Civil Procedure

An Overview of Civil Procedure

- Civil procedure – rules that govern the conduct/behavior of parties concerning legal disputes (civil cases; mainly cases that turn into litigation)

- Federal courts are courts of limited jurisdiction (can only hear certain types of cases)

The US gov’t (separation of powers)- Executive (enforces law)

o Administrative agencies also have lawmaking functions (quasi-legislative) and judicial functions (quasi-judicial); cases can begin there

- Legislative (creates law)- Judiciary (interprets law)

o Judiciary also makes lawso Judicial review – judiciary can claim that a legislative act or executive

action is unconstitutionalo Huge difference between the SC interpreting a statute and declaring a

statute unconstitutional SC interprets a word in a statute that Congress does not agree w/:

Congress can amend the statute SC declares a statute unconstitutional:

Congress can amend the Constitution (very difficult process)

The US Constitution (the basis of civil procedure)- Executive powers (Article II)

o Executive orders, veto power, judicial nominations, convenes & adjourns Congress, etc.

- Legislative powers (Article I, Section 8)o Power to declare war, coin money, impeach, collect taxes, regulate

commerce, establish post offices, make treaties, nationalization & bankruptcy laws, copyright laws, etc.

o Congress gets its power to create rules for practice and procedure from (1) the power to create tribunals inferior to the SC coupled w/ (2) the N&P Clause

Power to create lower courts (an enumerated power) N&P Clause (end of Article I, Section 8) – power “to make all

laws which shall be necessary and proper for carrying into execution the foregoing powers”

o If Article I, Section 8 does not list the power, then the power is reserved to the states and the people (10th Amendment)

- Judicial powers (Article III, Sections 1 & 2)

o “The judicial power of the US shall be vested in one Supreme Ct, and in such inferior cts that Congress may from time to time ordain and establish”

o 28 USC 132 & 133 – create federal district cts; divided by stateso 28 USC 41 & 43 – creates (13) intermediate Circuit Cts of Appealso Article III, Section 2:

The judicial power shall extend: To all cases, arising under the Constitution, laws of the US,

and treaties made under their authority (federal question cases)

To all cases affecting ambassadors, other public ministers and consuls

To all cases of admiralty and maritime jurisdiction To controversies to which the US shall be a party To controversies between 2 or more states To controversies between citizens of different states

(diversity of citizenship cases) Etc.

- Federal cts are cts of limited jurisdiction (cannot hear cases for which they have no power to decide)

- Most state cts are cts of general jurisdiction- have power to hear any kind of case, except for those that are specifically excluded

- Concurrent jurisdiction- both a federal and a state ct can hear the caseo A state ct can hear federal cases unless a statute prohibits it, and a federal

ct can hear state cases unless a statute prohibits it- Exclusive jurisdiction- certain cases that can only be heard by federal cts

(admiralty, bankruptcy, antitrust, copyright, etc.)- Original jurisdiction- the case can originally be brought in federal ct because it

was included as such in the Constitution- Congress cannot create a law giving federal cts more power than they have under

the Constitution (Constitution is the ceiling of federal ct jurisdiction)o But Congress can take away power of the federal courts (Congress can

taketh away)- 28 USC 1331 & 1332 – created by Congress to define the powers of the federal

cts

Federal Rules of Civil Procedure (Title 28 USC)- Congress creates the FRCP, but in 28 USC 2072(a) Congress delegates some of

its power to create FRCP to the US Supreme Cto US Supreme Ct creates a committee of experts to write specialized rules of

civil procedure. Then it is sent back to Congress, who approves the rules and writes them into Title 28.

4 legal requirements that determine whether one can get into a federal court:(1) Subject matter jurisdiction (power over the subject matter)(2) Personal jurisdiction (power over individuals; power over the D)(3) Service of process (D must be given notice)(4) Venue (“locale”; location of the lawsuit)

Subject Matter Jurisdiction

Subject matter jurisdiction- Derived from Article III, Section 2 (written to apply only to US Supreme Ct)- USC 1331 & 1332 – create subject matter jurisdiction for the lower federal cts

- Rule 12(b)(6) – failure to state a claim upon which relief can be grantedo If D’s motion is granted (case dismissed), P cannot bring the case

anywhere else (P has no claim upon which relief can be granted)- Rule 12(b)(1) – lack of subject matter jurisdiction

o If D’s motion is granted, P may bring the case in state ct- Rule 12(h)(3) – If the court determines at any time that it lacks subject matter

jurisdiction, the court must dismiss the action (rule from Mottley)

- If the D thinks that the ct has no subject matter jurisdiction, D should show up to ct and raise the issue of subject matter jurisdiction.

o D may not be able to raise the issue of subject matter jurisdiction later.

28 USC 1331 – Federal Question Jurisdiction

- “Arising under” (judiciary is responsible for defining these words)- Original jurisdiction: You can originate a case in federal ct for all civil actions

arising under the Constitution, laws, or treaties of the US- (virtually identical to Article III, Section 2: original jurisdiction of US Supreme

Ct)

- Well-pleaded complaint rule – For a case to “arise under” federal law, the P’s complaint must be “well-pleaded” (argues that there is a federal question, i.e., case is based upon federal law or federal Constitution)

o It is not enough that the D’s defense arises under federal law Cannot have a federal cause of action in anticipation of a D’s

defenseo “Arising under” – part of the P’s original cause of actiono Exception – In some cases where a case raises issues of huge national

interest [e.g., securities regulation in Smith v. Kansas City Title & Trust Co (1921); tax laws in Grable], the case may still “arise under” federal law even though the well-pleaded complaint rule is not satisfied

28 USC 1332 – Diversity Jurisdiction

- Controversy between citizens of different states

Section 1332(a)- (1) citizens of different states

o Citizen v. citizen- (2) citizens of a state and citizens or subjects of a foreign state

o citizen v. foreigner- (3) citizens of different states and in which citizens or subjects of a foreign state

are additional partieso citizen v. citizen & foreignero citizen & foreigner v. citizen & foreigner

- (4) a foreign state…as P and citizens of a state or of different stateso (other possibilities)

“Citizenship” (judiciary is responsible for defining it)- A person is a citizen of a state of the US w/in the meaning of 1332 if he is a

citizen of the US and is domiciled w/in the state in question (Redner v. Sanders)o Domicile:

(1) Must have a residence in the state (2) Must have an intent to remain in the state indefinitely

Question of fact for cts to decide Must show by your conduct that you intend to remain

indefinitely (driver’s license, looking for work there, bills, taxes, etc.)

(place of domicile is determined at the time P files his complaint in federal ct)

- 1332(d) – Citizens of DC, Guam, Puerto Rico, etc. are deemed citizens of a state of the US for 1332 purposes

- 1332(a) (last sentence) – For 1332 purposes, an alien admitted into the US for permanent residence (green card) is deemed a citizen of the state in which the alien is domiciled

o Added by Congress to prevent allowing a permanent resident to take advantage of federal diversity jurisdiction against a citizen of the same state by simply not becoming a US citizen

o Saadeh v. Farouki (1997; DC Circuit) – foreigner v. foreigner, 1 of which is a permanent US resident

If language is read literally – unconstitutional “foreigner v. foreigner” suit under Art. III, Sect. 2

Circuits are split on this issue – Some will not go beyond literal interpretation of statute; some will

Corporations- For a business to be a legal entity that may be sued – must be a corporation- Where a state is a citizen for 1332 purposes:

o 1332(c)(1) – state of primary place of business AND state of incorporation To find ‘primary place of business’ – “nerve center” test now

controls (on final she’ll just tell us where it is)

Partnerships- Partnership as a business is not considered a corporation- Citizenship of partnership for 1332 purposes – place of citizenship for every

partner- LLC (limited liability company) – treated as a partnership

Complete diversity- Complete diversity is required – Everyone on each side of the lawsuit must be

from different states from the other side.- Not constitutionally required

o Derived from Strawbridge v. Curtiss (1806)- Even if there is complete diversity, federal courts will not hear family law cases

or probate cases

Amount in controversy- Amount in controversy must be more than $75,000- Aggregation of claims:

o A single P w/ 2 or more unrelated claims against a single D may aggregate claims to satisfy the statutory amount

28 USC 1367 – Supplemental Jurisdiction

- Supplemental jurisdiction – expands the jurisdiction of federal courtso Still, nothing can give more power than Constitution gives

- A claim that has no independent basis for federal subject matter jurisdiction may be heard in federal cts because:

o It is considered ‘1 constitutional case’o Art. III – “The judicial power of the US shall extend to all cases arising

under…and controversies between citizens of different states

2 different judicially created doctrine (don’t have to know for final)- Pendant jurisdiction (adding an additional claim)

o In addition to having a federal claim, you have a state claim filed in the same case

2nd claim is so closely related to 1st claim that it forms one constitutional “case”

Same “nucleus of operative fact” – facts that would decide case on federal claim are same facts that would decide case on state claim

- Ancillary jurisdiction (adding an additional claim that requires adding an additional party)

o Same facts, but on 2nd claim there is an additional party Same “nucleus of operative fact”

1367(a)- In any civil action of which the district cts have original jurisdiction (where claim

can be brought in federal ct), the district cts shall have supplemental jurisdiction over all other claims that are so related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Article III.

o Codifies pendant jurisdiction- Such supplemental jurisdiction shall include claims that involve the joinder or

intervention of additional parties.o Codifies ancillary jurisdiction

Whether there is a sufficient connection between 2 claims to form 1 constitutional case- One test – If the ct were to dismiss the state claims, it would be dismissing the

federal claims as well (Ameriquest)

1367(b) [You do not go to 1367(b) unless you first satisfy 1367(a)]- Where the claim for federal jurisdiction is based solely on diversity jurisdiction,

the district cts shall not have supplemental jurisdiction- (mandatory exception)

1367(c)- The district cts may decline to exercise supplemental jurisdiction over a claim

under 1367(a) if (discretionary exceptions):o (1) The claim raises a novel or complex issue of state law;

First Bancorp – Puerto Rico had a very unique rule on ethics Court finds the claim raises a novel or complex issue of

state lawo (2) The claim substantially predominates over the claim or claims over

which the district ct has original jurisdiction; Several state law claims and 1 federal claim – state claims may

predominateo (3) The district ct has dismissed all claims over which it has original

jurisdiction; oro (4) In exceptional circumstances, there are other compelling reasons for

declining jurisdiction.- [To overrule a discretionary decision, the decision must be shown to be an “abuse

of discretion” (very high standard)]

28 USC 1441 – Removal

- Removal – Where an action has been filed in state ct but could have been brought in federal ct (concurrent jurisdiction), the D may remove the case to federal ct.

o D has option to file a notice of removal.- Because removal was created by statute, Congress could in another statute not

require the rule if it wanted to.

1441(a)- Except as otherwise expressly provided by Act of Congress (where to look for the

exceptions),- If – (1) Civil action; (2) Brought in state ct; (3) But which could have been

brought in federal ct (federal ct has original jurisdiction):o Then D can remove to the district ct of the US for the district and division

embracing the place where such action is pending.

1441(b)- If the basis for removal is federal question, the case shall be removable w/o regard

to the citizenship of the parties.o Any other such action shall be removable only if none of the parties in

interest properly joined and served as D’s is a citizen of the state in which such action is brought.

1446 – procedure for removal- (b) – D has 30 days after receiving a copy of the initial pleading (or 30 days after

the service of summons upon the D) to file a notice of removal.o D has 30 days from the date upon which it first becomes identifiable to D

that he has a basis to remove. E.g., case stated by initial pleading is not removable, but an

amended pleading makes the case removable 6 months after filing complaint, P amends it to include a

diversity claim:o D has 30 days from that date.

Personal Jurisdiction

Personal jurisdiction- Never an issue for P (P has voluntarily brought the suit in ct)- D’s often argue that the ct has no power over them because the D does not have

an adequate connection/relationship w/ the state.- PJ relies on concepts of “fairness”

o Constitutional underpinnings – 14th Amendment and Full Faith & Credit Clause

Rules for PJ are the same whether case is brought in state or federal ct

Due Process Clause is present in both 5th Amendment (federal) and 14th Amendment (states)

o Must be fair constitutionally to require D to come to forum state and defend himself

2 functions of due process:- (1) Protecting D against burdens of litigating in a distant or inconvenient forum- (2) Ensuring that the states, through their courts, do not reach out beyond the

limits imposed on them by their status as coequal sovereigns in a federal system

2 overall levels of analysis for PJ – (1) contacts; and (2) fairness- Contacts:

o Purposeful activity by the D himself, and D has to by the contacts foresee being haled into court in the particular forum

- Fairness factorso Burden on the Do Forum state’s interest in the litigationo P’s interest in obtaining convenient and effective reliefo Judicial system’s interest in obtaining the most efficient resolution of

controversieso Shared interest of the several states in furthering fundamental substantive

social policieso (even if all fairness factors weigh in favor of jurisdiction over D, there still

must be contacts)

Analysis in PJ due process cases(1) Establish minimum contacts;(2) If there are minimum contacts, move on to fairness/reasonableness factors

o If it’s really, really fair – you need less contactso If there are a lot of contacts – must be very, very unfair to defeat those

contacts

- Courts’ starting point for analysis in PJ cases:o State statute defining personal jurisdictiono Federal ct cases – federal ct looks to the state statute defining jurisdiction

Rule 4(k)(1) – A federal ct must use the same jurisdictional statute to define jurisdiction as a state ct would

Rule 12 (b) – Challenges to Personal Jurisdiction

- If the D does not raise the defense of lack of PJ at the earliest time possible, the right is waived.

o Must be the 1st move the D makes

- D has 2 options when served w/ a complaint and D thinks there is no PJ:

o (1) Do nothing. Then you can bring a collateral attack in a ct sitting in your state.

If you lose, the judgment is enforced. Very risky and stupid.

o (2) Make a 12(b)(2) motion (lack of PJ). You can combine it w/ anything else you want (e.g., an answer to

the complaint), but you must first make a 12(b) motion before anything else.

Where D makes a 12(b) motion and loses – In most states D must wait until the end of the case to appeal.

Safest thing to do.

Rule 12(h) – waiving defenses- A party waives a 12(b) motion by omitting it from a motion or failing to include it

in a responsive pleading.- If D files a MTD for lack of subject matter jurisdiction and then later files a MTD

for lack of personal jurisdiction:o D’s right to challenge PJ would have been waived.

History and Development of Personal Jurisdiction

- Action in personam – about a personal obligation- Action in rem – about property itself (e.g., quiet title, ejectment)- Action quasi in rem – attaching property at beginning of the lawsuit for the

purpose of getting jurisdiction over someone who’s not there

Pennoyer v. Neff (1877)- Ct holds there was no power of D Neff, and there was improper notice

o No personal jurisdiction; judgment invalid- In 1877, presence is the touchstone of personal jurisdiction

o D must be either (1) physically present in the state; or (2) own property in the state that is attached (notice on the property)

- Where D is physically outside the state but owns property in the state, substituted service (serving D by publication) is valid where:

o (1) The property is attached at the beginning of the lawsuit (slapping notice on the property); and

o (2) The action is in rem

- After Pennoyer the world changed a lot (Industrial Revolution; transportation, etc.)

o Idea of presence as touchstone of PJ became problematic. Presence of personal property, intangible property, corporations,

etc.o In 1945 (Int’l Shoe) the Court says it has to rephrase how it will analyze

the standard of due process.

Milliken v. Meyer (1940)- Domicile in the state alone is sufficient to bring an absent D w/in the reach of the

state’s jurisdiction for purposes of a personal judgment by means of appropriate substituted service

International Shoe Co. v. Washington (1945)- D Int’l Shoe Co. had salesmen in WA showing shoes; under Pennoyer the shoes

could have attached and subjected D to PJ in WA- The key for PJ now – activities; minimum contacts

o For PJ over a D, the D must have minimally sufficient contacts such that the Court can conclude that it will not offend traditional notions of fairness and substantial justice.

o D in this case had continuous & systematic contacts w/ the forum states, and the contacts gave rise to the cause of action – PJ over D

- Continuous & systematic activity related to cause of action:o Always PJ

- Isolated activity not related to cause of action:o Never PJ

- Continuous & systematic activity unrelated to cause of action:o May be PJ

- Isolated activity related to cause of action:o May be PJ

- Specific jurisdiction – cause of action arises from the minimal contacts- General jurisdiction – D has a ton of contacts; so many contacts that it is

presumed fair to assert PJ over D even if cause of action is unrelatedo E.g., corporation’s principle place of business or place of incorporation;

individual’s domicile

Minimally Sufficient Contacts (Specific Jurisdiction Cases)

McGee v. Int’l Life Insurance Co. (1957):- D insurance company’s K w/ P had substantial contact w/ the state

o D solicited business in the forum stateo Sufficient for PJ over D

- Court also took into account the interest of the forum state

Hanson v. Denckla (1958)- Here the D corporation accepted payments in the forum state, but did not solicit

business there.o No PJ over D

- The D’s activity must be such that the D purposefully avails itself of the privileges of conducting activities w/in the forum state

o The activities must be the D’s activities, not activities of 3rd parties

Shaffer v. Heitner (1977)- P asserts PJ over D’s as individuals; quasi in rem action

o No PJ over D’s in the state; not enough contacts under Int’l Shoeo Minimum contacts must come about by an action of the D purposefully

directed toward the forum state- In pure in rem cases, property in the state does not necessarily constitute sufficient

contacts w/ the forum state.- Quasi in rem cases – Unconstitutional to allow mere presence of property to get

jurisdiction over the Do Minimum contacts are required.o Shaffer throws out quasi in rem jurisdiction.o Now the property simply counts as one contact.

- Where the property is completely unrelated to the cause of action:o The property alone is not sufficient to meet minimum contacts.

- Where the property is related to the cause of action:o The property is sufficient to meet minimum contacts.

- Brennan dissents (broader view of jurisdiction)

World-Wide Volkswagen Corp. v. Woodson (1980)- No PJ over D- Complete absence of any activities by D, except for the isolated fortuitous

circumstance that the car (D’s manufactured product) found its way into the forum state

- D’s contacts w/ forum state must be such that he should reasonably anticipate (foresee) being haled into court there

o (change from ‘purposeful availment’)- “If the sale of a product of a manufacturer or national distributor (not a retailer) is

not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other states, it is not unreasonable to subject it to suit in one of those states if its allegedly defective merchandise has there been the source of injury to its owner or to others.”

o Court draws a distinction – control of manufacturer or distributor Once product is purchased by a consumer, D has no control and

cannot be subject to suit in a far away jurisdiction- Brennan dissents (wants to focus less on contacts & more on fairness)

Asahi Metal Industry Co. v. Superior Ct (1987)- No majority opinion; 8 justices say PJ over D would be unfair- 4 justices say D must engage in activities that purposefully show D is directing

himself towards the forum stateo No PJ over Japanese D manufacturer from the mere fact that it put a

product into the stream of commerce and knew it would go to CAo (inconsistent w/ World-Wide)

- Scalia – only cares about contacts, not fairness (stricter view of jurisdiction)

Inconsistency in Supreme Ct in “stream of commerce” approacho (1) Injecting the product into the stream of commerce is enough

(awareness is enough)o (2) More is neededo (stream of commerce setting – questionable as to whether mere awareness

is enough to constitute a gesture toward the forum)

Burger King Corp. v. Rudzewicz (1985)- PJ over D- K case – Court looked at the K contacts

o D “deliberately reached out” beyond MI and negotiated w/ a FL corporation for purchase of a long-term franchise and the manifold benefits that would derive from it

o Choice of law clause in K stating that FL law would apply- Dissent – unfair burden on D

o Boilerplate K; small businessman D against big, bad BK corporation

Drafting:- D in each of these cases could have included in the K a forum selection clause

stating, “All disputes arising out of this K shall be brought in (D’s desired state)”- This would have prevented the D’s problem in each of these cases.

Pavlovich v. Superior Ct (2002; CA Supreme Ct)- (US Supreme Ct has not ruled on what it takes to have PJ in Internet activities

cases)- No PJ over D who merely posted illegal copyright infringement software on his

website- CA Supreme Ct’s test for Internet PJ cases:

o Least amount of interactivity – merely posting information on the website Never sufficient contacts

o Middle ground – other kind of interactivity; exchange of ideas (talking back and forth)

May or may not be sufficient contactso Greatest amount of interactivity – some kind of economic activity or

business conducted on the website Always sufficient contacts

Minimally Sufficient Contacts (General Jurisdiction Cases)

- General jurisdiction – D has so many contacts w/ forum state that it is fair to exercise jurisdiction over D no matter what the cause of action is for.

- “Slam dunks” for general jurisdiction:o State of incorporation and principle place of business for a corporationo Domicile for an individualo (no analysis needed for “slam dunks”)

o Short of the “slam dunks,” there are places where it would be OK to exercise general jurisdiction over the D even though the contacts are unrelated to the cause of action

Need more contacts than merely “minimally sufficient” contacts- “Continuous, systematic, and substantial” contacts required

o Need a ton of contacts to have contacts that are “continuous, systematic, and substantial”

Almost equal to principle place of business or state of incorporation

Perkins v. Benguet Consolodated Mining Co. (1952)- “Continuous and systematic contacts” is enough to exercise PJ over D.

Helicopteros v. Hall (1983)- General business contacts not enough for PJ over D’s- Continuous and systematic and substantial contacts are needed to exercise PJ

over D.

- Slam dunk general jurisdiction:o 5 fairness factors assumed to be met

- General jurisdiction which is continuous, systematic, and substantial (very rare cases):

o Courts disagree as to whether 5 fairness factors should be analyzed.

Burnham v. Superior Ct (1990)- D was present in CA visiting his kids; sued & served in CA- Whether presence (that 1 contact alone) is enough for PJ, or whether minimum

contacts must be proven- 4-4 vote (all say presence is enough, but for different reasons)

o If arguing this issue – must cite both opinions- Scalia wing – Presence has always been enough

o Int’l Shoe was developed for purposes of finding a standard equal to presence.

- Brennan wing – It’s not that you’re “present, period.”o D must be present in the state for a period of time such that D subjects

himself to the benefits in the state (police, fire protection, etc.)

- If D were sued as head of a corporation (not as an individual) and was served process in another state while visiting kids:

o Courts disagree as to whether D’s presence there would be enough for general jurisdiction.

- Transient jurisdiction – jurisdiction while traveling through a state (e.g., over the air on a plane)

o Scalia wing – This is enough for PJo Brennan – Not enough for PJ

- Where there is presence:o There cannot be a due process violation.

Express Consent

Carnival Cruise Lines, Inc. v. Shute (1991)- Forum selection clause (FL must be the place where suit is brought; exclusive

place of jurisdiction) as D’s express consent to suit in the forum state- Forum selection clause found enforceable as D’s express consent to suit- Argument for enforceability of forum selection clauses:

o Forum selection clauses settle confusion over where D can be sued

- Subject matter jurisdiction – If it is a diversity case or federal question case, P can bring suit in any federal court (all states available; must be a federal court)

- Personal jurisdiction – shrinks the number of states in which you can bring suit

Self-Imposed Restraints on Jurisdictional Power

- Restraints on personal jurisdictiono Restraints by the courts

Discretionary refusal of jurisdictiono Restraints by the legislature

States limit jurisdiction through long-arm statutes Venue (created by statute)

- Court’s starting point in very case – legislature’s statement of what jurisdiction in the state would be

o Some states allow courts to exercise jurisdiction in the state as long as it does not violate due process (e.g., CA)

o Other states have a long-arm statute that imposes restraints on jurisdiction (e.g., NY)

“Laundry list” type long-arm statute: “We will allow state courts to exercise jurisdiction over

nonresident D’s entering into the following acts: committing a tort in the state, entering into a K in the state, wearing red shoes on Friday in the state, etc.

- Where D files a MTD for violation of due process due to insufficient contacts:o Court’s analysis:

(1) Look at relevant governing statute (usually the state long-arm statute; sometimes a federal statute governs the case)

If statute is not satisfied – no jurisdiction If statute is satisfied – move on:

(2) Due process must be satisfied Specific jurisdiction

o Minimum contacts

o Balance 5 fairness factors General jurisdiction (not the “slam dunks”)

o Continuous & systematic contactso Balance 5 fairness factors

Gibbons v. Brown (1998)- (1) P must allege sufficient jurisdictional facts to bring D w/in the coverage of the

long-arm statute (FL); if satisfied, then:- (2) Whether sufficient “minimum contacts” are shown to comply w/ the

requirements of due process- FL’s long-arm statute:

o “A D who is engaged in substantial and not isolated activity w/in this state, whether such activity is wholly intrastate, interstate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.”

- D had brought a lawsuit in the state 2 years earliero Even if the ct found this activity “substantial and not isolated,” P failed to

show that D “is engaged” in any activity (must now be engaged in activity)

Notice (Service of Process)

- Notice – some process of the state that gives the D notice of the lawsuito Physically giving to D something that gives D notice

Mullane v. Central Hanover Bank & Trust Co. (1950)- The method chosen for notice must be reasonably certain to inform.- Where conditions chosen are not reasonably certain to inform, you must adopt the

next best form of notice.- When you can publish notice:

o The location/whereabouts of the party is unknown.o The party’s interest in the litigation is unknown.o When it’s supplemental.

- Rule 4 is silent regarding the use of the Internet to serve processo Supreme Ct has not ruled on this

Rule 4 – Summons

- Rule 4 has taken over the rules for serving process.- P can ask for appointment of a special process server (if P anticipates D will not

be cooperative)

- 4(a) – what summons must look like

o A summons must: name the court and the parties, be directed to the D; state the name and address of the P’s attorney (or, if unrepresented, the P); state the time w/in which the D must appear and defend; notify D that a failure to appear and defend will result in a default judgment against the D for the relief demanded in the complaint; be signed by the clerk; bear the court’s seal

- 4(b) – who issues the summons- 4(c) – must be a person 18 yrs of age and not a party to the suit- 4(d) – waiving service of process by the D

o D does not waive jurisdiction by waiving service.o D’s are strongly encouraged to waive service.o “Good cause” for failing to waive service – cts determine what this means

on a case-by-case basis.- 4(e) – serving an individual located inside US- 4(f) – serving an individual in a foreign country- 4(g) – serving a minor or incompetent

o Have to serve; can’t get a waiver- 4(h) – serving a corporation, partnership, or association- 4(i) – serving the US gov’t, etc.

o Have to serve; can’t get a waiver- 4(j) – serving foreign gov’ts, etc.

o Have to serve; can’t get a waiver- 4(k)

o When you’re in federal ct, you’re still using the state’s law.o If D files a waiver of service but still thinks there’s no jurisdiction over D,

D can file a MTD for lack of jurisdiction for violation of D’s due process rights, and for failing to meet the state requirements for jurisdiction.

Venue

- P must know which specific federal district ct in which to file the lawsuit.o Practically, P will probably go to the most convenient one.

- Law of venue – based on the notion of convenience of the D

28 USC 1391 – District Courts; Venue

- 1391(a) – applies when case is based only on diversity jurisdictiono Suit may be brought:

(1) in a judicial district where any D resides, if all D’s reside in the same state;

(2) in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred;

- 1391(b) – applies when case is not only based on diversity jurisdiction (federal question)

o Suit may be brought:

(1) in a judicial district where any D resides, if all D’s reside in the same state;

(2) in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred;

- They are identical, except for (3) (the “fallbacks”)o 1391(a)(3) – can file suit in any judicial district in which any D resides

“Resides” = has an address there (not same as citizenship) Only use (a)(3) when you cannot find the place that satisfied (a)(1)

or (a)(2)o 1391(b)(3) – can file suit in a judicial district in which any D “may be

found” “May be found” – broader than personal jurisdiction Only use (b)(3) when you cannot find the place that satisfied (b)(1)

and (b)(2)- 1391(c)

o For purposes of venue under this chapter, a D that is a corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced.

o In a state which has more than one judicial district and in which a D that is a corporation is subject to PJ at the time an action is commenced, such corporation shall be deemed to reside in any district in that state w/in which its contacts would be sufficient to subject it to PJ if that district were a separate state

And, if there is no such district, the corporation shall be deemed to reside in the district w/in which it has the most significant contacts.

- 1391(d)o An alien may be sued in any district.o Also applies to alien corporations – may be sued in any judicial districto (An alien D still may assert that there is no PJ over him)

Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (1997)- Federal question case; Foreign Indonesian D files MTD for lack of personal

jurisdiction and venue- (1) statute authorizing jurisdiction over D (here, federal Act had own

jurisdictional provision)o Nationwide jurisdiction for foreign D under the Act

- (2) jurisdiction must comport w/ due processo Rule 4(k)(2) – Federal Claim Outside State-Court Jurisdiction

For a claim that arises under federal law, serving a summons or filing a waiver of service establishes PJ over a D if:

(A) The D is not subject to jurisdiction in any state’s cts of general jurisdiction; and

o Here, no one state in the US in which there are adequate contacts for the “big PJ” over D

(B) Exercising jurisdiction is consistent w/ the US Constitution and laws

o Due process satisfied here

Declining Jurisdiction – Transfer and Forum Non Conveniens

- Giving the courts and the parties the opportunity to say that, even though everything is OK, there is a reason why we should not be hearing the case in this particular forum

o There is a more just place to hear the case.

28 USC 1404 - Transfer- Transfer of the case from one district to another- A party (D or P) usually makes a 1404 Motion to Transfer to another district.

Forum non conveniens:- Motion made by D, resulting in a dismissal- After dismissal, P has to re-file in the better place

Piper Aircraft v. Reyno (1981)- P brings suit for a plane crash occurring in Scotland; some parts of the plane were

manufactured in the USo P tried to sue in US because laws there were much more favorable than in

the other countries suit could have been brought in- D brings a motion for forum non conveniens (to dismiss the case)- Court balances 2 different sets of factors:

o Private interest factors – practical considerations affecting litigant Cost of getting witnesses, viewing the crash site, etc.

o Public interest factors – deal w/ the system Local interest in trying the case, large burden on CA jury trying to

apply Scottish law- Court dismisses the case.

o It’s too inconvenient to hear the case here.o P can re-file in a more convenient place.

The Erie Problem

- Choice of law question – What law will apply when a federal court sits in diversity jurisdiction?

o The Erie problem addresses this question. Federal court sitting in diversity: question is, “Whose law will

apply?”o 3 bodies of law – substantive law, procedural law, choice of law

- Congress creates the Rules of Decision Act (28 USC 1652)o Congress thinks it solved the “Erie problem” w/ this.

o “The laws of the several states, except where the Constitution or treaties of the US or Act of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply.”

o Problem of statutory interpretation arose: Would laws of the several states include judicially made law or

just enacted law?

Swift v. Tyson (1841)- Court holds that judicially created laws are not included in “laws of the several

states.”- Case of statutory interpretation (not a constitutionally mandated decision)

o Congress could have amended the statute, but did not.o This interpretation stood for almost 100 yrs.

“Constitutionalizing the Issue”

Erie Railroad v. Tompkins (1938)- P would have to show wilful & wanton negligence under PN law; only ordinary

negligence under federal law (duty owed to a trespasser by property owner)o Court applies PN law (actually applied NY choice of law rules, which

required application of substantive law of the place of accident – PN)- This case turns the issue into a constitutional question

o The issue is now out of Congress’s hands forever- The Court’s interpretation in Swift was incorrect.

o Created problems of inconsistent results between state and federal courtso Unconstitutional to find that “laws of the several states” do not include

judicially made state law Unconstitutionally taking away power from the several states Under Art. I, Sect. 8, Congress does not have power to declare the

substantive law of the several states. Therefore the power is reserved to the states under Article I.

- Opinion says, “There is no general federal common law.”o There really is federal common law, though (e.g., federal cts interpreting

statutes)

Outcome-determinative test – whether applying one law over another would make a difference in the outcome

- A federal ct sitting in diversity must apply state law when the outcome on the same case could be substantially different in federal ct and state ct.

o Guaranty Trust Co. v. York (1945) – SoL being state law or federal law would have made a difference, so the Court applied state law.

Procedural/substantive law distinction – too murky What matters – whether outcome of the case would be affected After 1945, about a decade-long “high water mark” for judicial

deference to Erie and applying state law

(fear of acting unconstitutionally under Erie doctrine)

- Byrd v. Blue Ridge Rural Electric Cooperative (1958)o Erie problem – whether P was an “employee” w/in meaning of WC statute

Under state law – judge decided the question Federal law – jury decided the question Court follows federal law.

o Issue here would not truly be outcome-determinative Outcome-determinative test – requires that to a certainty, applying

state law vs. applying federal law would definitely make a difference

o Court creates a new test – “bound up” analysis

Is the state rule/law so “bound up” (in the area where the state has the power) w/ state-created rights and obligations that if the court doesn’t apply it, it would be “stepping on the toes” of the states and unconstitutionally assuming power?

- If yes – Apply the law of the state.- If no – Then it’s merely the “form and mode” (or manner and mode) of bringing

the case.o But even if it’s merely manner and mode, you still must apply state law if

the difference would be outcome-determinative. But if there are affirmative countervailing considerations, the state

law should not be followed. (E.g., 7th Amendment in Byrd)

De-Constitutionalizing Erie

- Where Congress has the power to create the governing law (FRCP; power to create lower tribunals + N&P Clause):

o Only issue – whether the Rule is w/in the scope of that powero You only use the other Erie tests where the case is not covered by a

federal statute or a FRCP.

Test from Hanna v. Plumer (1965):- If there is no federal rule (the “twin aims of Erie”):

o (1) Would the difference between federal and state law encourage forum shopping?

o (2) Would applying federal law or state law lead to an inequitable discrimination of the laws?

- (Hanna did not overrule Byrd or Guaranty Trust v. York)

- Which test you apply will depend on the source of law on the federal side.

Avoiding and Accommodating Erie

- After Hanna, the pendulum swung back more towards the federal side.

- Woods (1987) – court could have accommodated both federal & state law, but applied the federal law (holding this was consitutional).

- Several other cases where court was faced w/ an Erie problem and applied federal law

- Gasperini (1996)o Conflict between state law and Reexamination Clause of 7th Amendmento Court made an effort to accommodate Erie.

Modifies the federal practice to give some respect to state law- Shady Grove v. Allstate (2010)

o Very recent Supreme Ct case on the Erie problemo Choice of law clause in a K – law of NY would govern all disputes under

the Ko Conflict between state & federal law (could encourage forum shopping)o 5-4 decision; Ct was split in its reasoning

- Where a court is faced w/ an Erie problem, and decides that state law will apply, but cannot determine what the state law is:

o Federal court has a duty to try to figure out what the highest court of the state would do.

o Certification – process in state whereby federal court asks state court for an answer to a question about state law

(state must have a certification procedure in place; not all do)

Joinder

Supplemental jurisdiction:- There are also joinder rules (in addition to subject matter jurisdiction)- Whenever you want to add a party or claim, you must find a federal Rule that says

that this is allowable (not a power question)

Rule 18 – Joinder of Claims (by P)

- Rule 18(a) – A party bringing a claim can join as many claims as he wants (as a matter of joinder)

Rule 13 – Counterclaims (Joinder of claims by D)

- D may bring a counterclaim – a claim by D in the same lawsuit, against the P (as if D had sued P in his own suit)

- Rule 13(a) – Compulsory Counterclaimo D must file the counterclaim in the same lawsuit, or else D loses the right

to do it. A pleading must state as a counterclaim any claim that—at the

time of its service—the pleader has against an opposing party if the claim:

Arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

Does not require adding another party over whom the court cannot acquire jurisdiction.

o D need not show an independent basis for jurisdiction on the counterclaim.

- Rule 13(b) – Permissive Counterclaimo D may bring the counterclaim in the same lawsuit, but is not required to.

A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

o D must show an independent basis for jurisdiction on the counterclaim. (because permissive counterclaims do not arise out of the same

transaction or occurrence; cannot use supplemental jurisdiction as a basis for jurisdiction)

- Whether the counterclaim arises from the same nucleus of operative fact so that it is part of the same transaction or occurrence:

o Plant v. Blazer Financial Services (1979) – sets out 4 tests Logical relation test (most important) – whether the issues of fact

and law raised by the claim and counterclaim are largely the same

- Rule 13(g) – Crossclaim Against a Coparty (brought by D against a 3rd party)o A pleading may state as a crossclaim any claim by one party against a

coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.

o The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

- Rule 13(h) – Joining Additional Partieso On a counterclaim you can bring in an additional party if you can satisfy

Rule 20.

Rule 20 – Permissive Joinder of Parties

- Rule 20 says that a party may join other parties.o Nothing in Rule 20 says that a party must join another party.

- Usually additional parties are joined at the beginning of the lawsuit.

- Rule 20(a) – Persons who may join or be joinedo (1) – Plaintiffs – Persons may join in one action as P’s if:

(A) they assert any right to relief jointly, severally, or in the alternative w/ respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all P’s will arise in the action.

o (2) – Defendants – Persons may be joined in one action as D’s if: (A) any right to relief is asserted against them jointly, severally, or

in the alternative w/ respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all D’s will arise in the action.

Mosley v. General Motors Corp. (1974)- 10 Ps sued, alleging violations of federal civil rights statute (Title VII)- Ct of Appeals reverses district ct, holding that Rule 20 was satisfied (parties

properly joined)o 1st requirement – same transaction or occurrence

Seemed to be a company-wide policy of discrimination, from which there are a series of transactions and occurrences that flow from the policy.

o 2nd requirement – common question of law or fact These were merely different effects of the same violation of the

law. ‘Common question of law’ requirement satisfied

- The commonality of the D is not enougho It’s not just that these P’s shared a common D.

Rule 14 – Third Party Practice (Joinder of Parties by D’s; Third Party Claims)

- Rule 14 – based on the concept of indemnificationo Contribution among joint tortfeasorso Indemnification based on tort

- P sues D. D says that D has a legal relationship w/ someone (based upon K or tort) such that that person shares liability w/ the D.

o “If I’m liable to you, P, then you, 3rd party, are liable to me for all or part of my liability to P.”

o Cannot be, “It was him, not me.” (different liability)

Requirements:- (1) Must be a legal relationship between the D and the 3rd party D- (2) Third party D’s liability must be the same as the D’s to the P (cannot be a

different liability)- (“Third party P” = original D)

- Rule 14o A D may bring in a nonparty who is or may be liable to D for all or part of

the claim against it.

o The third party D may assert against the P any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim against the D.

o P may assert against the third party D any claim arising out of the same transaction and occurrence as the main claim.

o When a claim is asserted against a P (counterclaim), the P may bring in a third party if this Rule would allow a D to do so.

(P, as a D in the counterclaim, can bring in a 3rd party to share liability)

Price v. CTB, Inc. (2001)- Third party D’s liability must be the same as the D’s to the P.- State did not recognize contribution among joint tortfeasors (so this could not be

the basis for the legal relationship between D and third party D that would make third party D liable)

o The state did recognize implied contractual indemnity: This doctrine could serve as the connection between the D and

third party D.

Kroger v. Omaha Public Power District (1975)- P tries to sue a third party under Rule 14- As a matter of joinder, it was okay for P to join the third party D.- But as a matter of subject matter jurisdiction/ancillary jurisdiction, P could not

join the third party D.

- 28 USC 1367(b)o In any civil action of which the district cts have original jurisdiction

founded solely on diversity jurisdiction: The district cts shall not have supplemental jurisdiction under

subsection (a) over claims made by P’s against persons made parties under Rule 14, 19, 20, or 24:

When exercising supplemental jurisdiction over such claims would be inconsistent w/ the jurisdictional requirements of 1332.

o (codification of the Kroger holding)o 4 questions:

(1) Is the main claim founded solely on diversity? (2) Brought solely by P? (3) Is the claim brought against a person under Rule 14, 19, 20, or

24? (4) Inconsistent w/ requirements under 1332? (If ‘yes’ to all 4 – then “kaput”)

Rule 19 – Compulsory Joinder of Parties

- Compulsory joinder – required (unlike permissive joinder)

- Rule 19(a) – Certain categories of people are required to be joined as parties if it is feasible.

o (1) A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the ct cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

- Rule 19(b) – When Joinder is Not Feasibleo If a person who is required to be joined if feasible cannot be joined, the ct

must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.

o Factors to consider include: (1) the extent to which a judgment rendered in the person’s

absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided

by: (A) protective provisions in the judgment (B) shaping the relief; or (C) other measures;

(3) whether a judgment rendered in the person’s absence would be adequate; and

(4) whether the P would have an adequate remedy if the action were dismissed for nonjoinder.

Temple v. Synthes Corp. (1990)- Rule 19 was not intended to require a P to join tortfeasors (importance of P

autonomy in tort cases)- D could not have filed a third party complaint against the doctor & hospital

o 2 different claims – 1 claim was for malpractice, and 1 claim was for defective product manufacture

o If there were a contractual agreement between them, then you could argue that it is 1 claim and D could then file a third party complaint against them

Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center (1977)- Case where a party must be joined under Rule 19(a), but it’s not feasible to do so- Rule 19(a) satisfied:

o Someone outside of the lawsuit who has an interest in the subject matter, and w/o that person you may have double or inconsistent liability

- But it was not feasible to join that party, because ct could not get PJ over it- To determine whether to dismiss – ct looks to Rule 19(b)

o No prejudice to anyone hereo It was the D’s fault for deciding to enter into 2 inconsistent leases.o Ct gave the third party the chance to intervene and they chose not to.

Rule 24 – Intervention

- Intervention – If you are a person outside the lawsuit who falls w/in certain categories, you can “knock on the door” of the lawsuit itself

- Rule 24 (a) – Intervention of Righto On timely motion, the ct must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Natural Resources Defense Council v. US Nuclear Regulatory Commission (1978)- 2 outside parties had an interest in the lawsuit that would be impaired (their

interests were not adequately protected by the existing parties- The 2 parties were allowed to intervene.- Public interest litigation

- Public interest litigation – tends to be more liberal interpretations of Rule 24(a)o Large effects on the public interesto Ct will want as many different organizations in the suit as possible – to get

as many viewpoints as possible to help the ct decide the case

Interpleader

- Interpleader – allows a party (e.g., insurance company) to make the first move (where the party knows that someone might sue them); to file a lawsuit against someone

o Stakeholder = the person bringing the suito Claimants = the P’s

- Subject matter jurisdiction, personal jurisdiction, venue, and service still must be satisfied.

o PJ problematic where claimants are from different parts of the country; claim may be less than $75,000; service problems under Rule 4

- Rule 22 – Interpleadero You can use Rule 22 to bring this type of lawsuit, but then you must

satisfy all of these other requirements.o Complete diversity required

- Statutory interpleader- Congress enacted a series of statutes that we call ‘statutory interpleader’

o Turns all of the rules we’ve learned so far on their heado If you use statutory interpleader, you get the benefit of all these exceptions

Only $500 in controversy required Diversity only needs to exist between 2 of the claimants.

Complete diversity – not constitutionally required You can have nationwide service of process

‘the US’ is the territory for purposes of PJ Venue – You can bring the suit wherever there is 1 claimant.

Putting all the Civil Procedure I Pieces Together

Basically, the course asks three recurring questions, all of which are dealt with before a the lawsuit is filed. (Civil Procedure II takes the case beginning from when the complaint is filed through to the end)

The questions are:

1. WHERE can I bring the lawsuit?2. WHAT can I sue for?3. WHOM can I sue?

LEGAL REQUIREMENTS FOR BRINGING SUIT: WHERE, WHAT, and WHOM are answered by a combination of the following:

Subject matter jurisdiction – federal or state court forum? (what and where )Personal Jurisdiction - Can you get defendants into the forum chosen? (whom and where)Service of Process/Notice – Can defendants be properly served or can you get waiver, if

Applicable? (whom and where)Venue – What particular court in the forum chosen? (where, more specifically)

JOINDER: MORE WHAT and WHOM

How many claims will be included or potentially added?How many parties will be included or potentially added?What effect does multiple claims or parties have on the legal requirements (smj, pj, etc.)

ASSUMING YOU ARE IN FEDERAL COURT, WHAT LAW WILL APPLY?

Federal Q is easily answeredFor Diversity, more complex (potential for Erie problem)

Are there any conflicts between Federal law to be applied and State law?What test should be applied to resolve the conflict?

What is the resolution?

(there is always the possibility that some of these issues will arise later, especially JOINDER and ERIE, but they all can arise before or at the beginning of a lawsuit)

Review # 1

WHERE CAN SUIT BE BROUGHT?

I. Subject matter jurisdiction (May the suit be brought in a federal court?)

A. Constitution: Article III, sec. 2 (the basis for federal subject matter jurisdiction)

B. Statutes: 28 U.S.C., secs 1331, 1332 (legislative implementation of federal jurisdiction

C. 1331: Arising Under (what does it mean for a case to ‘arise under’ federal law…)

D. 1332: Citizenship and amount in controversy

1. citizenship: individuals (what does citizenship mean?)

2. citizenship: corporations (1332 (c)) (what does citizenship mean?)

3. amount in controversy

E. Supplemental Jurisdiction: 28 U.S. C. sec. 1367(a) (can a case with a non federal claim be heard with a federal one if they are part of the same ‘case?’ can a claim that joins a party that is not within federal subject matter jurisdiction be heard with a federal claim?)28 U.S.C. sec. 1367 (c) Even if the court has jurisdiction under 1367 (a), do circumstances exist that would cause the court to exercise its discretion to decline to exercise jurisdiction

F. Removal: 28 U.S. C., sec. 1441, 1446 (may the suit be moved from a state court to a federal one?)

II. Personal Jurisdiction (whether a federal or a state court can hear the case, which states can exercise power over the defendant(s) so that a judgment against him/her/them will be fair under the Constitution)

A. Constitutional underpinnings: (1) 14th amendment; (2) full faith and credit clause (art IV)

B. Traditional Bases

1. individuals: presence/service with process in the forum (and renewal in

Burnham) (note this gives general jurisdiction)domiciliary of forum (note this gives general jurisdiction)consent

2. corporations: place of incorporation (note this gives general jurisdiction)place of principal business (note this gives general jurisdiction)consent

C. Long Arm Statutes: Legislation may limit the due process boundary

1. due process type – full limits/outer boundaries of due process

2. – less than outer boundaries of due processJurisdiction restricted by laundry list of acts Is one of the acts satisfied?Jurisdiction restricted by demanding more than mere minimum as the threshold? (e.g. substantial contacts:

Is the defined threshold satisfied?

D. Irrespective of what basis, is the application/exercise constitutional under the due process clause ?(International Shoe and progeny)

1. contacts in forum: does the cause of action arise out of the contacts? If yes, need only minimum contacts such that it would not offend fairness to make D defend in the forum. If cause of action does not arise out of the contacts, look to see if you have a basis for general jurisdiction. (see a. and b. below)

a. Are acts in the forum of quality and nature to justify GENERAL JURISDICTION? ( Recall some of the traditional bases always give rise to general jurisdiction: for corporation, place of incorporation or principal place of business; for individuals, place of domicile; but, if none of these exist, are the contacts ‘continuous, substantial, and systematic’ so as to justify bringing suit against the defendant on any cause of action?

b. Or does cause of action arise out of contacts (SPECIFIC JURISDICTION)

Are acts voluntary, purposeful and directed toward the forum?Are the acts by the defendant?

Would defendant anticipate being haled into court based upon the contacts?

c. fairness factors: if jurisdiction is specific based on minimum contacts, then balance contacts with fairness factors:

a. burden on defendant: inconvenience to defendant to defend in the forum; also look at benefits and burdens

b. forum’s interest (usually in protecting a citizen, who is plaintiff)

c. plaintiff’s interest in having case heard in forum and alternative fora

d. judicial system’s interest in efficient resolution

e. will jurisdiction further shared interest of the states furthering substantive social policies

(Note, for continuous, systematic and substantial kind of general jurisdiction, some lower courts balance fairness factors; disagreement among scholars/professors about whether this is necessary at all)

III. Notice

A. Constitutional requirement (Mullane): notice reasonably calculated to apprise interested parties and if not possible the form chosen is not substantially less likely to bring home notice than any of the other feasible substitutes

B. FRCP 4 (preference for waiver for individuals inside and outside U.S. and for corporations and associations. Highlights of FRCP 4: how a waiver must be requested; what the sanction is if an individual, corporation or association does not waive; how defendants are served if no waiver is obtained; and the limits on territorial service; some kinds of defendants cannot waive: minors, incompetents, governments and their agencies)

IV. Venue: 28 U.S. C. 1391 (a) (b) (c) (d) (remember, which venue section depends first, upon the type of subject matter jurisdiction, diversity or federal question; then for each of those, if your basis for venue is ‘residence’ ( either (a) (1) or (b) (1)) AND you have a corporate defendant, you must look to (c) to determine where a corporation is a ‘resident’ for purposes of the venue statute. )

V. Forum non conveniens and Federal Transfer (28 U.S.C., sec 1404, 1406, 1631)

A. fnc: judicial doctrine to decline J; available only to defendant; State and Federal; results in dismissal; plaintiff must refile

B. 1404 transfer: statute; federal courts only; no dismissal; transfer to another district only; available to plaintiffs as well;

C. 1406 transfer: from a district in which venue is improper; here dismissal is allowed.

D. 1631 transfer: from a district in which jurisdiction is lacking but which had proper venue;

Review #2

The Erie Problem

An Approach

I. Can you avoid Erie analysis or accommodate both Erie/federal interest and State interest? (i.e, is there any way to construe the differences between State and Federal law or the breadth of the applicable Federal law so as to avoid or accommodate using Erie analysis; if you determine that federal interests overcome state practices, you do not have to apply the Erie-type analysis.) (Recall Burlington Northern, Stewart, Gasperini, Semtek)

A. If you can avoid or accommodate Erie, then you may decide Federal law controls or that it is possible to accommodate both federal and state law.

B. If you cannot avoid Erie or accommodate both interests, then you decide what type of conflict there is, based on the source of the federal law, and apply the rules below

II. Is the conflict between a federal statute and state law?

A. If so, ask whether the statute is constitutional;

B. if yes, apply it

III. Is the conflict between a federal rule of civil procedure (or federal rule of appellate procedure or federal rule of evidence) and state law?

A. If so, ask the initial question is whether the delegation in the Rules Enabling Act was constitutional (this will always be yes under Sibbach); Once you understand that you need only ask

B. Whether the particular federal rule being considered was properly enacted because it was within the scope of the Rules Enabling Act (28 USC, § 2072)(no case has ever held that a rule is beyond the scope of the Rules Enabling Act); but consider:

Is the federal rule one that really regulates practice and procedure? (2072 (a)) and

Does the federal rule abridge or modifies a substantive right (2072 (b))

If it is really a rule governing practice and procedure and does not abridge or modify a substantive right, then it is valid under the REA.

If these tests are satisfied, the federal rule must be applied even if it differs from the state practice in a significant way.

IV. If the conflict is between a federal practice (i.e. a rule not grounded in a federal rule of civil procedure) and state law, then there are two analyses possible:

A. Under Byrd analysis:

1. is the state law bound up with the definition of the rights or obligations of the parties? (is the particular law so inextricable from the right created by the state that it is part of that right? To help, recall examples with wrongful death damages and medical malpractice cases) If yes, the state law should prevail; If no, then ask

2. even if the state law is not bound up with the substantive rights and obligations, would its application nevertheless determine the outcome of the case? If no, apply federal law; but if yes, apply state law but then ask

3. are there affirmative countervailing considerations of federal judicial administration present? If yes, apply the federal practice.

B. Under Hanna analysis:

1. would the difference between the state or federal rule lead a party to pick one or the other forum, i.e., forum shopping? (would a plaintiff, at the beginning of a case, choose federal or state, based the difference between the federal and state law at issue)

2. would applying one or the other lead to inequitable administration of the laws ( would there be a pattern of results over time that would regularly result in different applications of what is nominally the same substantive law)

If either 1. or 2. is yes, state law prevails.

Hanna did not overrule Byrd. Both cases suggest an approach to a federal practice not controlled by a federal statute or Rule. Courts often use both.

Other considerations

What if federal court cannot determine what state law is? If it is uncertain what the state law is, Federal courts must do their best to decide what the state courts would do.

Certification – process in state whereby federal court asks state court for an answer to a question about state law. But the state must have a certification procedure in place.

Review #3

Joinder/Jurisdiction

For EACH CLAIM you must ask the following:

1. whether the rules give permission to join all parties and claims that have been brought together? AND

2. whether there is jurisdiction/power to hear the case?

a. is there a basis for jurisdiction under sec. 1331 (federal question)?

Or

b. is there a basis for jurisdiction under sec 1332 (diversity; - don’t forget amount in controversy)?

Or

c. is there a basis for supplemental jurisdiction under 1367(a)?

(i) if there is original jurisdiction over one claim, thereshall be supplemental jurisdiction over all other claims,

if they are so related that they form part of the same case or controversy under article III of the Constitution (same nucleus of operative fact);

(this includes those that involve the joinder or intervention of additional parties and including those who do not meet the amount in controversy)

(ii) EXCEPTIONS: HOWEVER, under 1367(b), there SHALL BE NO JURISDICTION if:

the main claim is founded solely on diversity; AND

the claim at issue is brought by a plaintiff; AND the claim at issue is against a party joined under

rules 14, 19, 20 or 24 OR claims by persons joined as plaintiffs under rule 19 OR claims by persons seeking tointervene as plaintiffs under rule 24 AND

the claim at issue would be inconsistent with diversity.

One way to look at 1367 b is to look at it as a series of questions: You need a “yes” to all four in order to be excluded under the mandatory exception of 1367 b.

1. Is the main claim founded solely on diversity? If no, no need to look any further in 1367 b. If YES, go on to ask:

2. Is the claim at issue being brought by a plaintiff? If no, need to look any further in 1367 b. If YES, go on to ask:

3. Is the claim against a party joined under rules 14, 19, 20 or 24? or is it a claim by a person proposed to be joined as a plaintiff under rule 19 or seeking to intervene as plaintiffs under rule 24? If no to both of these, no need to look any further in 1367 b. If YES to any of these, go on to ask:

4. Is the claim at issue inconsistent with the requirements of diversity jurisdiction? If YES, the mandatory exception of 1367 b will preclude you from supplemental jurisdiction.

(iii) DISCRETIONARY EXCEPTIONS: Even if 1367(a) is satisfied and even if none of the mandatory exceptions apply under 1367(b), a court may decline to exercise jurisdiction if it finds one of the factors set forth in 1367(c).