (Unrelated isolated contact- no jurisdiction,

i. Decedent had trust w/ Delaware company & moved to FL where shedied. Suit over will is brought in FL

ii. Does FL have personal jurisdiction over the DE bank, and SC says NOiii. Banks activities didnt give rise to litigation & Bank had no relevant

contacts with FL

iv. No contact because there is no purposeful availment, this was unilateralcontact

v. In order to have a contact, the must reach out to the forum in someway and here the DE bank did not reach out to FL (ms donner moved to

FL, the bank didnt reach out)

l. World Wide VolkswagenNO jurisdiction, No stream of commercei. The only question was did OK have jurisdiction over the regional

distributor that ONLY did business in CT, NY, NJ and did they have

jurisdiction over the retailer that only did business in NY SC said no

personal jurisdiction

ii. Analysis

1. Has the D purposefully availed themselves of the forum state?

a. No b/c they dont have a bizness in OK, they dont ship or

sell to OK, no agents or office in OK, and dont advertise in

OK

2. What type of contact is this?

a. This is an isolated contact, too fortuitous. D did not affiliate

itself purposely

3. Why is foreseeability not enough?

a. Forseeability is helpful b/ we need more.. the hypothetical

possibility is not enough, you need an indirect or directmarketing to the state. They couldnt reasonably anticipate

being held in court in OK

4. Does stream of commerce argument fit here?

a. No b/c Unilateral activity of a 3rdparty cant be imputed to

the D. The consumers here are not seen as part of the

stream of commerce. D couldnt control where they went or

predict where they would go.

b. This is different from a component part manufacturer as far

as a valve that is manufactured to go into a product they

can predict who they are seling to and where the product

will end upm. Calder v Jones (Intentional tort, purposefulness)i. Hollywood actress gets article published in national enquirer about her

drinking problem & sues in CA

ii. The writers say they are from FL so there is no PJ

iii. Court says this is an intentional tort, and they wrote the story intentionally,

aimed at a CA audience, CA is their second biggest market, They relied on


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CA sources, they wrote their article about the actresses life in CA, and

where the actress suffers reputational harm is in CA

iv. Express Targeting test (Calder) did the non-resident expressly target the

forum and was the brunt of the harm felt there?

n. Keaton v. Hustler sued in NH because it was only place with open statute oflimitations ( lived in CA)

i. Court allowed due to single publication ruleii. Hustler sent magazines to NH and knew it could be sued there

iii. Doesnt even try to look at s contacts w/ stateo. KulkoMother sued father (NY) for child support in CA

i. Contacts with CA = marriage happened in CA, gave permission todaughter (bought a one way ticket), daughter received educational

benefits of CA)

ii. No jurisdiction on CA1. Marriage was a fleeting contact2. Permission was the unilateral act of child3. Any benefits gets are benefits of daughter not being in NY, not

of daughter being in FL4. Overwhelming public policy argument in favor of not allowingjurisdiction

iii. Might have been different if it was jurisdiction by necessityiv. Court only looked at fairness to , not overall fairness

p. Burger King (1985) (contract, Jurisdiction)i. It was brought in FL, they sued two franchisees who were running it up

in MI and it was ruled that FL does have jurisdiction (choice of law was

FL, not necessarily FL)

ii. Court makes it clear that IS does have two parts contacts and fairness(two separate pieces)

iii. You MUST have a relevant contact before we even look at fairness

1. All the fairness in the world will not give you jurisdiction if youdont have contacts2. After you get contacts you still need fairness

iv. Fairnessthe s argued that jurisdiction in FL was unfair and SCrejected the argument

1. The burden is on the to show that its unconstitutional2. Showing its unfair is not enough3. The court made it difficult4. It has to be so gravely inconvenient that youre at a severe

disadvantage in the litigation

5. Relative wealth of the parties does not matterq. Asahi (1987) (stream of commerce ),

i. makes valve in state A and ships them to a manufacturer in state B andthat manufacture puts the valves into his widgets and sells them in state

C, D, E and so valves get to c,d,e, but didnt send them there. Does have relevant contacts in C, D, E.

ii. If you get a stream of commerce on the exam you need to talk aboutminimum contact

iii. Opposing views for stream of commerce (look @ jx to decide)1. 4 justices said it is a contact is I put my product in the stream and

reasonable anticipate it will get to C, D, E Brennan


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2. 4 other justices (led by OConnor) say thats not enough sayyou need that plus the intent or purpose to serve state C, D, and E

(advertising, customer service, something else). Without

availment its unilateral and its like WWV

iv. Here fairness trumps (unusual case)1. Court says it would be inconvenient to haul the foreign D into CA for

this suit when the suit is B/t a taiwanse & Japanese company.. CA

doesnt care about this part of the suit

r. Perkins (Foreign country/ General jx))

i. corporation is located inphillipines & sued by non-resident of Ohio in Ohio

court

ii. Company is run out of Phillipines during war but Head of company runs

company from house in Ohio (holds directors meetings, business

correspondences, paying employees, & banking in Ohio)

iii. Because the president lives in Ohio, and he is the highest level official, the

presence of the company defacto is in Ohio

iv. Issues whether due process clause prohibit Ohio from excercising PJ over

this foreign company that has essentially relocated physically to Ohio eventhough the issue has nothing to do w/ Ohio No

s. Goodyear tires v. Brown (Foreign /No General jx)

i. in France, bus overturns and kills 2 boys from North Carolina, parents sue

for wrongful death

ii. foreign subsidiaries contest JX b/ goodyear USA doesnt b/c they have plants

in NC, and employees in NC so there is general jx of the company in NC but

what about the foreign subsidiaries?

iii. Tires manufactures by foreign subsidiary in Turkey

1. If there was general jx they have to prove that it was continuous &

systematic

2. Tires made it in NC through the goodyear NC plant so it was in the

stream of commerce so they are like a local player

3. However, subsidiary was not registered in NC, didnt advertise in

NC, only small percentage of tires made it to NC b/c they are usually

custom ordered

iv. Court says there is no general jx b/c they are not a home town player

t. Pebble Beach v. Patty (2006) (Nospecific JX)

i. D runs a small inn in England called Pebble beach, has a website .UK where

people can check out info about the inn & Pebble beach is a golf course in

CA & sue Patty in California

ii. P aregues that Ds site can be viewed in CA and is therefore availing itself of

the states laws & protections & of the market.iii. Express Targeting test (Calder) did the non-resident expressly target the

forum and was the brunt of the harm felt there?

1. Court finds no PJ b/c he didnt do something more

a. Didnt send anything (letter) to the state that suggests that

it availed itself of the laws ( If Pebble beach had written

Patty a letter to stop, and Patty responded with their own

letter saying no)


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b. Wesite was not interactive so CA residents could not

actively use it

iv. Points to look at for Specific JX: relatedness inquiry (does it justify a forum

bringing a non-resident in?),Purposeful availment/connection (calder test-

tells you about fair warning), fair play (Is it inconvenient for D to come

there, is it in the best interest of the state?)

v. This was just a website, and D did not expressly reach out to CA residents

with site & actions so no specific JX

vi. Internet contacts

1. the view that just b/c you have a site that can be viewed in all 50

states is not enough to give PJ over a site operator.

2. Site operators are immunue from liability of information posted by

others except for IP and their participation in a federal crime.

u. Helicopteros (No General Jx, Not Home player)i. Helicopter crash in Peru

ii. No jx based on general jx

1. b/c corp was not authorized to do bizness in Tx2. they dont operate an office in Texas

3. Their only reason for being in Tx was to purchase products and train

pilots and CEO traveled there but that is not enough. We must

look at the following indicia:

a. Authorized to do bizness?

b. Physical shop?

c. Employees?

d. Can we see them as being present?

4. Just buying something in large quantities from a state is not

enough. Even though employees trained in TX they werent there

permanently5. Need continuous and systematic contacts need strong presence to

justify brining the non-resident into court

IN REM AND QUASI IN REMa. less important but not irrelevant (here the power is over the property, land,

wristwatch, car)

b. In rem the dispute is over who owns the property? (quasi in rem type I)c. Quasi in rem (technically quasi in rem type II) it has nothing to do with who

owns it, the owns it

i. Pennoyer v Neff Neff had left real property in OR and Pennoyer usedthat to get jurisdiction even though dispute was about attorneys fees

and not about land (it just needs to be seized at the outside)d. Two step analysis

i. Statute an attachment statute (not a long arm) the court can seize orattach property in the forum

ii. What about the constitutional test1. Pennoyer said all you needed to do is seize the property

e. Harris v Balk (Quasi in-rem / full faith & credit)


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i. intangible property is seized debt is seized when another debtor wasin town

ii. Epstein attaches debt of Harris who owes Balk who owes Epsteiniii. Court allows for attachment of intangible property foriv. NC had to honor MDs J

f. Shaffer v Heitner (quasi in-rem)

i. P tried to sue D b/c they had shares in a Delaware corporationii. Court says, quasi in-rem alone is not enough, you still must asses

whether the has contacts with the forum and the analysis is still theminimum contact tests (overrules Harris v Balk)

iii. However, For pure in rem when its about who owns the property thenit may be enough & the property being in the state satisfies the minimum

contacts test.

2. The state has an interest; by claiming property in the state,the defendant avails himself of state benefits; and theevidence (recording, use of the land, etc.) will be located inthe state making it convenient forum

g. Burhnam (Prescence,Transient jx, tagging))i. (NJ is served with process in CA for a CA lawsuit, the claim on which

hes sued has nothing to do with his activities in CA, so if there isjurisdiction it has to be general jurisdiction)

ii. Does service of process within the forum still give you generaljurisdiction OR instead do we need to apply minimum contacts

iii. We dont know because again the justices splitiv. 4 led by scalia say that service in the state does give general jurisdiction

because of its historical pedigree (we dont need minimum contactsbecause the traditional basis lives by itself since IS gave us a test to use

when is not present when served)v. 4 led by brennen say historical pedigree is irrelevant and it must be

assessed under IS test and we need to look at contacts (it would have tobe general)

vi. There is no law based on this, even though everyone in the end agreesthat there is

vii. What happens if you werent in the state volitionally?1. If you trick someone into forum it wont work

h. Ireland(Waive PJ/ Consent by Estoppel)i. has business interruption insurance from which wont honor,

sues in fed court and asks for an injunction in England which tells the

US court to stop

ii. In order to know if there are enough contacts we need discoveryiii. claims the court doesnt have jurisdiction to run discovery

iv. Does the court have jurisdiction to determine if it has jur?1. Jurisdiction is a person right which can be waived either

expressly on implicitly

2. By not complying with discovery, court has discretion to penalize

and chooses to do that by allowing discovery

3. You can notwaive SMJ, but you can waive PJ (because its aperson right, unlike SMJ)

i. Carnival Cruise (Consumer Contracts / Forum Selection Clause)


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i. Woman slips and falls during cruise, sues in WA, CCL removes to FLsaying it was on ticket as a forum selection clause

ii. Courts holds it was enforceable because it was1. Done in good faith and fairlymain place of business in FL,

ships leave from FL, reduces confusion, benefit to passengers

since lower cost of tickets

2. Not by fraud3. And there was notice possibly it wasnt good enough notice

but here conceded the point

4. From plaintiffs perspective, it reduces the cost of suit.5. Second, it reduces surprise (do you think Eulala and

Russell agree)?6. Finally, consumers benefit because the reduced costs are

passed on to them in consumer savings.iii.


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PERSONAL JURISDICTION

I. Constitutional Foundations and RequirementsA. Full Faith and Credit Clause: States must recognize judgments from other states

1) May collaterally attack jurisdiction, but not the merits.a) McGee v. Intl Life Insurance

b) Hanson (FL ct. did not have PJ over D. FL did not have sufficientstate interest in the family trust held by DE corp. FL decision notentitled to FFC.)

B. Due Process Clause: Exercise of jurisdiction must comport with traditional notionsof fair play and justice.

International Shoe DP does not confer jurisdiction, only outer limits. Long Arm

statutes, given rise by minimum contacts, establish jurisdiction2) Requirements of DP

a) Nexus (Bases for jurisdiction)b) Notice

II. Categories of Jurisdiction:

A. In Personam1) Jurisdiction over/action against a personB. In Rem

1) Adjudicating status of a property (ie. dispute over ownership of land)2) Any one may have an interest (everyone has an interest) ie. clarification of

title3) Quasi in rem: judgment for/against a person but recovery limited to value

of property.a) Uses land as an anchorb) You cannot get jurisdiction by attaching the property

III. Nexus Derived from territorial principle of Pennoyer.A. Traditional Pennoyer

Traditional bases, presence, domicile, consent, propertyConstitutional principlesHess - Express implied/appointing agents.

B. Modern standards1. Minimum Contacts. International Shoe

May no be casual or isolated Must look at quality and nature

a) Two functions:i. Fairness to Dii. Ensure appropriate balance of state power and

sovereigntyc) Specific Jurisdiction: Cause of action arises out of D activities in

forum

i. May be an single eventd) General: Cause of action does not arise out of D activities in state

i. Must be continuous and systematic Courts not consistent on this issue. See Perkins

v. Benguetii. Arise out of / related to (Helicopteros Dissent - Brennan

/ sub relevance (prof)iii. Must be more than sales and promotion by non-

exclusive sales reps Fisher Governor v. Superior Court


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iv. Must be more than purchasing of equipment andtraining. Helicopteros

v. Corporation may be subject to jurisdiction by actions ofanother corporation acting in an agency relationship.Frummer v. Hilton Hotels

vi. Court may consider that P also is non resident and is

forum shopping. Ratliff v. Cooper (non residents chosestate for statute of limitations to sue non res drug co)

- Similar to Keeton v. Hustler, oppositeoutcome

e) Must be directed towards forum state.i. WWVW

f) D must purposefully avail of benefits Relevant when D has NO physical presence Safeguard against accidental/inadvertent

contactsi. May not be brought by a unilateral act of P. Hansonv.

Denckla (Opposite finding of McGee, DE trust in FL)

ii. Must be directed. Kulko v. Superior Court (fathers children are

given plane ticket and sent to CA)g) D must foresee possibility of being hailed into the forum state.

i. Purchases, visits not enough. Helicopterosii. Intentional tort, req. easily met.

- Calder(D editor defamed P in his forumstate/state of residence)

Effects test D directed at Psstate. Could have anticipatedbeing hailed.

iii. Out of state business seeks franchise, req. easilymet. BK

h) Contact based on contract as opposed to tort. (McGee, Hanson,Carnival, BK)

ii. Contracts alone insufficient. McGee ( No Jurisdiction. D did not direct) BK (Yes Jurisdiction. D directed)

Choice of law clause Bargaining power considered

iii. Choice of forum clausei) Stream of commerce cases (distribution through a third party).

INCONSISTENTi. Asahi (Japanese D manufacturer sold to use through D2

Taiwanese distributor. P (CA) sued for tort) Low stateinterest, international parties.

OConnor awareness insufficient. Must beother factors, ie marketing.

Stevens or Brennan? Volume was enoughii. Gray (D manufacturer sold to forum state through third

party. P sues for tort) Court determines substantial activity sufficient.

Volume irrelevant.


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2. Fairness (focus on defendants due process rights) must comport with traditional notions of fair play and

justice Fairness is irrelevant absent minimum contacts Some argue that this is D veto on P forum choice Must be a strong showing of unfairness

a) Five factor test WWVW(OK court did not have MC because did

not purposefully avail and other factors notstrong enough. P not OK resident. Little stateinterest)

i. Burden on D (Most important factor) Some focus on actual burden. WWVW (Brennan

dissent) D must show that it is unconstitutionally fair

(Burger King)i. Interest of forum in adjudicating the disputeii. P interest in convenient and effective relief

iii. Interest of inter-state judicial system in efficientresolution of controversiesiv. Shared interest of several states in furthering substantial

social policiesb) Different Approaches

i. One part test. WWVW (Activities not directed, stateinterest low non res. P)

ii. Two part testc) International corporations

i. Great care and reserve should be exercised in extendingUS notions of PJ to foreign DsAsahi, OConnor

3. Technological contacts REVIEW THISa) Challenges

i. Concept of physical presence becoming irrelevantiii. World wide reach. What is purposeful availment?

D who initiates contact via telephone orinternet purposefully avails. Bellino v. Simon

iv. Low levels of contactv. Too much P autonomy. D can be hailed anywhere.

b) Zippo test based on levels of activity (interactive, active, passive)C. Jurisdiction Over Property

1. Historically, quasi was sufficient for jurisdictiona) Prevents D from taking assets outside of the reach of the court

- Harris v. Balk A(NC) owed B(NC) owed C(MD). C servedA in (MD)

- Debts follow you wherever you go2. Property in forum, alone, is not sufficient ground for PJ (Unless pure in rem

min contacts would be met) Property is itself a contact

a) Minimum Contacts Applies to ALL ASSERTIONS OF PJ anddoes not depend on classifications of in rem/in personam.Shaffer v. Heitner(Note: bad case to apply contacts analysis to)


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i. Shaffer v. Heitner(P owned share of stock. D, companyexec, owned stock as benefits. D brought action againstP for mismanagement, tried to use stock as an anchor)

Property permanently within the state (realproperty) should confer jurisdiction.Concurrence, Brennan

NOTE: Shafferdoes not eliminate in rem Counter argument. Policy reasons. Shaffer

Dissent- State interest in restitution of

business incorporated in state- State interest in regulating

business where cause of actionis relative to state

- State interest in jurisdiction overcorps established under its law

b) In rem, even with overlay of minimum contacts will usuallysupport jurisdiction (meets test)

D. Jurisdiction Outside Minimum Contacts1. Domicilea) A states authority is not limited by fact that D is elsewhere

domiciled. May service outside of state. Milliken v. Meyer (WY resident domiciled in CO. Served

in CO for WY court) PRE-Intl Shoe2. Presence (Tag Jurisdiction)

a) Mere physical presence in a forum state is alone sufficient.i. Burnam v. Superior Court (D on business in CA also visits

children. Avoided divorce, served with divorce while inCA)

Scalias view: Minimum contacts applies toabsent defendants. Historical tradition sufficientfor application of jurisdiction based on presence.

Brennans view: Must still be based onfairness in consideration of all other factors.

In either view, presence will generally suffice. Note: This case is similar to Kulko (Ds wife sent

plane tickets to children. He visited and wasserved? Not sufficient contact). Facts madedifference.

2. Consent Personal jurisdiction is a personal defense. As such, it

may be waived expressly or by actions inconsistent withthe defense.

a) Impliedi. Plaintiffs who bring action in state are subject to

jurisdiction. Adam v. Saegner(Conterclaim)

ii. By challenging jurisdiction you agree to jurisdiction andmust comply with discovery

Insurance Corp of Ireland v. Compagnie (Dchallenged jurisdiction and did not comply w/


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discovery. Court said failure to comply wasadmission of error)

- In this case, you must hear out caseand challenge jurisdiction on appeal.You cannot direct attack later if youdid not try case on merits. Baldwin

This is resolved by failing to assert a defense.You can collaterally attack later

b) Express Usually by contract Courts generally unwilling to intervene in

contracts. See above.i. Forum selection clause

Must be fair amount of bargaining power negotiable

Enforcement promotes international business.Would not be wise to force intl corps to besubject to our courts on basis of minimumcontacts irrespective of selection clauses. Bremen

v. Zapata Carnival v. Shute (Court upheld FSC despite Ds

contacts in other states)- Clients come from many locales- Judicial efficiency in reducing

confusion and litigation- Fairness bargain. FSC allowed

prices to be low.E. PJ in Federal Courts

Constitutional limits found in DPC of 5th amendment1. Compared with state court assertion of P/J

a) Stronger issues of inconvenience, still presents problem of burden onD

b) Federal courts2. Rule 4 Federal courts have jurisdiction:

a) 4(k)(1)(a) to the same extent of the state in which it residesb) 4(k)(1)(b)- (100 mile bulge rule) over parties joined under rule 14 or

19 served within 100 miles from where summons issued(courthouse)

i. Extends beyond long-arm. Helpful in adjoining statesc) 4(k)(1)(c)- Federal interpleader jurisdiction under USC 1335 permits

nationwide service over a third partyd) 4(k)(1)(d)- When authorized by statute of USe) 4(k)(2) Limited federal long arm catch all. Applies when not

subject to any state but has minimum contacts with US.

3. Burden of demonstrating amenability of suita) Some courts say on P (like minimum contacts)b) Others on D once prima fascia showing made by Pc) 7th Circuit approach: D who wants to preclude 4k2 must show a

more appropriate forum Note: D may not want to do this for fear of submitting to

jurisdiction in future cases3. Application

a) Most courts say minimum contacts applies. Others, only fairness.


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IV. Waiver of Service: Duty to save costs of service Simplifies process of tracking down D

A. 4(d)(1) Waiver of service does not waive objection to venue or jurisdictionB. 4(d)(2) Waiving party has duty to avoid costs. P notifies D and requests waiver

1. D has an incentive to sign waivera) 4(d)(2) to return, has at least 30 days from date request sent, or 60

days if outside us and has 4(g) 60 days (RATHER THAN 20) afterdate on which waiver request sent or 90 days if outside US

b) If D loses, does not have to pay costs of serviceC. 4(e) Persons not waiving. Depends on state law (personally or dwelling with

person of suitable age and discretion (80 yr. old drunk will not sufficeD. 4(f) Service in foreign country. By internationally agreed means (see if part of

Hague agreement) or in manner of law applied within country.V. Challenging Jurisdiction

Note: D who appears and challenges merits has waived claim of nojurisdiction

A. Direct Attack1. Special appearance

a) If D raises any objection or argument regarding the merits, courtmay conclude waiver of jurisdictional objectionb) In most states, a person who challenges at beginning and loses my

try on merits without waiving. Can later appeal on grant ofjurisdiction.

B. Collateral Attack1. Ignore suit entirely

a) Judgment will be made by default. If wrong, lost chance to defend.b) FFC Clause requires states to honor judgments.

i. Exception: Enforcing court may always inquire as towhether the rendering state had jurisdiction in originalaction. If D raises this claim in another state: CollateralAttack.

ii. D may not reopen on merits. Waived on failure toappear.

iii. D may not challenge p/j if already done so(unsuccessfully in another court)

C. 12(b)(2) Motion to dismissal for lack of personal jurisdiction1. Must file immediately: If D answers on merits and later concludes p/j is

lacking, he will have waived jurisdiction.2. May also file 12(b)(6) motion for failure to state a claim without waiving

jurisdiction

Civ Pro Outline 2012

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Transcript of Civ Pro Outline 2012