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110 Cards in this Set
- Front
- Back
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Is there PJ over ___ in ____?
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In order for the court to have PJ over defendants, defendants must either fit within a traditional basis of jurisdiction, or be subject to long arm jurisdiction under the applicable long arm statute and the minimum contacct test.
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Is there a traditional basis of Jurisdiction?
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As recognized in Pennoyer a court may assert jurisdiction over its domicillaries, those consenting to its jurisdiction, and those physically present
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Domicile
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A state has jurisdiction over its domiciliaries. To be domiciled in a state, you need to have, concurrently, a physical residence in the state, plus an intent to make that residence your home indefinitely, 'until life takes a different turn.
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Domicile Caveats
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-A person only has one domicile at a time
-Initial domicile is the place where you were born -You keep a domicile until you change it -You can only change your domicile when you establish a physical residence in a new state and intent to call that residence your home (indefinitely) no intent to go back -Can have multiple residences but only one domicile |
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Consent
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: a defendant may indicate its consent to the forum court's jurisdiction expressly or impliedly. Express consent may occur in a contract clause or in a voluntary appearance. Implied consent may occur in behavior that is inconsistent with an objection to personal appearance, such as a failure to raise a personal jurisdiction defense in the first documents filed with the court
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Express Consent
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Express Consent
-Voluntary Appearance: The defendant shows up to litigate -Appointment of an agent: By Statute or by K, the defendant may have appointed an agent within the forum to receive process on the D’s behalf -Contractual waiver: A defendant who is a party to a contract may have agreed in that contract to submit to the forum’s personal jurisdiction if a dispute arose about the required performances under the contract |
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Implied Consent
Hess v. Pawloski |
Consent may be implied by conduct or the law;
Hess v Pawloski: Non Massachusettes citizen held to have implied to consenting to service through a representative agent in Mass due to statute….Upheld due to the strong interest mass had in regulating its highways |
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Consent
Insurance corp of Ireland |
If appearing to contest PJ than you consent to the court’s processes of deterimining if PJ exists
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Consent
Forum Selection Clauses |
Forum selection clauses will be honored unless enforcement is shown by the resisting parties to be unreasonable under the circumstances
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Forum Selection, Carnival Cruise Lines
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: Forum selection clause is upheld to adjudicate only in forum
-Ha s an interes in limiting the for a -Carries individuals from everywehere so it could be subject from a lot of for a -It saves litigants expenses in figuring where to correctly bring the suit -Passengers benefit from the reduced prices in saving in this regard -See it beforehand on a ticket |
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Physical presence and service
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a court can exercise jurisdiction over a defendant who was served with process while in the forum.
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Reasons for rebutting physical presence and service
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a. May be rebutted for policy reasons:
i. Is in the state to testify as a witness for other proceeding ii. Brought in under fraudulent means-Tickle v. Barton: brought in under the false pretenses that son was being awarded for football i. Brought in by force |
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Transient Jurisdiction
Burnham v Superior Court Scalia |
Scalia-no need for minimum contacts, it is fundamental to our legal system, has been, and all 50 states continue to recognize it. It can b relied on an expected.
-When ancient forms are only implemented by a minority of states than notions of fair play and substantial justice may be offended, but until then, than no Shaffer All mmeant all quasi in rem |
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Transient Jurisdiction
Burnham Brennan |
Shaffer All mmeant all quasi in rem
Brennan: In cases of transient jurisdiction, must analyze relative to minimum contacts -In visiting the form State transient avails himself of benefits of the State -Health and safety are guaranteed by first responders -Use states roads an waterways -gets benefits of economy and courts -Any burdens that arise can be mitigated by the fact that he was able to get there once |
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Is there long arm jurisdiction over D in ___?
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Under International Shoe and its progeny, a state may exercise jurisdiction over an absent, non-resident defendant, pursuant to a long arm statute, if that defendant has the requisite minimum contacts with the forum such that the exercise of jurisdiction would be consistent with traditional notions of fair play and substantial justice.
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Facially unrestricted
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the very words of the statute allow the court to assert jurisdiction to the extent that the constitution will allow
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Facially Restricted
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limits the forum state’s ability to assert jurisdiction only a subclass of some group of absent non resident Defendants that could be reached by the Constitution
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CCP 410.10: CA Long Arm
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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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Gray v. American Radiator:
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A faulty manufactured part was made and assembled outside of the Forum State however in applying long arm of tortuous conduct, they looked at where the injury occurred as o se to where the bad manufacturing took place
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Is there an applicable long arm statute that can authorize service of process over D in?
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Know this BZ
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Federal Rules Courts Courts long arm that authorizes service -FRCP 4k
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Federal Courts
Under FRCP 4k, federal court, whether under diversity or federal question jurisdiction, uses the same long arm statute as the state in which it sits. Unless, there is an applicable federal long arm statute. 4 K: Territorial limits of Service -Serving a summons or filing a waiver establishes personal jurisdiction over a D who is: -subject to the jurisdiction of a court of general jurisdiction where the district court is located (14th amendment due process analysis, acting under state long arm) -Who is a party joined under Rule 14 (impleaded) or 19 (Pretty darn important) and is served within a judicial district of the US not more than 100 miles from here the summons is issued (5th amendment due process analysis, acting under federal long arm) -When authorized by federal statute (5th amendment due process analysis, acting under federal long arm) -If the claim arises under federal law, D is not subject to any state court’s general JN, and is still constitutional (5th amendement due process, acting under federal long arm) |
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Non Federal Rules Courts
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Each State has adopted a long arm statute to determine the extent it will assert its jurisdiction over an ANR
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Finishing sentence for long arm
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If the assertion of JN over D meets due process concerns, the assertion will be permissible under (Long arm Statute.)
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Due Process Analysis under 5th amendment
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*Note: The Supreme Court has failed to provide a way framework for determining due process under the 5th amendment
-Is it a contacts test? -With whom or what are the contacts measured? Nation as a whole? -Does D get to rebut the presumption of reasonableness or only can challenge venue? -If you rebut then no where to send them? Possible jurisdiction by necessity? |
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Does the assertion of JN over D comport with due process under the International Shoe minimum contacts test?
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It is presumptively reasonable for a court to exercise jurisdiction over a defendant where that defendant has purposefully availed itself of the privileges and benefits of the forum and the claim arises out of those contacts. In determining if D’s conduct within the forum has constituted such availment, courts will look at “quality” of the contacts and the relationship to the claim. (compare cases)
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International SHoe
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International Shoe: (Absent non resident, sued for taxes in WA, Deleware corp)
-No stock of merchandise in State; no delivery of interstate commerce -Employed 11-13 salesman in the state, resided there and were compensated based on commission of sales -Rent rooms for exhibition that are reimbursed by appellant -Items sold shipped from out of state into state HELD: Both continuous and systematic AND the claim arose out of these contacts |
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Keeton v Hustler Magazine
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Keeton v. Hustler Magazine: ANR Hustler sued for libel in NH, USSC found that Minimum contacts existed
-Sold 10,000-15,000 mags in FS Held: Continuous and Systematc, Slighlty arose out of contacts |
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Burger King
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Burger King Corp v. Rudzewicz (ANR attempted to be hailed into Florida court on breach of K as Franchisee) Minnuimum contacts found
-Sent individuals to be trained in FS -No offices and never visited -However grew out of a contract that had substantial connection with the FS -Reached out beyond MI to negotiate with a FL corporation -K had continuing wide reaching contacts with BK in Fl for next 20 years -Dealt directly with FL office and sent payments there -Commercially sophisticated -Contract and choice of law not enough on its own, but when looked with everything… -Agreed to FL choice of law…strong availment of laws |
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McGee
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McGee: TX insurance company hailed into, CA under a single insurance policy sold there as, party lived there, premiums mailed from there, and it was substantially related to the suit
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Hanson v Denkcla
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Hanson v. Denckla: (ANR Deleware trustee, sued for the passage of the trust under a will) Mimimum contacts not found, both quality and relationship of contacts found lacking
-Trust company has no offices in FS, trustees moved there -None of the trust assets has ever been administered in FS -No solicitation of business in person, or by mail, has been done in the forum state -“PJ does not acquire that jurisdiction be the center of gravity of the controversy or the most convenient for litigation |
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World Wide Volkswagen
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World Wide Volkswagen Corp v. Woodson: ANR sold a car in NY that became defective in Oklahoma, No PJ found, Quality and relationship lacking
-VW has no activity in FS -No sales and no Services in FS -No business through salespersons or through advertising reasonably calculated to reach the State -Foreseeability: Alone is not a sufficient benchmark for PJ -The foreseeability of that is critical to due process is not the mere likelihood that a product will find its way to the forum State….It is that D’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there |
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Kulko
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Kulko v Superior Court: ANR sent daughter to CA, Found that minimum contacts were not met both quality and relationship
-Sending daughter over is not consent or purposeful availment -Traveled there, but did not arise out of as it was a domestic dispute |
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Availment of a component manufacturer
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In Asahi, the Supreme court was split on determining whether a component manufacturer purposely availed itself of the privilege and benefits of the forum state. Under the O’connor opinion the court required the products entry into the stream of commerce and an action of the D purposefully directed toward the forum state. Under the Brennan opinion all that was required was that products entry into the stream of commerce and awareness that the final product is being marketed in the forum state.
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O'connor actions toward forum state
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O’connor actions toward the forum state:
1) Designing the product for 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 the sales agent in the forum State |
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Does the claim arise out of these contacts
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In order for a claim to arise out of the form contact some courts require that “but for’ the forum contacts, the claim would not have occurred. Other courts have taken a narrower approach requiring the contacts to be the proximate cause of the claim, while other courts have been more relaxed on the requirement only necessitating the forum contacts to be related to the claim.
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Could there be general jurisdiction?
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If the claim fails to arise out of the D’s contacts with the forum, a court may assert jurisdiction if the the D’s Continuous operations within a state are so substantial and of such a nature as to justify suit against on causes of action arising from dealings entirely distinct from those activities availing contacts so extensive as to support PJ on an unrelated claim
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Perkins v Benguet
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-Very limited, however Court approved general jurisdiction in hauling in an ANR under a claim arising out of the actions completely out of the forum State
-War forced corporate activities into Ohio (Forum State) -All offices, employees and accounting work held there -War made it impossible to receive relief in any other forum across seas |
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Helicol
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-Contacts consisted of sending its CEO to the FS for K negotiation
-Accepting payments from a FS bank -Purchasing helicopters, equipment, and training services from Bell Helicopter for substantial sums -Sending personnel to FS for training Held: Not sufficient for general jurisdiction as they conceded the claim did not are out of or were not relatied to the contacts |
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Rosenberg
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Rosenberg: Purchases do not warrant General Jurisdiction….Selling is much stronger
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Can D rebut the presumption of reasonableness
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-Once establishing minimum contacts with the FS it is presumptively reasonable however the D may rebut this presumption when the contacts are considered in the light of the burden of D, the P's interest in obtaining relief, Forum state, shared interests of the several states, and interstate judicial interests.
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Unsuccessful Rebut: Burger King
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1) Burden on the D: None in record
2) The forum state’s interest in adjudicating the dispute: High, wants to provide relief to its citizens in K’s entered within Jurisdiction 3) P’s interest in obtaining convenient and effective relief: 4) The interstate judicial systems’s interest in obtaining the most efficient resolution of the controversies: Applying its own law 5) Shared interest of the several States in furthering controversies |
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Successful Rebutt: Asahi
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: Asahi-action of indemnification between Taiwan and Japan
-Require two none residents to submit its dispute to a foreign nation’s judicial system -Come all the way from Japan for litigation -Transaction on which the claim took place was not in forum State (Contract between Taiwan and Japan) -P is not a residen of the forum State-State’s interests diminished -The suit is about indemnification not safety standards which would raise the State’s interest -Not even sure if CA law will apply -Be bad for foreign relations policies to hail into court foreign companies so easily (interests of the several states) |
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Asserting PJ through the attachment of property...IN Rem
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In Rem: all types of jurisdiction that are not in personam, generally to quiet title
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Quasi in rem
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Quasi In Rem: The seizure of the property functions as a symbolic substitute for an absent, nonresident defendant whom the plaintiff could not personall serve within the forum state
-Oce D is symbolically present before the court the court will determine the D’s liability to the P for some matter\ -If the property seized exceeds value than compensated only up to amount owed |
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In Rem Caveats
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-In Rem does not receive full faith and credit
-Now that it requires minimum contacts, it is useful only when D has minimum contacts but State’s long arm prevents D from getting hauled in…now can at least get In Rem…10 states allow it -Some allow in this type of action to come in and defend on the merits without turning it into a general appearance…”limited appearance |
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Harris v Balk
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Harris v Balk: Debt follows debtor, therefore creditor subject to JN wherever debtor goes
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Shaffer
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Shaffer v Heitner: can onlt assert PJ through property attached in a quasi in rem action if meeting the minimum contacts test purported by International Shoe
-Shares seized to bring in directors -Must distinguish between asserting jurisdiction due to property or due to acts within the State -The property has nothing to do with the suit Cannot attach insurance obligation as the contacts between the D and the forum are separate from that of the insurer and the forum |
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PJ and the Internet
Bellino |
Bellino v Simon: ANR Penn. FS Lou
-Call came from FS to ANR -D had web site inviting emails…”solicited emails” -Further D continued to email |
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Notice and opportunity to be heard
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Notice and Opportunity to be Heard
-A state must have at least the constituioal minimum amount of notice that due process compels, however, a State can require more notice 1) Did they comply by the State’s rules? Has the P fulfilled the specific requirements of the rule or statute authorizing service? –D’s amenability to service a summons 2) Did the State service procedures adequately provide the constitutionally guaranteed minimum? If the service was done under the authorizing rule or statute does the application of that rule, under the circumstances of the case purport with due process?-m |
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Personal Service
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Personal service=In hand service of a copy of summons and complaint
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Substitute Service
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Substitute Service: some legal or de facto agen was personally served on behalf of the D
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Constructive service
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Constructive Service: Service by publication in the legal section of a newspaper of general circulation
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Constitutional Minnimum-Mullane
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as set out in Mullane-Court gave notice to torustees that their trusts were to enter a collective trust…NY statute permitted notice by publication
The notice must be of such nature as reasonably to convey the the required information and it must afford a reasonable time for those interested to make thir appearance, taking int considerations the practicalities and peculiarities of the case. |
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Mullane caveats
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-Where personal service becomes impracticable, than service is authorized by the best alternative means
-Under the circumstances, it must be reasonably calculatated to reach those who could easily be informed by other means at hand…? -The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it…..where conditions do not reasonably permit such notice, that the fom chosen is not substantially likely to bring home notice than other of the feasible and customary substitutes -Reasonableness may be defended that it is in itself reasonable to inform those effected -Reasonably calculated under circumstances to apprise parties of suit’s pendancy |
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Known v Unknown v Ascertainable
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1) Names and addresses known: Publication will not suffice
-The reasons disappear to resort to means less likely to succeed 2) Names and addresses who are unknowable: Publication will suffice 3) Names and addresses that could be ascertained at considerable expense: Publication will suffice *Note: this was a particular trust and since the rights of all would be protected by those who did get personal service, the court was more lenient with those who did not receive such service |
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CA service statutes
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CCP 413.10 b
CCP 415.40 417.20 a |
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FRCP 4 a-c
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Logistics, what, by whom
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4-d waiver
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-Courts allow for in hand service and now mailing through waiver
-D gets 30 days to respond domestic; 60 days foreign TO WAIVER -Fails to Respond: D becomes liable for expenses later incurred in making the personal service and reasonable fees, including attorney fees required to collect, only 20 days to respond to complaint when served -Responds: D loses 12(b) 4 and 5 motions, but gets 60 days domestic and 90 days foreing to answer complaint as oppose to 20 |
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4e-service of someone in US
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Service Methods of individual within US
-Service may be done in any manner that is acceptable by the State in which the district court sits or the State in which service was made -OR can be done by delivery of summons personally -leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there -Delivering a copy of each to an agent authorized by appointment or by law to receive service of process -*Note foreigners different |
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4g, 4h, 4l, 4m
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4 g: Service to a minor or incompetent person
-Must be done according to State where service is made 4 h: Service to corporation -Service same as to individual or agent along with copy to defendant 4l: Proving Service 4M: Time limit for service -Has 120 days from time of complaint to file for service |
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Challenging PJ Federal rules 12b
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12 b: Every defense to a claim for relief in any pleading must be asserted in the response to a pleading
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12 g
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12 g: A motion under this rule may be joined with any other motion allowed in this rule
-Except as provided in 12h2 or 3, a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party earlier, but omitted |
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12h
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Waiving and Preserving Defenses
-12b1-5 motions defenses are waved if omitting them as described in 12g2 or failing to inclue in a responsive pleading or amendment allowed under 15 (1) -12 b 6-failure to state a claim can be made several times…look at statute -If court determines that it lacks subject matter JN it can dismiss it at any time |
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Non federal rules challenge PJ
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-Must make motion to quash service in a limited appearance
-If combining you combine personal JN objection with any challenge to the merits you will be deemed to have waived your personal JN challenge -Cannot answer or file Demurrer, or else you have consented to the courts JN |
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Collateral Attack
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-Where a D has not participated at all in a proceeding, there is no express waiver, and no basis for inferring the D has waived his due process rights to insist that a court have PJ over him, her, or it, courts have allowed D’s to default in an action and to challenge the first court’s JN in a second action
-Done in another forum when the P seeks to have a judgment enforced Appeal= Direct Attack |
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SJ JN
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The court’s power to hear a case because of the nature of the dispute.
Federal Courts are courts of limited jurisdiction and can only hear cases listed in Article III sec. II of the consitituon State Courts-unless a claim falls within exclusive federal JN, or the state has passed a law saying the it does not want its courts to hear particular kinds of disputes, or that only special state courts may hear particular disputes, the state trial court can hear any given kind of dispute |
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Diversity JN, 18 USC 1332
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-Federal Courts shall have original JN of all civil actions where the matter in controversy exceeds the sum or value of 75 K and there is complete diversity between the parties
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1332 Caveats
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-The constitution only requires minimal diversity, while the code requires complete
-Complete diversity requires that no adversarial parties are citizens of the same State -Citizenship is equated to domicile for purposes of diversity JN |
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Citizenship of corporation
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-Corporation can be a citizen of more than one State: State of incorporation as well as the State in which it has its principal place of business; 3 different tests in determining PPB:
1) Nerve Center Test: Locus of corporate decision making authority and overall control 2) Corporate activities/operating assets: Location of a corporation’s production or service activities 3) total activity: hybrid of two, looks at everything together -Unincorporated it goes by the members |
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Alienage
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-An alien admitted to the US for permanent residence shall be deemed a citizen in which such alien is domiciled
-1332 a 3….permanent resident alien can sue in federal court under diversity against a nonresident alien and citizen of a state other than VA -Aliens on both sides split: DC no diversity (majority), China Nuclear Energy Indus, Singsh above allows -1332 a 3…if there are alien co-defendant and P’s from the same nation it does not destroy diversity -1332 a 2, need to be a citizen of SOME state -can’t trick and make diversity, selling interest in suit, 1359…only for valid business reason |
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Amount in controversy Deermination
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Amount in Controversy:
-The test for determining whether the P has met the amount in controversy is that the sum claimed by the P controls if the claim is made in good faith |
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Aggregating
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-Aggregating: Single plaintiffs can aggregate claims against single defendants
-2 P’s may not aggregate if they have separate and distinct claims -If there is a single indivisible harm, then can aggregate |
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Valuing injunctive relief
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Injunctive relief: Split
1) Only value to P 2) Only value to D 3) Party looking to invoke federal JN -P if Diversity -D if removed 4) either -Pain and Suffering Included -Attorney’s Fees Included -Costs not Included -Pre judgment Interest not included |
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Valuing injunctive relief
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Injunctive relief: Split
1) Only value to P 2) Only value to D 3) Party looking to invoke federal JN -P if Diversity -D if removed 4) either |
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Considered and not considered
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-Pain and Suffering Included
-Attorney’s Fees Included -Costs not Included -Pre judgment Interest not included |
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Minimal diversity exceptions
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Minimial Diversity Exceptions:
-Catastrophic mass accidents: 75 deaths and minimal diversity between parties -Class actions exceeding $5 million any D is a citizen of a State from a different |
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Federal Question Under Q-
Osborn ingredient test |
Osborn ingredient test: As long as federal law is a link in the chain of rights or obligation, than that case rises under the law or treaties of the US and congress has the right to entrust decisions of those cases to its courts.
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Federal Q 28 USC 1331
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The district courts shall have original jurisdiction of all the civil actions arising under the Constitution, laws, or treaties of the US.
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Holmes test arise under
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To determine if a civil action “arises under”:
Holmes test: -Federal statute must create a cause both a right of action to enforce and a remedy for that right -A remedy may be express or implied -To determine if it is implied, than one must turn to legislative intent |
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Smith Test
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Smith Test
Federal courts have jurisdiction where the vindication of a right under state law turned on some construction of federal law. -Merrel Dow: States that in order to meet the Smith test, Congress must provide a private HOWEVER: Grable: the absence of a federal cause of action is not fatal to federal jurisdiction -must look at the strength of the federal interest involved -important tax issue -state agencies had a strong interest in determining law in federal court |
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Mottley Well Pleaded Complaint Rule
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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 complain that is not essential to his case. Federal court will examin only so much of the complain as is well –pleaded.
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Caveats to Fed ?
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-Federal Claim that turns on state law or custom belongs in State court-Shoshonie
-Federal question can’t be brought up on counterclaim -“Artful pleading”-cannot conceal true intent through artful pleading |
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Supplemental JN USC 1367
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a) Brings in claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”
-See language below b) Excludes some that would ruin diversity if brought solely on diversity -be sure to check if it can be brought under federal question as well c) May decline for these particular reasons 1-4 -judicial economy, convenience and fairness to ligangs |
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Brennan Common Nucleus 1367
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Brennan
“The state and federal claims must derive from a common nucleus of operative fact. Notwithstanding the federal or state character, a plaintiff’s claims are such that he would ordinarily be expcted to try them all in one judicial proceeding” -Look to overlap of : facts, parties, evidence, injuries |
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Attack SJ
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Attack Sequence for Fed. Subject JN
1) Independent Basis -Fed question -Diversity 2) Supplemental JN |
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Removal 1441 a
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1441 a: any civil action brought in a State court of which federal courts have original jurisdiction may be removed to the district court of the district in which the state court resides.
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Removal 1441 b
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If it is brought under federal question than it can be removed. If done under anything else (diversity) it is only removable if none of the parties in interest properly joined and serves as D’s is a citizen of the State in which the action was brought.
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General notes
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General notes
created by congress through the necesssary and proper clause -All parties must join in the petition for removal, except when removal is made on a separate and independent caim -Cannot remove if counterclaimed against…solely a tool for the Defense -D can always make a motion to remove and it is done…after P can make a motion to remand (1447c) -Even if removing, court can remand state law claim, if it chooses -Even if State court was precluded from hearing it….can still remove |
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Challenging SJ State
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State Courts
-Are rare since state courts are courts of general JN |
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Challenging SJ Federal direct attack
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-Brought under a 12b1 motionbn
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Collateral Attack, depends
Rest 1 |
Restatement yes, dependent upon the weighing of factors
1) Lack of JN was clear 2) The determination as to JN depended upon a question of law rather than fact 3) The court was one of limited and not general JN 4) The question of JN was not litigated 5) The Policy against against the court acting beyond its discretion is strong |
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Rest 2
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2nd Restatment SMJ is beyond collateral attack unless there are no justifiable interests of reliance that must be protected and
1) Lack of SJ was so plainly beyond the court’s JN that entertaining the action was a manifest abuse of authority OR 2) Allowing the judgment to stand would infringe on the authority of another tribunal or agency OR 3) The judgment was rendered by a court lacking capability to to make an adequately informed determination of a question concerning its own JN and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter JN |
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Venue
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the place of trial in an action within a state
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Intstate Local Action Rule Intrastate
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Where the action is in State involving state real property, venue is only proper in the county where the property resides
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Interstate local action rule
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Actions involving injuries to people upon real property are considered transitory there for venu for personal injury would be proper either in the county where the injury occurred or where the D resides.
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Federal Court Venue 28 USC 1391 a
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Venue where JN is found ONLY on diversity
1) District where ANY D resides as long as they reside in same state 2) District where substantial part of the events or omissions giving rise to the claim, or a substantial part of property that is the subject of the action is situated 3) judicial district in which any D is subject to PJ at the TIME THE ACTION IS COMMENCED if there is no district in which the action may be brought -Met through presence domicile consent Long Arm |
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1391 b
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not solely on Diversity
Same except B3: a judicial district in which any defendant may be found if there is no district in which the action may otherwise be brought Presence |
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1391 c
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corporations, shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced
-more than one district than have to treat district as if it was its own state -if no district than it has the most sig. contacts |
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Venue general notes
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General Notes
-Not constitutional and is statutory -Relates to convenience of the parties and to the conerns of judicial economy -State venue is determined State to State -Venue statutes for CA 395, differes for personal injury and contract -Cannot contract away venue objections -Can change venue 397 -Venue of unincorporated association, look at where the association resides |
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Transfer of Venue
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Transfer of Venue
-Change Venue within in its own system -Can make motion to transfer |
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State Transfer
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Transfer within State, Codified similar to 1404 and 1406
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Federal Courts
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Transfer within federal system
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Transfer 1404
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If properly brought, court may transfer to a venue where P might have brought over D’s PJ and Venue objections
-Need PJ, SJ, and Venue Choice of Law: -Diversity, use tranferor’s law -Fed ?: use tranferee’s law |
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1406 Transfor
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1406: Not properly brought;
-Court may dismiss or Transfer to district where P migh have brought over PJ and venue objections -Only need SJ -Always use transferee’s law |
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Forum Non Conveniens
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Forum Non Conveniens
State Courts do not have the power to transfer cses to courts of other states and neither state nor federal courts have power to transfer cases to foreign courts. In such cases where such transfer is proper most judicial systems permit dismissal of suits under the doctrine of forum non conveniens. -A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a genral venue statute |
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Elements of FNC
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In order to make a motion to dismiss under FNC two things must be established
1) The availability of an adequate alternative forum -Is there a cause of action for which relief is granted? -Are they subject to the court’s JN? *Note: The mere possibility of an unfavorable change in law does not bar an FNC dismissal, unless the change makes the remedy so clearly inadequate or unsatisfactory that it is no remedy at all 2) The considerations of party and forum dismissal override the P’s choice of forum and justify dismissal |
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Private interests, FNC
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Private Interests of the Litigants
1) Access to Proof 2) Availability of Process To compel attendance of the unwilling 3) Cost and travel of witnesses 4) Possibility to view premises 5) All other practical problems that make trial easy, expeditious, and inexpensive |
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Public Interests, FNC
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Public Interests of the courts:
1) Court case load 2) Jurdy duty burden on disinterested 3) Local interest in having local controversies decided at home a. Choice of law weighs in |
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Piper
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Piper: Wrongful Death suit following aircraft malfunction, built US crashed in Scotland…only binds federal courts
Private interests: -Records of manufacture in forum….actual wreckage out=both ways -D would not be able to reach witnesses due to compulsory process -Would not be able to institute actions for indemnity Public Interests -Choice of law, up in the air -Decedents were from Scotland, many of the P’s and D’s were Scottish, and happened over their airspace=strong scttich interests -American interest in dettering manufacturing not as high |
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Merell dow
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Merrel Dow Products liability…manufactured US…taken in england….want to move to UK
Private -All physicians and records are in US -Not sure if you would get comity HOWEVER…records are already there and have been sued many times for the same thing already -Neither is personally more convenient to P or D as they both want to travel -No proof or discovery issues due to type of evidence Public -Will flood US courts with foreing litigation -apply british law -Britain has great interest in regulating law -Not very much in Ohio….force jury and would flood them/ |
