CIVIL PROCEDURE CLASS 26
Professor Fischer
Columbus School of Law
The Catholic University of America
November 20, 2001
ANNOUNCEMENTS
IPLSA (Intellectual Property Law
Students Association Meeting be
rescheduled to November 27 at 5:00
p.m. in the Slowinski courtroom.
WRAP-UP OF LAST CLASS
We continued our study of subject
matter jurisdiction by learning about
diversity jurisdiction and supplemental
jurisdiction
WHAT WILL WE DO TODAY?
Learn about the final subject matter
jurisdiction topic on the syllabus:
removal
Continue our unit on jurisdiction by
learning about personal jurisdictionl
PRACTICE EXERCISE 31
CB p. 839
Plaintiff: Nancy Carpenter (NH)
Ds: Dee (MA), Ultimate (MA)
3d Party Ds: McGills Garage (MA), Dale
McGill (NH)
Motion to dismiss for lack of subjectmatter jurisdiction
Motion to sever impleader
REMOVAL
What is removal? Why is it said to be
an exception to the general rule that
the plaintiff is master of his claim?
What is the policy justification for
removal
a. For diversity cases?
b. For federal question cases?
LEGAL SOURCES FOR
REMOVAL PROCEDURE
NOT IN U.S. CONSTITUTION
So, removal is purely statutory.
There have been federal removal statutes
since 1789. These have consistently been
upheld as constitutional by the courts.
What is the current general removal statute?
LIMITS ON REMOVAL
Can a plaintiff remove?

Can a plaintiff remove if there is a counterclaim?
Can a case be removed to a state court in a
different state? To a federal court in the
same state? To a federal court in a different
state? From federal to state court?
Are any types of actions non-removable?
Please see 28 U.S.C. sect. 1441(b), 1445
HYPO
Sophie (NY) sues Nicole (MD) in state
court in Maryland for negligence. Can
Nicole remove? Sophie (NY) sues Nicole
(MD) and Erik (NJ) in state court in
Maryland for negligence. Can Nicole
and Erik remove?
WHEN IS A CASE
REMOVABLE?
There must be original subject-matter
jurisdiction in federal court
Basic rules of federal question and
diversity/alienage apply
Well-pleaded complaint rule applies
Artful pleading rule
WHAT IF FEDERAL COURT HAS
EXCLUSIVE JURISDICTION?
P brings action in state court
Can D remove?
See 28 U.S.C. section 1441(e)
REMOVABLE CLAIM JOINED WITH
NON-REMOVABLE CLAIM
What is the effect of 28 U.S.C. 1441 (
c)?
“separate and independent” test
PROCEDURE FOR REMOVAL
How does a defendant remove ? (see 28
U.S.C. section 1446)
Can a defendant waive her right to remove?
How many defendants must agree to remove
a case?
Can a defendant remove if the case only
becomes removable after the plaintiff amends
the complaint?
NOTICE OF REMOVAL
What must be in a notice of removal?
Filing requirements what provision of
1441 for civil actions?
Notice requirements what provision of
1441 for civil actions?
NOTICE OF REMOVAL
What must be in a notice of removal?
Filing requirements what provision of
1441 for civil actions? 1441(b)
Notice requirements what provision of
1441 for civil actions? 1441(d)
CHALLENGING REMOVAL
How does a plaintiff challenge removal?
Can a plaintiff waive her right to
challenge removal?
Are there any applicable time limits? If
so what?
PROCEDURE AFTER REMOVAL
What happens after removal?
Burnett v. Birmingham Board of
Education (N.D. Ala. 1994)
What is Ps cause(s) of action? Federal
or state?
What is the procedural issue for the
court to decide on the motion at issue?
What are the grounds for the motion?
How does the court rule on the motion?
What is the court’s reasoning?
PERSONAL JURISDICTION
What is personal jurisdiction?
What constitutional limitations exist on
personal jurisdiction
PERSONAL JURISDICTION
Due process clause of the 14th
amendment is outer limits of power to
exercise jurisdictional power
State legislatures can only authorize
courts to exercise jurisdiction up to
borders of due process clause, but they
can also confer only part of the
constitutionally permissible jurisdiction
LONG-ARM STATUTES
State statutes granting power to courts to
exercise personal jurisdiction
Some states have statutes that give courts
the power to exercise personal jurisdiction to
limits of due process clause (e.g. California)
Others have narrower provisions
(“enumerated” long-arm statutes permitting
jurisdiction over defendants based only on
certain specific types of contact with the
forum state)
Remember that long-arm must comport with
constitutional due process requirements
PENNOYER v. NEFF (1877)
Supreme Court made clear that due
process clause set limits on court’s
power to hear cases over non-resident
defendants
Pennoyer appliked a traditional concept
of jurisdiction, which required the
physical presence of the defendant or
his property within the forum state
BREAKDOWN OF PENNOYER
Pennoyer proved too confining as the
nation’s economy expanded and, in particular,
interstate trade grew
Courts began to resort to legal fictions to
permit personal jurisdiction over non-resident
defendants who were not physically present
in the forum state, such as “implied consent”
or “constructive presence”
INTERNATIONAL SHOE Co. v.
WASHINGTON (1945)
LEADING MODERN CASE ON PERSONAL
JURISDICTION
IF YOU REMEMBER ONLY ONE CASE NAME
FROM THIS COURSE, PLEASE REMEMBER
INTERNATIONAL SHOE
THE SUPREME COURT FINALLY DOES AWAY
WITH FICTIONS LIKE IMPLIED CONSENT
Why does the Supreme Court discard such
legal fictions?
INTERNATIONAL SHOE
Why did Washington State sue the
International Shoe company?
What is the issue for decision?
Describe International Shoe’s argument
on this issue?
INTERNATIONAL SHOE
Describe International Shoe’s contacts
with Washington.
How do the Washington state courts
rule on the jurisdiction issue?
How does the U.S. Supreme Court rule
on this issue?
THE SUPREME COURT: MODERN STANDARD
FOR PERSONAL JURISDICTION
According to Chief Justice Stone, what
is the modern standard for a state’s
assertion of personal jurisdiction over a
non-resident defendant?
P. 664CB
“But now that the capias ad
respondendum has given way to
personal service of summons or other
form of notice, due process requires
only that in order to subject a defenant
to a judgment in personam, if he be not
present within the territory of the
forum, he have certain minimum
contacts with it such that the
maintenance of the suit does not offend
“traditional notions of fair play and
MINIMUM CONTACTS
Does Stone articulate any criteria for
assessing a corporation’s contacts or
activities in the forum state?
FAIR PLAY AND SUBSTANTIAL
JUSTICE
Second prong of 2 prong test in
International Shoe
CONTACTS: Can a state validly assert personal
jurisdiction over a nonresident defendant if:
Such D has no contacts with the forum
state?
There is a single act or contact by D
with the forum state?
There are systematic and continuous
business activities within the state
SPECIFIC JURISDICTION
GENERAL JURISDICTION
What is general jurisdiction? (see, e.g.
,Perkins v. Benguet Consolidated Mining
Co. CB p. 671)
What is specific jurisdiction? (see,e.g.,
McGee v. International Life Insurance
Co. CB p. 671)
PURPOSEFUL AVAILMENT
What is purposeful availment? (See
Hanson v. Denckla CB pp. 674-75)
APPLICATION OF LAW TO THE
FACTS
Why does Stone find that there was
personal jurisdiction over International
Shoe?
Why does Justice Black disagree?
IMPORTANT NOTE: PERSONAL
JURISDICTION IN FEDERAL COURT
The 14th Amendment due process clause
only limits state power.
Although there are no CONSTITUTIONAL
constraints on a federal court’s exercise of
jurisdiction over a defendant not resident in
the state where the court sits, Congress has
limited the jurisdiction of federal courts
See FRCP 4(k). NB “100 mile bulge rule”.
WORLD-WIDE VOLKSWAGEN
V. WOODSON
Who are the plaintiffs? Where are
plaintiffs resident?
Who are the defendants? Which
challenge personal jurisdiction? Where
is each defendant who contests
jurisdiction incorporated ? Where does
each such defendant have its principal
place of business?
WORLD-WIDE VOLKSWAGEN:
PLAINTIFFS’ CLAIMS
Where do plaintiffs file their action
against defendants?
What claim(s) do plaintiffs make against
defendants?
WORLD-WIDE VOLKSWAGEN: CLAIMED
BASIS FOR JURISDICTION
What is the legal basis for plaintiffs’
claimed assertion of jurisdiction over
defendants?
LONG-ARM STATUTES
After International Shoe, many states enacted
such statutes
Long-arm statutes authorize states to
exercise personal jurisdiction over nonresident defendants in certain enumerated
situations
Look at NY CPLR section 302 (at CB 669).
What acts give rise to jurisdiction under this
long-arm statute?
CAN A COURT EXERCISE JURISDICTION
OVER A NON-RESIDENT DEFENDANT
UNDER A LONG-ARM STATUTE?
2 step test
1. DOES THE STATUTE APPLY TO THE FACTS
OF THIS CASE?
2. IS THE STATUTE CONSTITUTIONAL
UNDER International Shoe’s minimum
contacts test?
SOME LONG-ARM STATUTES, e.g. CA, permit
courts to exercise jurisdiction to the full
extent permissible under the U.S./CA
Constitutions
BACK TO WORLD-WIDE
VOLKSWAGEN
How do the NY defendants challenge the
court’s personal jurisdiction in this case?
How does the trial court rule on this
challenge?
How does the Oklahoma Supreme Court rule?
What is the legal issue for decision in the U.S.
Supreme Court?
How does the U.S. Supreme Court rule?
REASONING OF U.S. SUPREME COURT IN
WORLD-WIDE VOLKSWAGEN
The U.S. Supreme Court endorses the
“minimum contacts” test set out in
International Shoe
According to Justice White, what are
the two functions of the minimum
contacts test?
Which prong of the International Shoe
test should be examined first?
APPLYING THE MINIMUM CONTACTS
TEST TO THE NY Ds
How does Justice White apply the
International Shoe test to the facts of World-Wide Volkswagen?
Is it relevant that the NY defendants arguably
could foresee that the Audi would enter
Oklahoma?
Is the concept of “purposeful availment”
important to White’s decision? Why or why
not?
HYPO ON “STREAM OF
COMMERCE”
Change the facts of World-Wide. What if the
Robinsons were from Oklahoma but were
temporarily in New York, where they
purchased an Audi from Seaway, informing
Seaway that they planned to return to
Oklahoma. Should Seaway have foreseen
being sued in Oklahoma and thus be subject
to suit there?
What if the facts were basically the same as
the real case except that the Robinsons were
from NY and had their accident in NJ?
ANOTHER HYPO
Assume the driver of the car that hit the
Robinsons’ Audi was from Texas. Could
an Oklahoma court have exercised
personal jurisdiction over the driver for
a claim in negligence brought by the
Robinsons?
Why do you think the Robinsons might
choose not to sue the driver of the car?
WORLD-WIDE: DISSENTS
Please explain the basis for Justice
Brennan’s dissent.
Please explain the basis for Justice
Marshall’s dissent.
Please explain the basis for Justice
Blackmun’s dissent.
Do you agree with the majority or any
of the dissents? Why or why not?