Every CaseSMJ (Subject Matter Jurisdiction) Court’s authority to hear certain cases

States most often have CON CURRENT jurisdiction. Rarely does fed have exclusive jurisdiction

Every CourtPJ (Personal Jurisdiction) Geographical limitation w/ relationship turning on ∆’s relationship with State

State Courts—limited by 14th amendment FED Courts exercise Nationwide jurisdiction

Every TimeVenue Choosing the court to bring the Suit

SMJPJ Venue

Fed1.) Self Definition

1.) Fed Question

2.) Diversity

3.) Specific Grants

2.) Article III

“Sufficient Connection”

State1.) Self Definition

GENERAL

2.) Higher power restriction

Exclusive fed jurisdictions

Tribal Courts

SMJ is a 2 step process (Both fed and state) 1) Self definition -- legislative grant of power

2) Higher power restrictions if any

§1332 is narrower than Art III’s grant of all diversity cases

DOMICILE= usually defined as the LAST state a person has taken up residence with intent to reside Indefinitely.

Usually at TIME of FILING which is different than Contacts Based PJ

2 judge made Exclusions 1) Domestic Relations – divorce, child custody but do hear Kx and Torts

2) Probate Exclusion

AMOUNT in CONTROVERSY

Legal certainty standard:1) is requested recovery permitted? i.e. damage caps, have appeal courts reviewed similar.…

2) If yes is claim made in good faith?

§1332(c)(1) CORPORATIONS are diversity citizens of Principal place of business AND state incorporated.

-May need to use “bulk of corporate activity” test OR “Nerve Center” Test if corp. widely dispersed

Principal Place of Business Test 1- Nerve Center Test (decision Makers)

Test 2- Operations Test (Bulk of work done)

EXAMPLE DIVERSITY? A (Calif) sues B(New York) and C (An Englishwoman residing in Calif with intent to reside there indefinitely) no

YES IF 1988 revision of 1332(a)Englishwoman deemed a state citizen only if she ADMITTED to the

U.S. for permanent residence.

Must be Diverse AT TIME suit FILED not at time of occurance of events giving rise to suit.

EX: DIVERSITY? A(a NewYorker moving to Colorado but stuck in Kansas due to an injury) sues B (NY) in Kansas? no

still a NewYorker even though he never intends to go back because has not established “permanent” residence.

§133x for exclusive federal jurisdiction like Bankruptcy, Patents, maritime, Prize……..

Indian Tribes are jurisdictional spoilers……. Tribal Indian is citizen of STATE where he resides.

§1331 SMJ justification:1) to allow uniform application of law

2) because of hostility of state courts to fed courts due to 1875 reconstruction era

3) Competence – special expertise

Starting point to determine if you have a fed question:

1) Look at well pleaded ComplaintNote:Sup Ct has left open possibility than an imbedded

2)is there a granted or implied private right of actionfed std “can” be a fed question if “substantiality”

Supplemental Jurisdiction GIBBS is why Congress wrote §1367 supp jurisdiction

PENDENT Claim jurisdiction (Judicially taken) guidelines from United Mine Workers v Gibbs 1966

-Article III grants Jurisdiction over entire “CASES” not just particular claims/issues

-Article III NOT self executing

-Thus, if claim includes 1 jurisdictionally proper under Article III, Fed Ct has power

to hear entire dispute between the parties.

1-Must have a Federal AnchorConstitutional test

2-Other claims must be of “common nucleus of operative facts." POWER not Required

-Judge must determine if it makes sense to hear the auxiliary claims

-does state law claim predominate?

-sensitive or novel issue of state law?

-will both fed and state claims together confuse a jury?

3- Will State Claims predominate the Fed Question?

Ancillary Jurisdictionfor claims asserted by π after the initial complaint

From Moore’s compulsory counterclaim now to include CC’s with

§1367 Supplemental Jurisdiction remains even if anchor claim is dismissed….

Owen v Kroger, ruled extending ancillary jurisdiction would be inconsistent with §1332’s diversity requirement

-1) Fed anchor (now fed claim means simply existence of federal jurisdiction) 1367(a)Orig Jurisdiction

Sets stage-2)Common Nucleus of Operative Fact1367(a)same case/controversy

for §13671367(a) including joining parties

-3) Congressional forbidden…1367(c) Limitations and decline

-4) Power to discretionarily decline 1367(b) can not violate §1332

1367(a) if court has Original Jurisdiction and claims so related to SAME case/controversy

1367(b) DIVERSITY only: NO supp jurisdiction over claims when

Plaintiffs make persons parties under rule 14, 19, 20, or 24. Would destroy diversity

RULE 20 LoopHole – only applies when plaintiff exercises….

In analysis for test, ALWAYS look for Independent subject matter jurisdiction for each claim

then look for supplemental jurisdiction

EXAMPLE: Can Browning assert the compulsory counter claim against Wordsworth?

Browning (NY)1stBlake (Ohio)

Rule 14(a)2ndRule 14(a)

Rule 13(a)3rd

4th

Wordsworth (Ohio)

NO: strictly construing 1367, Wordsworth was made a party under Rule 14but maybe be able to convince a court it is a compulsory

Cclaim….not an endrun around complete Diversity of 1332 as in Owen v Kroger. Courts may look to intent behind 1367 and historical allowances.

REMOVAL: §1441, 1445, 1446

Defendants remove within 30days of receipt of complaint through Service or otherwise

by filing with District Court NOTICE of removal with the basis of removal

then filing notice with the State Court which loses its power ONLY when receives notice of removal.

1441(b) removable only if NONE of parties in interest is a citizen of State where such action brought -- avoiding hometowning

1441(a) one year limit for diversity actions under 1332

1441(c) essentially non related claims can not be joined in fed court but case would be remanded (to protect defendants)

Case can be made removal proof: Don’t file fed claim, don’t file over $75k

REMAND: §1447

Motion must be made w/in 30 days of 1446 notice of removal filed

1447(e) if joinder would destroy diversity, 1) deny joinder

or 2) allow joinder and remand all claims

notice.

SERVICE: Clock starts to run on a duty to answer. The duty to answer does not start until defendant has a

copy of the complaint and has received actual service of process and Filed

Personal Jurisdiction

2 choices when a claim filed in a foreign court: 1 ignore complaint and hope no judgment or challenge enforcement

allowed under Full Faith and Credit then….OR

2 challenge PJ without raising any other issues. Fed rules allow

under rule 12 to challenge all including asking for dismissal

In Personam

1) Defendant found and served IN STATE must avoid fraudulent inducement

2) Defendant consents even though out of state Ins of Ireland v Bauxites:

If one is served with a motion to give discovery in which THAT discovery could lead to minimum

contacts to give the court PJ and they REFUSE, 2 possibilities:

1) Under Rule 37(b)(2)(A) gives jurisdiction and sanctions

2) By refusing, you act as if consented under Rule 37 THUS Waiving PJ under Rule 12(h)

CONTACTS Based- systematic and continuous business activity in a state allows a Corp. to be treated as In Personam

including DOMICILE Miliken v Mayerand agents of it can thus be served.

CONTACTS are Based on TIME of OCCURRENCE giving rise to suit, not at time of filing the suit

2 threshold issues RE contacts based Jurisdiction

1) Border between Specificand General Jurisdiction

2) Specific Jurisdiction: What does “relates to” mean? Circuits are split!!!!

a) Arises out of? b) Factual connection? c) But for?

Decreasing ContactsIncreasing Contacts

Extent of ContactsNoCasual orsingle actcontinuous substantial or

contactsisolatedbut limitedpervasive

Jurisdictional NoNoSpecificSpecificGeneral

ConsequencesJurisdictionJurisdictionJurisdictionJurisdictionJurisdiction

THE SHOE SPECTRUM

International Shoe1)Must be a minimum level of CONTACTS that arise out of the in-state acts themselves

CASUAL or Isolated contacts are NOT SUFFICIENT for Minimum Contacts

14th amend due process2) Does not offend “traditional notions of fair play and substantial justice”

2 step processthat always must be followed

Long arm statutes proffered acceptance of LONG ARM STATUTES

Under Long Arms, look to see if Def enjoys benefits implying that Def also bears burdens….

McGeeone contact sufficient since Insurance Co Reached out to McGee

Hansonopposite of McGee, Defendant did not reach out and thus can not be served w/ PJ. “purposely avail itself of privilidge of

conducting business, thus invoking benefits and protections of laws…”

Rule 4k- limits Fed courts to same PJ as State Courts

4(k)(1)(a) Same PJ as State and Fed

4(k)(1)(b) Bulge jurisdiction 100 mile radius for parties joined under RULE 14 or RULE 19

4(k)(1)(d) Statutory Interpleader Nationwide Service OK

4(k)(2) National PJ whenever Congress says it does (i.e. Bankruptcy)

WorldWide1) the required Min Contacts is defined by defendant’s activities

A: What area seeking to serve ?

B: Where would Defendant expect to be sued?

Burgerking5 additional reasons court found PJ existed in Fla for Ill defendant

1) Continuous and Wide-reaching relationship w/ Fla

2) Foreseeability of injury in Fla Effects test but trademark suit dropped

3) Always knew Fla headquarters calling the shots

4) Choice of law term in Kx for Fla

*5) Calls and letters to Fla reaching out to Florida

1,3,4 can happen w/out reaching out by defendant. It could be reaching out by Plaintiff only…. Must look at circumstances

III – escape hatch- prevents all big business from asserting BK jurisdiction.

Asahi MetalManufacturer based minimum contacts analysis Case Book 751

MINIMUM CONTACTS ?O’Conner

1) NO- IIA Stream of Commerce Plus Marketing, agent in jurisdiction, product design

2) YES Dissent - Knowledge of where products going  Brennan

3) NO did not DIVERT stream of Commerce intentionally through marketing

BURDEN/HARDSHIP of defending ? O’Conner and Brennan agree

1) burden on Alien ∆, Taiwan v Japan

2) interests of California is zero, Original ∆ is gone

3) Delicate nature of international cases to start with

INTERNET:

Millennium Ent v Millenium Music

ACTIVEINTERACTIVEPASSIVE web pages

Inet Significant portion of businessgenerally advertisements

Interactive: Does the website reach out to the Forum?

What level of interaction is enough to confer jurisdiction?

Cybersell – advertising if targeted is sufficient to confer jurisdiction part of interactive equation

satisfy due process standards

Shaffer- All in Rem must now go through minimum contacts analysis Greyhound stock Owners

BurnheimPerson can be served in state even if there only for a short time – VOLUNTARY

GENERAL JURISDICTION ALTERNATIVE: still based on contacts, but contacts are so pervasive giving total jurisdicti

= systematic and continuous contacts! but no definitive meaning of this

Helicopteros parties only argued general jurisdiction, NOT specific Jurisdiction!

1) Contacts with Texas to negotiate, and pilots trained in Texas. Heli from Tx

These may be minimum contacts sufficient to establish SPECIFIC jurisdiction

2) Can ∆ convince court this case would not comport w/ Fair Play and Substantial Justice?

Using Asahi

1) Texas has an interest

2) No undue burden on ∆

3) Not an international dispute Has Tx litigants

EFFECTS Based usually don’t need since CONTACTS will satisfy, but sometimes needed to establish contacts Calder v Jones

1) Effects of conduct out of state is sufficient when effects IN state occur

2) Effects analysis – targets conduct/activityie intentional tort

3) Effects analysis – looks to see if def KNEW effects would be felt in particular state (localized injury

DEFAMATION CAVEAT: and 4) sometimes defam conduct must be in place where damage happened.

In Rem

Out of state defendant has property in state must ATTACH property First See SHAFFER

Quaisi in Rem essentially dead form of personal jurisdiction Killed by CONTACTS and See Shaffer

Attach property in state that is not subject to the lawsuit

Pennoyer v Neff, Harris v BalkFull faith and credit clause applies to other states, Hess v Pawloski Consented by driving on roads

VENUEPlaintiff is master of his claim except Defendant can remove when otherwise could be federal….

§1441(b) provides that Diversity case is ONLY removable if “none of parties in interest properly joined

and served as ∆’s is a citizen of State in which such action is brought.”

§1441(e) added providing that fed Ct is Not precluded from hearing case simply because filed in State

court which lacked jurisdiction over it and dismissed it. Collateral estoppel “exception”

§1391(a) and (b)(1) Residence of ALL Defendant at time commenced, if yes then in any of ∆’s districts

§1391(a) and (b)(2) Occurrence Route at time commenced =SUBSTANTIAL parts of events or Omissions

§1391(a) and (b)(3) Fall back provision for PJ (a) or where found (b)

§1391(c) CORPORATIONS deemed resident of District where PJ proper at time COMMENCED

§1391(d) ALIENS may be sued in ANY district

§1391(e) Officer/employee of U.S……

§1391(f) Foreign state as defined by §1603(a)

Plaintiff under §1391 chooses which of permissible districts in which to File BUT

Defendant can file motion to TRANSFER under §1404 .

CHOICE of LAW is always determined from state where FILED.

CHOICE of LAW = What substantive Law? Lex Loci Delicti VS Rest 2d of conflicts of laws “the most significant contacts or interests” §§6 and 145

1) What law applies to the Fed Claim? FED law

2) What Conflicts law applies? Always of the state you are in, except maybe under §1404

3) What law applies to State Claims? Remember, where questionable, states rule their law applies

4) What Procedural Law applies? always of the court you are in

ERIE Doctrine 1)Only in Diversity 2) Different Fed & State Ways of doing 3) a party tells fed ct do it state way

Rules in Decision Act (1789) of Fed Judiciary Act

1)Fed Cts apply State Rules of Decision in absence of Fed Law or Constitution

2)Including Judge made Law

This is the need for the RDA

1) Constitution says so2) Congress says so3) 1&2 silent so judges say so

Directly(statutes)Indirectly(rules) “unguided Erie analysis”

Follow itfollow if Valid1)follow if validByrd and Hanna Dicta

Constitutional2) if not violate RDA

Constitutional under Hanna is if it is arguably procedural

Erie RR v Tompkins(US 1938)

Erie claims Penn law applies (trespassing) by §34 of Fed Judiciary Act says use State Law

Tompkins argues Fed Gen law should apply in absence of State Statutes (Only Judge made law existed)

Swift to Erie is a shift from natural to Positive Law

Promotes VERTICAL uniformity between fed and state courts.

Guaranty Trust (US 1945)

Fed Way is Latches vs State way is 2 year SOL.

LoserWinner

NY SOL applied for need to promote (outcome determinative decisions)uniformity between Fed & State Cts

Tier 1- Rights and Remedies so bound up…. Circuits split 50/50

Tier 2 – Byrd Balancing

Substancev.Procedure

Byrd v Blue Ridge Electric (US 1958)

Byrd a contractorBlue Ridge is State Electric Co.

Judge vs Jury ???!!!!

1) must be CONSTITUTIONAL fed courts must honor “definition of state-created rights and obligations by

the state courts.” MEANING Fed Court must follow State law where Fed has no authority to create law.

2)Court held Fed Way controls (but remanded anyway) because of AFFIRMATIVE COUNTERVAILING

CONSIDERATIONS 7th amendment

1) Substance v Procedure?(perhaps efficiency would be a prevailing consideration 6 v 100 jurors)

state way was not so bound up with rights and obligations as to affect

2) Is it outcome determinative? Ct says Maybe Gensler said #2 is junk

Ct Says Preference for Fed way is not enough to outweigh

outcome determinative values (but not substantive)

“GO STATE WAY IF IT MAKES A DIFFERENCE UNLESS FED CT HAS GOOD REASON.”

Hanna v Plumer (US 1965)

Diversity

State Way = individual handoff to executor Fed Way = Spouse of executor is OK Rule 4

Rules Enabling Act 28 USC §2072bANALYZE this step even though SC will never say unconstitutional

“Such rules shall not abridge, enlarge, or modify any substantive right and shall…”cb952

SC Holds Rule 4 Governs because Congress said so.

SC Dicta: Twin Aims of Erie

1) discouragement of forum shopping

2) avoidance of inequitable administration of the law

MODIFIED OUTCOME DETERMINATIVE TEST: because of 1 and 2 above

A) does diff between State and Fed way make a substantial difference?

B) Is the difference enough to make π choose one forum over another?

IF A and B yes, then Supreme Court Cares.

Preclusion Doctrines

1) Everyone gets their day in court

2) You only get one bite of the apple

CLAIM PRECLUSION

1) 2 cases on same claims

2) Parties identical or in PRIVITY ( a label used by the courts after the fact )

3) 1st case ends with a FINAL, VALID judgment on the MERITS Granting Summ Judgment IS on Merits and FINAL

Dismissal on Sanctions MAY be on the meritsDenying Summ Judgment is NOT on the Merits

Default Judg IS on the Merits, had the chance to litigate

VALID : court must have had PJ, SMJ

*Must determine Scope of claim from the first lawsuit decided

Tests1) Separate injury

2) Single Wrong Test

3) Same Evidence Standard

4) Rest 2d of Judgments – SAME Transaction (series of events)

Exceptions:

Parties can agree to split the claim

1st party can expressly reserve the right

Court can split the claim

Parties must split claims due to court having no SMJ

Latent late on set injury

ISSUE PRECLUSION – some issues deemed to have already been litigated

4 Tests1) Same Issue

2) Same issue Actually litigated

3) Same issue actually decided

4) Same issue necessary to the decision

an ongoing relationship would indicate possibility for multiple lawsuits

MUTUALITY evolves to where an outsider who has not had its day in court but can hold prior outcome

against another party and entailed a two step evolution from Blonder-Tongue to Parklane

Non-Mutual Defensive issue preclusion – encourages joinder of parties

-NON bound Party on Defense

VS

-NON bound party on Offense

Non-Mutual Offensive issue preclusion - discourages joinder of parties

Offensive : subject to judges discretion

tests1) Efficiency (joinder of parties)

2) General fairness ie what if 1st suit not vigorously defended

3) Procedural/Evidentiary differences