Civil Procedure Outline1. Personal Jurisdiction (Rule 12 (b)(2) Motion)

*****The power of the court to bind the defendant to the judgment***** Traditional Bases

i. Physical Presence1. Rule

a. A non-resident defendant is subject to personal jurisdiction where they are properly served with process while physically present in the forum state

2. In Personam (Person)a. Jurisdiction over actual person

3. In Rem (Property)a. True In Rem

i. The property being seized is the subject of the claimb. Quasi In Rem

i. The property being proceeded against has nothing to do with the claim

ii. Can only collect what the property being proceeded against is worth when sold, not the full amount of the judgment

ii. Citizenship1. Rule

a. A defendant is always subject to personal jurisdiction in any state that they are a citizen of

2. Natural Persons a. Physical Residence in Stateb. Intent to return/remain indefinitely

3. Corporationsa. State where the corporation is incorporatedb. Principle place of business

i. 2 Tests1. Nerve Center Test

a. Where the decision making power is (CFO, CEO)2. Muscle Test

a. Looking for manufacturing center on main distribution

4. Associations (unincorporated labor unions, synagogues, clubs, etc)a. Where each member resides

iii. Consent or waiver1. Rule

a. Traditionally, a defendant is subject to personal jurisdiction in any state where they have consented to settling a dispute, either purposefully or by accident

2. On Purposea. Forum Selection Clause

i. A covenant in a contract in which the parties agree that any dispute arising out of that contract will be litigated in a specific state

ii. Unreasonable Only If1. Not vital to Contract

a. What is the link between the FSC and the contract?

b. Looking for the relationship between the forum and the relationship to the contract

2. Selects a remote and alien foruma. Does the forum have anything to do with the claim

being filed?b. How far and burdensome would it be to litigate

there?c. Does the claim have anything to do with the

selected forum?3. Was negotiated in bad faith

a. Must be outrageous to qualifyb. Not reading or understanding contract will not

sufficec. Contract of adhesion not enough in and of itself

oWas plaintiff prevented from reading the contract?

oWas the contract not written in plain English?

3. By Accidenta. No Special Appearance

i. Defendant must make a special appearance to challenge personal jurisdiction; if defendant doesn't make special appearance, right to challenge personal jurisdiction is waived

Modern Basis (MC = FP + SJ) (Shoe Test)i. Rule

1. Modernly, a nonresident defendant is subject to personal jurisdiction in any state where (1) the state’s long arm statute purports to reach and (2) they have such minimum contacts with the forum state so long as the finding of jurisdiction doesn’t offend traditional notions of fair play and substantial justice

ii. Steps to determine modern Basis1. Does the Forum state’s long arm statute purport to reach? (Assume it always

purports to reach)a. 2 Types of Long arm statute

i. Specific Acts Statute1. Names specific acts that subject a person to Personal

Jurisdictionii. Cop-Out Statute

1. The statute will purport to reach as far as it can under the 14th Amendment (not inconsistent with the constitution of the state or the US)

2. If so, does the defendant have MC = FP + SJ a. Purposeful Availment (MC)

i. Rule1. Defendant has minimum contacts with the forum state if

they have purposefully availed him/herself of the benefits and protections of the forum state

ii. IS 1. Has Effects

a. Did the defendant’s contact with the forum state have an impact?

2. Intentional

a. Directed Towards the Forum State (Continuous and Systematic)

3. Substantiala. Continuous and Systematic Activitiesb. A single or occasional act, due to its nature, quality,

and circumstance may be enough4. Confers Benefit ($)

a. Doesn't have to be a monetary benefit, can be any type of benefit from state

b. Can be the laws and protections of the forum state5. Gives Rise to the Claim

a. "But for" testb. Whatever defendant has done in the forum state

gave rise to the claimiii. AIN'T

1. No Impacta. Contacts with State did not give rise to claim

2. Accidentala. Unintentional or randomb. Acts of God

3. Insignificanta. Insubstantial, isolated, sporadic, acts with state had

nothing to do with lawsuit4. Unilateral by Non-Defendant

a. The contact was caused by a 3rd party or forceb. Example: Dorothy & Tornado

5. Foreseeable a. Don’t discuss unless it is brought up in the question

by the factsb. Example: Company executive admits that they

knew what happened was foreseeableb. Fair Play and Substantial Justice (FP + SJ)

i. Rule1. It may be unfair or unjust for defendant to defend in the

forum, so it's necessary to determine how strong or weak the interests are from the plaintiff's and defendant's perspective

2. *****Evaluate using terms "Strong & Weak"*****3. *****2 & 3 most important, than 1*****

ii. Relevant Factors1. Plaintiff's Interest

a. Strong because plaintiff wants to remain in the forum they choose

oPerhaps more favorable to them winning (home field)

o relevant access to witnesses and evidenceb. Always stronger when relevant evidence and

witnesses are located in the forum state2. Defendant's Interest (in avoiding forum state)

a. Strong When

oDefense doesn't have access to relevant evidence and witnesses

oWould cause a great burden on the defendant to litigate there ($$$); Have to show actual hardship

3. Forum State's Interesta. Strong When

oProtecting its citizenso Incident occurred in StateoForum state's law to be applied; Choice of

law clause (VERY STRONG)4. Interstate Judicial System's Interest

a. Burden on courts to hear same case with same evidence

b. Only split if 2 pieces aren’t relatedo If a case has 2 claims that are not related,

than split5. Shared Substantive Interest of Several States

a. Promotion of public good and social justiceb. certain universal interests are shared by different

states so if this is the case, no need to movec. If case affects more than 1 state or has a different

policy, may not be wise to keep in the forum state2. Subject Matter Jurisdiction (Rule 12 (b)(1) Motion)

Federal Question (§1331) ˃ First Classi. 'Arising Under' Requirement: The Plaintiff's claim must arise under the laws,

constitution or treaties of the US (Only need 1 of 3)1. Explicit Federal Right and Remedy

a. Statute creates an explicit federal right and remedyb. On Exam, it will say: there is a federal law called X and it follows: "any

person aggrieved by Y may bring action in Fed. District court. Look to facts and see if person is aggrieved under the statue

2. Federal Law is Essential Element a. Look to interpret federal law to interpret plaintiff's claimb. Break down the claim into components to see if one is a federal question

3. Important Federal Policy (Very Rare)a. Does it have a Federal Aura?b. Deals with some type of Federal law or policy

ii. Well Pleaded Complaint Rule1. The Federal question needs to appear in the plaintiff's claim2. Cannot be based on a federal question raised in the defendant's defense

Diversity (§1332) ˃ Coach Class i. Rule

1. The action must be between citizens of different states and the amount in controversy must exceed $75 K

ii. Between Citizens of Different States1. Elements

a. Betweeni. There has to be complete diversity

ii. No plaintiff can be from the same state as any defendantb. Citizens

i. Natural Persons1. Physical Residence in State2. Intent to return/remain indefinitely

ii. Corporations1. State where the corporation is incorporated2. Principle place of business3. 2 Tests

a. Nerve Center TestoWhere the decision making power is (CFO,

CEO)b. Muscle Test

oLooking for manufacturing center or main distribution center

iii. Associations (unincorporated labor unions, synagogues, clubs, etc)1. Where each member resides

c. Of Different Statesi. Not only states in the US, but also includes territories and

protectoratesiii. The Amount in Controversy Must Exceed $75 K

1. To-a-legal-certainty testa. The presumption is that the amount in controversy is satisfied, unless the

party opposing Federal subject matter jurisdiction can establish to a legal certainty that the other party cannot make jurisdictional amount.

b. The burden of proof is on party opposing Federal SMJ2. Exclusions (to the $75 K calculation)

a. Interest (Compounded Over Years)b. Court Costsc. Attorney Fees (Unless Suing for Attorney Fees)

3. Plaintiff's No-Aggregation Rulea. Multiple plaintiffs cannot add up their claims to reach the jurisdictional

amountb. EXCEPTIONS

i. A single plaintiff with multiple claims can add up to reach 75 Kii. Multiple plaintiffs against a single defendant bringing undivided

parts of essentially the same claim4. Non-$ Relief Tests

a. Plaintiffs may want something other than money, such as an injunction, accounting, an action to quiet title, an action for ejectment, and other variations (Called EQUITABLE REMEDIES)

b. 2 Tests to determine the value of equitable remediesi. Plaintiff’s Perspective Test

1. What is plaintiff loses? What value would the defendant lose if the plaintiff got an injunction?

ii. Defendant’s Perspective Test1. What if the defendant loses? What value would the

defendant lose if the plaintiff got an injunction? Supplemental Jurisdiction (§ 1367) – A claim that cannot pay its own way as a federal claim

(No federal question or diversity). Essentially, a supplemental claim is a state law claim trying to get into federal court along with a federal claim.

i. GIVETH (1367 a) Gibbs Test

1. If there is no independent basis for subject matter jurisdiction, then in order for the state law claim to ride along with the federal claim, the independent claim (Federal claim) and state law claim(s) must arise out of:

a. The Same Case or Controversy; ORb. The Same Transaction or Occurrence; ORc. Have A Common Nucleus of Operative Facts

2. TESTa. Are the federal claim facts the same facts that will be used to argue the

state claim? If yes, then Gibbs test is satisfied3. Taketh Away 4. In cases where diversity is the only independent basis of SMJ for the Federal

claim, plaintiffs may not join supplemental claims to the litigation.5. *****This rule does not bar defendants from joining supplemental claims under

the same circumstances*****a. Defendants can implead other defendants as well, as long as the case

stems from the same nucleus of operative facts6. *****Rule also does not apply in cases where at least 1 Federal Question claim

supplies an independent basis of SMJ*****ii. Conditioneth

1. A judge can get out of trying a case if it finds either of the following mentioned factors, but he does not have to dismiss the supplemental claim. (If none apply, claim must stay)

a. Novel or complex state lawi. Complex – it’s a mess, and it’s too hard to figure out

ii. Novel – case of first impressionb. State law claim predominates

i. If there are more state law claims than federal law claims, than send it back to state court

c. Independent claim(s) are dismissedi. Look at the investment of judicial resources

ii. If the Federal claim is dismissed in the beginning of case, supplemental claim should be dismissed too.

d. Other compelling reasonsi. Exceptional circumstances and reasons that would compel a

dismissalii. Anything that makes it more difficult would be more reason to

dismiss3. Notice/Opportunity To Be Heard (Rule 12(b)(5) Motion)

Components of Noticei. Mechanics (Federal Rules of Civil Procedure)

ii. Constitutionality (14th Amendment) Mechanics of Notice

i. Definition1. The way local or federal rules prescribe notice to be given2. How a statute sets out the procedure for which process is made. Must be followed

specifically or service could be invalidii. Upon Natural Persons

1. In-Hand Delivery – Place and leave with defendant2. Substituted Service – Left at defendant’s dwelling or place of abode with person

of suitable age and discretion residing therein3. Appointed Agent – Authorized to receive summons on defendant’s behalf

4. Other – Any method authorized by forum’s law is OK under Federal Rules of Civil Procedure

iii. Upon Fictitious Defendants1. Managing or general officer

a. The higher up the food chain the better2. Appointed Agent

a. An agent appointed by the defendant to accept service on their behalf3. Other

a. Whatever is acceptable by local laws Constitutionality

i. Rule1. Notice is constitutional if it is reasonably calculated under the circumstances to

give actual noticeii. Elements

1. Reasonably Calculateda. Most effective means.b. Cost-benefit analysis (The more expensive, the less reasonable)

2. Under the Circumstancesa. If the defendant is known, it should be more than publication

3. To Give Actual Noticea. Although giving notice is goal, an attempt may be good enough

4. Venue Venue = District = Where (§ 1391) Venue is properly laid where

i. Any defendant resides, if all in the same state1. Under this option, at least 1 defendant needs to reside in the district here the claim

is filed, if all the parties reside in the same stateii. Event(s) or Omission(s) Occurred

1. Venue is properly laid in any district where a substantial part of events or omissions giving rise to the claim occurred (or a substantial part of property that is the subject of the action is situated)

2. Not about where the defendant is from, but what the defendant did and where he/she did it

iii. Last Chance Option (Only use after one has exhausted options 1 & 2)1. Diversity: All Defendants = Personal Jurisdiction

a. Venue is properly laid in a district where you can get personal jurisdiction over all the defendants

b. Have to have minimum contacts with the district, not just the state2. Federal Question: Anywhere defendant can be found

a. If it’s a federal question case, we don’t care about personal jurisdiction. In a federal question matter, the US is the sovereign power that’s exercising jurisdiction. There is automatic contact with the US

Transfer of Venue (§§ 1404 & 1406)i. Transfer of Venue is Permitted if:

1. Transferee Venue Satisfies § 1391a. Desired transferor venue has to be proper venue to begin withb. Plaintiff’s Motion

i. Where defendant could have initially been servedc. Defendant’s Motion

i. Where plaintiff could have brought the action2. Convenient for Litigants and Witnesses

a. Where it would be easier to prosecute and defend; where evidence mostly is locate

b. § 1404(a)i. For convenience of parties and witnesses, in the interest of justice,

a district court may transfer any civil action to any other district or division where it might have been brought.

3. Serves Interests of Justicea. Where there is a transfer no matter where it came from, need to use laws

where venue came from5. Forum Non-Conveniens (FNC)

Definitioni. Defendant wants to throw out case because the forum is inconvenient.

ii. Defendant wants to dismiss to another state court system or a foreign country.iii. THE ONLY REMEDY IS DISMISSAL

1. Because you can’t transfer to another state court system or a foreign countryiv. If motion is granted, plaintiff can go to the other forum and file the claim therev. Even if venue is proper, forum can possibly be inconvenient

Differences Between FNC and Venuei. Only remedy in FNC is dismissal

ii. Unlike venue, 90% of FNC cases will be in state court When Forum Non-Conveniens Comes Up

i. STATE COURT1. When federal court is not an option and the lawsuit is one state court, and there’s

another feasible forum in another state’s court, use FNCii. FEDERAL COURT

1. We are in federal court and we have exhausted all venue options, and there’s a more suitable venue in another country, the court will dismiss and recommend that the plaintiff file in that country

RULES: Dismiss Suit If:i. Feasible Alternative Forum

1. Some other court from the forum court where the plaintiff could file the claim2. Defendant has to show that there is another reasonably feasible forum in either

another state court system or foreign country court system.3. Doesn’t have to be better or as good, or even the same as. The fact that you have

no chance of winning doesn’t make it infeasible.4. Reasons why a court would not be feasible

a. Courts are not openb. Court is biased towards one party

ii. Public/Private Interests Favor It (If answer to #1 is no, don’t need to do number 2)1. Public (All these factors have to do with the court the case is currently in)

a. Administrative Burden i. How much of a hassle is it going to be for this court to hear this

case?ii. State courts have an interest in not burdening its courts with

litigation not connected with the stateb. Foreign Choice of Law

i. Court may be reluctant to take a case depending on the extent of which the court has to apply foreign law. The legal merits of the case would be too difficult to argue in this court.

1. Courts are more likely to apply foreign laws that are similar to our common laws

a. Examples - Canada, UK, Australia, NZ

2. Courts are less likely to apply foreign la that is different tradition because too inconvenient to learn that law and teach to jury

a. Examples – France & Germanyc. Local Interests

i. To what extent are citizens of the forum state going to be affected by outcome of litigation?

1. Stronga. Whenever blood is on ground, court will be

compelled to hear the case2. Weak

a. Dismiss the case2. Private

a. Burden on Defendant i. Costs to defendant; distance to be traveled; fairness of his ability to

defendb. Access to Evidence & Witnesses

i. How difficult will foreign witnesses be to get into U.S. forum?ii. Would people controlling evidence cooperate voluntarily?

6. Removal (§ 1441) *****State → Federal Court Only***** Noticed by the defendant Rules Governing Removal (§ 1441)

i. Plaintiff’s Original Jurisdiction Rule1. Defendant can remove the case from State to Federal court whenever plaintiff

could have originally had jurisdiction to file the claim in Federal court2. The claim still needs to pay its own way

a. Any claim that can’t stand on its own or that is supplemental has to be send back to state court

ii. No Defendants From Forum State Rule (In a diversity case)1. When diversity would provide the only basis for removal, it can’t be removed

from State to Federal court if the case is brought in the defendant’s state of citizenship

2. Examplea. CA plaintiff sues NV defendant in Nevada State Court on diversity;

defendant can’t remove to Fed. Court in NV because its already in his home state

iii. All of Nothing Rule1. All claims have to go or none can go (Can’t just remove federal claims)2. Claims that don’t belong can be remanded back by Federal court3. If multiple defendants in the case, all have to agree to remove. If even one

doesn’t agree, none can go.iv. Timing Rules

1. General 30 Day Rule (Only applies to diversity cases)a. The defendant has 30 days from notice to remove the case to Federal

Court2. Diversity 1 Year Cap Rule (ASK)

a. Defendant only has 1 year from the date that the lawsuit is filed to removeb. Events that later create diversity are irrelevant

7. Remand (§ 1446 & 1447) *****Federal → State Court Only***** Description

i. Remand is the remedy for improper removal and shifts case from federal to state court. ii. If a case is improperly removed to Federal court, the whole case or part of it has to be

remanded back to state court Rules For Remanding Back to State Court

i. When a Removal Rule was Violatedii. Claim-by-claim analysis (Gibbs)

1. Look at each claim separately to determine if it can stand on its own2. Could be remanded back on any theory that a supplemental claim can be or if it

violated the 30-day ruleiii. Timing (30-Day-Rule)

1. Have to make motion to remand within 30 days of removal.2. If not, plaintiff waived right to remand3. EXCEPTION

a. If subject matter jurisdiction is discovered to be lacking in the claim, than the case will be remanded back to state court, even after 30 days