I. Personal Jurisdiction

I. Personal Jurisdiction

Generally……………………………………………………………1
Specific Jurisdiction…………………………………………………1-3
General Jurisdiction…………………………………………………3
Fair Play……………………………………………………………..3-4
Jurisdiction based on Property………………………………………4
Jurisdiction based on Presence………………………………………4
Consent………………………………………………………………5
Federal Personal Jurisdiction………………………………………...5-6
Challenging Personal Jurisdiction & Waiver………………………..6

II. Notice

Requirements………………………………………………………...6-7
Types of Notice………………………………………………………7
Cases…………………………………………………………………7-8
Waiver of Service……………………………………………………8
Immunity from Service………………………………………………8

III. Subject Matter Jurisdiction

Overview……………………………………………………………..8
Diversity of Citizenship………………………………………………8-9
Amount in Controversy………………………………………………9-10
Federal Question……………………………………………………...10
Supplemental Jurisdiction……………………………………………10-11
Jurisdiction under § 1367…………………………………………….11-12
Class Actions…………………………………………………………12

IV. Removal

Generally……………………………………………………………..12
§ 1441………………………………………………………………...12-13

V. Challenging Subject Matter Jurisdiction

Generally………………………………………………………………13
Collateral Attack………………………………………………………13

VI. Venue

Generally………………………………………………………………13
Venue in Federal Courts……………………………………………….13-14
Transfer………………………………………………………………..14
Forum Non Conveniens……………………………………………….14-15

VII. Pleadings & other Fed. Rules of Civ. Pro.

The Complaint…………………………………………………………15
Pleading Special Matters………………………………………………16
Challenging Pleadings…………………………………………………16-17
Answering the Complaint……………………………………………...17
Amending the Complaint………………………………………………18
Relation Back…………………………………………………………..18-19
Supplemental Pleadings………………………………………………..19
Sanctions……………………………………………………………….19-20
Joinder & Counterclaims………………………………………………20

Michael Forman

Civ Pro Outline

I. Personal Jurisdiction

Three Types of Personal Jurisdiction
Def. can always waive his right to personal jurisdiction
In Personam: forum has power over def. because of things like residence, consent, presence (out of state person causes harm in forum state)
In Rem: jurisdiction over property when property is the subject of the claim (estate dealings)
Quasi-In Rem: jurisdiction over a person because he owns land in the forum state; land must be attached to dealings (Pennoyer v. Neff); later overruled by Shaffner

Is There Specific Jurisdiction?
Specific jurisdiction requires a connection between the cause of action and the forum state
Def. must have minimum contacts in forum state and jurisdiction must not offend the notion of fair play and substantial justice
Does cause arise out of activities in the state?
Gray (Titan Valve): radiator explodes because of faulty valve. Long arm statute in IL allows P to sue OH D company that produced valve, sent to PA corp., which in turn produced and sold radiator; court interprets statute by saying that def. “committed a tort” in IL even though the valve was manufactured in another state and just malfunctioned in IL
Gray case can be decided two ways: (1) def. committed a tort in the forum state because the malfunction occurred in that state and therefore jurisdiction is proper (2) def. committed a tort in the state where the product was improperly manufactured and therefore jurisdiction isn’t proper based on that
Jurisdiction allowed when def.’s contacts consist of a SINGLE act, provided the act gave rise to the claim, and deliberately was directed at the state. McGee
McGee: Texas insurance company can be sued in Cali. when they had one insurance contract in Cali.; three main reasons for allowing jurisdiction: (1) def. solicited business in the forum (2) plaintiff’s claim arose from def.’s contact in the forum (3) the forum had an interest in protecting its citizen
Bellino v. Simon – court said def.’s phone calls and emails to forum state were enough minimum contacts
Are there minimum contacts in the forum? Court looks at:
Quality and nature of defendant’s contact
Interest of forum state in protecting plaintiff
Hanson v. Denckla: Delaware trustee sued in Fl. By family members that want to collect money from trust; def. never purposely availed itself to the forum; def. never received benefits and protections of the forum’s law; established the standard of purposeful availment
Burger King – contract dispute between Michigan franchisees and Fl. company; court rules that the action of reaching out to the Fl. company and making a contract along with continuous contacts is enough to satisfy minimum contacts; court also looked at fairness issue, saying that it was fair to make the small franchisees travel to Fl.
Relative wealth of parties is not considered for fairness aspect

Is foreseeability enough?

Even if def.’s activities are performed outside of the state, the def. will be subject to jurisdiction for consequences where he knows or reasonably anticipates that his activities could give rise to the cause of action in the forum state
Foreseeability refers to foreseeability of being sued in the forum
Courts have said that foreseeability that def.’s product would end up in forum state due to stream of commerce may be enough for jurisdiction
World-Wide Volkswagen – NY car dealer is not subject to juris. in Okla. court for accident that occurred in Okla.just because it was foreseeable that car would travel to Okla.; the dealer must have deliberately sought some contact with the state
Asahi: one side of court ruled that it is enough for minimum contacts to put a product in the stream of commerce and it is reasonably foreseeable that the product will arrive in the forum; the other side of the court said that you also need intent or purpose to serve the forum (proven by something like advertising in the forum); it didn’t matter because the fairness aspect was not met
In Gray, court ruled that foreseeability that valves would be used in forum was enough for valve company to be sued in Ill.
Def. needs to do more, like advertise or target forum state
Def. needs to do a deliberate act that purposely avails him to the forum state
Keeton v. Hustler – Selling 10,000+ magazines specifically in forum state qualifies as more than foreseeability and enough minimum contact

Is There General Jurisdiction?
General jurisdiction is met by systematic and continuous activity in forum state
This is a higher standard than specific jurisdiction and it allows the def. to be sued in the forum state for any action
International Shoe – there was general jurisdiction because company’s salesmen rented rooms to display and take orders for shoes; this case was key for developing both systematic and continuous requirement and the requirement of fair play and substantial justice
Cause of action does not need to arise out of state
Perkins v. Benguet – def. can be sued in Ohio because president did systematic and continuous work at his Ohio house during WWII even though company did not have any other Ohio connections
Helicol – Peruvian company could not be sued in Texas because the actions of buying helicopters and training pilots in Texas was not systematic and continuous
Does extensive advertising and solicitation qualify as systematic and continuous activity? Cresswell v. Walt Disney said yes
Burnham v. Superior Court –Def. was served with divorce paper in CA and court held that there was personal jurisdiction. Transient jurisdiction, based on def.’s physical presence in the forumState, still comports with due process. A def. that is served with process while in the forumState is subject to the State’s jurisdiction, regardless if he is just passing through.
Kinds of continuous activities:
Residence
Presence
Consent
Ownership of Property
Interrelated Businesses/Corporate Activity

D. Fair Play & Substantial Justice

What is “fair play and substantial justice”?
Even if there are minimum contacts, if jurisdiction is unfair and unjust, it won’t be allowed

Factors to assess:

Burden on def. to litigate in the forum state
Plaintiff’s interest in a convenient and efficient forum
Interest of forum state in deciding case
Public Policy implications
Asahi Metal – even though justices debated on foreseeability issue, they all agreed that having a Cali. Court decide a claim between Taiwanese and Japanese companies violated fair play and substantial justice
In Asahi, forum did not have a strong interest and burden for defs. was very great
The def. has the high burden of showing that the jurisdiction is unfair

Jurisdiction Based on Property
Harris v. Balk – quasi-in rem jurisdiction allowed based on a debt owed to the defendant; the connection used in this case was not physical property, but debt
Shaffner v. Heitner –def.’s were sued in Del. and jurisdiction was based on sequestering their stock (property) in a Del. Corporation; landmark decision which said that quasi-in rem jurisdiction is not allowed unless the def. has enough minimum contacts with the forum state to warrant in personam jurisdiction under the rules set out in International Shoe
Court says it is not fair play to base a suit on a piece of property that has nothing to do with the actual claim of the suit
Quasi-in rem jurisdiction came to an end with Shaffner; the law in Harris is no longer valid after Shaffner

Jurisdiction Based on Physical Presence

Is jurisdiction of a person who has a casual presence in the forumState violating the notion of fair play and substantial justice?
Burnham v. Superior Court – Burnham was visiting Cali. for business and was served with process for a divorce suit; Supreme Court upheld jurisdiction based on Burnham’s presence when served in the forumState
Four justices said jurisdiction valid due to tradition, four justices said that the facts in Burnham met the fundamental standards for personal jurisdiction based on that minimum contacts are met based solely on def.’s presence in the forum state

Consent to Jurisdiction

Def. has right to consent to jurisdiction even if there is a reason to argue it
The ways that a def. can consent to jurisdiction are:
Express Consent
Failing to Object
Implied Consent
Insurance Corp. of Ireland v. CBG – def. refused to cooperate in discovery to determine jurisdiction; court said that refusing to cooperate was consenting to jurisdiction (failing to object)
Court has jurisdiction to determine its jurisdiction
A person being sued who feels there is lack of jurisdiction can not show up to court
A default judgment will be given for the plaintiff
Plaintiff will go to def.’s forumState to enforce judgment; during enforcement hearing in forumState, def. can argue jurisdiction of first court that made default judgment
It is a risky move because if second court holds that jurisdiction was ok, you automatically lose and the judgment is enforced
Hess v. Pawloski – Mass. Court had jurisdiction over anyone who drove a vehicle in the state because they have impliedly consented to jurisdiction
Modern trend is to reject theory of implied consent in terms of out of state motorists causing accidents; the new theory used for jurisdiction is that states have right to use their police power and court systems to protect their own citizens and interests
Carnival Cruise Lines v. Shute – Washington plaintiffs wanted to sue in Washington, but tickets stated that all disputes must be litigated in Florida; court held that suit must be brought in Florida; the clause on the tickets was fair because of the nature of the cruise business and interest in centralizing all litigation to be able to offer lower ticket prices

H. Personal Jurisdiction in the Federal Courts

Governed by the 5th Amendment
Federal courts treat themselves as courts of the state in which they sit – thus a federal court in Illinois would treat itself as an Illinois court for jurisdictional purposes
In impleader cases (A sues B, B says that if it is liable to A, then C is liable to B) the court has a jurisdictional limit of 100 miles outside of the state
Congress has given federal courts nationwide service of process in certain matters
Rule 4(k)(1)(A): Service of a summons or filing of a waiver of service is effective to establish jurisdiction over the person of a def. who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located (so limited by the 14th Amendment and any other state restrictions)
Rule 4(k)(2): If exercise of jurisdiction is consistent with the US Constitution and laws, jurisdiction is given over people who are not subject to the jurisdiction of a single state (i.e. US citizen living abroad)

I. Challenging Personal Jurisdiction & Waiver

Court always has jurisdiction to determine whether it has personal jurisdiction
Special Appearance: some state courts allow you to appear in court only to argue the matter of personal jurisdiction; by making a special appearance, you are not consenting to the exercise of jurisdiction
The federal courts and many state courts have abolished special appearance and allow a motion to dismiss for lack of jurisdiction to be made without subjecting the party to the court’s jurisdiction
Failure to make a lack of jurisdiction claim in the motion to dismiss waives the party’s right to contest jurisdiction
You cannot argue jurisdiction any time after the motion to dismiss if you failed to include the jurisdiction issue in the motion
Collateral Attack: challenge jurisdiction in enforcement rather than original suit; you default in the suit, and contest jurisdiction when the party comes to your stateto enforce the default judgment; this is risky because you cannot argue the merits of the case, just lack of personal jurisdiction

II. Notice

Requirements
Def. must receive adequate notice of the case against him
Notice consists of summons and a copy of the complaint
A balance of practicality and reasonableness: “An elementary and fundamental requirement of due process in any proceeding which is to be according finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” – Mullane
Mullane v. Central Hanover Bank: trustee of funds only notifies the beneficiaries by publication in a local newspaper, even though they had the names and addresses of the beneficiaries; court held that publication was insufficient notice to people whose names and addresses were available; reasonable notice would have been through mail to any party whose name and address was reasonably ascertainable
Federal courts under Rule 4 allow for notice to be given by the specifications followed by the state where the court is located; Rule 4 also allows more ways for federal courts to give notice
Rule 4(m) says service must be made 120 days after filing the complaint
Even though a complaint was filed, the statute of limitations runs until the time of service
States say that if make a good faith attempt at service before the statute of limitations runs out, it is okay if the service was not given until after the statute of limitations has run out
Def. has 20 days to answer notice
Federal court can only serve a person outside its state if the state court could also do so (Rule 4(k)(1)(A))
If a party is joined under Rules 14 or 19, they can be served if they are within 100 miles of the location of the court; does not apply to original defs. (Rule 4(k)(1)(B))

Types of Notice

Personal notice handed directly to the person
Substituted service, done at def.’s usual abode and left with someone of suitable age who resides there (therefore the babysitter would not work because she does not reside at the home) (Rule 4(e)(2))
Use of an agent to receive notice; agent must be agreed upon and agent must make sure the def. receives a copy of the notice
Service to an officer of a company is sufficient notice when the company is the def. (Rule 4(h)); courts are flexible on what an officer of the company is

Cases
Dusenberry v. US: prisoner in federal jail and gov. trying to take his property that is supposedly connected to his drug crimes; gov. sends notice by certified mail and it never gets to him; majority opinion rules that it is sufficient notice; dissent says there needs to be a protocol in fed. jail for serving a person; as a result a law was passed where prisoner, not prison agent, must sign cert. mail form
National Equip. Rental v. Szukhent: contract for equip. rental specified an agent to received service within NY; def. was from Michigan; agent received process and mailed it to def.; court held this to be valid service; dissent says that contract should specify that agent must mail notice when it is received and the appointment needs to be bargained for in contract formation
Wyman v. Newhouse: NY man was fraudulently drawn to FL for the purpose of being served process; NY man allowed default judgment in FL and contested matter upon attempted enforcement in NY; NY court had to look at FL law and see what FL would have done; service deemed invalid because it was done by fraudulent means

Waiver of Service – Rule 4(d)

Plaintiff can mail notification of action to def. and request def.’s waiver
If notice is waived, def. has 60 days to answer instead of usual 20
If notice isn’t waived, def. must bear cost of normal service of process
Maryland State Fireman’s v. Chaves: plaintiff used 1st class mail to serve process; def. did not waive notice and Maryland rule required that service needed to be made by certified mail; since the waiver was not signed by the def. and the notice was only mailed by 1st class mail, it was not proper service

Immunity from Service

Certain groups of people are immune from service
You cannot be served process when you enter a state to take part in a court proceeding, such as coming into a state to be a witness, defendant, etc.
All states do not necessarily grant immunities
State v. Duffield: def. comes into state to go fishing; he hits people with his car and is put in jail; he was served process for a civil suit by the victim; service was allowed; non-resident criminal defs. who are jailed in a foreign jurisdiction are not immune from service

Subject Matter Jurisdiction

General Overview
State courts essentially purport to take every type of case
Federal courts have limited jurisdiction
Subject matter jurisdiction CANNOT be waived; the court has the responsibility to raise subject matter jurisdiction as an issue if the parties fail to raise it
There are two major ways to get federal jurisdiction
Diversity of Citizenship (Amount in Controversy must be greater than $75,000)
Federal Question

Diversity of Citizenship
Under 28 U.S.C. § 1332, there must be complete diversity for a federal court to hear a diversity case
If one other defs. is a citizen of the same state as one of the plaintiffs, there is no diversity
In diversity cases, the federal court applies the state law in the state where it sits
Mas v.