Civil Procedure I – Fall 2012 (Rutledge)
I.
Personal Jurisdiction
a. PJ = the power of Court to render judgment over specific party (individual or entity)
b. 3 general PJ categories:
i. in rem –action against a property itself -- suit to determine who owns property (ex: X v.
225 Herty Drive)
ii. quasi-in-rem- action against an individual up to the value of the property /asserts
located in the place where the suit is brought – π sues Δ non-res. in state ct
1. property/assets attached at commencement of suit – property/assets need not
be related to the suit
2. property/assets locked up/frozen
3. unlocked/unfrozen when judgment is rendered
4. judgment can only be up to the value of property/assets
iii. in personam – action against a person (A v. B), power to render judgment of unlimited
value against Δ
c. General v. specific PJ
i. General PJ: power of Ct to hear all suits brought against Δ – cause of action unrelated to
Δ’s contacts w/ forum state
ii. Specific PJ: power of Ct to hear specific suit/claim against Δ – cause of action is related
to Δ’s contacts w/ forum state
d. 2-step analysis in determining PJ for every case:
i. Authorized by statute? Statutes vary state to state – states either:
1. Authorize to constitutional limit
2. Long-arm statutes: Authorize enumerated acts
ii. Authorized by constitution? (DP clause of 14th amend) – this is the tricky part
1. General PJ – 5 basic theories:
a. Citizenship/domicile
b. Consent/waiver
c. Continuous and systematic contacts
d. Tag/transient
e. Agent for service of process
2. Specific PJ
a. Minimum contacts + relatedness + reasonableness
In assessing whether or not PJ (specific or general) is constit. auth. on exam quest.,
need to walk through all tests:
a. Min contacts (Shoe + ...)
b. Purposeful availment (Hanson)
c. Commerce (Woodson, Nicastro)
d. Effects (Calder)
e. Historical Approach:
i. Pennoyer v. Neff (1877): (GENERAL PJ)
1. Rule: under the DP clause in personam jurisdiction over non-resident Δ requires:
a. personal service or
b. voluntary appearance
2. Exceptions:
a. Status cases (ex. suit over marriage)
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3. Imp. Reasoning:
a. State sovereignty
ii. 3 general Elaborations on Pennoyer:
1. Consent (Fairness Issue)
a. Hess (1927) (SPECIFIC PJ)
i. Implied consent: state may constitutionally assert jx over non-res.
Drivers through statute implying drivers’ consent to service on
state registrar of DMV
ii. Reasoning:
1. drivers benefit from using roads
2. emphasis shifts away from actual service to the
activities/conduct of Δs
2. Presence (Fairness Issue)
a. Virtual v. literal presence
3. Doing business (Sovereignty issue)
a. If biz. Appoints agents, why can’t we just agree that state has PJ over biz
f. Modern approach – Minimum Contacts test:
i. Int’l Shoe (1945)
1. New Constit. Standard – Contacts Test: State has PJ where non-res. Δ has certain
contacts
i. Relatedness of contacts req. depends on their relationship to the
claim
1. Specific PJ: minimum contacts w/ state suff. To justify
claims related to those contacts
2. General PJ: requires continuous & systematic contacts
ii. Some contacts may be so unsubstantial that PJ is totally
unjustified
2. Basic 2 prong test:
a. Did Δ have min contacts w/ forum state?
b. Does exercise of jx comports w/ trad’l notions of fair play and subst’l
justice ?
3. Imp. reasoning:
a. Fairness outweighs state sovereignty -- companies who enjoy the benefit
of doing biz in state should answer
i. Problem: chilling on commerce?
b. Pennoyer test too strict
ii. Elaborations on Min. contacts for specific PJ
1. McGee & Hanson
a. McGee (1957) (SPECIFIC PJ)
i. Single k (upon which suit is brought) w/ subst’l connect. to forum
state can satisfy min. contacts for specific PJ (SEE BURGER KING)
ii. Imp. reasoning/policy:
1. Forum state’s interest now included as part of “Fair play
and substantial justice”
2. Nat’l economy
3. Relatedness of contacts (single k) to claim (from k)
b. Hanson (1958)
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i. Purposeful availment: to est. min. contacts for specific PJ, Δ must
purposefully avail itself of privilege of conducting biz in forum
state (“reach out” to forum state)
1. Ex: where you don’t have offices, assets, and you are
merely corresponding = not purposeful availment.
ii. Unilateral activities (activities not related to claim) cannot
satisfy contacts rew. for general PJ
1. Specific PJ: min. contacts must be related to the claim (ex:
McGee)
iii. Reasoning:
1. Focus shifts to nature of Δ’s contacts w/ π. Did Δ solicit
biz?
2. Woodson (1980):
a. Foreseeability that a good might enter the state is insufficient to estab.
min. contacts for specific OR general PJ
b. Stream of Commerce: forseeability that a good might be sold in or
TARGETED at specific state is sufficient to estab. min. contacts for specific
PJ (SEE NICASTRO)
c. “Woodson factors”: articulation of trad’l fair play and subst’l justice
i. Burden on Δ
ii. State’s interest
iii. Π’s interest
iv. Interstate judicial system’s interest
v. Shared interest of several States in furthering social policy
3. Calder (1984)
a. Effects test: min. contacts for specific PJ may be est. if Δ’s conduct in one
state has effects in another state
4. Burger King (1985)
a. Contracts plus theory:
i. Rule: more than mere existence of a k must exist to establish min.
contacts.
ii. “Pluses”:
1. Terms & duration of k
2. Financial benefit
3. Expectation of ongoing relationship w/ forum state
a. Prior negotiations
b. Future consequences
b. SLIDING SCALE: combines min. contacts and fair play prongs of Shoe test
into one sliding scale:
i. Where little min. contacts/purposeful availment, strong reasonableness
(fair play) can make up for it
ii. Reasonableness can outweigh purposeful availment
iii. Up to cts to determine balance
1. Advantages: flexible and adaptable
2. Problems: unpredictable
5. Nicastro (2011)
a. Problem addressed: Foreign scoundrels
i. Holding: State does not have PJ over Δ foreign manuf. where Δ neither
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marketed nor sold goods in forum state
b. Plurality opinion – no real rule. 2 main issues dealt with:
i. PJ based on goods entering stream of commerce:
1. Ginsberg plurality:
a. If Δ puts goods in commerce through a distributor,
anywhere in the distrib. netwrk is an appropriate forum
b. Could be rejection of stream of commerce arg.
altogether: Δ foreign manufac. deriving benefit from US
nat’l market – should be answerable to claims arising
out of access to market
2. Kennedy concurrence:
a. Stream of commerce not relevant -- cannot replace clear
requirement of purposeful availment; targeting is
necessary, not just foreseeability
3. Breyer + Alito dissent:
a. Volume of goods: must be more than just a few to
establish min. contacts for PJ (no vol. specified, though)
ii. Distinction btw US and State as a forum
1. Kennedy plurality:
a. US as a forum is diff. from states – constit. limits
governing what Congress can do (5th amend.) diff. from
limits governing what states can do (14th amend)
b. Ginsberg concur.
i. Less weight on US/state distinction
ii. Nationwide distribution network means that NJ
can assert PJ as much as US can
c. Reasonings:
i. Kennedy plurality: Sovereignty
ii. Ginsberg concurrence: Fairness to π
iii. Modern challenge: PJ based on internet contacts
1. 5 potential approaches to apply in internet cases:
i. Stream of commerce/foreseeability that product will be sold in state
only – difficult to prove (Woodson)
1. Fairer to πs (no direct targeting needed, but reason to forsee
that goods could be sold there)
ii. Express targeting at state (Burger King)
1. Fairer to Δs – only if there is indication of targeting (Δ
controlled where product ended up)
2. More sensitive to impact on commerce (won’t burden
commerce as much)
iii. Fairness only (WOODSON FACTORS) – not yet recognized by a
court
Prevailing trends:
iv. Effects test (CALDER)
1. Where are the effects of the contact?
v. Zippo (1997)
1. Sliding scale – 3 types of websites:
a. Active – enable commercial transaction (immediate
ability to buy)
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i. PJ exists
ii. Contracts entered into over the internet
that involve repeated transmission of
computer files create specific personal jx
b. Interactive – exchange of interaction w/ prospect
of commercial transaction
i. PJ can exist
c. Passive – Supply information only
i. No PJ
ii. Just advertising online for a passive website
is not enough
iv. Applying Min. contacts to other types of jx:
1. Shaffer (1977)
a. Shoe test (both min. contacts AND fair play/justice) applies to all
assertions of jx (including in rem and quasi in rem)
i. Companies and individuals treated the same for purposes of PJ
b. Reasoning:
i. Would subvert purposes of Shoe test if π could avoid test simply
by suing through in rem/quasi in rem
g. General PJ:
i. Goodyear (2011)
1. Sale of goods to forum state insufficient to estab. general PJ for non-related
claims (sale of goods can only establish specific PJ)
h. In-state service/Tag jx
i. Burnham (1990)
1. Rule – Constitution permits: state can exercise PJ over non-res. Δ by service of
process while Δ is temporarily in state (if purpose for being in the state is
unrelated to the matter before the court)
a. Min. contacts test = solely a substitute for physical presence
i. Consent:
i. One can consent to PJ in 2 ways:
1. Not contesting it (answering lawsuit)
a. Pre-dispute in Forum Selection Clause
2. Forum-selection clauses:
a. Carnival v. Shute
i. FSC is enforceable, can give rise to PJ where PJ would not
otherwise exist
b. Reasonings/Virtues of enforcing FSCs:
i. Predictability – Limits forum in which Δ can be subject to suit
ii. Cost Efficient
1. Judicial Economy– spares confusion, time, and expense if
the forum is established ex ante [before the event]
2. Commercial Economy - Having the clause decreases cost of
overall good/service (profits remain higher, goods can be
sold for less)
c. FSCs subject to testing of fundamental fairness:
i. Reasonable relation/basis btw forum and transaction
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ii. Good faith -- Not designed to deter valid claims/overly
burdensome
iii. Not by fraud and overreaching
iv. Notice of clause
j.
II.
Notice:
i. States have different statutes for notice.
1. Issue: is notice constitutional?
ii. Mullane (1950)
1. Rule:
a. Actual successful notice is not required, but reasonable attempt to
provide notice is.
b. DP requires:
i. “reasonably calculated” notice,
ii. opportunity to object
c. Sufficiency of notice:
i. must demonstrate that your method is likely to get to the
person
OR
ii. not substantially less likely to reach people than other forms of :
(doesn’t have to be the best)
2. Balancing test: Type of notice is calibrated (“reasonably calculated”) to the info
available to the state –
i. Weighs:
1. Gov’t interests in issuing notice v.
2. Δ interests in receiving notice
b. Case by-case analysis
c. ex:
i. if state has Δ’s address, must notify by mail rather than
publication.
ii. If address unknown, publication ok.
3. Underlying reasoning:
a. Judiciary doesn’t want too strict of a notice rule (such as requiring actual
notice). Tension between judicial and executive branches. Judiciary
doesn’t want to push executive too much.
iii. Notice issue typical In two circumstances (where standard service is difficult to apply):
1. “Exotic” methods of service – publication, email, fax
a. Tests whether they comport w/ DP clause
2. Uncharacteristic lawsuits – ex. gov’t seizure
a. Typically argued that more notice was required
Subject Matter Jurisdiction
a. SMJ = power of a court to render judgment over the subject of a given suit.
i. Ct must have both PJ and SMJ to render judgment on a suit
ii. Limitations on SMJ:
1. State courts are courts of general jurisdiction – allowed to hear all sorts of
matters, including federal matters
a. (state cts have concurrent jx to fed cts)
2. Federal courts are of limited jurisdiction
iii. If a complaint has COA under both state and fed. law
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1. If related, federal can hear both
2. Fed court can send state claims back to state ct
b. Focus on SMJ for Fed Cts (for purposes of this class)
1. Major policies:
a. Uniformity, concern about bias
b. Cases of nat’l concern
ii. 3 types of jx of focus (for purposes of this class)
1. Federal question
2. Diversity
3. Alien
iii. Related topics:
1. Supplemental jx
2. Removal jx
c. Foundations:
i. US Constitution Article 3:
Section 2: The judicial Power shall extend to all Cases, in Law and Equity, [categories of
cases in which fed cts can hear/has SMJ.]
(1) [Federal question jx] arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their Authority
(original jx)
(7) [diversity jx] between Citizens of different States (appellate jx)
(9) [alien jx] between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects. (appellate jx)
1. Notes:
a. Art. 3 is not self-executing: sets outer limits for federal SMJ but DOES
NOT authorize it. Authorization is req. by a fed. long-arm statute or other
act of Congress.
i. Exclusive categories – if an assertion of SMJ doesn’t fit into one of
the categories, then a fed. ct. cannot hear the case
ii. Independent of each other – if one category is not satisfied, SMJ
may lie under another category.
b. In Congress’l statutes, language is often similar, but not identical to
constitution. Courts look at the minute differences – authorizing SMJ
under the constitutional level or statutory level.
ii. FRCP Rule 12
(b) How to present defenses
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of subject-matter jurisdiction;
(h) Waiving and preserving certain defenses:
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.
Note: This is different from PJ – if a party answers in a ct it waives DP
right, consents to forum for PJ
d. Federal Question
i. Statutory Limits on Federal Courts
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1. 28 U.S.C. § 1331:
Federal Question: The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.
 Note: Ex. of congress’l auth. for Fed Cts to hear cases – authorizes
fed. question jx. Language is nearly identical to constit. but not.
2. Mottley (1908): Well-Pleaded Complaint Rule
a. Rule: A cause of “action arises under law of US” as set forth in U.S.C. §
1331 when a fed. quest. is apparent on face of π’s well-pleaded
complaint.
i. Any fed. quest. that Δ presents in answer or defenses are NOT
sufficient to warrant fed. quest. jx.
b. Virtues of rule:
i. Clarity, easy to administer
ii. Sovereignty/federalism:
1. Fed. cts. are of limited jx -- absent an express auth. for fed.
ct. to hear a case, case stays in state court
c. Criticisms of rule:
i. Allows for forum shopping by π
ii. Both over-inclusive and under-inclusive
1. Over inclusive:
a. Allows complaints w/ non-burning fed. quest. in
complaint to end up in fed. ct.
2. Under-inclusive:
a. Cases that do involve fed. quest. but not in
complaint are kept out of fed. ct.
b. Fairness issue -- deprives Δ of fed. forum.
d. Master of the Complaint rule
i. Well-pleaded complaint rule allows the π to avoid fed. jx by
exclusive reliance on state law
e. The Artful Pleading Doctrine
i. Cts do not let π avoid/obtain fed. jx. through “artful pleading”
1. Ct knows that the π is the “master of the complaint”, peers
behind the complaint and decides whether or not the case
belongs in fed. ct.
ii. Serves as a constraint on the well-pleaded complaint rule
f. Exception to well-pleaded complaint rule:
i. 28 U.S.C. § 2241: Federal declaratory judgment act
1. Any party can go to fed ct to obtain a “declaration of
rights” – creates a COA instead of waiting around for a
lawsuit to happen
a. Has to be issued before suit is filed by either party
under another COA
b. Does not preclude suits from happening, just
serves as a precedent
c. Can’t use to create federal issue where it wouldn’t
exist
i. Test: If parties were flipped, would fed jx
still exist?
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d. Ct. exercises discretion – can only issue decl. judg.
when there is some reasonable belief that there
would be a suit
3. Justice Holmes’ Creation Test
a. Well-pleaded complaint rule is met when fed law is the source of π’s COA
4. Federal Ingredient Test
a. Moving away from Creation test:
i. Some cases allow substantial “federal ingredient” (involved at the
outset of case, not as a defense) to create federal SMJ under §
1331 where:
1. state law was COA , but:
2. state law claims could not be proven w/o addressing a
federal question
ii. doesn’t overrule Mottley because it still focuses on what π has to
prove to establish case
iii. Ex: Smith (1920):
1. COA: state corporation law. Couldn't prove state law was
violated without addressing constitutionality of a federal
statute.
2. Held: Federal SMJ satisfied
b. Merrell Dow (1986):
i. Case-by-case test (not a bright line rule) Federal law must be a
substantial, disputed, and necessary part of the claim
1. Federal interest must be weighed against state interest
ii. Applied to case:
1. State law claim of negligence. Negligence based on
violation of FDA requirements for drugs.
2. Held: not sufficient fed. quest. for fed jx:
a. Federal interest not substantial, state interest is
stronger
b. FDA laws just for regulation, no express right of
action, not intended to provide private entitlement
to relief
iii. Reasoning:
1. Federalism/Sovereignty – fed. cts. Shouldn’t encroach on
states
c. Grable Test:
i. To meet essential federal ingredient test for SMJ:
1. Claim must Necessarily raise a federal issue
2. Must be disputed and substantial
3. How disruptive is too disruptive? (Quantity of cases
allowed in fed ct)
ii. Constitutional Limits on Congress
1. Verlindin (1983): Federal Ingredient Requirement
a. Rule: Congress can constitutionally create an act authorizing federal SMJ
on a non-fed. COA under Article 3 where a substantive federal question is
involved at the outset. [“arises under” clause of article 3, section 2(1)
allows this]
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i. May include affirmative defenses.
ii. Simply needs a “federal ingredient”
b. Suggests that if Congress passed a statute auth’g SMJ on the basis of
affirm. defense, it will likely survive the constit. req.
c. Applied (facts of case):
i. Congress’ Foreign Sovereign Immunities Act of 1976, authorizing a
foreign π to sue a foreign state in a USDC on non-fed. COA DOES
NOT violate Constit. Art. 3.
1. Immunity arises as a defense, but since it arises at the OUTSET
of the suit, congress can authorize under constitutional limits
d. Virtue/policy of rule:
i. Allows congress to auth. cases of nat’l concern
e. Criticism:
i. Gives congress too much power
e. Diversity and alienage jx
i. Is it authorized by statute?
1. 28 U.S.C. 1332: General Diversity statute:
(a) The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except
that the district courts shall not have original jurisdiction under this
subsection of an action between citizens of a State and citizens or
subjects of a foreign state who are lawfully admitted for permanent
residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign
state are additional parties; and
(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and
citizens of a State or of different States
(c) For the purposes of this section and section 1441 of this title—
(1) a corporation shall be deemed to be a citizen of every State and foreign
state by which it has been incorporated and of the State or foreign state
where it has its principal place of business

Notes:
o Dix jx DOES NOT exist if:
 US citizen v. foreign state itself (Ex. GA res. v. Mexico)
 Does exist if:
o US citizen sues citizen of a foreign state.
– 1332(a)(2) (Ex. GA res. v. citizen of
Mexico)
o Foreign state sues US resident. –
1332(a)(4) (ex. Mexico v. GA res.)
 Alien v. alien

Alien v. alien cases can get into fed ct under federal
alien tort statute, but not under diversity jx.
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
US citizen + foreign citizen v. foreign citizen (Ex. GA res +
citizen of mexico v. citizen of japan)
 Cannot have alien citizens on both sides – destroys
complete div.
o Statute Does not authorize to outer limits of constit.
 Article III only requires minimal diversity (the diversity
statute requires complete diversity)
a. Is there “complete diversity”?
i. Citizens from same state on both sides of case destroys complete
diversity (Strawbridge v. Curtiss) (ex. GA res. v. GA res. or GA res.
v.GA res. + MN res.)
ii. What is citizenship determined by?
1. Domestic U.S. state citizenship for 1332(a)(1) determined
by domicile. Domicile for individuals = physical presence in
a place + intent to remain there. (Hawkins)
2. Foreign state citizenship for 1332(a)(2) determined by
legal citizenship status (Redner) -- applies to both π and Δ
iii. Dual citizenship:
1. Individual foreign citizens who are permanent residents of
the US have dual citizenship: (1) country of citizenship and
(2) State of domicile -- 1332(a)(2)
a. Either can defeat complete diversity
2. Corporations can also have dual citizenship: (1) State of
incorporation and (2) state or place of business – 1332(c)
a. For purposes of div. jx.: Corporation is only a citizen
of the state of its principle place of business.
Principle place of biz = nerve center/corporate
headquarters. – jx destroying function (Hertz)
iv. Partnerships:
1. For div. jx purposes, treated as collections of individuals,
not corporations, and residencies of all individuals are
considered
2. Complete diversity must exist.
v. Time of filing rule:
1. At the time of filing there must be diversity (not date of
service); changes to citizenship after that do not affect
diversity (Common law interpretation of 1332)
vi. Supplemental jx for diversity:
1. Ct can exercise jx over claims that would be insufficient on
their own, but add’l claim cannot defeat complete
diversity. (Exxon)
vii. Reasoning behind most rules:
1. Sovereignty: Want to destroy federal jx because federal
cts. Are of limited jx
b. Is the “amount in controversy” satisfied?
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i. Must exceed $75,000 (“exclusive of interests and costs”) –
1332(a)
1. Can include attorneys’ fees if statute allows them
2. Lots of complicated interest rules
ii. Pled damages are included unless not recoverable “to a legal
certainty” (punitive damages may be unavailable for a particular
claim)
iii. Single π:
1. can satisfy w/ multiple claims against single Δ
iv. Multiple πs:
1. cannot aggregate claims to satisfy
a. Exception = common, undivided interest (ex. class
action)
2. If one π can satisfy $, other πs may be added IF their
claims are sufficiently related (Exxon)
v. Multiple Δs:
1. Single π generally cannot aggregate claims against multiple
Δs to satisfy $ amount
a. Exception: joint & several liability (Δs liable for
other Δ’s wrongs)
vi. Reasoning behind amount in controversy:
2. Other diversity statutes
a. 28 U.S.C. 1335: Interpleader statute
i. Fed jx over interpleaders if two or more claimants of diverse
citizenship are claiming money/property from common fund
1. Only requires minimal diversity (upheld in State Farm v.
Tashire)
a. Ex: GA interpleader v. GA claimant and NC claimant
ok
b. Class action fairness act
i. Does not require complete diversity
ii. Is the statutory authorization constitutional?
1. Constitution only requires minimal diversity (State Farm v. Tashire)
2. Alienage jx does not support alien vs. alien cases (but might fall under fed.
quest.) (Hodgson)
f. Supplemental jx
i. 28 USC 1367: [PASSED IN 1991]
(a) ... district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
 Notes:
o Essentially just groups pendant claim jx and pendant party jx
together into supplemental jx
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 Codifies Gibbs test for PCJ
 Changed PPJ to same test, overruling Aldinger and Finley
o Elevates judicial efficiency
(b) In any civil action of which the district courts have original jurisdiction founded
solely on section 1332 of this title [diversity jx], the district courts shall not have
supplemental jurisdiction ... when exercising supplemental jurisdiction over such
claims would be inconsistent with the jurisdictional requirements of section
1332.
 Notes:
o codifies Kroger (third party can’t defeat complete div)
o generally only applies to π adding third-party Δs
 Δs can still sue 3rd parties
o Rationale: federalism
(c) The district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the 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.
 Note:
o Also Codifies Gibbs’ balancing test allowing judicial discretion
 Preserves federal ct. judges’ discretion. – Supp. Jx. doesn’t
have to be exercised in any case in which it exists.
 Ct can remand to state at any time in the litigation if state law
becomes dominant.
o Federalism and error concerns
ii. Pendent jx: authority of a fed. ct to hear a closely related state law claim against a Δ
already facing a federal claim
1. Two types:
a. Pendent Claim Jx: (PCJ)
1. π v. Δ with multiple claims (C1, C2, C3) – claims are for
federal and state.
2. Federal court can hear the claims together if they have a
common nucleus of operative facts [Gibbs, 1367(a)].
ii. Gibbs (1966) -- Eventually codified by 1367(a) and (c)
1. Held state law claims could be aggregated if:
a. related to fed law claims – common nucleus of
operative facts
b. Same facts necessary to prove each claim
2. Gave district cts discretion to dismiss state ct claims based
on: judicial economy, fairness, convenience
b. Pendent Party jx: (PPJ)
1. Π v. Δ1 + Δ2 -- ability of federal courts to assert jurisdiction
over qualifying Δs and non-qualifying Δs in a federal suit
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2. Modern rule: same common nucleus of operative facts
standard, as long as complete div. not defeated
ii. Eventually overruled by 28 USC 1367:
1. Aldinger (1976)
a. Rejects PPJ in case but Left open possibility of PPJ
where statute has not specifically exempted it
2. Finley (1989)
a. Contradicts Aldinger. PPJ not allowed unless
specific affirmative grant by Congress. (But allows
for
3. Both elevate federalism over efficiency.
iii. Ancillary jx: fed jx extended over non-qualifying claims by πs or Δs asserted as
counterclaims, cross-claims, or third-party claims when there is no independent basis
for claim.
1. Codified by 1367(b):
a. Owen v. Kroger
i. Where underlying basis for fed jx is diversity, under certain
circumstances a court may decline jx
ii. Πs cannot add third-party Δ if it would destroy complete diversity
1. Still allows Δs to sue third parties regardless of citizenship
– doesn’t effect this limitation
iii. Reasoning:
1. Would allow πs to circumvent diversity requirement by
artful pleading
iv. Exxon (2005)
1. Rule: Fed court may exercise jx over claims that would be insufficient on their
own provided that:
a. Insufficient claim must be factually related
b. At least one claim satisfies $75,000 amount in controversy (issue in case)
c. Addition of claim can’t defeat complete diversity
v. Examples of how courts use discretion under 1367(c)
1. Ameriquest
a. Π has state and federal law claims
b. Ct remands state law claims because resolution of state law claim only
has an impact on that claim, doesn’t impact fed law claim
2. First Bancorp
a. Π has state and fed law claims
b. Ct exercises jx over all because resolution of state law claim is central,
would have an impact on all claims in case
g. Removal jx
i. Removal = In a case filed in state court, Δ can file for “removal” to fed. ct. if fed ct would
originally have jx (based on fed question, diversity, etc.)
1. Π can file in state ct because most Federal cases can be heard in state cts
(concurrent jx)
2. Key question: if this case was filed in fed ct, would SMJ exist?
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ii.
iii.
iv.
v.
3. Δ CANNOT remove from federal to state ct – this is forum non conveniens
28 USC § 1441: General removal statute
Generally.— Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing the
place where such action is pending.
 Notes:
o Statute allows Δ to remove entire case to fed ct.
o Can only remove to district ct that has jx over state ct (ex: GA state ct
case would be removed to a GA federal ct)
Two key limitations to removal:
1. Resident Δ removal restriction:
a. If non-resident π sues Δ in Δ’s domiciled state, Δ can’t remove to fed. ct.
b. Ct has right to dismiss frivolous Δ if only intended to destroy fed jx
2. Multiple Δs: all Δs must consent to removal
Statutory limitations on removal:
1. 28 USC § 1446: Procedure of filing removal, time constraints
(b): Must file w/in 30 days of pleading that prompts removal (doesn’t
have to be original claim) [exception below]
(c) Diversity jx claims: must file w/in 1 year of ORIGINAL filing (regardless
of when pleading that prompted removal occurred)
 Notes:
o Under statute, If Δ removes w/ bad faith, subject to punishment
2. 28 USC § 1447: Procedure after removal
(b) denial of removal can’t be appealed
 Note: if judge approves removal, can still remand state law claims to state ct
and that remand CAN be appealed
Caterpillar
1. Rule: Improper removal of a case does not jeopardize enforceability of a judgment so
long as federal ct has SMJ at the time the judgment is rendered.
2. Reasoning:
a. Efficiency – waste of judicial resources if case has already been decided
b. Finality of judgment – fairness to parties
vi. Special removal statute:
1. 28 USC § 1442 – Federal officers or agencies sued or prosecuted
(a) A civil action or criminal prosecution that is commenced in a State court and
that is against or directed to any of the following may be removed by
them to the district court of the United States for the district and
division embracing the place wherein it is pending
(1) The United States or any agency thereof or any officer ...of the
United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color of such
office or on account of any right, title or authority claimed
under any Act of Congress for the apprehension or punishment
of criminals or the collection of the revenue.
3) Any officer of the courts of the United States, for or relating to
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
III.
any act under color of office or in the performance of his duties;
(4) Any officer of either House of Congress, for or relating to any act
in the discharge of his official duty under an order of such
House.
Note: key is that fed officer must have been acting in capacity of duties
Venue
a. Venue = way of channeling a dispute that could be heard in multiple federal cts
b. Arises at 2 moments:
i. Before case is ever filed – π must make sure ct has venue before filing
ii. If Δ makes argument to:
1. get case dismissed on basis of improper venue or
2. get case transferred from one to another
c. General venue statutes:
i. 28 USC § 1391 – Venue generally
b) Venue in General .— A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are
residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions
giving rise
to the claim occurred, or a substantial part of property that is the subject
of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as
provided in
this section, any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.
o b1, b2, and b3 do not compete, they simply serve as alternatives so there is
not a GAP in venue
o 3 only available if (1) and (2) fail – fallback provision
c) Residency.— For all venue purposes—
(1) a natural person, including an alien lawfully admitted for permanent
residence in
the United States, shall be deemed to reside in the judicial district in
which that person is domiciled;
(2) an entity with the capacity to sue and be sued in its common name under
applicable law, whether or not incorporated, shall be deemed to reside, if
a defendant, in any judicial district in which such defendant is subject to
the court’s personal jurisdiction with respect to the civil action in
question and, if a plaintiff, only in the judicial district in which it maintains
its principal place of business; and
3) a defendant not resident in the United States may be sued in any judicial
district,
and the joinder of such a defendant shall be disregarded in determining
where the action may be brought with respect to other defendants.
 Codifies alien venue act: For aliens, venue is proper in any and all
federal districts
1. Note: this doesn’t mean PJ is established
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
Joinder meaning:
1. If Δ1 is domestic and Δ2 is foreign, domestic Δ1’s venue rules
trump
d) Residency of Corporations in States With Multiple Districts.— For purposes of
venue
under this chapter, in a State which has more than one judicial district and in
which a defendant that is a corporation is subject to personal jurisdiction at the
time an action is commenced, such corporation shall be deemed to reside in any
district in that State within which its contacts would be sufficient to subject it to
personal jurisdiction if that district were a separate State, and, if there is no such
district, the corporation shall be deemed to reside in the district within which it
has the most significant contacts
o Corps: Anywhere subject to PJ, subject to venue
ii. 28 USC § 1392 – Defendants or property in different districts in same State
Any civil action, of a local nature, involving property located in different districts
in the same State, may be brought in any of such districts.
d. TRANSFER of Venue
i. 28 USC § 1404: Change of venue (transfer) statute
1. For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it
MIGHT have been brought
ii. 28 USC § 1406:
1. District court itself can transfer venue if it deems appropriate (
iii. Hoffman: Time of filing
1. Rule: 1404(a) applies at the time when the complaint was filed, NOT at the time
the transfer petition is brought
iv. Standards for Venue transfers:
1. Not a lot of consistency among courts in approving/denying transfers. Many
different balancing tests and factors considered.
a. Honoring Π’s choice of forum is a major consideration.
2. Ex: Smith v. Colonial Penn
a. FACTORS considered (common factors):
1. Availability and convenience of witnesses, parties
2. Location of counsel
3. Location of books and records
4. Cost of obtaining attendance of witnesses
5. Trial expenses
6. Place of alleged wrong
7. Possibility of delay and prejudice transfer is granted
8. P’s choice of forum (entitled to great deference)
v. Transfer involving a forum-selection clause:
1. If a forum-selection clause exists, can a motion for transfer (out of the selected
forum) be approved?
a. Arguments for approval of a transfer petition:
i. If any of the above factors weigh heavily In favor of a transfer,
forum-selection clause may not be upheld.
1. Location of the breach, witnesses, etc. etc.
b. Arguments for denial:
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i. Forum-selection clauses weigh heavily in decision making. Δ
aware of forum-selection clause consented to jx.
2. In cases involving forum-selection clause, burden shifts to π to prove that choice
of forum is appropriate.
vi. General Reasonings behind allowing transfer:
1. Tools for Δ to counter-balance π’s forum shopping
2. Efficiency – certain district may be better suited
vii. Criticisms:
1. Very unpredictable
e. FORUM NON CONVENIENS
i. Allows discretion for federal courts to dismiss cases that are better suited for either
State court or a foreign court.
1. Common law judge-made doctrine
2. Also recognized by 47 states (including GA) b/c can’t file transfer in state ct
ii. Two-part inquiry by judges:
1. Determine whether there is an adequate alternative forum?
a. If no, can’t dismiss
b. Considers:
i. Whether other jxdns have power to render judgment on Δ
ii. Whether other jxdns permit/recognize the COA
c. Reasons why another forum may be inadequate:
i. No jx
ii. Lack of neutral foreign forum
iii. Political oppression
iv. Procedural defect in foreign courts
2. If there is an alternative forum, balance a series of public and private interest
factors: (Fact-dependent inquiry)
a. Private interest factors:
i. Ease of access to sources of proof
ii. Availability of compulsory process for attendance of witness
iii. Cost of witness attendance
iv. Possibility of viewing premises
v. Ability to enforce judgment
vi. Harassment, oppression
b. Public interest factors:
i. Administrative difficulties
ii. Jury Duty (unfair to burden citizens in unrelated forum)
iii. Trial touches upon the affairs of many citizens
iv. Local interest in having localized controversies decided at home
v. Interest in having diversity case in a forum that is at home with
the law that must govern the action
vi. Avoidance of unnecessary problems in conflict of laws (or
application of foreign laws)
vii. Foreign gov’ts may say they want to keep case in US
iii. Notes:
1. Domestic π’s choice of forum is also a strong consideration
a. Foreign π’s choice of forum not considered
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2. change in subst. law shouldn’t ordinarily be given any subst’l weight in FNC
question
iv. Policies behind allowing FNC:
1. Fairness
2. Courts should have auth. of their dockets and exercise of jx (fed courts are of limited jx)
v. Criticisms:
1. Unpredictability
2. Most cases dismissed by FNC never refilled in another country
3. Pretty much allows US companies to escape liability if there is an appropriate alternative
forum
IV.
Choice of Law
a. Choice of law issue: When a claim can come under multiple state jxdns, what law are the claims
decided under?
b. State level – 2 approaches
i. Law of forum state applied
1. Problems: forum shopping, may not actually be the state of regulatory interest
ii. Law of state which has regulatory interest applied
1. Problem: risk of error in applying another state’s law
iii. Hypo: GA π v. TX Δ. Claim is battery that occurred in AL.
1. AL has greatest interest in regulatory law (regulating fights in Alabama).
2. So if sued in TX, should TX apply TX law or AL law?
c. Federal level:
i. Issue: what law foes a federal court use in a diversity jx case?
ii. Underlying issues:
1. Hortizontal conflicts of law: conflicts between congress, judiciary
a. General law: torts, etc. isn’t fed-made law
b. Fed cts couldn’t announce such a ruling on “federal common law” where
Congress didn’t have the basis to make such a statute
2. Vertical conflicts of law: separation of powers/federalism
a. Federalism: How much federal courts need to recognize and preserve
autonomy of states
b. Forum shopping
c. Need for uniformity
iii. Issue of which Substantive law: States’ law (which state?) or federal common law?
1. Rules of Decision Act (RDA) codified at 28 USC § 1652:
The laws of the several states, EXCEPT where Constitution or treaties of
the United States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the US, in
cases where they apply.
2. Erie doctrine:
a. Rule:
i. No general federal common law
ii. In div jx cases, fed cts required to apply the law of the state in
which the ct sits.
1. Must apply both substantive law: state statutes and state
common law (overrules Swift)
b. Reasoning:
i. Eliminates forum shopping concern
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ii. Federalism issue drops out: same substantive laws apply in
federal and state court
iii. Efficiency costs lower
c. Based on:
i. Statute:
1. interpretation of RDA “laws of several states” meaning
ii. Constitution:
1. 10th amendment – all powers not declared reserved to
states
iv. Issue: fine line between substantive and procedural law
1. Standard = fed cts apply state substantive law and federal procedural law
a. Issue: some procedural law is in some ways substantive to case
2. RULES ENABLING ACT (REA) 28 USC § 2072
(a)“The Supreme Court shall have the power to prescribe general rules of
practice and procedure and rules of evidence for cases in the US district
court (including proceeding before magistrate judges thereof) and courts
of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right.
All laws in conflict with such rules shall be of no further force or effect
after such rules have taken effect.
3. Hanna v. Plumer
a. Distinguishes federal rules enacted pursuant to REA and those not.
(clarifies York and Byrd)
i. If federal law in question is fed. procedural rule enacted pursuant
to REA, (example: any FRCP)
1. Test is:
a. Is it constitutional?
b. Does it exceed the authority granted by REA?
2. If valid, these rules will be applied even if they conflict w/
state law
ii. If it is a federal rule NOT enacted pursuant to REA:
1. Hanna Twin aims test applies:
a. Discouragement of forum shopping
b. Avoidance of inequitable administration of laws
2. Byrd balancing test: looks at whether law is outcomedeterminative by weighing interests in non-discriminatory
results:
a. Federal interest v.
b. State interest
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