Civil Procedure Outline: Drobak Spring 2004
Getting The Defendant Into Court:
Personal Jurisdiction:
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Three kinds of personal jurisdiction: o In Personam: In Personam jurisdiction, or jurisdiction over the defendant’s person gives the court the power to issue a judgment against him personally and all of his assets may be seized o In Rem: In rem jurisdiction, or jurisdiction over a thing, gives the court power to adjudicate a claim made about a piece of property or about a status such as an action to quiet title to real estate.
o Quasi in rem: Quasi in rem jurisdiction requires that the action be begun by seizing the property owned by (attachment) or a debt owed to (garnishment) the defendant within the forum state. This is different from in rem jurisdiction because the action is not about the thing seized, instead the thing seized is a pretext for the court to decide the case without having jurisdiction over the defendant’s person
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Historical Bases for Jurisdiction: o Citizenship: A state can require its citizens to come back and answer o Presence within forum state: By means of…
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Person
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Property
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Consent
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The various bases which have been employed for the exercise of jurisdiction over natural persons are: presence within the forum state, domicile within the state, consent to being sued in the state, tortuous acts committed within the state, business done
within the state (jurisdiction over corporations)
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Presence within the state: Jurisdiction may be exercised over an individual by virtue of his presence within the forum state.
o Pennoyer v. Neff (US, 1877)
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Facts
: Neff alleged that Pennoyer’s deed from a sheriff sale was invalid because the court’s ordering the sale had never obtained personal jurisdiction over Neff.
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Rule of Law
: In an action to determine a defendant’s personal liability, he must be brought within the court’s jurisdiction by service of process within the state or by his voluntary appearance. “Process from tribunals of one state cannot run into another and summon parties there domiciled to leave its territory and respond to proceedings against them.”
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Consent: Jurisdiction over a party can be exercised by virtue of his consent, even if he has no contacts at all with the forum state.
o Hess v. Pawloski (US, 1927)
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Facts: A Mass. Statute provided that nonresident motorists were deemed to have appointed a state official as their agent for service of process in cases growing out of accidents or collisions involving them.

Pawloski sued Hess, a nonresident, for damages due to an auto accident in Massachusetts.
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Rule of Law: Non-resident motorist statute: In advance of nonresident’s use of its highways, a state may require the nonresident to appoint one of the state’s officials as his agent on whom process may be served in proceedings growing out of such highway use.
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Drobak: The court is stretching the element of consent to get jurisdiction, but the difference between actual and implied consent is not substantial.
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Jurisdiction based on Minimum Contacts o International Shoe v. Washington (US, 1945)
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Facts: A state statute authorized the mailing of notice of assessment of delinquent contributions for unemployment compensation to nonresident employers. International Shoe was a non-resident corporation. Notice of assessment was served on one of its salespersons within the state of Washington and was mailed to
International’s office in Missouri.
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Rule of Law: For a state to subject a nonresident defendant to in personam jurisdiction, due process requires that he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
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Drobak:
Look at D’s contacts within the forum state—are they continuous and systematic as opposed to an isolated act? Also analyze the cause of action—is it relating to/arising out of forum state activities as compared to no relation at all?
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Specific Jurisdiction and State Long-Arm Statutes o Long-arm statutes: allow jurisdiction on the basis of certain links between the defendant and the forum state, such as domicile, ownership of property, commission of a tortious act, etc.
o Out-of-state acts with in-state consequences:
Many states’ long-arms explicitly cover acts done outside the state with in-state consequences, and where they do not, courts can interpret the statute to be read as such.
o Gray v. American Radiator (S.Ct of Illinois, 1961)
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Facts:
Gray alleged that Titan’s (OH) valve was negligently constructed and sold to American, who incorporated the valve into
Gray’s water heater and caused an explosion in Illinois, injuring her.
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Rule of Law: The place of the wrong is where the last event takes place which is necessary to render the actor liable. Whether a non-resident activity within a state is adequate to subject it to jurisdiction of that state depends upon the facts of each case, and the relevant inquiry is whether the defendant engaged in some act or conduct by which he invoked the benefits and protections of the forum.
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Due Process and Long-Arm Statutes o Once the meaning of the statute has been determined, it must be asked whether the statute, as interpreted, is consistent with the Due Process Clause.
o McGee v. International Life Insurance (US, 1957)

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Facts: This is a California case involving an insurance policy written by a Texas Company on a California resident. The beneficiary of the will brought suit in California state court, based on a California statute allowing jurisdiction in suits on insurance contracts with California residents, even if the insurer could not otherwise be sued in the state.
 Rule of Law: California had a strong interest in protecting its citizens, by giving them a local forum to sue the out-of-state company with which they had dealings. It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with the forum state.
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Note: This is least contact with the forum state that the court has allowed as the basis for personal jurisdiction. Also, this matter involved in-state activities…when the matter involves out-of-state activities, significantly greater contacts with the forum state have always been required.
o Hanson v. Denckla (US, 1958)
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Facts: Mrs. Donner, while she was domiciled in PA, created a trust, the trustee of which was a Delaware Bank. The terms of the trust gave her a life estate in the trust, and gave her the power to dispose of the remainder of the trust by will or by an instrument taking effect during her lifetime. Ten years after making the trust, she moved to Florida, and several years after that assigned the remainder of the trust to her grandchildren in trust. In her will, the remaining assets of the trust
(assuming that her assignment of the trust assets to her grandchildren was invalid) passed to her two daughters, residents of Florida. The daughters, claiming the appointment of the remainder of the trust to the grandchildren was invalid, argued that the trust funds should pass to them through the will. They sued in Florida for a declaratory judgment to that effect; the Delaware trustee was notified by mail and in-state publication, as provided by Florida law.
The Florida court, in a trial at which the Delaware trustee did not appear, found that the funds passed through the will to the daughters. Meanwhile, the
Delaware trust beneficiaries (the grandchildren) sued in Delaware for a declaratory judgment that the funds passed to them through the assignment. The daughters, notified by mail, did not appear and the
DE court found that the property passed to the grandchildren. The two decisions, inconsistent with each other, were appealed to the Supreme
Court to decide if Florida had jurisdiction over the Delware trustee and if so, did Delaware err in refusing to give the Florida judgment full faith and credit.
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Holding: Florida could not constitutionally exercise jurisdiction over the Delaware trustee since the trustee’s contacts with Florida were inconsistent. The court emphasized that the trustee bank had never done any other business in Florida and the cause of action could not have been said to have arisen out of business done in Florida, since the

trustee’s obligation was created in PA and merely continued when
Mrs. Donner moved to Florida.
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Hanson distinguished from McGee: In Hanson, the contacts with the forum state were initiated by the settler, not the defendant…”It is essential that in each case there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state.” o World-wide VW v. Woodson (US, 1980)
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Facts: Ps sued in Oklahoma for injuries there in an accident involving an allegedly defective car; they had purchased the car in New York while they were NY residents. Ds were the distributor of the car who distributed only in NY, NJ, CT and the dealer whose showroom was in
New York.
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Rule of Law: The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum state. Rather, it is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. Thus, if either of the defendants had made efforts “to directly or indirectly serve the market for its products” in Oklahoma, it would not be unreasonable to subject it to that state’s jurisdiction. But here, the use of the defendant’s products in Oklahoma was merely an isolated occurrence and was completely due to the unilateral activities of the Ps.
o Keeton v. Hustler Magazine (US, 1984)
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Facts: Keeton wanted to bring suit against Hustler in NH because the statute of limitations in every other state had already run. D’s contacts with the forum state consisted only of the circulation of 10-15,000 copies per month of the magazine.
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Holding/Rule of Law: The court found that there was jurisdiction because the cause of action arose out of the very activity being conducted in NH, but it noted that D’s activities in the forum may not be so substantial as to support jurisdiction over a cause of action unrelated to those activities.
o Kulko v. Superior Court (US, 1978)
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Holding/Rule of Law: The Supreme Court held that a father residing in
New York does not acquire “minimum contacts” with California merely by permitting his minor daughter to go there to live with her mother. The Court therefore refused to allow the mother to bring an in personam suit in California against the father for increased child support.
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Distinguished from McGee: The interests of the children were adequately protected by other means besides the state. This is different from McGee where citizens of the forum state would have been severely disadvantaged by an inability to bring suit there against out-of-state insurers who refused to pay claims.
o Burger King v. Rudzewicz (US, 1985)

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Facts: A franchise agreement allowed D, a Michigan resident to run a fast food restaurant in Michigan under franchise from Burger King, which had its headquarters in Florida. The lawsuit was brought by
Burger King in a Florida court, in order to terminate the franchise agreement and collect payments alleged to be due under it. The franchise agreement alleged that Florida law would govern, but expressly stated that the choice of Florida law “does not require that all suits concerning this agreement be filed in Florida.”
Contacts with the state: D never traveled to Florida in connection with the contract or the restaurant and his face-to-face meetings with BK representatives all involved people from the local Michigan office of Burger King, not the Florida headquarters. However, there were some phone and mail exchanges between Florida and Michigan and the contract required that all payments and notices be sent to the Florida office.
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Rule of Law: The court held that by signing the contract with the provision regarding Florida law, the defendant had purposefully availed himself of the benefits and protections of the forum state’s laws. A party who establishes purposeful minimum contacts with a state is subject to that state’s exercise of personal jurisdiction over him.
o Asahi v. Superior Court (US, 1987)
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Facts: Gary Zurcher lost control of his motorcycle while riding in
California and was seriously injured. He brought a products liability suit in California state court, claiming that cycle’s rear tire and tube were defective. One of the co-defendants (Cheng Shin) impleaded
Asahi, the Japanese manufacturer of the tube’s valve assembly.
Asahi’s contacts:
Asahi ships valve assemblies from Japan to Taiwan for assembly in Cheng Shin’s tires. Cheng Shin then sent the tires all over the world. Cheng Shin estimated that 20% of its U.S. sales were in California and presented evidence that nearly 20% of the tire tubes found in a typical store had been produced by Asahi. Asahi had knowledge that the materials it sold Cheng Shin may end up in
California, however, it made no direct sales to California, had no officers or agents there and did not control the system of distribution that carried its products into the state.
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Rule of Law: Minimum contacts sufficient to sustain jurisdiction are not satisfied simply by the placement of a product into stream of commerce coupled with awareness that its product would reach the forum state.
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General Jurisdiction and State Long-Arm Laws o Where the cause of action does not arise from the company’s in-state activities, greater contacts between the defendant and the forum state have been required. The standard seems to be that the in-state activities must be
“systematic and continuous.” o Where the claim does not arise from the in-state contacts, the in personam jurisdiction asserted is sometimes called “general” jurisdiction.

o Perkins v. Benguet (US, 1952)
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Facts:
The company’s mining operations, all of which were in the
Philippines, were suspended during the Second World War by the
Japanese invasion of the Islands. During that time, the president returned home to Ohio, where he maintained an office, did business on behalf of the company, and kept the company files. The plaintiff’s claim for dividends had nothing to do with the company’s Ohio activities.
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Holding:
The mining company president’s in-state activities were held to be extensive enough so that Constitutional due process neither prohibited nor compelled Ohio’s jurisdiction over the mining company; the matter was left to the courts.
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Test: The court held that where the cause of action does not arise from business done within the forum state, Constitutional due process requires that the in-state business actually conducted be so systematic and continuous as to make it not unjust that the corporation be forced to defend a suit there.
o Helicos v. Hall (US 1984)
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Facts: The defendant in Helicos was a Colombian corporation in the business of providing helicopter transportation in South America for oil construction companies. It signed a contract to provide such services to Consorcio in connection with a pipeline in Peru. Plaintiffs were the estates of employees of Consorcio who were killed when a helicopter supplied by and piloted by D crashed in Peru.
D’s contacts with the forum: 1) one negotiating session between the president of D and officials of Consorcio; 2) the purchase of 80% of its fleet from a
TX corporation; 3) the sending of pilots to training sessions in TX; 4)
payments drawn from a TX bank.
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Holding: These contacts do not, in the aggregate, constitute the requisite minimum contacts. The wrongful death claims did not arise out of the defendant’s in-Texas activities, therefore, the issue was whether those activities constitute the kind of continuous and systematic general business contacts found in Perkins. The court found that they did not. The court also held that “mere purchases, even if occurring at regular intervals are not enough to warrant jurisdiction if the action is not related to those purchase transactions.
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New Bases of Jurisdiction: Technological Contacts o The internet raises unique questions about personal jurisdiction.
o Viewing a website does not constitute personal jurisdiction o Most courts adopt a sliding scale approach—the more extensive the interaction between D’s website and persons located in the forum state, the more likely it is that D’s web-related activities will be found to constitute minimum contacts with the forum state.
o Bellino v. Simon (E.D. La, 1999)
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Facts: Bellino (CA) sold sports memorabilia over the internet and alleged that the defendants had defamed him and his business and

caused him to lose sales in Louisiana after Ds spoke on the phone with and exchanged emails with a customer who later returned two signed baseballs, believing them to be forgeries.
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Rule of Law: Personal jurisdiction may be exercised over a nonresident defendant 1) if the long-arm statute confers jurisdiction over the defendant; 2) if the exercise of such jurisdiction comports with the
14 th
amendment due process clause.
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Jurisdiction Based on Power over Property o In rem actions: actions which do not seek to impose personal liability on anyone, but rather seek to affect the interests of persons in a specific thing.
o Quasi in rem actions: actions which would have been in personam if jurisdiction over the defendant’s person had been attainable. Instead, property or intangibles are seized not as the object of the litigation, but merely as means of satisfying a possible judgment against the defendant.
o Tyler v. Judges of the Court of Registration (US, 1900)
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Facts: Petitioner sought a writ of prohibition against the judges of registration operation under a state that established a procedure and a court for registering and confirming titles to land. The in rem proceedings in question provided for notification by mail to all persons known to claim an interest and for newspaper publication announcing the proceedings in the hopes of finding unknown claimants. Petitioner claimed that the act violated due process because it deprived all persons except the registered owner of any interest in the land and it provided for insufficient notice to persons having adverse claims.
Petitioner claimed that the statute was invalid because it did not provide for personal notification.
 Holding: The constitutionality argument was rejected and the statute upheld because it is impossible to serve unknown claimants with personal service.
o Pennington v. Fourth National Bank (US, 1917)
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Rule of Law: The 14 th
amendment did not, in guarantying due process of law, abridge the jurisdiction which a state possessed over property within its borders, regardless of the residence or presence of the owner.
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The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation and the federal constitution presents no obstacle to the full exercise of this power.
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The only essentials to the exercise of the state’s power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard.
o Harris v. Balk (US, 1905)
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Facts: Harris (NC) owed $180 to Balk (NC) and Epstein (MD) claimed Balk owed him $300. While Harris was visiting MD, Epstein garnished Harris’s debt to Ballk by serving Harris with process, thereby furnishing the MD court with quasi in rem jurisdiction to consider Balk’s debt to Epstein and to satisfy a possible judgment in

Epstein’s favor. Harris did not contest the attachment and complied when the court ordered him to pay $180 to Epstein rather than Balk.
Balk then sued Harris in NC for the $180 but Harris used the MD judgment as a defense.
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Holding: the court held that the exercise of jurisdiction was correct because a debtor’s obligations accompany him where ever he goes, and since the holding in the Maryland court was valid, the defense in the NC court was valid also.
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Note: Harris was required to give Balk notice of the suit.
o Shaffer v. Heitner (US, 1977)
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Facts:
P, Heitner brought a shareholder’s derivative suit in Delaware on behalf of Greyhound Corporation against 28 of the corporation’s non-resident directors and officers. The suit alleged that that wrongdoing by the defendants had caused the corporation to be liable for large anti-trust damages and fines. In order to gain jurisdiction in
Delaware, the plaintiff took advantage of a DE statute providing that any stock in a DE corporation could be sequestered to provide quasiin-rem jurisdiction against its owner. The shares were not physically present in Delaware, but the statute provided that the situs of stock in a
Delaware corporation should be “deemed” to be Delaware. Regardless of its actual physical location.
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Holding/Rule of Law: Supreme Court held that the DE statute violated the due process rights of the defendants. The court held that if a direct assertion of personal jurisdiction over the defendant would violate the
Constitution, it would seem that an indirect assertion of the jurisdiction should be equally impermissible. The “minimum contacts” test should therefore apply to determine whether the exercise of quasi-in-rem is constitutional.
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Lack of Minimum Contacts with Delaware: 1) lack of connection between state and cause of action; 2) Delaware did not have a regulatory interest in the matter; 3) Delaware law would have applied wherever the case was tried, but this does not mean that the court has the right to adjudicate the claim; 4) there was not implied consent to have the matter adjudicated in Delaware.
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A Refrain: Jurisdiction Based Upon Physical Presence o Burnham v. Superior Court (US, 1990)
 Facts: Burnham was personally served with process for divorce proceedings while temporarily in California on business, during which trip he also went to visit his children.
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Rule of Law: The 14 th
Amendment does not deny a state jurisdiction over a person personally served with process while temporarily in a state in a suit unrelated to his activities in the state.
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Another Basis of Jurisdiction: Consent o Insurance Company of Ireland v. Compagnie Des Bauxites (US, 1982)
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Facts: P had purchased business-interruption insurance from a domestic insurer in PA and from some foreign providers through a

London brokerage house. The insurers refused to pay on a claim for mechanical failure and P brought suit in PA court. The insurers argued against personal jurisdiction. The court allowed an investigation for discovery of minimum contacts but Ds refused to comply.
 Holding: S.Ct upheld a district court sanction that the insurers were subject to the jurisdiction because they submitted to the court’s jurisdiction for the discovery of minimum contacts, so they are required to abide by the court’s determination of that issue.
o Carnival Cruise Lines v. Shute (US, 1991)
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Facts: Ps purchased tickets for a cruise through a Washington State travel agent. There was an agreement in the contract that all matters would be litigated in the state of FL. Ps filed suit for a slip and fall on the cruise while in the state of Washington and the cruiseline motiotned for dismissal because of the contract agreement.
 Holding: Supreme Court disregarded the minimum contacts requirement and instead ruled on the contract agreement and held that forum-selection clauses will be upheld subject to judicial scrutiny for fundamental fairness, which was present in this case.
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Personal Jurisdiction in the Federal Court
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Rule 4: broadens the reach of federal judicial process: o 4(k)(1)(A): provides that, in actions other than federal question and interpleader cases, the federal court may assert jurisdiction over a defendant in a state when a court of the state would be empowered to do so. o 4(k)(1)(B): permits service outside the forum state if such service is necessary to add a third party under Rule 24, or to join under Rule 19, an indispensable party to an action or a counterclaim or cross claim.
o 4(k)(1)(D): Recognizes that Congress in some instances expressly has authorized nationwide or even worldwide service of process.
o 4(k)(2): If the exercise of jurisdiction is consistent with the constitution and law of the US, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of any state court. Drobak: a foreign corporation operating in the US without minimum contacts in any state would fall under this rule. EM:
This provision applies only to federal question matters, it does not apply to
federal matters based only on diversity. o Omni Capital v. Rudlof (US, 1987)
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Facts: An investor brought a private action in Louisiana federal court against Omni under the Commodity Exchange Act. Omni impleaded
Rudlof and another British citizen involved in the matter, but they were not present in LA and the state long-arm did not reach them.
They moved to dismiss for lack of personal jurisdiction.
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Holding: Court upheld the lower federal courts’ finding that jurisdiction was unobtainable over the foreign defendants, which means that foreign defendants doing business in the US might not be

amenable to service of process in any particular and they are are therefore unaccountable in the US for alleged violations of federal law.
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Note: Rule 4(k)(2) was promulgated partly in response to the decision in this case.
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Challenging Personal Jurisdiction
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Rule 12: Defenses and Objections—When and how presented—By pleading or
Motion—Motion for Judgment on the Pleadings o (b): How Presented: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1) lack of jurisdiction over the subject matter 2) lack of jurisdiction over the person; 3) improper venue; 4) insufficiency of process; 5) insufficiency of service of process; 6) failure to state a claim for relief; 7) failure to join a party under Rule 19. A motion making any of these defenses
shall be made before pleading if a further pleading is permitted… o (g): Consolidation of Defenses in Motion: A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in
(h)(2).
o (h): (1): A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.
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Special appearance: refers to the procedure at common law by which a defendant presented a challenge to the court’s exercise of personal jurisdiction without submitting to the court’s jurisdiction for any other purpose.
Notice: The Requirement of Reasonable Notice
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EM: Once it has been established that the court has the authority to adjudicate a dispute between the parties or over the property before it, it must till be established that the defendant received adequate notice of the case against him.
o Mullane v. Central Hanover (US, 1950)
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Facts: Central Hanover Bank (P), pooled a number of small trust funds, and beneficiaries (some of whom lived out of state) were notified by publication in a local newspaper. The bank had available to it the names and addresses of beneficiaries, but claimed that it would be too costly for it to notify them all of the proceedings to settle the accounts, in view of the small sums involved in most of the accounts. Mullane objected to the court’s jurisdiction, claiming that the reasonable requirement of notice to the beneficiaries was not met.

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Holding/Rule of Law: In order to satisfy die process challenges, notice must be by means calculated to inform the desired parties, and where they reside outside of the state and their names and addresses are available, notice by publication is insufficient.
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Reasonableness Test: The means of notice employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.
o Dusenbery v. United States (US, 2002)
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Facts: Petitioner sought return of cash that the government had seized and had determined were used in connection with the offense, because
Petitioner alleged that he had not received notice of the forfeiture proceedings while he was incarcerated.
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Holding: The court found that the attempted notification was adequate and that the system of notification has recently been improved in the corrections system and should not be subject to scrutiny for how it handled matters in the past.
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Drobak: Due Process requires notice and an opportunity to answer.
Notice: The Mechanics of Giving Notice
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Waiver of Service: Rule 4(d) allows a plaintiff to in effect serve the summons and complaint by mail, provided that the defendant cooperates. The plaintiff mails the defendant a “request for waiver of service” and if the defendant agrees, no actual inperson service is needed. The defendant is free to refuse to grant the waiver, in which case the plaintiff must serve the summons by the in-person methods. But, Rule 4(d) gives the defendant two significant incentives to grant the waiver: First, D is given additional time to answer the complaint. Second, If D refuses to grant the waiver, D is required to bear the cost of effecting service. o No waiver of personal jurisdiction or venue: A defendant who grants the waiver of personal service will not be deemed to have waived any objection to venue or personal jurisdiction over him. D can still make a motion for dismissal on either of these counts. o Time for Service: Service on D must be made within 120 days after the filing of the complaint, otherwise the court can dismiss without prejudice.
o Maryland v. Chaves (D. Md. 1996)
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Facts: MSFA served Chaves with a summons and complaint by first class mail and then sought a default judgment against Chaves after receiving no response.
 Rule of Law: Mere receipt of a request for waiver of service does not give rise to any obligation to answer the lawsuit and does not provide a basis for default judgment.
o National Equipment Rental v. Szukhent (US, 1964)

Facts: D leased farm equipment from National. The printed lease provided that D designated Weinberg as agent to accept service of process in New York. When National commenced action on the lease,
Weinberg was served, and she mailed the summons to D.

Rule of Law: A party to a private contract may appoint an agent to receive service of process where the agent is not personally known to

the party and is not expressly required to transmit notice to the party but does promptly accept and transmit notice.

Rule 4(e): Service upon Individuals Within a Judicial District of the United States: Unless otherwise provided by a federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States:
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1) pursuant to the law of the state
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2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or law to receive service of process (Szukhent).
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Immunity From Process and Etiquette of Service o State v. Duffield (WV, 1952)

Facts: While he was vacationing, D, a non-resident, struck and injured two children with his car. While he was in jail awaiting trial for reckless driving, he was served with service of process in a civil suit brought by one of the children.
 Rule of Law: A person contained in jail on a criminal charge or imprisoned on conviction for such charge is subject to service of civil process, irrespective of the question of residence, if he was voluntarily in the jurisdiction at the time of arrest and confinement.

Drobak: Immunity does not usually arise as a question because most state will just use the long-arm to get the defendant to come back.
o Wyman v. Newhouse (2 nd circuit, 1937)
 Facts: Wyman (P), a Florida resident, wrote Newhouse (D), a NY resident and her former lover, that she was leaving the country and wanted to see him once more. When he arrived in Florida, he was served with process.

Rule of Law: A judgment recovered in a sister state, through the fraud of the party procuring the appearance of another, is not binding on the latter when an attempt is made to enforce such judgment in another state.
Federal Subject-Matter Jurisdiction

Diversity Jurisdiction o 28 USC §1332: Diversity of Citizenship; amount in controversy; costs o In relevant part…
 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 interests and costs and is between—

1) citizens of different states

2) citizens of a state and citizens or subjects of a foreign state;


3) citizens of different states and in which citizens or subjects of a foreign state are additional parties; and
 a foreign state, as plaintiff and citizens of a state or different states.

B) For the purposes of this section and section 1441 of this title—

1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business…[insurance provision] o Rationale: The rationale for the existence of diversity jurisdiction has traditionally been that it offers a federal forum for an out-of-state litigant who would be exposed to local prejudice if suit was held in state court.
o Complete Diversity: In order to invoke diversity, it must be the case that no plaintiff is a citizen of the same state as any defendant. Chief Justice Marshall made this rule in his decision in the case Strawbridge v. Curtiss o Amount in Controversy: In all cases in which diversity is the sole basis for federal jurisdiction, the amount in controversy must exceed $75,000.
o Corporations: Citizenship is determined by the state of incorporation and the principle place of business. Tests for determining principle place of business:

Nerve Center: Locus of corporate decision-making authority and overall control constitutes a corporation’s principal place of business for diversity purposes.
 Corporate Activities: Greater weight is attached to the location of a corporation’s production or service activities in determining the principal place of business.

Total Activity: Hybrid of the two o Capron v. Van Noorden (US, 1804)

Facts: Capron argued that his failure to allege his residence deprived the federal court of diversity jurisdiction
 Rule of Law: Even where the parties to a suit brought in federal court appear and consent to the court’s diversity jurisdiction, if no actual diversity of citizenship exists between the parties, the court has no power to hear the case.
o Mas v. Perry (5 th Circuit, 1974)
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Facts: Mr. Mas was formerly a French citizen, and Mrs. Mas was a citizen of Mississippi. They were living in Louisana while Mr. Mas finished his education. They sued their landlord for invasion of privacy in federal court on a basis of diversity. The landlord appealed, claiming that Mas was a resident of Louisiana and no diversity existed.
 Rule of Law: Mere residence in a state does not establish domicile for purposes of diversity jurisdiction. The Mases had no intent to remain in Louisiana, so they were still citizens of their previous states.
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Jurisdictional Amount o AFA v. Whitchurch (2 nd circuit, 1991)
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Facts:
AFA’s diversity action was dismissed on the grounds that the amount-in-controversy requirement had not been satisfied, even though the issue had not been briefed.

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Rule of Law: A court may not dismiss a diversity action for failure to meet the amount in controversy requirement without allowing the a plaintiff to brief the issue.
o Aggregation of Claims: In multi-plaintiff and/or multi-claim litigation, it will often be the case that not all claims of all individual plaintiffs meet the jurisdictional amount. It then becomes important to determine whether some or all of the claims may be added together to in order to satisfy the jurisdictional amount: o Aggregation by a single plaintiff: If a plaintiff has a claim in excess of
$75,000, he may add to it any other claim of his against the same defendant, even thought these other claims are for less than the jurisdictional amount.
The less claims can be tacked on using supplemental jurisdiction.
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Even if a plaintiff does not have any single claim worth more than
$75,000, he may add together all of his claims against a single defendant. If these claims combined are more than $75,000 the jurisdictional amount in controversy is satisfied.
o Aggregation by multiple defendants: In suits involving multiple plaintiffs, where not all plaintiffs meet the jurisdictional amount, two analytically different cases must be considered: 1) where at least one of the plaintiffs meet the amount, but others do not; 2) none of the plaintiffs singly meets the amount, but their claims when aggregated exceed the amount.
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At least one plaintiff meets amount: Zahn decision suggests that in the ordinary, non-class action situation, each plaintiff must independently satisfy the jurisdictional amount. (Does the inception of §1367 overrule Zahn??)
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No single claim meets amount: If no single plaintiff has a claim or claims meeting the jurisdictional amount, aggregation is normally not allowed, except where two or more plaintiffs unite to enforce a single title or they have a common and undivided interest.
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Federal Question Jurisdiction
 28 USC §1331:
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States o Federal Claim: federal law is normally the source of the cause of action.
o State-Created Claim: If the claim being asserted is one created by state law, but adjudication of that claim requires interpretation of a federal, the court has held that the claim does not belong in federal court (Merrell Dow).
o Anticipation of Defense: The federal question must be integral to plaintiff’s cause of action, as revealed by plaintiff’s complaint. It does not suffice for federal jurisdiction that the plaintiff anticipates a defense based on federal statute, or even that defendant’s answer does in fact raise a federal question.
In other words, the federal question must be part of the well-pleaded complaint.
o Osborn v. Bank of the United States (US, 1824):
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Rule of Law: The right of the plaintiff to sue in federal court cannot depend upon the defense which the defendant may choose to set up.

His right to sue is anterior to that defense and must depend on the state of things when the action is brought. o Louisville and Nashville v. Mottley (US, 1908)
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Facts: Mottley was injured on a trained owned by Louisville, which granted Mottley a lifetime free pass which he sought to have renewed.
The renewal was denied because of an act of Congress which forbade the giving of free passes on transportation. Mottley brought suit in federal court on the basis that the railroad would raise the congressional act in its defense.
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Rule of Law: Alleging an anticipated constitutional defense in the complaint does not give a federal court jurisdiction if there is no diversity of citizenship between the litigants.
o ?????Skelly Oil v. Phillips (US, 1950)
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Facts: Suit was brought under the Declaratory Judgment Act for a declaration that certain contracts had not been terminated. Had the plaintiff (the party who had initiated the declaratory action) simply sued to enforce the contract, the complaint would not have raised a federal question. However, the defense would have raised a federal question matter.
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Rule of Law/Holding: The court denied jurisdiction, holding that to sanction suits for declaratory relief as within the jurisdiction of the
District Courts merely because artful pleading anticipates a defense based on federal law would contravene the whole trend of jurisdiction legislation by Congress.
o Franchise Tax Board v. Construction Laborers (US, 1983)
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Facts: a state tax board sued a trust in state court, claiming the trust was in violation of California law. The trust answered that it was governed by ERISA, and did not have to comply with state regulations. The trust sought removal to federal court,
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Holding: the district court lacked subject-matter jurisdiction because under Mottley, the federal question did not appear in the tax board’s complaint.
o TB Harms v. Eliscu (US, 1965)
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Facts: Harms brought an action in federal court to determine the ownership of copyrights after Eliscu’s contract expired. A motion to dismiss was granted, the court finding that title to the copyright was a matter of state rather than federal law and it was therefore without jurisdiction.
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Rule of Law: The proper forum to hear a case is the one having control over the laws which created the cause of action.
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Drobak: NY State Contract Law creates the cause of action, so it is a matter for state courts o Merrell Dow Pharmaceuticals v.
Thompson (US, 1986)
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Facts: Merrell Dow argued that the presence of a federal standard at issue in a state law private action created federal question jurisdiction, even though the standard carried no federal right of action.

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Rule of Law: Incorporation of a federal standard in a state law private action, does not confer federal question jurisdiction.
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Drobak: A nested federal standard in a state tort claim does not confer
§1331 jurisdiction.