1

CIVIL PROCEDURE

Outline

Rule 4 1391, 1404, 14061441, 1446

SMJPJ Notice & ServiceVenue  Removal  Waiver

Fed QSpecific-MC/reasonable

DiversityGeneral-continuous/systematic

SupplementalChallenge-12(b)

  1. JURISDICTION: SUBJECT-MATTER JURISDICTION (SMJ): authority of a court to hear certain class of disputes (diversity and federal question)

Allows fed jurix if both diversity of citizenship AND amount in controversy exceeds $75,000

  1. 28 USC § 1332:An action must be between citizens of different states, or between citizens of a state and citizens and subjects of a foreign state, or between citizens of different states and in which foreign states or citizens or subjects thereof are additional parties.
  2. COMPLETE DIVERSITY: every plaintiff must be of diverse citizenship from every defendant: (no P can be domiciled in the same state as any D)

INDIVIDUAL

  1. An individual is a citizen of a state ONLY if he or she is both:
  2. Citizen of US (born or naturalized) or an alien admitted for permanent residence; AND domiciled in that state.
  3. Domicile: 1) Residence within that state, AND 2) Intends to remain in that state indefinitely (intends to return whenever he or she is absent—ex: voter registration, driver’s license, family, property, house, permanent job)
  4. Individual remains a citizen in the state of his or her former domicile until he acquires a new domicile
  5. Citizenship is determined at the time the suit is filed
  6. American citizen living abroad: has no domicile w/in the US and cannot sue or be sued in federal court on diversity jx
  7. Gordon v. Steele: intention to remain indefinitely determines domicile
  8. Mas v. Perry: last domicile will remain your domicile until you acquire a new one for the purpose of citizenship
  9. Saadeh v. Farouki: 1332a4An alien admitted to the US for permanent residence shall be deemed a citizen of the State in which he is domiciled for diversity purposes.

-Jurix denied where foreign US resident sued by foreign national b/c legislative intent: the federal court system was not designed as a forum for foreign nationals to sue each other

CORPORATION

  1. A corporation is a citizen of both:
  2. the state in which it is incorporated, AND
  3. the state in which it has its principal place of business.
  4. “Nerve center”: corporate HQ: “locus of corporate decision-making authority” OR
  5. “Muscle” test: the state where company has most activity

OTHER

  1. Domicile of representative(s) only: Class action, Shareholder derivative suit
  2. Executor = domicile of decedent
  3. Representative of incompetent, minor = domicile of incompetent, minor
  4. JURISDICTIONAL AMOUNT: Amount in controversy must exceed $75,000
  5. Single P against single D can aggregate unrelated claims
  6. Multiple Ps or multiple Ds can only aggregate claims if there is an undivided interest-prop
  7. Claims cannot be aggregated by separate Ps-Zahn
  1. FEDERAL QUESTION

28 USC §1331:District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

  1. “Well-Pleaded” complaint rule – complaint only contains the c/a-not additional material, cannot be an anticipated defense:
  2. LouisvilleNashville RR v. Mottley

1. Requires P’s c/a in a well-pleaded complaint to have been created by federal law; complaint may not anticipate any federal defenses. Suit “arises under constitution” if c/a is based on federal law or constitution.

2. Policy: the Mottley Rule increases judicial efficiency by allowing courts to determine from the outset of the complaint whether it has jx rather than waiting for the D’s answer; Also so P’s cannot invoke fed jx simply by speculating fed arguments that the D could raise

iii. 28USC 2201: Declaratory judgment: remedy to discover rights or obligations, for diversity

construct hypothetical law suit

  1. SUPPLEMENTAL JURISDICTION:28 USC §1367: discretionary: If there is federal SMJ over one claim there is supplemental jx over all other claims which are so related that they form one “case or controversy”
  2. Gibbs test-1367 (a): if a single P has a substantial federal claim and an associated state claim that arises from a “common nucleus of operative facts” the two claims can be joined and tried in federal court
  3. Owen-diversity/Finley-fed question: evolution of 1367
  4. Pendent party jurisdiction: 1367 (a) expressly authorizes supplemental jurisdiction over claims involving the joinder of add’l parties to a federal question claimor a diversity claim, UNLESS such claims are excluded by subsection (b)
  5. 1367(b) does not apply if parties meet jurisdiction requirements individually
  6. 1367(b) does not allow supplemental jurisdiction where SMJ is solely based on diversity where claims joined under: (THUS if you fall within the 1367(b) exception, you can join only if you independently satisfy diversity: diff states, amount in controversy)

PD

19 (mandatory joinder)14 (impleader of 3rd party D)

24 (intervention)19 (mandatory joinder)

20 (permissive joinder)--convenience

24 (intervention)

[missing = 20, 23]

  1. 1367(c): gives district court discretion to decline to exercise supplemental jx if one of four criteria are met:
  2. Claim raises novel or complex issue of state law
  3. State-law claim substantially predominates over claim over which there is federal jurisdiction
  4. Claim over which there is federal jurisdiction is dismissed (esp. if dismissed before trial)
  5. Other exceptional circumstances raise a compelling reason for declining jurisdiction
  6. Stromberg (overrules Zahn): supplemental jurisdiction allowed for Ps joined under Rule 20, where the joined party did not meet amount in controversy and claim arises out of common nucleus of operative facts
  7. Meritcare: supplemental jurisdiction NOT allowed for parties joined under Rule 20, where joined party did not meet amount in controversy: Court looked at legislative intent which intended NOT to allow joinder under Rule 20.
  1. REMOVAL: 28 USC §1441(a):D can only remove an action that could have originally been brought by P in the federal courts.
  2. Only Ds may remove (P cannot even if D brings counterclaim); all Ds must join in removal
  3. If SMJ solely based on diversity: no removal if any Ds reside in state where suit is brought
  4. If SMJ solely based on federal question: D(s) may remove
  5. If there is a state-law claim, which lack an independent basis for jx, it may be removed if the state-law claims meet supplemental jx test (28 USC §1367)
  6. Procedure for removal = 28 USC §1446
  7. D must file notice of removal (containing short and plain statement of grounds for removal and signed under Rule 11), send copies to the other parties AND the state court
  8. Removal must be done within 30 days of complaint or amended complaint which is removable
  9. Removal on the grounds of diversity is not allowed more than one year from the commencement of the action
  10. After case removed, federal court can REMAND:
  11. If federal court determines that removal was improper b/c of lack of SMJ
  12. Any or all supplemental claims (even if properly removed) if condition of §1367(c) is satisfied
  13. Caterpillar: finality, efficiency, economy (Court had allowed removal w/o complete diversity, in anticipation of a non-diverse party settling out—but diversity was satisfied at the time judgment was entered)
  1. PERSONAL JURISDICTION: involves the ability of a court, having SMJ, to exercise power over a particular defendant or item of property
  2. Pennoyer v. Neff (1877): physical presence and service of process in the forum state. “Full faith and credit” clause: each state much respect the valid judgment of another state and throughout the US.
  3. LIMITATIONS on PJ: state statutes and US Constitution: exercise of PJ must not exceed the limitations of either source (see chart)
  4. In order for PJ to be valid, it must be both constitutionally and statutorily authorized. CA’s long-arm statute is very broad, as it provides statutory authorization for PJ as long as the exercise of jx would not violate the due process clause of the 14th Amendment. Therefore analyzing whether there is statutory authorization becomes an analysis of whether jx violates due process.

Due process, according to ISC, requires minimum contacts by the D with the forum state. Minimum contacts are measured by purposeful availment and reasonableness.

  1. 3 types of PJ:
  2. In personam: exists when the forum has power over the person of a particular D. Court is exercising jurisdiction over D through service of process. Process consists of copy of complaint and a summons (court order directing person to appear in person). In personam jx permits a court to enter a judgment that is personally binding on defendant.
  3. In rem: court exercises jurisdiction directly against the property involved by attaching the property at the outset of the case. This is accomplished by posting notices on the property and on title records. (Constructive notice). Used when one wanted to decide the ownership of property when one could not acquire in personam jurisdiction over a defendant claiming title.
  4. Quasi in rem: court exercises jurisdiction by attaching the property within the jurisdiction belonging to the defendant in order to satisfy any monetary judgment that might be issued. Used to obtain jurisdiction over a defendant and enforcing any resulting judgment.
  5. 2 types:
  6. Dispute arises from property
  7. Underlying dispute is unrelated to property attached
  1. ISC (1945): Minimum contacts [systematic and continuous / purposeful avail.]such that the suit does not offend “traditional notions of fair play and substantial justice”[reasonableness]
  2. Definition: to have general jurisdiction, there must be systematic and continuous contact (see chart) that is reasonable
  3. Territorial theory of jurisdiction: service of publication is allowed:
  4. Status: Marriage and divorce
  5. Implied consent (corporations): as a condition to doing business in the state, corporations appoint an agent to receive service of process. If there is no agent, then you can publicize.
  6. In rem: after property has been attached, service by publication is okay, b/c court assumes owner has constructive notice

[GENERAL JURISDICTION] [SPECIFIC JURISDICTION]

Contacts / Continuous and Systematic / Single and Isolated
Suits related/arises out of contacts / YES / MAYBE (PROBABLY)
Suits unrelated to contacts / MAYBE (ex: GM being sued in MI, where principal place of business is) / NO
  1. Long-Arm Statute (way of exercising jurisdiction over a person in a different state) requires:
  2. Statutory authorization: consider whether the applicable long-arm statute authorizes the court to exercise jurisdiction
  3. Constitutional power: consider whether it would be constitutional under the minimum contacts test for the court to exercise jurisdiction on the fact given (must follow 14th Amend’s due process clause)

[Assume that ALL states have long-arm statutes like CA-full const reach]

  1. Shaffer v. Heitner (1977): all assertions of jurisdiction must be evaluated “according to ISC and its progeny”; in order to attach property, there must be minimum contacts. Action must arise out of the property that is being attached; eliminates quasi in rem.
  2. Only time when attachment (probably) allowed w/o minimum contacts:
  3. Dispute over land ownership
  4. Tort on land
  5. Scalia disagrees
  1. SPECIFIC JURISDICTION
  2. McGee (1957): single act: one contact (mailing insurance premiums to CA) is sufficient for CA’s in personam jx, if suit arises from the contact;
  3. Hanson v. Denckla (1958): refines “minimum contacts”
  4. Unilateral activity of moving to FL does NOT satisfy the requirement of “contact”
  5. “There must be some act by which D purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”
  6. WWV v. Woodson (1980): Residents of NY bought an Audi in NY. While moving/driving to AZ they got into an accident in OK.

“I’ll take you out to dinner, but I won’t take you home”

WHEN DETERMINING SPECIFIC PERSONAL JURISDICTION

1st: Determine minimum contacts threshold:
  • Minimum Contacts
  • Purposeful Availment
/ 2ndReasonableness: Do minimum contacts offend fair play and substantial justice?
  • Minimum Contacts
Quantity and nature of D’s contacts with forum
Connection of contacts w/ c/a
  • Purposeful Availment
Did D purposefully avail of privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law?***
Purposeful avail includes: foreseeing being haled into court, benefiting from laws, products in the stream of commerce
***If no minimum contacts, then no jurisdiction. / 5 factor test:
  1. Burden on nonresident D: inconvenience of forum (travel + cost, location of witnesses)
  2. Forum state’s interest in adjudicating dispute (if injury occurred in state, state’s interest in enforcing its own laws)
  3. Ps interest in obtaining convenient and effective relief
  4. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies
  5. Shared interest of several states in furthering substantive social policies

  1. Asahi (1987):There is no PJ over Asahi, based on the reasonableness standard of ISC, forbidding PJ where it would offend “trad’l notions of fair play and substantial justice.” Court disagrees on minimum contacts/purposeful availment standard.

O’Connor +3 / Stevens / Brennan +3
  • Asahi did not purposefully avail itself of the CA market-no MC
  • Awareness that product is in stream of commerce is not enough for MC-must be purposefully directed to state
O’Connor’s test for purposeful direction/availment:
  1. Advertising in forum
  2. Customer service in forum
  3. Designing the product for market (in CA)
  4. Marketing through distribution agreement with sales agent to forum state
/ Did not want to decide on availment, minimum contact test is not needed
Just use reasonable 5-factor test /
  • Found purposeful availment through insertion of product into stream of commerce
  • But jurisdiction unreasonable

ALL AGREED: jurisdiction would be unreasonable and unfair considering:

  • Heavy burden placed on D: Asahi had HQ in Japan and would have to travel and submit to foreign nation’s judicial system
  • Internat’l context: would Japanese or Taiwanese law apply?
  • Slight interest of P: Cheng Shin has not demonstrated that it is more convenient for it to litigate in CA rather than Taiwan or Japan
  • Slight interest of forum state: Zurcher is out of the suit
  1. Burger King Corp (1985):
  2. Does a K establish minimum contacts (yes):
  3. Prior negotiations: initiated w/ district office, but also dealt with FL office
  4. Contemplated future consequences: 20-yr relationship that will be subject to dealing with FL corporation, not one-time deal
  5. Terms of the contract: purposeful availment of FL law (from K terms)
  6. Each parties’ course of dealing: (did R go to FL?)
  7. Why type of K will NOT satisfy jx? (case-by-case)…ex: out-of-state consumers to collect payments on modest personal purchases
  8. Applied 5-factor reasonableness test: and found reasonableness
  9. Federal court in FL uses Rule 4(k)(1)(a)—federal long-arm statute--to assert its jurisdiction over D

PJ/Notice / PJ/Notice
Statutory authorization/Service / Constitutional power/ Due Process
State / State Long-Arm Statute / 14th Amendment
Federal / 4(k)(1)(a): fed courts limited to jurisdiction of the state
4(k) / 14th Amendment
5th Amendment: minimum contacts with the nation as a whole
  1. GENERAL JURISDICTION
  2. Ds can be subject to jurisdiction for all claims, even those w/o any connection to the forum state where:
  3. Corporation: state of incorporation and state that is the principal place of business
  4. Individuals: state of domicile
  1. Washington Equipment v. Concrete Placing Co.(1997): State corporation does not consent to general jurisdiction by doing an act required by the state to do business there (i.e. obtaining a certificate to do business and appointing an agent in order to do business there)
  2. Unless there is a statute that says registering is enough for general jx
  3. Helicopteros (1984):
  4. Helicol’s contacts with TX were insufficient (not continuous and systematic) for general jurisdiction; “mere purchases,” even if occurring on a regular basis, are not enough
  5. Dissent (Brennan): Specific jurisdiction should be expanded to include suits that both arise out of ORare related to the contacts between D and forum
  6. Determining PJ:
  7. First, look at C/A to determine if suit arises out of D’s contacts in the state
  8. YES then specific jurisdiction
  9. NO  see if D subject to general jurix-continuous and systematic
  1. TRANSIENT JURISDICTION: physical presence at the time of personal service
  2. Burnham v. Superior Court (1990)
  3. Issue: Does the 14th amendment’s due process clause allow CA court jurisdiction over a non-resident, who was personally served with process while temporarily in that state, in a suit unrelated to his activities in the state?
  4. Hold: Yes, if a person is served in a forum state, then there is jurisdiction (but Court does not agree on rationale)
  5. Judicial Analysis

Scalia +3 = 4 / Stevens, concurring / Brennan +3 = 4 Concurring
Transient jx is always proper b/c it has historically been so.
Interpreting Shaffer to mean ISC applies only to quasi in rem:
Originalism/historical: when the 14th Amendment was adopted, the implication was that transient service was allowed under the 14th, therefore it is still allowed today under notions of “fair play and substantial justice”
Change should come from the states, legislation and courts—bottom up change / Transient jurisdiction is unnecessarily broad / Transient jx is generally proper, but jx must be judged by the “fairness” prong of ISC (whether jx comports with trad’l notions of fair play and substantial justice)
Interpreting Shaffer to mean all assertions of state jurisdiction must comport with ISC and progeny:
Reasonableness / Fair play and substantial justice: D availed himself of emergency services, highways, etc. Also, transient person has right to be a P, so must not have immunity from being D
 therefore jurisdiction
  1. JURISDICTION BY CONSENT
  2. Voluntary Appearance
  3. Express Consent
  4. Forum Selection Clause
  5. Carnival Cruise Lines v. Shute (1991)
  6. Issue: Did Ps consent to jurisdiction by a forum-selection clause in an adhesion contract?
  7. Holding: Yes, forum-selection clause should be enforced if it is reasonable (see below).
  8. In general, forum-selection clauses are reasonable given the nature of industry and the good faith of the provision
  9. Contract issue: Yes, there was a contract formed: the ticket was refundable and Ps were given notice that forum-selection clause was part of the terms and conditions
  10. Forum-selection clause issue: Reasonable for Carnival to litigate in FL:
  11. Principal place of business in Miami: limits fora where Carnival may be sued
  12. Not Carnival’s intent to defraud
  13. Judicial economy & benefit of certainty
  14. Passengers will save money on their tickets from Carnival’s savings
  15. Registered Agent
  16. Attorney General
  17. Implied Consent
  18. Counterclaim
  19. Non-resident motorist statute
  1. CHALLENGING JURISDICTION
  2. MUST challenge PJ at the outset, SMJ can always be raised
  3. Strategies:
  4. Direct attack:
  5. File 12(b) in preanswer motion OR answer
  6. Collateral attack: Do not show up and attack jurisdiction when judgment tries to be enforced using Full Faith and Credit clause
  7. Risky: cannot later contest the merits of the case
  8. Special Appearance: “I’m not here”: am only here for purposes of contesting jurisdiction
  9. Waiver:
  10. Failure to do any of the above means waiver of challenging jurisdiction

d. SMJ is raised by the courtsua sponte