Service of Complaint
Is Δ “at home” in the forum
state
• Domiciled [humans]
• Corporate HQs (principal
place of business) [corp]
• Incorporated [corp]
• Consent through
appointment of an
agent?
• Consent through conduct
in litigation?
• Nonresident motorist
statute applies? (Hess) –
SPECIFIC JURISDICTION
May assert general
jurisdiction over Δ for any
claim
(Goodyear, Daimler)
Note: not enough to just
have assets in state (e.g.
Daimler)
•
•
Was Δ present in the
forum state when
process was served on
him? (FRCP 4(k)(1),
Burnham)
Valid general
jurisdiction over Δ for
any claim even for
transient presence,
regardless of purpose.
(Burnham)
Extra credit: 2 theories
of why CA had
jurisdiction in Burnham:
(1) Scalia + 3:
presence when
you’re served OK
by itself. Shoe
irrelevant when
you can use
Pennoyer basis
(2) Brennan +3:
traditional bases
do not matter.
Always apply
Shoe.
Test: Constitutionality (DPC) + State statute
Pennoyer never overruled. Shoe alt. to Pennoyer
Valid constitutional exercise of personal
jurisdiction over Δ. Specific Jurisdiction. D can be
sued on claim that arose in the forum
Valid constitutional exercise of personal jurisdiction over Δ. General
Jurisdiction.
D can be sued on claim that arose anywhere in the world. [but see: limited
by Goodyear, Daimler – general jurisdiction suit only when at home
•
•
No clear answer – reasonable person can disagree
Analyze situation and walk reader through process. Often no
clear answer
Does the forum state have a long-arm statute that provide for
No personal jurisdiction, even if
PJ over Δ?
minimum contact (i.e. constitutional
basis). Still need statutory basis as well
if Δ not served while present in state.
Personal Jurisdiction – in personam: Can P sue D in this state? (Doesn’t matter state or federal court)
Was there purposeful availment? [Are at least some of Δ’s
contacts voluntary and not accidental? (Hanson) (WW
Volkswagon– unilateral act of third party does not count as
purposeful availment )
No PJ. Δ did not purposefully avail
himself to the laws and benefits of the
forum state. (Hanson),
Are Δ’s contacts with forum state sufficiently great that they
should be deemed “minimum contacts that does not offend
traditional notions of fair play and justice” (International
Shoe for in personam jurisdiction, expanded to all PJ in
Shaffer). [Two parts: (1) contact + (2) fairness]
No PJ. Lacks minimum contact with
forum. (International Shoe)
Could Δ reasonably have anticipated being hauled into
court? (WW Volkswagon)
•
[Enjoy benefits and protection of state law]
• Delivers product into stream of commerce (Gray v. Am
Radiator)
Very open ended!! No correct answer!!!!!!!!!
Is jurisdiction reasonable? i.e. does it comport with
“traditional; notions of fair play”? (Asahi)
. Consider:
1. Burden on Δ (Burger King)
2. Interests of forum state (McGee) – TX co. actively solicite
business from CA
3. p‘s interest of obtaining convenient and effective relief
in forum state
4. Legal system’s interest in efficiency (e.g. all witnesses
are there)
5. Shared substantive policy of states (Kulko) – turned
down jurisdiction because would upset family harmony
No PJ (Asahi).
Extra credit: Asahi’s treatment of
“stream of commerce” as purposeful
availment. Two treatments:
(1) Brennan + 3: it is minimum
contact if A puts product into
stream of commerce and
reasonably anticipates that it will
get into state in question
(2) O’Connor + 3: everything in (1)
and intent to serve / targeted /
reached out to state in question
(advertising, etc.)
Has outsider Δ engaged in forum-related activities out of
which p‘s claim “arises? (BM Squibb, WW Volkswagon)
BMS: Claims of CA non-residents not sufficiently related to
BMS’s CA activities to support specific jurisdiction
Are Δ‘s contacts with the forum state “systematic and
continuous?” (≠ Helicopteros – “Mere purchases, even if
occurring at regular intervals, are not enough to warrant a
State’s assertion of in personam PJ over a nonres corp in case
of action not related to those purchase transactions)
No PJ. Forum Court must dismiss lawsuit
against this Δ unless personal
jurisdiction is waived
•
•
Erie (Eskridge flow chart): Choice of law in federal courts
Is there a federal provision
(Constitution / Federal
Statute/FRCP) on point that
directly conflicts with state law
that federal judge must decide?
(Hanna, Shady Grove)
Does federal provision represent
valid exercise of authority
(Constitution / Rules Enabling
Act)?
Would creation or separate
federal policy (displacing state
policy in diversity cases) have
Hanna/Byrd ex ante outcome
determinative effect? [and
thus encourage forum
shopping (Gasperini)]
Rules Decision Act: Federal Court
apply State Law (Erie / York)
Unless
Federal Court may create
uniform common law federal
practice
Affirmative countervailing
consideration require uniform
federal rule
(Byrd)
No clear answer – reasonable person can disagree
Analyze situation and walk reader through process. Often no
clear answer
Apply U.S. rule / statute
[Not an Erie issue, but an issue
decided based on Supremacy Clause
of the U.S. Constitution]
Alternative:: If no federal provision on point…
Apply ALL THREE TESTS of Erie and come to a reasonable
conclusion
1. Is this outcome determinative? (York)
• If yes  State law
• If no  may create federal law
2. Balance of interest
• If state > federal  state law
• If federal > state  federal law
3. Twin aims of Erie: (1) promote forum shopping AND
inequitable administration of law
• If yes on any 1 State law
• If no on BOTH may create federal law [e.g.
citizen of different states  different
treatment]
Erie – alternative to Eskridge flow chart: Choice of law in federal courts
Constitutional
Provision
Conflict between state and federal law or practice?
Federal Statute
•
•
No clear answer – reasonable person can disagree
Analyze situation and walk reader through process. Often no
clear answer
Constitution
prevails
(Supremacy Clause)
Is it valid (“arguably
procedural”
(Hanna))?
Federal law prevails
Hanna Prong: Federal provision on point?
REA Sec 2072
• FRCP is valid if doesn’t modify SUBSTANTIVE
RIGHTS, alternatively, if it is “arguably”
procedural (Sibbich echoes, Hanna affirms)
• SCOTUS never held a FRCP invalid. So if FRCP 
FRCP
• Shady Grove 2010: Stevens argued should be
stricter test for validity of FRCP under REA
State law prevails
FRCP
Valid (does not
abridge, enlarge,
modify substantive
right)? Rules
Enabling Act, Sec
2072
FRCP prevails (Hanna
2)
State law prevails
State Law
State law prevails
Federal
Practice (i.e.
unguided Erie
choice)
Apply state
provision
Byrd balancing test:
Federal countervailing
interest trumps state
law?
Is it valid (“arguably
procedural”
(Hanna))??
Outcome
determinative in light
of twin aims of Erie?
(Hanna 1)
Federal
Provision
Federal law
Subject Matter Jurisdiction
•
Citizenship for diversity purposes is determined
as of the time of the commencement of the
lawsuit
Subject Matter Jurisdiction
Venue Determination
Venue based on Residence of DEFENDANT
(1391(b)(1))
-Option 1: Any district where all D’s reside
(doesn’t work if N. vs. S. CA)
-Option 2: If all Ds reside in forum state
(state where case was filed in federal court)
 may lay venue where any one of the Ds
reside
Persons: domiciled
Corporations: all districts where subject to
PJ (could be many)
Did P
originally
file in
Federal
court?
Transfer of Venue
Was transferor (original federal
district court) proper venue?
Transferee MUST (1) be proper
venue, AND (2) have proper PJ
over D without waive
(e.g. Hoffman v. Blaskey – D
cannot waive PJ if venue is not
proper!)
Venue based on Substantial amounts of
cause-of-action (1391(b)(2)): Any district
where a substantial part of the claim arose
(multiple venues possible – e.g. contract
negotiated in 1 district, entered in another,
performed in 3rd)
•
Clear answer
1404(a)  Forum Property but Inconvenient
May transfer to another district based on (1)
convenience (e.g. available witness)
(2) interest of justice
-Public factors: which court ought to be burdened with
case, admin. of justice
-Private factors: witnesses, evidence
Choice of law from original court transfers w/ case to
the new district
1406(a)  Improper Forum
Permits transfer of cases filed in an improper venue –
shows a preference for a transfer of venue rather than
forming a dismissal or refiling.
Even if court lacks PJ, court still has power to transfer
Choice of Law from original court not transferred b/c
improper to begin with
Forum Non Conveniens
“Escape hatch” provision: Δ (1391(b)(3)).
This is a Trap! Almost never applies.
-If no district anywhere in U.S. would meet
(b)(1) and (b)(2) – can sue in any district in
which ANY D is subject to the court’s PJ.
(e.g. claim arose overseas and there’s no
district where all Ds reside)
Venue does not apply when P files in state
court, and D removes case from state to
federal court (via 1441). Removal can only
be to the district that geographically
embraces the forum that the suit is filed at.
Doctrine allowing a DISMISSAL of suit even if SMJ, PJ, and Venue are valid, because some other forum is
substantially superior
-There is no statute on point for this. This is a court made policy.
-Why not just transfer? TRANSFER IS IMPOSSIBLE! Better Court is in a different judicial system. Can’t transfer
to a different judicial system
-There must be an alternative forum
• Critical that alt. forum is (1) available AND 920 adequate
-Dismissal may be conditional that the DEFENDANT waive SOL, PJ, and venue of the new Court
-Gilbert factors
• Private – convenience of litigants
• Public – Interest of Justice
• Unfavorable change in law (for P in new venue) is not sufficient grounds for dismissal
• If remedy in new system for PLAINTIFF is so inadequate in the new system that is almost no remedy at
all, given substantial weight
-The same factors are considered for transfers under 1404, but there is a higher standard for dismissal under
forum non conveniens than transfer. VERY hard to get forum non-conveniens because court is DISMISSING
suit!
Piper Aircraft v. Reno (1981):
Fact: Bad plane crash in Scotland, all passengers killed. Scottish citizen, operated by Scottish airline, owned
by Scottish citizens, BUT manufactured in U.S.
Posture: Case against manufacturer in PA, but SCOTUS held that case should be dismissed under forum nonconvenience to allow P to sue in Scotland. Looked at public factors and private factors. Piper footnote 6 – list
of private factors
Pleadings – Complaint, motion, answer & reply
•
Clear answer
Discovery
•
Clear answer