PERSONAL JURISDICTION 12b(2) State issue from call of question: ● Did court correctly deny motion for PJ= In order to determine whether motion was correctly denied, we have to consider both the Traditional Basis and the Modern Basis of PJ. ● Did court correctly grant motion for PJ= In order to determine whether the motion was correctly granted we must consider whether the Modern Basis and Traditional Basis of PJ are satisfied, consistent with the requirements of Due Process. D’s 12b(2) Motion… if neither the traditional basis nor the modern bases are satisfied consistent with due process. Traditional Basis: Traditionally, there are 3 recognized basis of PJ: 1) Physical Presence 2) Citizenship, and 3) Consent/Waiver. 1) Physical Presence: Traditionally, a non-resident defendant is subject to PJ if they are physically present in the forum state while Validly served. o In personam o In rem (property must be seized/attached at beginning of suit) ▪ Quasi in rem= jurisdiction over the property ▪ True in rem= determines status of the property 2) Citizenship: Traditionally, a non-resident defendant is subject to PJ in the forum state if the forum state is their place of domicile and they intend to stay there indefinitely. o Domiciled, intend to stay indefinitely 3) Consent/Waiver: Traditionally, a non-resident defendant is subject to PJ in any state where the defendant has consented to or waived arguments concerning PJ. o On Purpose ▪ ▪ ▪ Forum selection clause Choice of law provision o Accidental ▪ No special appearance 1 ▪ General appearance If any of them is met: ➔ D will argue, P will argue. Who has better argument? If none met: ➔ State why none are met. Move on to Modern Basis. Modern Basis: The Modern Basis of PJ reaches a non-resident defendant if 1) the forum has a long arm statute that purports to reach and 2) if the defendant has such minimum contacts with the forum state that it would not offend the traditional notions of fair play and substantial justice to require it to defend there (MC= FP + SJ). 1) Long Arm Statute: - Does the LAS purport to reach? o Cop out statute= Purports to reach as far as Due Process allows o Specific Act statute= specific conduct “within” the state If S.A requires new Heading Does LAS REACH? D argues, P argues. Who has better argument? Assuming the LAS reaches lets see if MC=FP+SJ is satisfied 2) MC= FP + SJ: Minimum Contacts: Minimum Contacts is the purposeful availment by the D of the benefits and protections of the forum state. Purposeful Availment: (Did D Allow himself to use the benefits of the state?) D will argue.. P will argue… D will argue that mere knowledge and product is injected into the stream of commerce does not count as purposeful availment. Assuming someone prevails on this issue we must consider whether FP+SJ is also satisfied o IS - Has Effects ▪ ▪ Done outside state, but effects people within. Good w/ evidence that D has directed his activity towards the forum state 2 - Intentional ▪ - - Purposefully directed towards foreign state (ex: solicits ads, agents, office, marketing, negotiations, effects state) Substantial ▪ Continuous and systematic ▪ Course of dealings ▪ $/volume of sales Confers Benefit ($) ▪ Does D benefit? Not limited to $, can be psychological and virtual ▪ Laws and protections of the state ● Gives Rise to Claim ▪ But for the contract, there would be no suit - AIN’T ● No Impact ▪ No effect to state ● Accidental ▪ Unintentional ▪ Random ▪ Not in D’s control (ex: tornado) ● Insignificant ▪ Minimal ▪ Isolated ▪ Sporadic ● Unilateral by non-D ▪ Someone other than D caused D to have contract with state ● Foreseeability (F word. Only used if used in Question 1st) - D argues, P argues. Who has better argument? - Now we must consider whether FP and SJ is also satisfied. FP + SJ: Fair Play and Substantial Justice is satisfied if the balance of up to 5 Other Relevant Factors (ORFs) favor the exercise of long arm jurisdiction over the D. - The 5 ORFs are… - The ORFs at issue here are… 1. Forum state’s interest in providing forum - If P is a citizen of forum state citizen If forum state governs Choice of Law Provision If commerce affected Impact of claim Forum had some sort of benefit/ detriment 3 2. P’s interest in the forum STRONG- P has easy access to relative evidence and witnesses WEAK- It is a burden to serve in the forum 3. D’s Interest in avoiding the forum STRONG- It will be a burden for D to serve in forum state (costs, witnesses, evidence, etc.) WEAK- Because D is not from the area 4. Interstate Judicial System’s Interest in Efficiency and Economy The ISJSI is implicated when it is inefficient to try transactionally related claims in different courts one of more claims. One or more claims are transactionally related when they arise out of the same claim or occurrence. - 2 plaintiffs or defendant but only one claim dismissed for lack of PJ Affects interests of the state 5. Shared Substantive Interests of Several States (almost never on the exam) STRONG- both states have same law regarding claim WEAK- both states have differing law regarding the claim - D will argue, P will argue. Who has stronger argument? CONCLUSION: The motion should be/shouldn’t be granted because Subject Matter Jurisdiction Removal State issue from call of question ❖ Removal: The Plaintiff’s original jurisdiction rule must be satisfied in order for a case to be properly removed to Federal court. Plaintiff’s original jurisdiction rule can be satisfied by either Federal Question or Diversity of Citizenship. Remand State issue from call of question 4 ❖ Remand: In order to determine whether Plaintiff’s motion to remand should be granted, we have to determine whether the Plaintiff’s original jurisdiction rule would be satisfied- that is, whether there would have been subject matter jurisdiction over Plaintiff’s separate claims against ______ had Plaintiff originally sued in federal court. ❖ Everything in the borders must be done for each Supplemental claim (claim by claim analysis) State the parties (ex: Turista v. Valveco)- if more than 1 party, different headers for each Subject matter jurisdiction over this claim requires either a Federal Question or Diversity of Citizenship. Federal Question A Federal Question claim is a claim that arises under the Constitution, the laws, or the treaties of the United States. Arising Under jurisdiction exists if 1) Congress has created a federal Express Right and Remedy, or 2) the interpretation of federal is an Essential Element of the Plaintiff’s claim, or 3) if an otherwise state law claim implicates an Important Federal Policy Interest. Moreover, under the Well Pleaded Complaint rule, the Federal Question must appear as part of the Plaintiff’s properly-pleaded complaint, not a defense or avoidance that would appear in the defendant’s properly-pleaded answer. 5 - State which elements are at issue here - D will argue, P will argue. Who has stronger argument? Conclusion for Federal Question P/D has the stronger argument here, and it is unlikely/likely that a Federal Question exists. Diversity of Citizenship Diversity of Citizenship requires that 1) the claim is between citizens of different states and 2) the amount in controversy exceeds $75,000. Citizens of Different States ● If yes: P v. D is between citizens of different states because P is from ____ and D is from ____. ● If no: P v. D is not between citizens of different states because P and D are both from ____. ● If no because of Alienage Jurisdiction Variation on Diversity: Under the Alienage Jurisdiction Variation on Diversity, aliens cannot be both plaintiffs and defendants, and here both P and D are aliens. ● Sub-Rules of Citizenship o Real people are where they are domiciled o Corporations: Look at where they are incorporated, and then you look to see where they make integral decisions about the business (the nerve center) o Unincorporated: Wherever each member resides (so they would citizens of all three: CA, NY, MI) Amount in Controversy 6 In order for a claim to enter federal court based on Diversity of Citizenship, the amount in controversy must be more than $75,000, and this requirement will be presumed to have been satisfied unless proven otherwise to a legal certainty by the party opposing jurisdiction. P will argue that he can prove to a legal certainty that the amount in controversy will not be more than $75,000 because… D will argue that P cannot prove to a legal certainty that the amount in controversy will not be more than $75,0000 because P/D probably has the stronger argument here. Amount in Controversy Sub-Rules ● Amount in Controversy ○ Must exceed Sum or Value of 75K ■ To-a-legal-certainty-test (Presumed that it is met before tested)(Not required by the Constitution, it was drafted on by Congress) ■ Party contending that there is not subject-matter jurisdiction must prove to a legal certainty that the amount is not met or that it could not be met. ■ Exclusions ■ Interests costs and attorney's fees (Unless that it what the claim is brought for) ■ Costs (Filing fees, payments to expert witnesses, costs for creating/producing documents) 7 ■ Plaintiffs no-aggregation rule ■ Can you add claims together, no! ■ Two Exceptions ■ Single Plaintiff, single defendant, when the plaintiff brings multiple claims against the defendant, whether the claims are related or not ■ Claims by multiple plaintiffs that are indivisible, and each of them has a separate claim, but really they are indivisible (arise out of the same claim) ■ Ex. 3 siblings are suing to get their share of parents estate (Worth $90,000, alone they are worth 30,000, even though it is under the amount it still counts. ■ Non-Money Relief Tests ■ Order, quieting title, seeks to hand over the name for a deed to a property ■ Injunction (to stop using a name or likeness ■ Ejectment ■ When a trespasser needs to be kicked off the premises ■ Seeking a writ ■ Action for a declaratory judgment (Order saying what are the rights and obligations of the parties) 8 ■ Accounting ■ Open up the books and see where the money went, an action for damages might follow. ■ Plaintiffs Prospective Test ■ What will the plaintiff suffer monetarily if he loses the lawsuit? ■ Defendants Prospective Test ■ What is the cost to the defendant if he loses the lawsuit? Conclusion for Diversity of Citizenship P/D has the stronger argument here, and it is likely/unlikely that Diversity of Citizenship exists. CONCLUSION P/D has the stronger argument here and it is likely/unlikely that there is subject matter jurisdiction over this claim. ● If no: Therefore, the only way that P could have originally brought this claim to federal court was by invoking Supplemental Jurisdiction. ● If yes: But assuming that there is no subject matter jurisdiction over this claim, we must see if P could have originally brought this claim to federal court by invoking Supplemental Jurisdiction. 9 If obvious that no Federal Question and Diversity of Citizenship exists for a claim: There is no Federal Question because…. And there is no Diversity of Citizenship because P and D are both citizens of ____. Therefore, the only way that P could have originally brought this claim to federal court was by invoking Supplemental Jurisdiction. Supplemental Jurisdiction For Supplemental Jurisdiction to exist, Section 1367 requires a three-part analysis that can be called Giveth, Taketh Away, and Conditioneth. Giveth The threshold test of Supplemental Jurisdiction is whether the claim having independent subject matter jurisdiction and the claim that is arguably supplemental arise out of a Common Nucleus of Operative Facts. (CNOF). - D will argue that [the two claims] do arise out of the CNOF because (but for ___, P would not have given rise to either claim) … - P will argue that [the two claims] do not arise out of the CNOF because (look to facts-different for each claim) … - Who has the stronger argument? Taketh Away Plaintiffs are not permitted to assert or join Supplemental claims in any case in which the sole basis of independent subject matter jurisdiction is Diversity of Citizenship. ● If both Federal Question/Diversity of Citizenship are debatable: If Diversity of Citizenship is the sole basis of independent subject matter jurisdiction for [Arguably Independent Claim] , then P cannot invoke Supplemental Jurisdiction. But in case a Federal Question exists, we must move on to the third part of the analysis: Conditioneth. ● If only Federal Question Debatable: But here the only arguable basis of independent subject matter jurisdiction is Federal Question, so the Taketh Away rule does not apply Conditioneth 10 Even if the other two requirements of Section 1367 are satisfied, a district judge in her discretion may decline to exercise Supplemental Jurisdiction if any of the following 4 conditioning factors are present: 1) Novel or complex state law 2) State law claims predominates over federal claims (keep in mind amount of claims and weight of each) 3) Independent claims dismissed 4) Other compelling reasons The ones at issue here are the following (list them): State law claims predominate over federal claims Ordinarily, whenever state law Supplemental claims predominate over claims based on independent subject matter jurisdiction, the Supplemental claims should be thrown out. The claim based on independent subject matter jurisdiction has been dismissed Ordinarily, whenever the sole claim having an independent basis of subject matter jurisdiction is dismissed, any Supplemental claims must be thrown out too, unless substantial judicial resources have been invested in resolving the Supplemental claim. - P will argue that - D will argue that Conclusion for Supplemental Jurisdiction P/D probably has the stronger arguments here and it is unlikely/likely that there is Supplemental Jurisdiction over P v. D. ❖ If there is another Supplemental claim, repeat everything in borders. 11 CONCLUSION P/D probably has the stronger arguments here. [Answer call of question]. Not on the essay part of the exam Notice D' 12b(5) motion should be granted if mechanical or constitutional notice is not satisfied Mechanical Notice Mechanical Notice can be served upon defendant's who are natural persons or a factious business by in hand delivery, substitute service, authorizing agent by appointment and any other forums the state offers. D will argue that mechanical notice is not satisfied because… it did not comply with the forums law P will argue that mechanical notice is satisfied because… it did complied with the forums law Conclude who has the stronger argument Depending on what is satisfied We must also check if constitutional notice Constitutional Notice Notice needs to be reasonably calculated to provide actual notice. D will argue that the notice was not constitutional because … is not reasonably calculated P will argue that the notice was constitutional because … is reasonably calculated Conclude who has the stronger argument Conclusion If both elements are not satisfied d' 12b(5) motion should be granted Forum selection clause X motion should be granted if unless Y can establish the form selection clause is unreasonable. To establish unreasonableness she must show that the clause designating state ? as the form is not vital in the contract, Remote and alien form, and was negotiated in bad faith. Is the forum State Vital to the Contract defendant will argue that state ? is not vital to the contract because… But plaintiff will argue that state ? is vital to contract because….. 12 [State who has the stronger argument] Is the forum State a Remote and alien Form Defendant will argue that state ? is remote and alien form the claim of breach because Plaintiff will argue that state? is not a remote and alien form because [State who has the stronger argument] Was it Negotiated in bad faith Defendant will argue that the contract was negotiated in bad faith because Plaintiff will argue that the contract was not negotiated in bad faith because ginger didn’t read it [State who has the stronger argument] Conclusion .. motion to dismiss should be granted Venue Venue (§1391) ● Properly laid venue ○ Venue=District=Where (Only one of these need to be satisfied) ■ Any defendant resides, if all reside in same state ■ 1st Option: There are four districts in CA and each of the defendants is either from: northern, eastern, central, southern: this would be satisfied ■ 2nd Option: One of them is from Phoenix, not okay ■ Events or omissions occurred ■ If any district where the substantial part of the acts or omissions giving rise to the claim occurred in the chosen venue, proper venue would be properly laid there if this is satisfied. ■ Ex. The last act known that violated the FDCA is the forwarding of the letter to Bates new home in the Western District of New York ■ All defendants are subject to personal jurisdiction ■ Last chance or kitchen sink option ■ Usually happens in a multiple defendant litigation ● Transfer of venue (1404, 1406) ○ Preferred remedy sought, is to transfer, not to dismiss ○ Transfer of venue permitted if ■ Transferee venue satisfies 1391 13 ■ Example: Dorothy, satisfies #1 and #2 for 1391 ■ Convenient for litigants (This is for the defendants side of the litigation), witnesses ■ Example: Yes it would be convenient for Dorothy since she is from Kansas, might be a problem for the witnesses however ■ Serves interests of justice ■ If the venue that the case is transferred to is better or more efficient (Varying factors), it would serve the interests of justice Forum Non Conveniens Dismiss Suit if: 1. Feasible alternative exists (Available remedy in the alternative forum) ○ Some of the defendants are from there ○ If there is pending litigation there already ○ You could get SMJ there 2. Weigh the public/private interests to see if they favor dismissal Public Interest Factors ● Administrative burden on judiciary (The stronger this is, the stronger the case for dismissal is) ○ Ex. Unibomber Shack that the court had to keep during the trial ● Foreign choice of law ○ If the nature of the law is foreign in nature, it would be inconvenient for the judiciary (the more foreign, the stronger the case for dismissal) ○ UK, Canada, Australia is fine, Somalia on the other hand would not be ● Lack of local interest Private Interest Factors ● Burden on defendant (Cost) ○ Examples ■ Lack of access to legal counsel ■ Leaving business for long period of time ● Poor access to relevant evidence, witnesses ○ Examples ■ Gas evidence was not available in Texas, so they could not access that evidence easily in that venue Multiple Choice – 33 questions - Avoid foreseeable - if its about purposeful availment – not going to be an answer that’s for an ORF - if youre not sure about which answer, pick which moves the case along. 14 o I f there are multiple correct responses, pick which cuts if off early for supplemental jurisdiction o Pick the gibbs test, the conditioning responses are optional and discretionary - If it says someone is a citizen, and it doesn’t change →then they are still a citizen - SMJ cant be presumed in federal court - Amount in controversy is presumed to be satisfied for federal court 15
