Civil Procedure

Front 1

Rule 4(k)(1)(A)

Back 1

The federal court will have personal jurisdiction if the state in which it sits would have personal jurisdiction
a. Borrow the state’s long arm statute
b. Must comport with 14th Amendment due process

Front 2

Rule 4(k)(1)(B)

Back 2

the federal court will have personal jurisdiction over persons made parties under Rules 14 and 19. That person must be served at a place within a judicial district of the US and not more than 100 miles from the place from which the summons issues

Front 3

Rule 4(k)(1)(C)

Back 3

– The federal court will have personal jurisdiction over one who is subject to the federal interpleader;, jurisdiction under § 1335.

Front 4

Rule 4(k)(2)

Back 4

a. Personal jurisdiction in any federal court where:
i. The claim is based on federal law.
ii. Jurisdiction is constitutional (minimal diversity)
iii. There is no state which would have personal jurisdiction.
b. Nationwide service of process.

Front 5

Making Service of Pleading
Rule 5

Back 5

1. Give to person
2. If unable to give to the person, then mailing to last known address
3. If no known address, then leave a copy with the clerk of the court.
4. The person being served may authorize electronic delivery, but this is not effective if the person attempting service learns that the it did not reach the one being served.

Front 6

Burger King Corp. v. Rudzewicz
-In contract case in order to determine whether a defandant purposefully established minimum contacts witht the forum court the court must consider;

Back 6

1. Prior negotiations- Fraud or bargaining power
2. Contemplated future consequences-payment stream
3. Terms of contract; i.e choice of law clause
4. Parties Actual course of dealing

Front 7

"Minimum contacts"- Fairness Factors

Back 7

1. Convenience of defendant
2. Forum state’s interest McGee
3. Plaintiff’s interest in effective relief Kulko (suit for child support payments)
4. Shared interests of several states
5. Judicial system’s interest.
**Fairness arises from defendant’s enjoyment of the benefits that are offered by the state.

Front 8

General Jurisdiction- "Perkins"-Contacts

Back 8

o GM of Philippine miming corporation had office in Ohio, where did shit on behalf of company, files there office meetings there…
o Distributed salaries checks drawn on an Ohio accounts
o Supervised policies dealing with rehabilitation of the corps properties in the Philippines
o “had been carrying on in Ohio a continuous and systematic, but limited part of its general business” So general jurisdiction “reasonable and just”

Front 9

General Jurisdiction-Contacts-"Rosenberg"

Back 9

 D suit shop owner OK
 D only connections with NY he bought suits from New York in large portions, and went there sometimes to buy suits.
 “Visits on such business, even if occurring at regular intervals, would not warrant the inference that the corporation was present within the jurisdiction of New York.”

Front 10

General Jurisdiction-Contacts-"Helicopteros"

Back 10

a. One negotiating session with president of D and officials of Consorio-not “continuous and systematic”
b. Chief executive officer to TX
c. Spent $4,000,000 in TX (80% of helicopter fleet)
d. Payments to Helicopteros drawn on TX bank.-Held as “unilateral activity of 3rd party”
e. Pilot and maintenance sent for training in TX.-not much significance it was considered “part of the package of goods and services purchased by D” Just like trips to suit store by Roseberg

Front 11

Is General Jurisdiction available only in the corporations state of incorporation or principle place of business?

Back 11

In some districts courts have held this to be so. ("Wallmart" case)

Front 12

Is State of Incorporation enough to establish jurisdiction?? (3 views)

Back 12

1. Perkins- Said only contacts no fairness
2. Some courts think have to view in light of fairness factors
3. General jurisdiction only available in “principle place of business” and “incorporation”

Front 13

Personal Jurisdiction- "Calder"

Back 13

1. Even though the activity took place in Florida – it was aimed toward CA and it was activity in which the petitioners could “reasonably anticipate being haled to court there.”
2. Center of gravity in CA
3. Effect felt in CA (harms)
a. Effects test
b. Some courts have limited and require targeting of the state.
4. CA is focal point.
5. Calder may be limited to defamation cases- not decided yet.

Front 14

Personal Jurisdiction- "Keeton v. Hustler Magazine"

Back 14

1. Suit alleged defamation in one issue of Hustler that was distributed nationwide.
2. Supreme court found jurisdiction not only as to her injury suffered in New Hampshire, from copies of the magazine distributed there but also for her injury suffered in all other states as a result of the copies that were distributed there.
a. New Hampshire had “substantial interest in cooperating with other states to provide a forum for efficiently litigating all issues and damages claims arising out of a single libel unitary proceeding.
3. *Respondent is carrying out part of its general business in New Hampshire, and that is sufficient to support jurisdiction when the cause of action arises out of the very activity being conducted, in part, in New Hampshire.*
4. Plaintiff does not have to have “contacts” with the forum state
a. P’s lack of contacts may be considered in fairness factors.

Front 15

Making Service of Pleading
Rule 5

Back 15

1. Give to person
2. If unable to give to the person, then mailing to last known address
3. If no known address, then leave a copy with the clerk of the court.
4. The person being served may authorize electronic delivery, but this is not effective if the person attempting service learns that the it did not reach the one being served.

Front 16

General Jurisdiction: Do fairness factors need to be addressed in general jurisdiction cases?

Back 16

No guidence on issue from Supreme Court.
1. Perkins/Helicopteros didn’t discuss fairness
2. Lower courts split on this because of lack of guidance on issue.

Front 17

Tests for Specific Jurisdiction- "arises out of" vs. "relates to"

Back 17

1. claim “arises out of” contacts – the injury is caused by the contact.
2. claim “relates directly to” the contacts
a. But for the contact would you have continued and been injured?
b. More flexible then arising out of

Front 18

Can consent to personal jurisdiction be manfested by an agreement contained within a contract?

Back 18

Yes

Front 19

Can personal jurisdiction be aquired over a corporation of one state in another state or district in which it has no place of business and it not found, merely by serving an executive officer temporarily therein, and he is there on business of the company" (transient)

Back 19

NO- James-Dickson Farm Mortgage v. Harry (1927) Supreme Court

Front 20

In-state agent for service of process- Sufficient to confer jurisdiction?

Back 20

; Courts have generally held that service on an in-state agent for service of process is constitutionally sufficient to confer jurisdiction, even for claims unrelated to corporations in-state activities. Scalia supports this.
i. Usual explanation is consent. But how broad is that consent, does it mean they consent to specific or general jurisdiction?

Front 21

Calder- "Effects test"- what were facts of Calder

Back 21

 Story concerned CA activities of a CA resident
 Article drawn for CA sources
 Brunt of harm, (emotional distress, and injury to career) was suffered in CA
 **”CA is the focal point both of the story and of the harm suffered.”
o They had “expressly aimed” toward CA
o In sum, CA is the focal point both of the story and the harm suffered.
o National enquire had 600,000 copies in CA, more then anywhere else. This indicates that they knew the harm of their alleged tortuous activity would be felt there.

Front 22

Does Due Process require states to provide for special appearance?

Back 22

No, but all states allow it

Front 23

In a "special appearance" state does raising PJ and notice to remove case to federal court equal a "general appearance"?

Back 23

No

Front 24

What are the 7 defenses in Rule12(b)

Back 24

12(b)(1)-Subject matter jurisdiction
12(b)(2)-lack of personal jurisdiction
12(b)(3)-improper venue
12(b)(4)-insufficiency of process
12(b)(5) insufficiency of service of process
12(b)(6)failure to state a claim on which relief can be granted
12(b)(7) failure to join a party under Rule 19.

Front 25

What imposes requirements of reasoanble notice?

Back 25

Due Process Clause of 5th and 14th amanedment

Front 26

What is the rule for notice from "Mullane v. Cenrtal Hanover Bank & Trust'?

Back 26

a. The means employed to give notice must be a form that is not substantially less likely to bring home notice than other of the feasible and customary substitutes.
Due process requires reasonable calculation to give notice and does NOT require actual notice.

Front 27

Service Proper? If fruad is used to keep someone in state in order to serve them?

Back 27

There are divided decisions

Front 28

Can you mail service under Rule 4?

Back 28

They allow for the mailing of a waiver of the service of process. But don’t confuse this with service of process. The ∆ gets longer to answer and they don’t have to pay for the costs of service of process later on.
- The sending of waiver doesn’t hold a statute of limitations

Front 29

Notice: what is the holding in "Mullane".

Back 29

 “The means employed must be such as one desirous of actually informing the absentee might reasonable adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring notice than other of the feasible and customary substitutes”

Front 30

Rule 4(e)(2)-

Back 30

i. 1. Service by personally delivering the summons and complaint to the defendant
ii. 2. Leaving copies of the summons and the complaint at his dwelling house or usual place of abode with a persons of suitable age and discretion residing therein—(National Dev. V. Triad Holding- “dwelling house or usual place of abode”)
iii. 3. by delivering papers to an agent appointed by the D to receive service of process on his behalf.

Front 31

How do we know that the plaintiff must properly plead that SMJ exists

Back 31

Rule 8(a)(1)

Front 32

Domlicle=?

Back 32

Residience + intent to stay

Front 33

P(CA ) v. D(AZ) in (NY) Fed. Ct. Diversity jurisdiction?

Back 33

yes

Front 34

What are reasons behind diversity Jur?

Back 34

Local Bias
Encourage investment

Front 35

P(Egypt) v. P(France); Alienage jurisdiction?

Back 35

No, 1332 doest allow. Becouse to be citizen of a state you have to be citizen of the U.S.
1332(a)(4)- Used to limit jurisdiction NOT expand it

Front 36

P(NY) v. D(U.S. citizen, domiciled in New Zealand)
Diversity?

Back 36

D is not a "citizen of a state" or a "citizen or subject of a foriegn state"

Front 37

P(Spanish, Green card alien living in FL) v. D(Canadian living in Canada)Diversity?

Back 37

1. Majority: No; Saying congress did not intend to grant diversity in suits in which all parties are aliens.
2. Minority: Yes: Literal reading says yes:

Front 38

P(Green card Alien, CA domicile) v. D(CA)
Diversity alienage?

Back 38

No, 1332(a)(4)

Front 39

P(Green card Alien, CA domicile) v. D(CA)
Diversity/Alienage?

Back 39

No, 1332(a)(4) meant to limit not expand diversity

Front 40

P(NY) v. D(U.S. citizen, domiciled in New Zealand)
Diversity/Alienage?

Back 40

No, 2. D is not a “citizen of a state” and is not a “citizen or subject of a foreign state”

Front 41

3. We use Domicile at time of filing, subsequent changes are only important insofar as they may show “intent” or lack there of. What is the exception governing removal?

Back 41

a. *Exception governing removal: P(OK) v. D(OK) in TX state court.
b. P moves to (TX) after filing;
c. D can remove if in timely manner to federal court.

Front 42

If you change your citizenship for the sole purpose to create or destory diversity, how is that relevent?

Back 42

Your motive is irrelevent as long as you change it before filling, however it may be used to determine intent or lack there of.

Front 43

ii. §1332(c)(1)- “a corporation is deemed to be a citizen of any State by which it has incorporation and the State where it has it's principal business”
What does "any" mean here?

Back 43

1. “Any” place of incorporation
a. Majority says any=every (docket control)
b. Minority says= only one place:

Front 44

Subject Matter Jurisdiction: What is the "total activity test"

Back 44

i. 1.) If possible, use the place where the bulk of the day-to-day activities take place.
ii. 2.) When there is far flung activity look to the place that has the predominance of the activity (does not have to be a majority).
iii. 3.) When activity is far flung and there is no predominance then look to the nerve center (corporate headquarters).
iv. In J.A. Olson court said MI was the place where the corp is “most visible” and has “contact with the local community as employer and consumer”

Front 45

What is the test from Grable for "Arising under": Federal subject matter jurisdiction

Back 45

i. 1) state-law claim necessarily raise a federal issue actually disputed
1. (Grable premised the superiority of his claim on the failure by the IRS to give notice within the meaning of a federal statute. So its an essential element to the quit title claim.)
ii. 2) and substantial- (Feds interest) In Smith and Grable $$$
1. The meaning of the fed tax provision is an important issue of federal law that sensible belongs in a federal court. –Gov interest in collecting debt. Gov has a direct interest in the availability of a federal forum to vindicate its own administrative action.
iii. 3) Which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Congress intended division of labor. (where creation comes into playas a factor.)

Front 46

What is the Gibbs holding

Back 46

Supplemental jurisdiction when we have common nucleus of operative facts