Civil Procedure Outline Fall 2018
A – Answer
I – Issue
R – Rule
A – Analysis
C – Counter Claim
C – Conclusion
Process of a Civil Case
 The pleading phase
o The complaint
*The plaintiff may make multiple (even contradictory) claims, and
may sue multiple defendants for a single claim.
 Sets forth the basic facts that give rise to a dispute.
 Asserts the plaintiff’s legal claims (causes of action).
 States relief the plaintiff seeks.
o The answer
 Defendant must respond to each allegation made in the
complaint.
 May admit, deny, or argue that the defendant does not
have sufficient information to admit or deny.
 Affirmative defense – asserts that even if the claim is
true, the defendant still should not be liable because of
additional facts.
o Amending the pleadings
 The parties may rewrite their pleadings to change the
allegations or defenses.
 Early motion practice
o Authorized under Rule 12(b) of the Federal Rules
o Pre-answer motion to dismiss [12(b)(6)]
 “Even if the facts that you allege are true, the law doesn’t allow
you to recover.”
 Examples: lack of subject matter jurisdiction, personal
jurisdiction, improper service of process, legal insufficiency.
 The discovery phase
o Court has authority to regulate and restrict discovery.
o If a party objects to producing information, it may seek a protective
order from the court.
o Automatic disclosure – mandatory exchange of information, including
documents, witnesses. (Rule 26)
o Interrogatories – questions about the claims and defenses sent to the
other party. (Rule 34)
o Requests for production of documents. (Rule 34)
o Requests to enter land or inspect tangible things (Rules 34 and 45)
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o Deposition – taking testimony from a witness under oath.
o Medical examination (Rule 35)
Judicial conferences
o Scheduling conference – sets deadlines for stages in the litigation
o Pretrial conference – Judge issues a pretrial order which resolves
unsettled disputes and sets the stage for presentation of the case to
the jury.
Motions of summary judgment
o Brings in evidence that shows that the allegations aren’t true.
o Different from motion to dismiss because it uses fruits of discovery
whereas motions to dismiss tries to prevent discovery.
Trial
o Judgment as a matter of law – one party argues that the opponent’s
evidence is too weak to allow a verdict in the opponent’s favor.
Post-trial motions
o New trial
o Case notwithstanding the verdict
Appeal
o If an appeal is filed, the may automatically postpone the right to
collect the judgment, or the appellant may ask the court to stay the
enforcement until the appeal is resolved.
o Appellate courts do not retry cases or take further evidence
Sources of Civil Procedure Regulation
 US Constitution
o Article III, Section 2 lays out subject-matter jurisdiction. Not selfexecuting.
 Federal statutes
o Enacted by Congress
o Must be consistent with US Constitution
 Federal Rules of Civil Procedure
o Rules Enabling Act by Congress  Supreme Court Judicial
Conference of the United States  Federal Rules of Civil Procedure
o Must be consistent with Rules Enabling Act and US Constitution
 Local rules of federal district court
o Adopted by individual federal districts
o Must be consistent with Federal Rules, federal statutes, and US
Constitution
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Subject Matter Jurisdiction: Cannot Waive
1. Diversity Jurisdiction
 Article III, Section 2
o Granted federal jurisdiction “…between citizens of different states.”
o The Constitution delimits the outer bounds of the cases that the lower
federal courts may be authorized to hear.
o Minimal diversity
 28 U.S.C. § 1332
o It is up to Congress to directly bestow jurisdiction on the lower
federal courts.  Limits the Constitutional scope.
o Includes minimum amount-in-controversy requirement ($75,001)
o Has been interpreted to require complete diversity.
o The parties must be diverse on the day the complaint is filed (Smith v.
Sperling)
 State citizenship of individuals (domicile)
o State citizenship depends on a person’s domicile.
o The Domicile Test (Gordon v. Steele)
 A person is a citizen of that state if he resides in that state and
intends to remain indefinitely at the time of arrival.
 Courts look at subjective intent to determine domicile.
 Evidence helps determine intent.
 A person does not lose her old domicile until she
acquires a new one, that is, until he goes to another
state with intent to reside indefinitely.
o Green Card Holders are considered citizens in the state which he/she
is domiciled.
o If a U.S. citizen is domiciled abroad, he/she is considered stateless for
the purposes of diversity.
 BUT they can still sue under Federal Q.
 State citizenship of corporations and other entities (PPB & INC.)
o Article III, Section 2
 The Supreme Court originally rejected the idea that
corporations could invoke diversity jurisdiction, but as they
became more prevalent, the Supreme Court reversed its ruling.
o 28 U.S.C. 1332(c)(1)
 A corporation is deemed a citizen of the state in which it was
incorporated (INC) and which houses the corporation’s
principle place of business. (PPB)
 A corporation can only have one principle place of business
for diversity purposes.
 If a corporation had one principle place of business, but was
incorporated in another state, this corporation would be a
citizen of two states.
 PPB = Principle Place of business is its “nerve center.” In
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practice, this is normally where the corporation’s
headquarters are, provided that the headquarters is the
actual center of direction, control and coordination.
 State of incorporation still applies.
The Complete Diversity Rule (Mas v. Perry)
o § 1332 has been interpreted to require complete diversity
 No party on one side may be a citizen of the same State as any
party on the other side.
Amount-in-controversy requirement
o 28 U.S.C. § 1332(a)(1)
 Amount in controversy must be more than $75,000
 75,000 + 1
o (Diefenthal v. C.A.B.)
 The amount in controversy is determined by the amount
claimed by the plaintiff in good faith, unless it appears to a
legal certainty that the claim is really for less than the
jurisdictional amount. (St. Paul Mercury Test)
 There must be a legal and factual basis for a recovery of
the required amount.
o If the remedy sought is so far-fetched that there
is no conceivable way that the damages could
exceed the jurisdictional amount, the court may
say that the AIC is not met.
 Good faith requirement is subjective – it focuses on the
person making the claim.
 Federal jurisdiction is not lost because a judgment of less than
the jurisdictional amount is awarded.
o A single plaintiff may aggregate any separate claims she has against
a single defendant to meet the amount-in-controversy requirement,
even if the claims are unrelated. (Claim aggregation)
 Example: P sues D for $20,000 for an accident claim, $30,000
for libel, and $40,000 for a contract breach.
o A second plaintiff my “tag-along” if the first plaintiff’s claim meets the
amount requirement.
 Example: P1 sues D for $150,000. P2 joins as a co-plaintiff,
asserting a claim for $60,000.
o Co-plaintiffs cannot add their claims together to reach the amount in
requirement, or add different amounts demanded from different
defendants. (Party aggregation)
 Example: P sues D1 for $40,000 and D2 for $60,000, in a single
action arising from a single business dispute.
 Example: P1 sues D for $50,000. P2 joins as a co-plaintiff,
asserting a claim against D for $60,000.
o Counterclaims cannot be aggregated with the plaintiff’s claim to meet
the amount-in-controversy.
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Example: P sues D for $30,000, and D counterclaims from
$65,000.
2. Federal Question Jurisdiction
 Article III, Section 2
o Granted federal jurisdiction to cases “arising under this Constitution,
the Laws for the United States, and Treaties made, or which hall be
made under their Authority”
o Federal “ingredient” rule (Osborn v. Bank of the United States)
 Can be in the original complaint, answer, or defense or
rebuttal.
 Federal question jurisdiction cannot be based on a
counterclaim
 28 U.S.C. § 1331
o Grants jurisdiction to the federal district court over all cases “arising
under the Constitution, laws or treaties of the United States.”
o Holmes’s Creation Test (Arises Under)
o Well-Pleaded Complaint Rule (Mottley Rule)
The case arises under federal law if the federal issue appears
on the face of the well-pleaded complaint, that is, if a proper
complaint, limited to the allegations necessary to state a
proper claim for relief, relies on federal law.
 Justice Holmes’s Creation Test (Arises Under)
 Helps us to apply the Well-Pleaded Complaint (Mottley
Rule).
 A suit arises under the law that creates the cause of
action.
 Does the well pleaded complaint arise under federal
question?
 Exception = Artful Pleading: when you are trying to
stay out of fed. Court and try to hide that something is in
fact a fed. question.
Cases that Do NOT arise under Federal Law:
o Contracts
o Property
o Torts
o Family Law (Divorce)
o Probate
Federal Court Exclusive Jurisdiction over Subject Matter
o 1. Patent Infringement
o 2. Disputes between two or more states
o 3. Admiralty
o 4. Cases in which the US is a party
o 5. Bankruptcy
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o 6. Trademarks, copyrights, patents,
o 7. Anti-trusts
3. § 1367(a) Supplemental Jurisdiction:
o Must have an anchor claim, before you can have a supplemental claim.
o Either Federal Question or Diversity = Anchor Claim
o Same Nucleus of Fact = As long as you have an anchor claim, the state law
claim must arise from the same nucleus of fact.
o Not testing 1367 (b) (Taketh Away Supp. Jurisdiction)
o 1367(c) – Even if you have Supplemental Jurisdiction, and (b) has not taken
away supplemental jurisdiction, the court still has the power to take it away
if it decides.
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Removal: of Cases from State to Federal Court
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*Only defendants can remove. If there are multiple defendants, they all must
agree to move.
**Remove to the federal court that serves the state in which the case was
filed.
28 U.S.C. § 1441(a) Equal Access Rule
o The defendant should only be entitled to remove a case if the case, as
pleaded by the plaintiff, could have been filed initially in federal court
by the plaintiff; in other words, if the US district courts have original
jurisdiction.
o Avitts v. Amoco Production Co.
 Removal cannot be based on subsequent pleadings, such as an
answer asserting a counterclaim. It must be based on the
original pleading.
o If removing for diversity purposes, there must be complete diversity.
o Remove to the federal court that serves the state which the case was
filed.
§ 1441(b) Forum Defendant Rule
o Federal question jurisdiction cases are removable without regard to
citizenship.
o Only defendants can remove. If there are multiple defendants, they all
must agree to remove. – Plaintiff is the one bringing suit in court, and
has no reason to remove.
o If the Defendant is a local resident, she may remove if federal
question.
o If Defendant is a local resident, she may not remove if diversity case,
because defendant has no bias in their state.
§ 1441(c)
o If a federal question is claimed among other state claims, the federal
court is entitled to hear all claims arising in the case.
§ 1443
o Civil rights cases may be removed
§ 1446(a)
o A defendant must file for removal in the district court for the district
and division that houses the state the case was filed in.
§ 1446(b) – Basic time for removal.
o The defendant has 30 days from the time of filing to remove the case.
 Clock starts after required receipt through formal service.
o If a case is not removable originally, but a federal question arises later,
a defendant has 30 days to amend his claim and remove the case.
 This also applies to dropping the diversity destroying
defendant
o If a case becomes removable due to § 1332 (Diversity Jurisdiction),
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the defendant may not remove on that basis after 12 months, one year
from the start of the action.
o In other words: Commenced in state court.
§ 1447(c)
o After a case has been removed to federal court, the plaintiff can move
to remand it back to the state court at any time before final judgment.
o A party moving to remand based on objections other than lack of
subject matter jurisdiction must do so within thirty days after
removal. If she doesn’t, the objection is waived.
§ 1453
o In class action suits, the 1 year rule, forum defendant rule, and
requirement of consent do not apply.
Process of removal
o Electronically filed in federal court  the case is in federal court
provisionally.
o Tell state court and opposing counsel (via notice of filing/notice of
removal).
 Must attach papers filed in court
 Removal is effected when notice is filed in state court.  State
proceeds no further.
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Personal Jurisdiction (In personam – Jurisdiction over the person)
**Purposeful Availment – to the states roads, services, benefits, etc.
***Business Online does not ALONE = Personal Jurisdiction.
 Traditional Grounds for Personal Jurisdiction
 (1) Consent (Implied or Expressed)
 (2) Domicile
 “Home State” = Individuals ; PPB, Inc. = Corportations
 (3) In State Service or Person Physically Present in the State.
 Transient Jurisdiction = Going somewhere else, and
happens to pass through, purposeful availment.
 Exception: Fraudulently Induced to go to State where
Served.
 (4) Contacts with the Forum State.
 State Long Arm Statutes
 Constitutional Min Contacts Requirement
 (5) Waiver
 Two types of personal jurisdiction:
o Specific in personam jurisdiction: the claim arises out of the
defendant’s deliberate contact with the state.
o General in personam jurisdiction: the defendant continuous
operations within the state so substantial and of a nature to justify
suit in that state.
 Bulge Rule: This rule grants to the federal courts personal jurisdiction over
defendants in two basic ways:
o 1. If a federal state governing the claim expressly authorizes personal
jurisdiction or
o 2. Slides on Podio
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Specific In Personam Jurisdiction – the plaintiff’s claim arises out of the
defendant’s deliberate in state contacts. (Min. Contacts)
o Claim must arise out of in-state contacts.
o Sporadic, Isolated, Single Contact
o A court has specific jurisdiction if:
 The defendant has minimum contacts with the forum, and
 The claim arises out of those contacts, and
 The exercise of personal jurisdiction would be fair and
reasonable.
o Minimum contacts = Fair to hale Defendant into Court.
 Purposeful availment
 A contact exists when the defendant has purposely
availed himself of the privileges and benefits of
conducting activities in a particular forum.
o Focus on the time when the defendant acted, not
the time of the lawsuit.
 Foreseeability alone is not a contact
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o Defendants must have some control over where
they subject themselves to a lawsuit. Otherwise,
every seller of chattel is subject to personal
jurisdiction in every state.
“Effects test”
 A defendant may have sufficient contacts with a state
even though she did not act within the state.
 If a defendant commits an act outside the state that she
knows will cause harmful effects within the state, she
will be subject to minimum contacts jurisdiction there
for claims arising out of that act.
o Looks at where the defendant aimed his business
activities (intent), and where the plaintiff
suffered effects.  weigh the factors.
A contact may exist via a contract.
 Courts will look at the circumstances of the commercial
relationship.
o Were negotiations directed to the forum state?
o Did the contract require fulfillment of
contractual obligations in the forum state?
o What was the duration of the contractual
relationship?
 Choice of law provisions: the contract choses a
particular body of state contract law to govern
interpretation of the contract.
o Usually binding, but does not necessarily give
personal jurisdiction to the courts of the state
whose law is specified in the contract.
o Supporting evidence that defendant purposely
availed themselves of the benefits of the state
specified in the clause.
 Forum selection clauses: require that any dispute
arising out of the contract be litigated in a particular
state.
o Reduces the likelihood of litigation of personal
jurisdiction.
o Generally enforceable so long as the forum has a
reasonable relation to the parties of the
transaction.
Continuous but limited activity in the forum state, such as an
ongoing business relationship, may support specific
jurisdiction
A contact can exist via a stream of commerce or the Internet,
though the definition of a contact in these instances is unclear.
 Stream of commerce theories (from Asahi and McIntyre)
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o O’Conner and Kennedy
 A defendant must direct some kind of
activity to the forum beyond the fact that
a product (component) was sold in the
forum state.
 A mere expectation or hope that a
product will be sold in a jurisdiction is
insufficient.
 Example: advertising, sending
replacement parts.
o Arises out of…
 A court must have personal jurisdiction over each individual
claim.
 “But for test”
 A claim arises out of the contact if the claim would not
have arisen but for the defendant’s contact with the
state.
 Example: A patron would not have visited an
amusement park but for the park’s advertisement.
 “Evidence test”
 A claim arises out of the defendant’s in-state contacts
only if the defendant’s forum contact provides evidence
of one or more elements of the underlying claim.
 Example: An advertisement would be essential evidence
regarding a consumer fraud claim.
o Fairness and reasonableness
 Maintenance of the suit may not offend traditional notions of
fair play and substantial justice (Milliken).
 Courts must consider at least five factors: (World-Wide
Volkswagen)
 Burden on the defendant,
 Interests of the forum state in providing redress to its
citizens,
 Plaintiff’s interest in obtaining relief in a convenient
forum,
 Interstate judicial system’s interest in obtaining the
most efficient resolution of controversies,
 Interest of the states in enforcing their substantive law
or policy.
 No amount of reasonableness can make up for a defendant’s
lack of contacts with that forum (World-Wide Volkswagen)
 If a claim arises out of a defendant’s contacts, a court will very
likely conclude that personal jurisdiction is established, even if
some of the reasonableness factors are not satisfied.
o Challenging personal jurisdiction
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Special appearance
Collateral attack
 Defendant fails to appear in the court where the
plaintiff filed suit  court will enter a default judgment
against the defendant  defendant takes the judgment
to the state in which the plaintiff holds his assets  the
defendant appears in the enforcing court and contends
that the rendering court’s judgment was invalid for lack
of personal jurisdiction.
 Motion to dismiss
 Answer to the complaint
 Interlocutory appeal
 If a trial court finds that there is personal jurisdiction,
some states will allow the defendant to immediately
appeal to the trial court without trying the case in trial
court.
General jurisdiction – allows courts to exercise personal jurisdiction over a
defendant for claims having nothing to do with the defendant’s contacts in
the forum.
o Continuous and Systematic
 Continuous ≠ continual
o “Transient “Gotcha”, Consent, Waiver
o Appropriate when the defendant’s activities in the state are so
substantial and continuous that she would expect to be subject to suit
there on any claim and would suffer no inconvenience from defending
there.
o Just by being in the state.
 For businesses, this usually means an office and employees in
the forum state will do the trick (“at home”)
 Also place of incorporation and principle place of
business.
 For individuals, this means domicile. (Doesn’t require
domicile)
o Consent
 A defendant can affirmatively decide not to raise the issue.
(Implied Consent)
 Through Conduct (Expressed, Voluntarily Appearing before
Court)
 Before Lawsuit Occurs (Ex. Provisions in Contract where Court
will Take Place) (Expressed)
o Waiver
 Have to waive PJ in 1st response of pleading.
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Requirements for
establishing
Claims over which the
court’s personal
jurisdiction extends

Specific Jurisdiction
Each of the claims must
arise out of the
defendant’s deliberate
contacts with the forum
(“minimum contacts”),
and the exercise of
jurisdiction must
otherwise be consistent
with traditional notions of
fair play and substantial
justice.
General Jurisdiction
The defendant’s contacts
are sufficiently extensive
that the defendant would
be considered at home in
the state, and the exercise
of jurisdiction must
otherwise be consistent
with traditional notions of
fair play and substantial
justice.
Only those claims arising
out of the defendant’s instate contacts.
Any claim that the plaintiff
has against the defendant.
In rem jurisdiction – Over the property
o Power over specific property to determine ownership/status of the
property (probate estates, bankruptcy).
 Determines ownership as against the whole world!
 Quasi-in-rem jurisdiction 1 – Can’t get to the person so you’re going after the
property of the person.
o Jurisdiction over specific property for purposes of deciding a
particular individual’s ownership or interest in the property
(foreclosure).
 The parties’ interests in the property are the only subject of the
lawsuit.
 Quasi-in-rem jurisdiction 2
o Jurisdiction over specific property for purposes of providing a remedy
for an unrelated claim.
o Mostly used when long-arm statutes won’t allow in personam
jurisdiction.
o Shaffer
 Transient presence (tag) jurisdiction
o A state can gain personal jurisdiction over a nonresident who was
personally served with process while temporarily in the state.
 The defendant need not have any contact with the state at the
time of the events giving rise to the suit.
o Corporate context
 A plaintiff cannot obtain personal jurisdiction over a
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corporation by serving an officer of that company who happens
to be in the forum state.
 A plaintiff may obtain personal jurisdiction over a partnership
if one of the partners is served within the forum state.
Long arm statutes – Every State has a Long Arm Statute.
o Personal jurisdiction must be authorized by a long arm provision and
it must be constitutionally permissible.
Two Types of Long Arm Statutes:
o Enumerated – Laundry List Statutes (Only Sunny Side Up Eggs)
o Unenumerated – Everything Goes as Long as it does Not Violate
Constitution. (Any Kind of Eggs )
In Personam Jurisdiction Chart – Personal Jurisdiction
Statutory Grounds
Enumerated
Look at
Specific
Statute &
Constitutional
Grounds
Constitutional Grounds
Un-Enumerated
Look to
Constitutional
Grounds
Min. Contacts
Purposeful
Availment
Stream of
Commerce
Foreseeability
=
Alone not
enough.
Fairness
1. Burden on D.
2. Burden on P.
3. State Interest
in Litigation
4. Efficiency
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Notice and Methods of Service of Process
 There is not one prescribed way of notice.
 Q: What gets served to the D? A. complaint & summons served together.
 What is the goal of notice?
o 1. Give D. Notice
o 2. Give D. Time to Reject / Respond
 Federal courts
o 14th amendment
 Due process clause guarantees parties the basic right to notice
of a court’s intention to adjudicate their rights and an
opportunity for those parties to be heard before the court
proceeds to do so.
 Service must be reasonably calculated, under all the
circumstances, to give the defendant actual notice (Mullane)
o Federal Rules of Civil Procedure – Rules regarding service
 Incorporation of state service rules in to Fed. R. Civ. P. 4.
 4(e)(1) – Individuals
o An individual may be served in a judicial district
of the US by following that state’s laws regarding
service.
 4(h)(1)(A) – Corporations
o Follow service rules of the state in which the
federal court sits or the state in which the
defendant is being served.
 Time limit for service.
 A defendant must be served within 90 days after the
complaint is filed, or else the court must dismiss the
action or order that service be made within a specified
time.
o If the plaintiff shows good cause for the failure to
serve the defendant, the court must extend the
time for service for an appropriate period.
 5(a)(1) -- Which documents require service.
 An order stating that service is required.
 A pleading filed after the original complaint
 A discovery paper
 A written motion
 A written notice, appearance, demand, or offer of
judgment or any similar paper.
 Methods of service of process:
 May be made by any person over 18 who is not a party to the
action.
 Plaintiff does not serve it herself.
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o Leaving copies of the summons and complaint at
his dwelling or usual place of abode with a
person of suitable age (18) and discretion
residing therein, or
o Delivering the papers to an agent (lawyer)
appointed by the defendant to receive service of
process on his behalf, or
 Corporations and other entities
o If the defendant is served in the US…
 Delivery of copy of the summons and
complaint to an officer, managing or
general agent of the defendant, or to an
agent authorized to receive service of
process , or
 Someone in authority who can
make decisions. Careful: wouldn’t
be a person on the board of
directors etc. Must be a CEO etc.
 Ex. Campbell = only person who
could accept under this
circumstance is Dean and
Associate Dean.
 Following state service rules
 OJ Example from Midterm.
Waiver of service of process
 Plaintiff may send the defendant the complaint, two
copies of a notice of the action, and a request that the
defendant waive formal service of the summons and
complaint upon him.
o The defendant is supposed to return the request,
thus waiving formal service.
 If he does waive, he gets 60 days (rather
than the usual 21) to respond to the
complaint.
 If he does not, the costs of service are
imposed on the defendant.
45(b)(1) – Serving subpoenas
 Must be served by someone who is over 18 and not a
party to the case.
 A copy must be delivered to the named person.
 If the subpoena requires that person’s attendance, the
cost of attendance must be tendered.
 If the subpoena requires production of documents,
electronically stored information, tangible things, or the
inspection of a premises before trail, then before
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subpoena is served, a notice must be served on each
party.
 Subpoena power reaches 100 miles from the federal
courthouse.
o Four Methods to Serve the Summons (Individuals):
 1. Deliver the papers to the D. personally (in hand service)
wherever she can find the D.
 2. Leave the summons and complaint at defendants dwelling or
usual place of abode with someone suitable age (18) and
discretion who resides there.
 3. Deliver the summons and complain to an agent (lawyer
usually) of the defendant authorized by appointment or by law
to receive service of process.
 4. Follow the rules for service of process of the state where the
federal court sits or of the state in which service of process is
being made. (OJ Example)
o Methods to Serve the Summons (Corporations)
 1. Delivering a copy of the summons and complaint to an
officer, a managing agent, or a general agent of the entity.
 2. Delivering the papers to an agent authorized by law or by
appointment to receive service of process.
 3. Serving process under state rules for serving corporations,
in either the state where the federal court sits or in the stat
where service is made.
o HIERACRCHY of Service Methods:
 1. Delivering the summons to a person of suitable age and
discretion at the D’s place of business or residence and mailing
the summons to the D’s place of business.
 2. Affixing the summons to the door of the D’s place of
business, dwelling place, or place of abode within the D’s state
of domicile and by mailing to the persons last known address
or actual place of business; or
 3. In a manner ordered by the court if other methods are
impractical. (Facebook, and Newspaper Example.)
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Venue
Venue is Proper Where: § 1391
(a) A Defendant Resides
a. Domicile= Individuals ; Min. Contacts = Corporations
(b) Where a Substantial Part of the events or omissions giving rise to the Claim
Occurred;
a. Looking not at one triggering event, but entire sequence of events.
(c) Anywhere the Court has PJ Over the Defendant.
a. Only If you do not have (a) or (b)
 Constitution does not restrict a plaintiff’s choice of venues.
o Restrictions on a plaintiff’s choice of venue are designed to ensure
that the location of the suit is reasonable and convenient given the
location of the evidence, witnesses, and defendant.
 Challenges to Venue: Transfer and dismissal
o Key to transfer and dismissal is whether venue is proper according to
1391 (a) and (b).
o A judge only has the authority to transfer a case within the same court
system.
 Federal  Federal
 State (NC)  State (NC)
o 28 U.S.C. § 1406 – Cure or Wavier or Defects (Improper)
 Shall dismiss, or if it be in the interest of justice, transfer such a
case to any district or division in which it could have been
brought.
 More preferable to Defendant.
o 28 U.S.C. § 1404 – Change of Venue (Proper)
 May transfer any civil action to any other district or division
where it might have been brought to any district or division to
which all parties have consented.
 More preferable to Plaintiff.
o Forum non conveniens - looks at private & public factors (applies
to 1404)
 Grans authority to dismiss case that was filed in proper venue.
 Why dismiss via forum non conveniens?
 Judges lack the authority to transfer outside of their
own court systems, so if the venue is proper but
inconvenient, forum non conveniens fills the gap.
 reasonable and convenient
o To determine if venue is convenient, weigh public and private interest
factors:
o General FNC Factors:
 1. Jurisdiction in which each of the parties resides
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2. Location of the witnesses & Evidence to be brought at trial.
3. Burden on the court system
4. Forum chosen by the plaintiff
5. The manner in which a change of forum would effect each
parties case
6. Public Policy
Public interest factors:
 The transferee’s familiarity with the governing laws
 The relative congestion of the calendars of the potential
transferee/transferor courts, and
 The local interest in deciding local controversies at
home.
Private interest factors:
 Plaintiff’s choice of forum, unless the balance of
convenience is strongly in favor of the defendants
 The defendant’s choice of forum
 Whether the claim arose elsewhere
 The convenience of the parties
 The convenience of the witnesses, and
 The ease of access to sources of proof.
Motions to transfer
Motions to dismiss
Cases filed in wrong
venue
§ 1406
§ 1406 and Rule 12(b)(3)
Cases filed in correct
venue
§ 1404
Forum non conveniens
Pleading:
o General Rules of Pleading: FRCP 8(a)
o 1. Grounds upon which the courts Subject Matter Jurisdiction
depends.
o 2. Short and Plain Statement Showing that the pleader is Entitled to
Relief
o 3. Demand for Damages
o Must be in writing, unless made during trial or hearing.
Legal Insufficiency
Pleading
12 (b) (6)
Plausibility Standard
Factual Insufficiency
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o FRCP 9 (b) – Heightened Pleading = Fraud or Mistake
o What, When, Where, How = Required
o FRCP 12 (b)
o (1) lack of SMJ
o (2) lack of PJ
o (3) Improper Venue
o (4) Insufficient Process
o (5) Insufficient Service of Process
o (6) Failure to State a Claim Upon Which Relief can be Granted
o (7) Failure to Join a Party Under Rule 19
General Class Notes:
o Fundamental Requirements of Due Process Clause
o At a minimum, the DPC requires that a court has:
 Proper SMJ
 PJ
 Notice
 Note: there is no constitutional requirement for proper venue.
o Rule 12 Defenses:
o 1. Lack of SMJ
 No timing issue, can be raised at any time
o 2. Lack of PJ
 Waived if not included in the first responsive motion.
o 3. Improper Venue
 Waived if not included in the first responsive motion.
o 4. Insufficiency of Process
 Waived if not included in the first responsive motion.
o 5. Insufficiency of Service of Process
 Waived if not included in the first responsive motion.
o 6. Failure to State a claim upon which relief may be granted
 Raised before trial or at trail.
o 7. Failure to join a party under Rule 19 (indispensable party)
 Raised before trial or at trail.
o Pleading: 8(a) – General Rules of Pleading
 1. Grounds upon which the courts SMJ Depends
 Short and Plain Statement showing the pleader is entitled to
relief
 Demand for Damages
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