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143 Cards in this Set

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  • Back
What is Personal Jurisdiction?
The power of a court to have a non-willing, non-resident come to their state and litigate the dispute or suffer a valid and binding default judgment.
12(b)1
Lack of 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
12(b)6
Failure to state a claim
12(b)7
Failure to join a party
Full Faith and Credit Act
Public acts, records, and judicial proceedings of every other state are to be given full faith and credit in all other states.
In personam Jurisdiction
Jurisdiction over a defendant's personal rights, rather than merely property interest
4 Traditional Bases of Jurisdiction
a) Physical Presence and Transient Jurisdiction, b) Voluntary Appearance, c) Consent to service on an agent, d) Domicile.
Physical Presence and Transient Jurisdiction
Personal Service + Presence within state = Jurisdiction. Presence may be very fleeting!
Hess v. Pawloski
Implied Consent. Non-resident motorist statute appointed state registrar of motor vehicles as agent of service of process for actions brought against drivers in the state.
Milliken v. Meyers
Out of state domiciliary may be served with process for domicile state action regardless of time outside of state.
Express Consent v. Implied Consent to Service
Express - D designates particular person in state for service. Implied - Statute designates agent for service for certain situations.
Federal Court exception to Physical Presence and Transient Jurisdiction
In Federal Court, if the only connection between the lawsuit and the forum state is that the defendant was served while present, the case will often be dismissed or transferred on the ground that venue is improper. 28 USC 1391, 1406
Burnham, Scalia opinion
It is an established principle that states have jurisdiction over persons physically present in the state.
Burnham, Brennan opinion
As per Shaffer, all rules of jurisdiction, including transient jurisdiction, must satisfy contemporary notions of due process under minimum contacts analysis. (fraud, kidnapping to forum will probably not find jurisdiction)
Burnham v. Superior Court
Transient jurisdiction is still alive and well. If you are in the forum, under your own will, then service of process puts you under that forum's jurisdiction.
Voluntary Appearance
Through such a clause the parties agree to appear voluntarily in the courts of a designated sovereignty, waiving any objection they migh have otherwise have had to that court's jurisdiction.
Domicile
The state where an individual have taken up residence with the intention of remaining permanently or indefinitely.
Factors to consider for domicile
Where registered to vote? Where pay taxes? Where is address for taxes? Where is real property located? Which state do they hold a driver's license? Where are bank accounts? Church and club memberships? Location of employment?
True In Rem
judgments bind those who never received notice and were never made part of the suit. "Against the world" Registry or Quiet of Title, Condemn or confiscate property, libels in admiralty, probate actions, and bankruptcy.
Quasi In Rem
judgements only affect the interests of particular persons in the attached property - namely those made a party to the suit.
Types of Quasi In Rem Jurisdiction (1, 2a, 2b)
1. Involves suits where plaintiff seeks to enforce a pre-existing interest in the property, such as mortgage, or repossess goods.
2a. suits that relate to the attached property, tortuous activity on the property.
2b. completely unrelated to the property. Must have minimum contacts.
Big In Rem Reminder
The issue is not whether the property meets the minimum contacts test but whether defendant does, and federal courts view in rem with disfavor; therefore it is generally only available when personal jurisdiction is not available in that state.
Quasi In Rem still good for acquiring jurisdiction in:
1. Necessity - no other way to acquire
2. When cases are near in personam line and there is a compelling reason
3. If in personam was constitutional but the state had a tailored long-arm statute that does not reach the defendant.
4. Possible means to secure a judgment
5. To avoid Res Judicata.
Minimum Contacts Statement from International Shoe.
In order to subject a defendant to judgment if he is not present in the state, there must be certain minimum contacts with that state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
Minimum Contacts Test
1. Purposeful Availment
2. Reasonableness
3. Relatedness
Four questions to find Purposeful Availment.
1. A defendant's employee's enter the state and conduct activity there?
2. Defendant enters a contractual agreements within the forum state.
3. Defendants whose product enters the forum state through the ordinary stream of commerce.
4. Defendant's out-of-state conduct has caused an injurious effect within the state.
Relatedness Test
General Jurisdiction - acquired if the defendant's contacts with the forum state are so extensive that no other relationship is necessary.
Specific Jurisdiction - acquired if the lawsuit arises out of or is related to the defendant's specific actions within the state.
Reasonable Test
1. The burden of the defendant to appear in the forum state.
2. The state's interest in adjudicating the dispute.
3. The plaintiff's interest in obtaining the convenient and effective relief.
4. The interstate judicial interest in obtaining the most efficient resolution of controversies.
5. The shared interest of the several states in furthering fundamental substantive social policies (WWVW)
Tailored or Specific-Act Statutes
carefully delineate the circumstances under which jurisdiction may be taken over an out-of-state defendant.
Due Process Type Long Arm Statute
statute authorizes long-arm jurisdiction to the maximum extent permitted by the Constitution.
4(k)(1)(C)
Serving a summons or viling a waiver of service establishes personal jurisdiction over a defendant: when authorized by federal statute.
4(k)(1)(A)
Serving a summons or viling a waiver of service establishes personal jurisdiction over a defendant: who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.
4(k)(1)(B)
Serving a summons or viling a waiver of service establishes personal jurisdiction over a defendant: who is a party under Rule 14 or 19 and is served within a judicial district of the US and not more than 100 miles from where the summons was issued.
Hanson v. Denckla
There must be minimum contacts before a party is required to defend in a foreign jurisdiction such that those contacts are purposeful and deliberate. The 'unilateral act' of Donner moving to Florida could not be attributed to the Delaware Trustee.
McGee v. International Life Insurance Co.
Due process is satisfied if a suit is based on a contract, which has a substantial connection with the state.
Burger King v. Rudzewicz
Jurisdiction is proper when the contact proximately results from actions by the defendant himself such that they create a substantial connection with the forum state.
Burger King Balancing Test
1. The extent of the defendant's purposeful interjection
2. the burden on the defendant in defending in the forum
3. the extent of the conflict with the sovereignty of the defendant's state
4. the forum state's interest in adjudicating the dispute
5. the most efficient judicial resolution of the controversy
6. the importance of the forum to the plaintiff's interest in convenient and effective relief
7. the existence of an alternative forum
Burger King due process analysis
"The foreseeability that is critical to due process analysis is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there."
Burger King jurisdiction analysis
"Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum state...Thus where the defendant 'deliberately' has engaged in significant activities within a State, ...or had created 'continuing obligations' between himself and the residents of the forum,...he manifestly has availed himself o the privilege of conducting business there, and because his activities are shielded by 'the benefits and protections' of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well."
Burger King contract analysis
"Although a contract alone may not be enough to satisfy minimum contacts, a contract is the intermediate step to tie up business transactions that are relevant with 'minimum contacts'. The parts of a contract that are possibly evidence that is meaningful for this analysis are:
1. Prior Negotiations
2. Contemplation of future consequences
3. Terms fo the Contract
4. The parties actual course of Dealing."
Chalek v. Klein
1. Due process requires a court distinguish between active and passive buyers of goods before it can find jurisdiction over an out of state buyer of goods.
2. Passive purchaser is a party who merely places an order by mail, phone, or to a sales person and accepts the seller's price as stated in advertising or other forms of solicitation. If this is the only contact with the forum, it does not satisfy the minimum contacts test/purposeful availment.
3. Active purchaser is someone that dictates or vigorously negotiates contract terms, or by inspecting production facilities. This satisfied the minimum contacts test/purposeful availment.
World-Wide Volkswagen Corp. v. Woodson
The stream of commerce is the channel of distribution through which a product travels to the consumer. Purposeful availment is met when a corporation delivers its product into the stream of commerce with the expectation that it will be purchased by consumers in the forum state. Unilateral activity by the purchaser does not satisfy a minimum contact by the seller. Just foreseeability that a product may enter into the forum through the purchaser is not enough. The defendant has to foresee himself being hailed into court in the forum.
Asahi v. Superior Court of California - Brennan's opinion
The forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that purposefully delibers its products into the stream of commerce with mere awareness that the final product is being marketed in the forum state.
Asahi v. Superior Court of California - O'Connor's opinion
Not only must the defendant be aware or expect that his product will enter the forum state, but he must also purposefully direct his product toward the forum.
Asahi v. Superior Court of California - O'Connor's indicators of intent
1. Designing the product for the market in the forum state.
2. Advertising in the forum state.
3. Establishing channels for providing regular advice to customers in the forum state.
4. Marketing the product through a distributor who has agreed to serve as a sales agent in the forum state.
Effects Test
A state has the power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individuals relationship to the state make the exercise of such jurisdiction unreasonable.
Kulko v. Superior Court (1978)
The Ca courts misapplied the effects test in using it as a means for asserting personal jurisdiction over an out-of-state defendant.
The court stated that the effects test was intented to reach wrongful activity outside the state causing injury within the state or commercial activity affecting state residents.
Calder v. Jones (1984) (Calder Effects Test)
1. Wrongful or commercial act directed at the forum state and has an effect within the forum state.
2. Knowledge of the possible effect of the act.
3. Reasonable anticipation of being haled into court in the forum.
4. Intentional
Revell v. Lidov (2002)
A court cannot use Calder effects test to gain personal jurisdiction over an out of state defendant where the defendant has not directed the libelous actions toward the state.
Perkins v. Benguet Consolidated Mining Co. (1952)
That because of continuous and substantial corporate operations general jurisdiction did not violate Due Process Clause of 14th.
Necessity Doctrine
Idea that in some circumstances the court will be allowed to assert jurisdiction over what is normally allowed.
1. When it is the only forum in the world where plaintiff could sue.
2. When there is no other state in the union where you could sue.
3. Where all of the multiple defendants could be sued.
Helicopteros Nacionales de Columbia, S.A. v. Hall (1984)
Purchases and related trips, standing alone, are not sufficient basis for a state's assertion of general jurisdiction. In assessing general jurisdiction, it is necessary to examine defendant's forum contacts over a period of years prior. Courts are hesitant to grant general jurisdiction. Don't forget protective actions!
Nowak v. Tak How
Relatedness Tests
1. Arising from Test
2. Proximate Cause Test
3. But for Test
4. Substantial Connection Test
Arising From Test
Strictest form would be satisfied if the defendant's forum contacts formed a necessary element of the plaintiff's claim for relief.
Proximate Cause Test
Fairly strict version of arising from test.
A defendant's purposeful contacts with the forum must constitute both the 'cause in fact' and 'the legal cause' of the harm for which plaintiff seeks to recover.
Cause in fact - "but for"
Legal Cause - Requires that the defendant's forum contacts were a substantial factor in bringing about the harm to plaintiff.
But For Test
Loosest form of relatedness. If it was not for the defendant's actions, the harm would not have happened. However, "no limiting principle; it literally embraces every event that hindsight can logistically identify in the causative chain"
Substantial Connection Test
Between but for and proximate cause
First Circuit agreed to permit a slight loosening of the proximate cause standard on a case by case basis.
Tripartite Test
1. Relatedness - Claim must arise out of or related to the defendants forum activities, focuses on the nexus between the defendant's contacts and the plaintiff's cause of action.
Reasonable Requirements Test
If plaintiff carries the burden of showing that defendant satisfies both purposeful availment and relatedness, "minimum contacts" are presumed to exist. The burden then shifts to the defendant of rebutting this presumption by making a compelling case that exercising jurisdiction would be so unreasonable and unfair as to violate the DPC of the 14th Amdt
Nowak v. Tak How
1. A court must use the proximate cause and but for relatedness test when determining jurisdictional issues. When a foreign corporation directly targets residents in an ongoing effort to further a business relationship, and achieves its purpose, it may not necessarily be unreasonable to subject that corporation to forum jurisdiction when the efforts lead to a tortious result.
2. Defendant has the burden of showing that the exercise of jurisdiction in the circumstances is unreasonably burdensome.
3. A defendant will want to take into consideration the different forum's policies, such as the protection of its consumers and businesses in determining whether or not the forum's assertion of jurisdiction would be unreasonable.
4. If a defendant has "substantial contacts" the court may give less consideration to the reasonableness query.
Asahi v. Superior Court
Gestalt Factors
1. The burden on the defendant
2. The forum state's interest in adjudicating the dispute
3. The plaintiff's interest in obtaining convenient and effective relief
4. The plaintiff's interests of other sovereigns hearing the case (administration of justice)
5. Pertinent policy arguments
28 USC 1335
Interpleader Statute
1. Permits federals courts to exercise extraterritorial jurisdiction, which allows nationwise service of process.
2. Interpleader enables a person who is unsure which of several claimants is entitled to a fund or a piece of property, to sue all of the claimants in one action, rather than having to litigate separately with the risk of being found liable to more than one of the claimants
4(k)(2)
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction if:
(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction: and
(B) exercising jurisdiction is consistent with the United States Constitution and laws.
Minumum Contacts at national level
Look at DPC of 5th Amdt
1. Minimum contacts are based on the defendant's contacts with the nation as a whole.
2. Purposeful availment
3. Relatedness factors have to be met as well, and then
4. One also has to look at whether it would be reasonable to bring them into the forum.
Service within US on national level
Some courts believe if on the federal level, a court asserts jurisdiction over a defendant because they were within the US at the time of summons, the defendant does not have to look at the minimum contacts test.
The lower courts have stated that Burnham on a national level on a national level would be unfair. Most lower federal courts say that minimum contacts must be met within the US as a whole, but not necessarily in forum.
10th Circuit requires contacts as well as fairness
Nine Categories granted under Article III of the US Constitution
1. Arising under the Constitution, laws, and treaties of the US
2. Between citizens of different states
3. Between the state, or citizens thereof, and foreign states, citizens, or subjects
4. Affecting ambassadors, other public ministers, and consuls
5. In admiralty and maritime jurisdiction
6. To which the United States shall be a party
7. Between two or more states
8. Between a state and citizens of another state;
9. Between citizens of the same state claiming lands under grants from different states.
Special Appearance
Only in some state courts, when a state court lets a defendant object to jurisidction in a court within voluntarily consenting to jurisdiction.
Direct Attack
One that occurs as part of - or in a continuation of - the original lawsuit - usually an appeal to a higher court.
Sanctions under Rule 11
1. Plaintiff's counsel can be sanctioned if the court finds that the attorney did not make a reasonable prefiling inquiry into the facts and the law concerning jurisdiction
2. Defendant's counsel can be sanctioned if they oppose jurisdiction without reasonable basis for doing so
3. Sanctions are even more likely to be imposed if an attorney, rather than simply being ignorant of the jurisdictional facts, misrepresents facts to the court.
4. Can be sued for malpractice if case is dismissed for lack of jurisdiction and plaintiff's claim is barred by statute of limitations. Should file protective actions where jurisdiction clearly exists.
American Institute of Certified Public Accounts v. Affinity Card, Inc.
Where the parties accounts of the attempted service differ but both are inherently plausible, and there is nothing in the record upon which to judge the veracity of either version, the court should credit the version of the party seeking to vacate the default.
Proof of Service
Normally rests on the party for whom the service was made. If there is a factual dispute the court must determine which facts to use.
Mullane v. Central Hanover Bank & Trust Co.
Notice by publication is sufficient to satisfy due process challenges if it is reasonably calculated under all the circumstances to apprise the interested parties of the pendency of an action and afford them an opportunity to present their objections. Publication by notice does not satisfy due process when the names and addresses of the parties are known and there is no substantial burden to notify by mail. The means employed must be such as one desirous of actually informing the absentee and might reasonably adopt to accomplish it.
Mullane Balancing Test
A court must also consider the practicalities and peculiarities of the case and balance the defendant's interest in receiving perfect notice through in-hand service of process against the interest of the plaintiff and the state to proceed without encountering impossible or impractical obstacles.
Fun-Damental Too, Ltd. v. Hwung
Witnesses, parties, and attorneys coming from another jurisdiction are exempt from service of civil process while in attendance upon court, and during reasonable time in coming and going.
Immunity may be waived if they engage in nonlitigous matters. The criterion seems to be not the fact of engaging in other than litigious matters, but rather, the degree and proportion of the activity. The immunity is not considered waived if the unrelated business dealings are a mere casual and unforeseen nature and are trivial and insubstantial. The test is whether the immunity itself, if allowed, would so obstruct judicial administration in the very cause for the protection of which it is invoked as to justify withholding it.
May Dept. Stores Co. v. Wilansky
Service should be quashed when a defendant enters a jurisdiction for talks at a plaintiff's instigation, and the plaintiff has not either clearly and unequivocally informed the defendant that service of process may occur, or given the defendant a chance to leave the jurisdiction before service is made. Bright-line rule prohibits service of process where a plaintiff has induced a defendant to enter the jurisdiction for talks, unless the plaintiff first warns the defendant before he enters the jurisdiction that he may be subject himself to service, or gives the defendant an opportunity to leave the jurisdiction before service is made if settlement talks fail. Tricker is allowed for defendants already in the state.
Dismissal versus Quashing Service
Statute of limitations - if the applicable statute of limitations is tolled (satisfied) by filing the complaint, dismissal may be fatal to the plaintiff's lawsuit since the complaint will be treated as if it had never been filed. Similarly, if the statute of limitations is tolled only be filing and effecting proper service, quashing service may be equally fatal.
Connecticut v. Doehr
A prejudgment seizure of real property withou notice or an opportunity to be heard must
1. consider the private interest that will be affected
2. the risk of erroneous deprivation, and
3. looks to the plaintiff's interest and asks if there are any 'exigent circumstances' or 'countervailing considerations' that justify dispensing with a prior hearing.
Mathews Test from Doehr
1. Consideration of the private interest that will be affected by the prejudgment measure
2. An examination of the risk of erroneous deprivation through the procedures under attack and the probably value of additional or alternative safeguards.
3. The interest of the party seeking the prejudgment remedy (with due regard for the ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections).
Mitchell Test from Doehr
Regardless of the reason for a prejudgment attachment, states have the option of either providing prior notice and opportunity for a preseizure hearing or of dispensing with a pre-attachment hearing and instead employing the alternative safeguards:
1. The plaintiff must allege specific facts as to why attachment is warranted.
2. These allegations must be received by a judge rather than by clerk.
3. Defendant must be afforded an opportunity for a prompt postseizure hearing.
Only federal court that has appellant jurisdiction over a state's supreme court
U.S. Supreme Court
Creation Test
A case arises under federal law if and only if federal law creates the plaintiff's cause of action.
28 USC 1331
The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treatises of the United States
Implied Right of Action
Cort v. Ash Test
1. Whether the plaintiff is one of the class for whose especial benefit the statute was enacted.
2. Whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one
3. Whether implying a private remedy would be consistent with the underlying purposes of the particular legislative scheme
4. Whether the claim in question is one traditionally relegated to state law.
Courts are reluctant in using these standards to give a private right of actions where congress has failed to provide one.
Essential Federal Ingredient Test
1. Federal law must not have created plaintiff's claim for relief
2. There must be an essential federal element in the plaintiff's non-federal claim such that vindication of the non-federal claim is dependant on a point of federal law.
3. Treating the claim as one that satisfies 1331's arising under requirement must not be inconstant with Congress' presumed intent in allocating Art III, Sec 2 cases between state and federal courts.
Grable Test to determine if whether a state law claim will be deemed to arise under federal law within the meaning of 1331
1. The non-federal claim must necessarily (directly) state a federal law question (necessarily stated)
2. Is the federal issue disputed or contested (actually disputed)
3. Substantial an issue that lends itself to being heard in federal courts
4. Not disturbing the allocation between state and federal courts.
Well-pleaded Complaint Rule
The Plaintiff's claim for relief alone determines the presence or absence of statutory arising under. Must have a federal question issue on the face of the complaint, cannot be raised as a anticipated defense/counter claim.
Protective Jurisdiction
A controversial theory of federal question jurisdiction. Congress may vest federal courts with subject matter jurisdiction over completely non-federal causes of action so long as the litigation arises in a context where congress could have passed substantive legislation.
Rule against artful pleading
Prevents a plaintiff from defeating federal jurisdiction by disguising what is clearly a federal claim as a state one.
Preemption and the well-pleaded complaint
Preemption mandates that valid federal law trumps all inconsistent with the overall objectives of the federal law.
Complete preemption is where a congress not only meant to trump state law claims on the issue, but also convert all state law claims into federal ones. In this situation even if the claim is pleaded in terms o state law it is in reality a federal claim.
Declaratory Judgment Act
Vests federal district courts with the power to enter declaratory judgments in cases over which they would have jurisdiction other wise.
For federal courts to have jurisdiction over case the case would meet the ingredient test, creat test, and well pleaded complaint rule.
You would still have to have a jurisdictional statute conferring jurisdiction on the federal court to hear the claim.
Concurrent Jurisdiction
State courts, and particularly state courts of general jurisdiction, are presumptively competent to adjudicate cases arising under federal law
1. Congress may rebut this position by granting federal courts exclusive jurisdiction over any or all claims arising under federal law.
2. As of now federal courts have exclusive for Admiralty, Maritime and some cases of Bankruptcy, Patent, and Copyright.
Strawbridge v. Curtiss
Supreme Court case requiring Complete Diversity.
Rule 8(a)
a short and plain statement of the grounds upon which the court's jurisdiction depends.
Shaffer v. Heitner
Must use Shoe minimum contacts to establish In Rem and Quasi In Rem.
Mennonite Board of Missions v. Adams
Notice must be reasonably calculated to apprise defendant of pending tax sale; must use due diligence to inform before publication, posting, or other indirect notice; county's use of less reasonable method is not reasonable where an inexpensive and effective mechanism, mail service, was available.
Cognovit Clause
Consent to judgment(waiver of rights); must knowingly, voluntarily, and intelligently sign clause; Only time can waive right to notice and to be heard.
Underwood Farmers Elevator v. Leidholm
Need to knowingly, voluntarily, or intelligently sign the clause. Don't know, remand to trial court.
American Well Works v. Bowler Co.
Plaintiff claimed slander under state law; court said since federal law didn't create the claim, case did not arise under 1331.
Merell Dow v. Thompson
Plaintiff's file suit based on tort in state court. Defendants remove to federal court. Plaintiffs motion to remand to state court, no SMJ. Court said did not pass essential federal ingredient test because no federal cause of action (express or implied)
Louisville & Nashville RR v. Mottley
Breach of contract. Plaintiffs complaint alleged denfense as essential federal ingredient. Well pleaded complaint rule disallowed. Remanded for dismissal under 12(b)(1).
Collusive Creation of Diversity
No SMJ when a party has been improperly or collusively made or joined to invoke the jurisdiction of the court.
Dual Nationality
Most courts ignore foreign citizenship, assume US side of tag.
US Citizen domiciled abroad
No a citizen of any state. Cannot sue or be sued in federal court.
Eze v. Yellow Cab
Aliens are all considered coming from the same foreign state.
Where is an association's citizenship?
Citizen of every state where members of association are located.
Forum Doctrine
If corporation incorporated in more than one state, it is a citizen of each of those states and principle place of business. When sued only citizen of forum and principle place of business.
Principle Place of Business Tests
1. Nerve Center Test - state where nerve center is. Used when activities are dispersed to point no place in which the corporation conducts operations can be deemed principle.
2. Place of Activity or Corporate Activities Test - state where corporation carries out its operations. Applied to where the coporation has a collection of nerve cells which make the corporation enterprise go.
3. Total Activity Test - Hybrid of first two tests; state where bulk of a corporation's operations occur usually take precedence over where the management is.
Foreign Corporation with principle place of business in US.
Generall, courts treat foreign corporations with principle place of business in US as citizens of the state of principle place of business.
US Corporation with principle place of business abroad
Not considered foreign corporation, citizen of state of incorporation.
Amount of Controversy
SMJ if amount in controversy is GREATER than 75K.
Good Faith Rule
No jurisdiction if shown to a legal certainty not in good faith. As long as plaintiff can show possibility of recovering the statutory minimum.
Subsequent Events v. Subsequent Revelations
Subsequent events that alter amount will not affect courts SMJ as long as jurisdictional minimum was met at the time the suit was filed.
Subsequent Revelations as to what amount in controversy was when teh suit was commenced will affect the court's SMJ IF they establish plaintiff's lack of good faith.
Three types of Long-arm Statutes
Tailored/Specific Act Statutes
Due Process Statute
Federal Long-arm Statute
12(g) and 12(h)
Note that 12(g) permits a defendant to combine a 12(b)(2) objection with other objections under the rule, such as 12(b)(1) or 12(b)(3) without waiving the jurisdictional objection. However, as 12(g) makes clear, if a defendant files a motion to dismiss raising any 12(b) defenses, she cannot subsequently file a motion raising a 12(b)(2) jurisdictional objection. Moreover, 12(h) explaints that if a defendant omits the objection to jurisdiction from a 12(b) motion to dismiss, it cannot be raised later in her answer to the complaint. In short, a defendant who is sued in federal court must challenge the court's jurisdiction over her through a motion to dismiss under Rule 12(b) or in her answer, whichever is filed first, or the objection to jurisdiction is waived.
Pendent Jurisdiction
Permitted federal courts to take jurisdiction over claims asserted by the original plaintiff for which there was no independent basis of SMJ.
Ancillary Jurisdiction
Involves claims by a person other than the original plaintiff where no independent basis of jurisdiction existed.
Does a federal court have the constitutional power to hear the state law claims? Three elements:
1. A federal question that is sufficiently substantial to confer federal SMJ.
2. A common nucleus of operative facts.
3. Separate claims that one would expect to be tried in one judicial proceeding.
(If allelements are met, allows court to hear case based on pendent jurisdiction)
28 USC 1367(a)
In a civil action which federal district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related that to claims in the action within such original jurisdiction that they form part of the same case or controversy under Art. III. Shall include claims that involve the joinder or intervention of additional parties.
1. Same case or controversy=common nucleus of operative fact.
28 USC 1367(b)
In any civil action of which the district court has original jurisdiction founded solely on 1332, the district court shall not have supplemental jurisdiction under subsection (a) over claims by plaintiff against persons made parties under Rule 14, 19, 20, 24 when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of 1332.
1. Bars supplemental jurisdictional in circumstances where a district court's jurisdiction is founded on 1332 and parties are joined BY a PLAINTIFF under FRCP 14,19,20,24.
28 USC 1367(c)
Sets out grounds on which a district courts may decline supplemental jurisdiction over a claim under (a)
1. Claims that raises a novel or complex issue of state law.
2. Claim predominates over the claim which the district court has original jurisdiction
3. District court has dismissed all claims over which it has original jurisdiction
4. There are other compelling reasons for declining jurisdiction.
28 USC 1367(d)
Tolls the Statute of limitations for a claim that was voluntarily dismissed for the period during which the federal suit was pending and for at least 30 days after the dismissal.
28 USC 1441(a)
Case can be removed to federal court if the district court would have had original jurisdiction TO a federal court that embraces the state court where suit was originally filed.
1. Only the defendant may remove a case to federal court.
2. All defendants must concur in the removal petition within 30 days.
28 USC 1441(b)
In 1332 claims, 1441(b) bars removal if defendant is citizen of the forum state
1. In 1331 claims, 1441(b) allows case to be removed by defendants regardless of domicile.
28 USC 1441(c)
If separate and independent claim under 1331 is joined with a non-removable claims, AT COURT'S DISCRETION entire case may be removed OR remand, in its discretion may remand all matters in which state law predominates
1. If other defendants are involved, they need not concur in the removal.
2. The key to 1441(c) is the requirement that the claims be "separate and independent".
McCurtain County Production Corp. v. Cowett
Removal not proper; amount in controversy non met; all defendants failed to join in the removal petition.
Eastus v. Blue Bell Creameries, L.P.
Court said 1441(c) still allows the district court to remand separate and independent state claims, if state law predominates as to the individual claim; the FMLA claim and the intentional infliction of emotional distress claim are not separate and independent claims or causes of action under 1441(c); 1441(c) does not authorize the remand of state law claims unless they are separate and independent from the removed federal question claim, the district court abused its discretion by remanding this claim.
28 USC 1447(c)
Allows remand of cases in federal court to state court only for defects in the removal procedure, OR lack of subject matter jurisdiction
28 USC 1447(d)
An order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise.
Shoshone Mining Co. v. Rutter
Despite the presence of a congressionally created cause of action, the court held that the case did not arise under federal law for purposes of statutory jurisdiction. Federal statutes authorized was a federal program that allowed individuals to stake mining claims to federally owned lands. Those with adverse claims to such lands were to sue one another in a court of competent jurisdiction. The substantive law to be applied in such litigation, however, was to be either local custom or state property law. Nonfederal law would determine ownership. As such, the court ruled that congress could not have intended to create federal question jurisdiction over what were essentially nonfederal matters.
Rule 8(d)
Pleading to be Concise and Direct: Alternative Statements; Inconsistency
1. Simple, Concise, Direct.
(More, but not covered in class)
Rule 8(a)
A pleading that states a claim for relief must contain:
1. Short and plain statements of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support.
2. Short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought, which may include relief in the alternative or different types of relief.
Rule 4(a)(1)
Contents; Amendments
1. A summons must contain:
A. name the court and the parties
B. be directed to the defendant
C. state the name and address of the plaintiff's attorney or-or if unrepresented-the plaintiff
D. state the time within which the defendant must appear and defend
E. notify the defendant that failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint
F. be signed by the clerk
G. bear the court's seal.
Rule 4(c)(1-3)
1. In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule4(m) and must furnish the necessary copies to the person who makes service.
2. By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
3. By a Marshal or Someone Spcially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court...
Rule 4(d)(1)
Requesting a Waiver.
An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:
A. be in writing and be addressed: i. to the individual defendant; or ii. for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;
B. name the court where the complaint was filed.
C. be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form.
D. inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service.
E. state the date when the request is sent;
F. give the defendant a reasonable time of at least 30 days after the request was sent-or at least 60 days if sent to the defendant outside any judicial district of the United States-to return the waiver; and
G. be sent by first-class mail or other reliable means.
Rule 4(d)(2)
Failure to Waive. If a defendant located within the US fails, without good cause, to sign and return a waiver requested by a plaintiff located within the US, the court most impose on the defendant:
A. the expenses later incurred in making service; and
B. the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.
Rule 4(d)(3)
Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent-or until 90 days after it was sent to the defendant outside any judicial district of the US.
Rule 4 (d)(4)
Results of Filing a Waiver.
When the plaintiff files a waiver, proof of service is not rquired and these rules apply as if a summons and complaint had been served at the time of filing the waiver.
Rule 4(d)(5)
Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.
Rule 60(b)
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
4. the judgment is void;
5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
6. any other reason that justifies relief.