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65 Cards in this Set
- Front
- Back
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What are the two requirements for personal jurisdiction?
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1.) Adequate notice and opportunity to be heard 2.) Sufficient relationship with the forum.
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What are the specific requirements of the federal rules authorizing service?
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FRCP 4 - 1. In General, Summons with a copy of the complaint. Any person not a party and at least 18 may serve. 2. Federal rules have possibility of waiver of service. (4d) 3. Waiving summons does not waive objection to personal jurisdiction or venue. 4. In lieu of personal service, you can leave a copy at the persons dwelling or place of abode with someone of suitable age and discretion or deliver a copy to an authorized agent. 5. Serving a corporation, partnership or association: Must be served in a judicial district of the United states in the same manner as serving an individual or by delivering to an officer, a managing agent, or authorized agent and by mailing a copy to the D.
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If service is proper under the authorizing statute, does the service comport with due process under Mullane v. Central Hanover Bank & Trust Co?
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Must choose the best form of notification under the circumstances, generally more than mere publication. 1. “Gold Standard”: Personal Service, always adequate. 2. Constructive Service: must be reasonably calculated under the circumstances to inform a party of the pendency of the action and give them a reasonable opportunity to appear and be heard. (US mail ok) 3. Service by Publication: The means employed much be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.
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What are the traditional bases for jurisdiciton?
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Domicile, Express and Implied Consent, and Presence
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What is Domicile?
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True, fixed, permanent home, principal establishment to which you intend to stay or return. Changes only when you physically move and intend to remain.
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How is the domicile of a corporation determined?
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1. A corporation is considered to be domiciled in the place where they are incorporated and their PPB – clearly concentrated. Three tests for PPB: Nerve Center, Corporate Activities, Total Activity
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What are some examples of Expressed Consent?
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Voluntary appearance, appointment of agent, Contractual Waiver
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What are some examples of implied consent?
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Not arguing PJ or Hess v. Palowski implied appointment of agent
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What is the test for presence under Burnham?
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Holding: (Scalie) A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court. Concurrence (Brennan): all rules of jurisdiction must satisfy contemporary notions of due process under minimum contacts analysis.
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Tickle v. Barton rule
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Personal Jurisdiction based on presence and obtained through trickery deceit or fraud is void.
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Two overall questions for determining modern basis?
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1.) Does the statute apply? 2.) Does the application of the statute comport with due process under International Shoe?
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California Long Arm Statute
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A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States
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Due Process Clause - 14th Amendment
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nor shall any State deprive any person of life, liberty, or property, without due process of law
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Test under International Shoe for minimum contacts
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1.) Are the contacts sufficient? 2.) Does the claim must arise out of or relate to those contacts? 3.) Does the forum’s taking jurisdiction must not offend traditional notions of fair play and substantial justice?
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What are the tests for "arise out of or relate to?"
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1. But for causation: Without this contact would the claim have arisen as it actually did? Shute v. Carnival Cruise Lines 2. Proximate causation: substantial relevance 3. Related to: similarity with expected claims?? (Helicol - Brennan Dissent)
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General Jurisdiction
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1. Defendant’s contacts with the forum state must be substantial, continuous and systematic. Perkins, Helicopteros, LL Bean
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Perkins
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(General JN) A Philippine corp. doing business in Ohio due to wartime Japanese occupation. Essentially, it was as though they were incorporated in Ohio
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Helicopteros
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No Gen. JN) Helicopteros transport company sued in Texas as a result of helicopter crash that occurred in Peru. Under the IS the court concluded their contacts were “isolated and casual”. Mere purchases, even if occurring at regular intervals are not enough to warrant state’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchases.
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LL. Bean
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9th circuit: Virtual store: "The standard for establishing general jurisdiction is 'fairly high....' " The contacts with the forum state must be of a sort that "approximate physical presence."
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Did the Defendant purposefully avail himself of the forum? What cases apply?
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McGee v. International Life Insurance, Hanson v. Denckla, Pebble Beach, Calder Effects Test
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McGee v. International Life Insurance
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Purposeful Availment: Company sought contract renewal with California resident. Minimum contacts through the renewal of the contract making a substantial connection with the state. Rule: Minimum contacts can be very minimum as long as they are sufficiently related to the lawsuit.
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Hanson v. Denckla
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No purposeful availment - (Trust Case) Reaffirmed International Shoe, Defendant must have purposefully availed themselves, defendant must have done something.
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Pebble Beach
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Passive Website – court held action was not expressly aimed at California. Something more than mere foreseeability.
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Calder Effects Test
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(Purposeful direction test): Committed Intentional Act, Aimed at the Foreign state, Caused harm which is suffered and defendant knows is likely to be suffered in the foreign state.
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Would Defendant reasonably anticipate being haled into this state? Cases?
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Worldwide Volkswagen, Burger King, Asahi
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Worldwide Volkswagen
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Foreseeability alone is not enough. Must be foreseeable that defendants conduct and connection would cause them to reasonably anticipate being haled into court there. Factors to consider: Agents, State of Incorporation, Business there.
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Burger King
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If D’s contacts are sufficient and the claim arises out of those contacts, it is presumptively reasonable that personal jurisdiction exists. This presumption is rebuttable. You can show an undue burden, or unreasonableness, by considering the following: Ps interests, D’s interests, Forum’s interests, Court’s interests, State’s interests.
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Asahi
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No purposeful availment (Tire valve manufacturers from Japan that sold to Taiwanese tire making corp. Cheng Shin, who sold to California. Cheng Shin filed cross complaint in CA court for PI suit.) 1. Rule: O’Connor (only 4 signed) Awareness + “something else.” Need more than just intent to serve the forum market. 2. The “something else”: (intent to serve the forum market) product marketing, advice channels, designed for the market, distributed through company agent. There may be more factors. 3. Justice Brennan – Stream and Awareness is enough.
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Attack Sequence for PJ
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1.) Notice and Opportunity to be Heard? 2.) Are the means used Constitutional? 3.) Traditional Bases 4.) Is there general jurisdiction 5.) Statutory Contruction of LA Statute 6.) Minimum contacts under Shoe (quality, arise out of/relate to, traditional notions of fair play and substantial justice), 7.) Purposeful availment 8.) Foreseeability/Reasonableness 9.) Rebutting Reasonableness
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Two types of Jurisdiction based on Interests in Property
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1. In Rem – Dispute over the property 2. Quasi in Rem – Where the property is not the dispute, just a means of getting jurisdiction.
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Shaffer v. Heitner
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All Assertions of state court jurisdiction must be evaluate under IS and it’s progeny: ie minimum contacts. Quasi-in-rem alone is not constitutional.
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How can you avoid waiving potential 12b defenses?
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Assert defenses in 12 b 2-5 in a responsive pleading. If the complaint calls for an answer. Otherwise, do so in your first appearance. Failure to do so will result in waiving defenses.
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Collateral Attack
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If you take a default judgment in a state based on your belief that the state lacks PJ, you can collaterally attack when P seeks to enforce the judgment in your state
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Statute Governing Diversity
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1332 1. Citizens of Different States 2. Citizens of a State and citizens of a foreign country 3. Between Citizens of different States when foreign citizens are additional parties; and 4. A foreign state as plaintiff and citizens of a State or different states. 5. EXCEPTIONS a. No suits between foreign citizens. b. No suits between foreign citizens to which a US citizen is joined. c. Courts are split on whether lawful permanent residents can bring suits against foreign defendants. Some courts say they are not citizens.
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Strawbridge v. Curtiss
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There is no diversity jurisdiction if any Plaintiff is a citizen of the same state as any defendant, no matter how many parties are involved in the litigation.
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Who bears the burden of showing that the plaintiff cannot get to the federal minimum?
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Defendant
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What is standard for judging whether plaintiff's amount in controversy is legitimate?
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The sum claimed by the P controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less that the jurisdictional amount to justify a dismissal.
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Whath types of damages can be claimed to meet the amount in controversy?
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Plaintiff can include Compensatory, punitive and injunctive relief into the mix to meet the jurisdictional amount.
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Can plaintiff aggregate claims to meet amount in controversy?
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Yes, even those claims that do not share a common nucleus. However, multiple plaintiffs cannot aggregate. Each plaintiff alone must satisfy the $75,000.01 threshold against each defendant alone.
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Mas v. Perry
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1. “no party on one side may be a citizen of the same State as any party on the other side. 2. the diverse citizenship among adverse parties must be present at the time the complaint is filed 3. The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction.
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How do we know if someone is a “citizen” of a state?
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1. Mas v. Perry: a person is (1) a U.S. Citizen & (2) “Domiciled” in the state
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How is new domicile established?
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1. Actually take up residence (physical component) 2. Intend to stay indefinitely until life takes a different turn (mental component) 3. Example : In Mas v. Perry, the court held that Mr. Mas was a domiciliary of France and Mrs. Mas was a domiciliary of Mississippi since they had not yet intended to stay anywhere. Therefore, their old domicile still remained.
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Federal Question components
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1331 - i. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. ii. Look only at Plaintiff’s claim, not possible defenses to determine if there is a federal question. iii. Must be a substantial question, implicates a significant federal interest as part of the well pleaded complaint.
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Louisville & Nashville R. Co. v. Mottley
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Does the well-pleaded complaint disclose on its face the need to interpret federal law? Artful pleading: A Plaintiff cannot invoke the original jurisdiction of the federal courts either by anticipating a federal defense or otherwise importing a federal question into his complaint that is not essential to the case. Well Pleaded Complaint Rule: The federal court will examine only so much of the complaint as is confined to the essential elements.
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Holmes test from American Well Works
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A suit arises under the law that creates the cause of action. Ask: Which law created the cause of action? That determines where the suit should be brought. A cause of action consists of a right to sue and a remedy. The right and remedy can be express or implied. Look at congressional intent to determine if it is implied.
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i. Four factors from Cort v. Ash for examining implied intent to create a right and remedy
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1. Is P one of the class for whose benefit the statute was enacted? 2. Is there any indication of legislative intent to create or deny a remedy? 3. Is it consistent with the underlying purposes of the legislative scheme to imply a remedy for P? 4. Is the cause of action one traditionally relegated to state law?
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Smith v. Kansas City
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Where it appears from the statement of the plaintiff that the right to relief depends on the construction of Federal law the district court has jurisdiction. The well pleaded complaint must disclose a need to interpret a substantial question of federal law. Ask: Does the complaint on its face disclose a need to interpret federal law? Does the claim turn on the meaning of a federal law?
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Grable v. Darue
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Even when there is a substantial federal question, the federal courts can still veto it. The federal courts balance the federal-state line. Federal jurisdiction must be consistent with Congressional judgment regarding the division of labor between state and federal courts. Since the federal government had a strong interest in the case and because it was an obscure case that wouldn’t put the “welcome mat” the court granted federal question jurisdiction.
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Merrell Dow v. Thompson
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To confer federal question jurisdiction, the cause of action should arise under a federal law that creates a cause of action. The FDCA did not create a remedy, therefore there is no federal Cause of Action. Also, this would “put out the welcome mat.” i. Ask: 1.) Is there a strong government interest? 2.) Is the federal issue central to the case? 3.) Would it put out the welcome mat to federal court?
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How do you get supplemental jurisdiction over a case?
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a. Does the Federal Court have Jurisdiction over any part of the case? (Can be federal or diversity) b. Are additional claims part of the Same Case or controversy so that you would expect them to be tried together?
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Exception to Supplemental Jurisdiction
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Can't be an end-run around complete diversity.
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When can the federal courts refuse to exercise supplemental jurisdiciton?
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(1) the claim raises a novel or complex issue of State law, (2) the state claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. - court must articulate those reasons (gibbs gives examples such as jury confusion).
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When in the course of a case can lack of subject matter jurisdiction be asserted?
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Lack of subject matter jurisdiction can be asserted at any time by any interested party through an answer, a suggestion before final judgment, an appeal, or sua sponte. b. Parties cannot created federal jurisdiction through consent.
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Removal provisions
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1441 - Plaintiff cannot remove ii. Removed to the district court and division embracing the place where the action is pending. iii. Federal Question claims can be removed without regard to the citizenship or residence of the parties. iv. Must remove in 30 days.
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Venue in Diversity Cases
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1391 a - may be brought - a.) where any defendant resides if all reside in one state b.) where incident occurred or property is situated c.) all else fails venue - where any D is subject to PJ when the action is commenced.
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Venue in Federal Question Cases (or cases that involve a Federal ?)
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1391 b - may be brought - a.) where any defendant resides if all reside in one state b.) where incident occurred or property is situated c.) all else fails venue - where any D may be found
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Corporate Venue
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1.) Determined when the action is commenced. 2.) Corporation reside in any district which its contacts would be sufficient to subject it to PJ. District is treated as separate state.
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Alien Venue Provision
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An alien may be sued in any district
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Transfer of Venue when original venue is okay
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1404 - Can be transferred to any division where it may have been originally brought. - For diversity cases, you use the transferor Court’s law - For federal Question, use transferee Circuit’s law
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Transfer of Venue when orignal venue is improper
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1406 - Can dismiss or transfer to place where it might have been originally brought. ALWAYS use tranferee's law.
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Hoffman v. Blaski
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Cannot consent to transfer venue to a location where the action could not have been brought in the first place.
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Forum Non-Conveniens
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a. Court can decline JN - discretionary b. Defendant must establish that there is an alternative forum c. D must also show that a remedy can be provided under other law. d. less damages in another system does not defeat forum non-conveniens. e.The judge can condition the grant of the motion to dismiss – i.e. waive SoL and PJ.
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Private Factors for Forum Non-conveniens
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1. Access to proof in the two forums a. D’s access in Forum 1 b. P’s access in Forum 2 2. Availability of Process for witnesses 3. Expenses of travel of the witnesses 4. View of a site 5. Practicality
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Public Factors for Forum Non-conveniens
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1. Court Case Load 2. Local Interests 3. Choice of Law 4. Burden Jury Pool
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When can a trial courts decision on forum non conveniens be overturned?
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Should only be overturned for a clear abuse of discretion (Piper v. Reyno).
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