CIVIL PROCEDURE I OUTLINE
I. Due Process of Law
A. Constitution
1. 5th Amendment
a. the federal government shall not deprive anyone of life, liberty, or property without due process
of law
th
2. 14 Amendment
a. No state shall deprive anyone of life, liberty, or property without due process of law
B. Hearing
1. Laudermill Case
a. Laudermill was fired without a pre-termination hearing, but there was a post termination
hearing and process
b. What pre-termination process must be afforded an employee who can be discharged only for
cause?
c. Court held that a pre-termination hearing was required
i. Three important interests
1) Is there a private interest at stake and is it significant? Issue of property rights? Yes –
retention of employment is significant
2) Is there a government interest? Carry out in expeditious fashion – speedy removal and
monetary interest (lowest level of significance)
3) ** Is there the risk of erroneous termination/deprivation? Yes (high significance b/c
deprivation may never be replaceable)
ii. Balance the factors and see that interest is greater for a pre-termination hearing
d. Hearing necessary for Due Process
i. Oral or written notice and the opportunity to respond and present other side of the story
1) HYPO: more than mere response on the telephone
e. Marshall’s Concurring Opinion
i. If facts are disputed, the opportunity to be heard must be a more elaborate process
f. What is wrong with post-termination hearings?
i. Already been terminated, so already endured the negative setbacks
ii. Public Safety Issue: okay to terminate first and hear them out second if pose danger or
threat to others so take action and then afford them their due process rights
g. Opportunity to be heard is fundamental to civil procedure and for that opportunity to mean
anything you need to receive notice. And both notice and opportunity to be heard must be
meaningful and somewhat reasonable under the circumstances
2. Garnishment is unconstitutional
a. Notice goes directly to employer and wages are taken out of paycheck
3. Mitchell Case
a. Must have processes in place in order to afford a post-hearing instead of a pre-hearing
b. In this case the quick post-seizure hearing was okay because opportunity to exercise real
judicial discretion and ability to post bond – less possibility of error because these provisions
were in place
4. Due Process requires at a minimum some notice and an opportunity to be heard or sufficient
processes in place to outset notice or opportunity to be heard
C. Notice – Service of Process
1. Federal Rules of Civil Procedure Rule #4
a. Official summons  include signature of clerk, seal of the court, identity of court and parties,
be directed to the defendant, state the name and address of plaintiff’s attorney. It shall also
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b.
c.
d.
e.
state the time within which the defendant must respond and explain that failure to do so will
result in a default judgment against the defendant. A summons may be amended.
How is summons issued  upon or after filing the complaint…if in proper form it is signed
and sealed by the court and given to the plaintiff to serve upon the defendant
Service with Complaint
i. summons is served together with copy of the complaint because original is filed with the
clerk of the court
ii. served by any person who is not a party and is over 18years of age; can be someone
appointed by the court if plaintiff cannot hire a process server
waiver is preferred method of service under the rules for reasons of efficiency and to preserve
costs
fall-back provision – affecting in person service in Federal Court – service upon an individual
where a waiver has not been filed may be served…
i. Service may be accomplished in state where case is pending or in state where service is
effected
1) Incorporates state law where district is located or comply with state law of where
service is effected
ii. Deliver copy of summons and complaint to defendant personally or to their “dwelling
house or usual place of abode” (Khashoggi Case)
1) Upon a person of suitable age and discretion who resides in the dwelling house or place
of abode (not just a visitor)
f.
g.
h.
i.
j.
k.
l.
m. Amount of time a plaintiff has to serve process  120 days after filing complaint to effect
proper service on the defendant(s) or action is dismissed without prejudice, time can be
extended if you can show the court that there is a good reason why you haven’t served the
defendant yet
i. Dismissed without prejudice  you can file the case again
ii. Dismissed with prejudice  you cannot file again, that is the final decision
2. Terminology of Notice
a. Service of Process – method by which defendants are given notice in regards to a civil lawsuit
 summons and complaint
i. Service – act of providing notice to someone (in person is always best)
ii. Process – actual information being served
1) Summons
2) Complaint – document containing factual contentions and legal contentions
b. Without proper service of process, the court will not have personal jurisdiction over the
defendant; any judgment rendered is void
i. Personal jurisdiction allows court to give a binding judgment over the defendant – cannot
collect on a judgment if no personal jurisdiction because it is void
3. Greene v. Lindsey
a. Tenants in housing project being evicted. Posted notice on doors to apartments and tenants
never received them
b. Section 1983 claim = common way Constitutional issues are raised – against state officials for
deprivation of certain civil/Constitutional rights
c. In this area, it was unreasonable to post notice and assume the parties would receive the notice
d. Court suggested mail as a fallback method
4. Khashoggi Case
a. Substituted service to housekeeper at apartment in NY {Rule 4(2)(e)] default judgment entered
against Khashoggi because he failed to appear. Khashoggi then filed a motion to vacate the
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judgment because the service did not meet the rules because it was not his dwelling house or
usual place of abode
b. Actual notice is not enough, service must be proper, in compliance with rule 4
c. In today’s society unrealistic to interpret rule 4 to mean a person can only have one dwelling
house or usual place of abode – he was living in NY apartment when served, so that was the
best place to serve him
d. Must be a place that is indicative of permanence and rises to the level of dwelling house or
usual place of abode and it is possible to have several
5. Dwelling house and place of abode are only necessary when service is substitute service; if hand it
to defendant, then that is it
6. Mid-Continent Wood Products v. Harris – importance of proper service; if don’t get it right then
don’t have personal jurisdiction and judgment is void
a. Harris was in default on payments for plywood from Mid-Continent, so Mid-Continent sued.
b. Mid-Continent made many efforts to serve Harris
i. Tried to personally serve through U.S. Marshall
ii. Certified mail to place of employment – Harris denies receipt
iii. Private Process Server sent to home address, but wrong address – tried three times and then
attached it to the door with back-up in the mail
iv. Court told them to inform of upcoming status hearing so sent to both Harris and his
previous attorney, Panzer (this did not include summons and complaint)
c. Panzer bargained with Mid-Continent
d. Received default judgment for outstanding amount because did not show
e. 6 years later Mid-Continent located assets of Harris’ in Massachusetts and attempted to collect
on their judgment
f. Harris filed motion for relief in district court claiming he was not served properly and therefore
the court did not hold personal jurisdiction over him and thus could not enter a judgment
against him
i. He argued he never received notice (wrong address and such) and therefore the judgment
should be void
g. District Court – 3 part test to get around Rule 4 – said Mid-Continent passed this test and
therefore the judgment was good
i. Defendant must have actual knowledge of the lawsuit
ii. Substantial compliance to serve the defendant
iii. Equities must warrant an exception
h. Court of Appeals
i. Actual notice alone is not sufficient absent strict compliance with Rule 4 because actual
notice does not give the court personal jurisdiction
1) We have Federal Rules so there is a unified system of how to do things, gives lawyers
predictability
ii. Substantial compliance
1) More than minimum effort made
2) Only satisfied when papers are served, but there is an error in summons itself (technical
defect in the form, not in regards to the service of it)
iii. Equities
1) Not clear and convincing evidence Harris was evading service and burden of proof was
on the plaintiff
iv. Ultimate Result
1) Judgment was void
2) Valid service of process is a must to gain personal jurisdiction
7. Rule 4 requires more than due process requires\
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a. Why isn’t compliance with Constitutional standard sufficient? (ex: Harris got notice he needed
in order to respond)
i. Constitutional minimum is the bare minimum
ii. Rules are allowed to go over Constitutional minimum
b. Rule 4 goes over the minimum to make sure people are served
8. Wyman v. Newhouse
a. Ex-boyfriend tricked into coming to FL for the purpose of serving him and gaining personal
jurisdiction  this was not allowed by the court
9. Alternative to Proper Service – Waiver Rule 4(d)
a. 1983 – year after Greene v. Lindsey
b. Amended in 1993 – plaintiff sends notice for request for waiver along with a form, a copy of
the complaint, and a means for them to return the waiver
i. Once the waiver is returned a waiver has been accepted
c. Now the preferred method of service
d. Why would defendant agree to waive service of summons?
i. Economic incentive - if refuse to waive the rule makes you responsible for the costs of
effecting personal service unless a good reason not to waive
ii. If agree to waive summons your response time increases from 20 days to 60 days
e. Not required for plaintiff to seek waiver or for defendant to agree to the waiver
f. Why would a plaintiff not want to seek waiver?
i. Give defendant less time to respond so you can get on with the case
ii. To make sure you get your lawsuit served within the time permitted by the statute of
limitations
D. Personal Jurisdiction
1. Three types of personal jurisdiction
a. In Personam – over the person; the person becomes the judgment debtor
b. In Rem – over the property (ALL interest); relates to the determination as to everyone’s interest
in the property
c. Quasi In Rem –
i. Over certain interests in the property; only determines rights as to certain individuals of the
property
ii. Attachment jurisdiction; court seizes a piece of property that is unrelated to another claim,
limited to that piece of property, a conduit for obtaining jurisdiction over an individual
2. Special Appearance
a. Enter state to challenge the jurisdiction of the court, not subjecting yourself to the court’s
jurisdiction
3. Two ways to challenge jurisdiction
a. Direct Attack  know case is going on and you show up and argue (special appearance)
b. Collateral Attack  if lose you can never challenge the merits of the case – let judgment be
entered against you and wait till defendant tries to execute the judgment then challenge the
validity of the judgment
4. In Personam Jurisdiction
a. Pennoyer v. Neff
i. General scope of a state’s power or authority
1) Must be within territory of their state, cannot reach over boundaries to exert power
2) No authority over Neff, because out-of-state resident at the time
3) How could courts obtain jurisdiction?
a) Because he had property within the boundaries of Oregon
b) If the court had seized the property initially, there would have been jurisdiction
ii. Personal jurisdiction as a constitutional matter is a function of state sovereignty
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iii. Concept of territoriality
iv. The Oregon Court could have obtained jurisdiction over Neff if…
1) Neff was in the state for any reason and was served while in the state
2) Mitchell attached the property ahead of time at filing of lawsuit then Oregon would
have quasi in rem jurisdiction because property is in Oregon and owned by Neff
3) Neff voluntarily appeared in court he would have expressly consented to the court’s
jurisdiction
v. Special circumstances that allow jurisdiction beyond the borders of the state
1) A business conducting activities within the state must appoint an agent in the state
2) A state can determine the status of their citizens (divorce and custody)
3) If a state creates an entity/organization they can create the rules that govern it even if
they are not dealing within the state boundaries
4) Resident of the state, even if not currently in the state (resident = domicile plus intent to
remain)
b. Pennoyer doesn’t make as much sense in modern times…developments like the car, and
increased interstate commerce, caused the courts to stretch the case and started recognizing
fictions where they deemed the person to have implied consent to jurisdiction
i. Hess v. Pulaski
1) Non-resident motorist statute
a) When traveling on the roads in Mass., you have implied consent to jurisdiction there
if an accident occurs within the state even if not a resident
2) This was okay for public safety issues
a) Can’t come into a state and cause an accident without liabilities
c. International Shoe Co. v. Washington
i. International Shoe was a Delaware company with headquarters in Missouri; the state of
Washington was looking to recover unpaid contributions to the state unemployment fund
ii. International Shoe argued Washington did not have jurisdiction over them
1) Principle argument  the only thing they did in Washington was solicit orders and that
is not enough to be considered doing business
iii. Washington Supreme Court says their regular solicitation and inflow of product in
Washington was enough to be considered doing business within the state and therefore the
state had jurisdiction over them
1) By their “presence” in the state, the company submitted itself to jurisdiction
iv. U.S. Supreme Court saw that times had changed as to how you determine an entity is
subject to personal jurisdiction of a state
1) Minimum Contacts Test
a) If a business maintained minimum contracts within a state through their business,
they were subject to jurisdiction within that state
b) Level of minimum contacts:
i) Such that the suit does not offend “traditional notions of fair play and substantial
justice”
c) Substitute for actual physical presence and implied consent from Pennoyer
2) Continuum of when there is jxn and when there is no jxn
a) Contact within the state is continuous and systematic and the cause of action arises
out of this contact
b) No jurisdiction if individual has isolated contact within a state and the cause of
action does not arise from that contact
c) Possible jxn
i) Isolated contact in the state and the cause of action arises from that contact
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ii) Contact within the state is continuous and systematic, but the cause of action
does not arise from that contact
3) International Shoe was subject to jurisdiction because they had continuous and
systematic contact within the state and the cause of action arose from those contacts
4) Black’s concurrence
a) Court now has too much power in determining what are notions of fair play, they
are overstepping the bounds of states’ rights
d. Specific Jurisdiction  cause of action arises from contact within the state (relatedness)
i. Cases that go far in stretching jxn
1) McGee v. International Life Insurance Co.
a) TX insurance company insured one person in CA
b) Weighing of relative burdens of parties and decided it was easier for the company to
travel to CA than the woman to travel to TX for suit
c) Applied International Shoe test
i) Minimum Contacts  yes
ii) Fair Play and Substantial Justice  weighed burdens to determine this
2) Gray v. American Radiator
a) Titan in Ohio made valves for water heaters and sent them to Penn to be used in
American Radiator’s water heaters, a water heater was sold in Illinois where a faulty
valve caused it to explode
b) Illinois Long-Arm Statute  “commission of tortuous act within this state”
i) The injury occurred in Illinois
ii) He placed the valve into the “stream of commerce”
c) First see if jxn under long-arm statute, then check Constitutionality of statute
ii. Cases that suggest limitation on jxn
1) Hanson v. Denckla
a) Is a Delaware trustee subject to personal jxn in FL?
i) No, contacts trustee had in FL were too tenuous
(1) Unilateral activity on her side in FL between her and the trust
(2) Unilateral act by third party who started the contact (person who created
trust was not a party in the suit)
(3) Diff from McGee because in McGee the insurance company initiated the
unilateral activity in CA where as the woman who initiated contact in
Delaware moved herself to FL
b) Contact need to be “purposeful availment” in part of defendant thereby taking
advantage of the benefits and protections of the laws of the state
2) Kuklo v. Superior Court
a) Court held that father allowing daughter to move with mother to CA was not
purposeful availment because it was not sufficient contact for him to be subject to
personal jxn in CA
b) Court concerned with family harmony – substantial public policy factor
iii. World-Wide Volkswagen v. Woodson
1) Robinson driving Audi, which was bought in NY by NY residents, through Oklahoma
when rear-ended and gas tank exploded
2) World-Wide is the distributor located in NY, NJ, and CT…and Seaway is the dealership
in NY, their only contact with OK was this accident
3) OK Long-Arm Statute required a tortuous injury in the state by an act or omission in
that state unless there are sufficient contact within the state or they receive substantial
revenue from within the state
4) S.C. does not look at interpreting OK statute, but at the constitutionality of the statute
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5) Fair Play and Substantial Justice
a) Burden on the defendant
b) Plaintiff’s interest in obtaining convenient and effective relief
c) The forum state’s interest in adjudicating the dispute
d) The interstate judicial system’s interest in obtaining the most efficient resolution of
controversies
e) Shared interest of states in furthering fundamental substantive social policies
6) Foreseeability alone is not a good enough test for minimum contacts
a) Reasonable anticipation that they might have to go to court in that state is enough
foreseeability, but anything can be viewed as being foreseeable so there must be
reasonable anticipation of being brought into court there for minimum contacts
b) What makes it foreseeable? PURPOSEFUL AVAILMENT
i) Want the defendant to be able to predict where he can be hauled into court
c) Majority distinguishes Gray because the chain of distribution is different
i) Gray  Titan entered its product into the stream of commerce where it was sold
and used in Illinois
ii) W-W Volkswagen  stream of commerce spits it out in NY but the accident
occurred in OK, not foreseeable that it would occur there
7) Ways a company can protect itself when foresees ability to be subject to suit in a state
a) Get insurance in that state
b) Pass costs on to consumers
c) Avoid the state
8) Dissents
a) Brennan  key is use of the product, not purchase – if can see use of a product in
the forum state then it should be foreseeable – no distinction between this case and
Gray
b) Marshall  global network of service for vehicles
9) Unilateral act – defendant did not do anything to create a contact in OK
iv. When determining if personal jxn violates due process must look at two things
1) Purposefully availed minimum contacts
2) Fair play and substantial justice
v. Keeton v. Hustler Magazine
1) Keeton (a NY resident) sued Hustler (OH company headquartered in CA) in NH for
libel – NH had longest statute of limitations
2) Court said sale of magazine in NH created sufficient minimum contacts, the plaintiff
was harmed somewhat in NH, and the interest of the NH citizens in reading false info
a) Contacts of plaintiff are not an issue
b) Single Publication Rule  prohibits multiple libel actions in multiple states (recover
all damages in one forum)
vi. Calder v. Jones
1) National Enquirer (FL) published an article saying Shirley Jones (actress, citizen of CA)
was a drunk
2) She brought libel suit in CA against magazine, editor, and reporter (all FL)
3) Why Jxn?
a) Jones was resident of CA so plaintiff had large interest in the forum state
b) Not a lot as far as minimum contacts go, but plaintiffs interest will tip the scales in
this case
c) Calder Effects Test
i) Defendants committed an intentional tort that was going to have it primary
impact of effects in CA and they knew that because of the nature of the tort
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ii) Intentional tort is closer to purposeful availment
e. Directing a Product toward a Forum State
i. Asahi Metal Industry Co. v. Superior Court
1) Facts:
a) Gary Zurcher on Honda motorcycle and has accident, claims tire blew up and files
product liability suit in CA where accident occurred
b) First Suit – Zurchers; product liability suit; sued Chen Shin rubber
c) Cross-Claim - Chen Shin (the tire manufacturer) sues Asahi (the valve
manufacturer) for indemnification
d) Asahi filed a claim against court – writ of mandate; said CA did not have jxn
e) All agreed no jxn, but justices could not agree on how arrived at the decision
2) 8 Justices Agreed
a) Does not fall within notion of fair play and substantial justice
i) Burden on defendant is too severe (come to CA and foreign country’s court
system)
ii) Interest of plaintiff and forum state are too slight to justify
iii) Federal government interest – careful when dealing with foreign policy
3) Brennan and three Justices – Stream-of-Commerce Theory
a) As long as participating in stream of commerce process, should not be surprised by
possibility of lawsuit in state you know your product is being marketed in
b) Benefiting economically from state and indirectly benefiting from laws and
protections of the state
c) But not fair play and substantial justice so no jxn
4) O’Connor and three Justices – Stream-of-Commerce Plus Theory
a) Stream of commerce alone is not enough, must also have “an action of the
defendant purposefully directed toward the forum state”
5) Steven’s approach  Value, Volume, Hazardous Character
a) Blurry between awareness and purposeful availment; should consider volume,
value, and hazardous character in making constitutional determination of whether
this rises to level of purposeful availment
ii. HYPO  Asahi tests
1) WW Volkswagen – Robinsons live in PA and come into NY to purchase Audi from
Seaway and lots of PA residents do this are there sufficient minimum contacts?
a) Brennan’s approach  sufficient to subject Seaway to personal jurisdiction in PA
because aware of where the products are going and benefiting financially from PA
citizens; awareness that purchasers from the forum state are buying the vehicle
b) O’Connor’s approach  still not enough because Seaway is not directing activities
specifically to PA residents; need purposeful act directed at the state
c) Stevens’ Approach  If people are going back and forth and buying cars that should
be purposeful availment
f. Contacts and Contracts
i. Burger King Corp v. Rudzewicz
1) Facts: Rudzewicz and MacShara franchise owners in Mich sued in FL by Burger King
Corp (of FL) for breach of K and tortuous infringement of trademark
2) When based on diversity jurisdiction in federal court, the court applies state laws, the
long-arm statute of FL was applied [F.R.C.P. 4(k)(1a)]
a) Statute extends jxn to a non-resident when they fail to perform acts required by the
K to be performed in Fl as long as action arises from alleged breach of K
3) Court looked at minimum contacts in two parts
a) Purposeful availment
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i) Knew they were dealing with FL corp and signed K saying governed by FL law,
training in Miami, deliberately decided to become franchise of this corp based in
FL, negotiated in FL, all contact was with FL office
b) Fair play and substantial justice
i) They were both business men and knew what they were doing, BK did not
misrepresent the contact, not too burdensome to make defendants come to FL
ii) Even if Mich has an interest, it does not change the interest in FL
iii) The facts of each case must be weighed to determine fair play and substantial
justice
(1) Ct worried about individuals being dragged onto forum state for failure to
pay $500 credit card bill
4) Steven’s dissent
a) Weigh relative burdens – unfair to Rudzewicz
5) Just because BK is wealthy corporation it is not sufficient because more important that
Rudzewicz purposefully availed himself to the laws of FL
g. General Jurisdiction – it will not offend due process if a corporation has sufficient contacts to
have suit in a state even if cause of action did not arise from those contacts
i. Perkins v. Benquet
1) First address of general jurisdiction
2) Non-resident of Ohio sues a Philippine company in OH when the cause of action did
not occur in OH
a) This was okay because temporary headquarters of company was in OH so sufficient
connection for company to be subject to jxn in OH
3) Strict standard of “continuous and systematic” contacts
ii. Nothing for 32 years
iii. Helicopteros Nacionales De Colombia, S.A. v. Hall
1) Helicol transporting for WSH crashed in Peru and killed four Americans…their
survivors filed suit in TX where WSH was based and where Helicol purchased their
aircraft
2) No general jurisdiction because purchases in a state are not sufficient for presence in the
state
3) Brennan dissent – scope of K should be expanded due to expansion of economy in
foreign commerce and the ease of travel; also feels decide case based on specific jxn
because hard to draw line between cause of action arising in a state and that arising
from contacts within a state
5. In Rem and Quasi In Rem Jurisdiction
a. Shaffer v. Heitner
i. Heitner, a stockholder in Greyhound, filed a shareholder’s derivative suit against the DE
company’s officers and directors. Δ’s not from DE
ii. Because the company was incorporated in DE, the stock were in DE and thus Π sequestered
the Δ’s property in DE, Greyhound stock
iii. Π followed all guidelines under Pennoyer, but court said no – must satisfy International
Shoe test
iv. Presence of property in a forum state alone is not an adequate basis for judicial jxn…in rem
and quasi in rem jxn must satisfy the International Shoe minimum contacts test of fair play
and substantial justice
1) Having property unrelated to the cause of action within the forum state and nothing else
is not sufficient minimum contacts
2) Applying test will not get rid of ability for most in rem jxn
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v. You have to look at the relationship between property and litigation; if that’s not present,
you have to look at relationship among Δ, forum, and litigation
vi. It doesn’t matter where the property is; if a court gives a judgment, the judgment can be
enforced anywhere in the country under the full faith and credit clause of the Constitution
1) Can go after a Δ’s property in another state after a judgment is issued
vii. Justice Stevens  worried about the economic impact of the DE statute itself and that the
purchasers of stock were unaware of its implications
viii. Powell’s concurrence  decision swept too broadly…real property should be
recognized for in rem jxn, because it is so significant, and it cannot be moved that it might
be enough to satisfy due process
ix. Justice Brennan  Dissented in part, but agreed with minimum contacts test
1) Majority went to far in ruling what would or would not suffice for jxn, court ought to
have ability to deal with issues as they come up
2) Brennan suggests case should be remanded to Delaware court to evaluate if there is
another reason why Delaware would have jxn here…it was for Delaware in the first
instance to figure out if law would allow for minimum contacts
6. Service to Non-Residents  only thing still under Pennoyer and not International Shoe is when a
non-resident is served within the forum state
a. Burnham v. Superior Court
i. Mr. Burnham agreed wife could move to CA with the kids and file for divorce there under
grounds of irreconcilable differences; he tricked her and filed in NJ under desertion claim;
he doesn’t serve her so she then files in CA and serves him while he is in CA on business
and visiting his kids
ii. Mr. argues that mere presence alone, w/in a jxn at time of service, is not sufficient to satisfy
due process
1) He argues that without continuous and systematic contacts w/in the state, the
International Shoe test cannot be satisfied
iii. Justice Scalia
1) Tradition – essence of traditional notions of fair play and substantial justice
a) Those that have long-standing been ok with due process satisfy this notion
2) Minimum contacts are a substitute for presence within the state
3) International Shoe was all about when the Δ is not present in the state, then minimum
contacts will suffice for personal jxn – if you are present within a state, you are subject
to the control of that state
4) Shaffer – different because the statute in question made property which normally is not
present within a state, present in that state, so needed minimum contacts analysis to see
if fair…
iv. Justice White
1) Traditions can violate due process
a) If the case involves a stupid or ridiculous rule, than it needs to be reevaluated in that
case
v. Justice Brennan
1) Need to look at fairness along with tradition
a) Apply International Shoe to every case, as per Shaffer
2) History gives notice that his presence subjected him to suit in the forum state
3) Purposeful availment/minimum contacts – by showing up in CA, he availed himself to
the benefits and protections of the laws of CA
4) Fairness – he has traveled there at least once, why can’t he do it again?
a) Modern day air travel and communication make it less burdensome to defend
oneself from another state
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b) It would not be fair if you were subpoenaed and thus not in the state on your own
volition or if you were in the state testifying for another case or tricked into being
there – these do not satisfy the fairness aspect
5) Scalia feels this analysis will subject everyone to personal jxn, everywhere
b. HYPOS  Burnham tests
i. Burnham was great guy with not a lot of money and he went to CA to visit child who was
deathly ill and he didn’t have enough money to get to CA so he hitch-hiked there and is
served at the bedside of daughter…is there jurisdiction?
1) Scalia’s Approach  Yes, there is personal jurisdiction b/c he is present within the state
and it is a traditional rule that presence in the state is enough for personal jurisdiction
2) White’s Approach  Yes, personal jxn b/c not a situation with a ridiculous scenario
3) Brennan’s Approach  No, probably not have personal jxn b/c of the burden on
Burnham to get to forum state so maybe not fair to subject him to jxn; he will take into
account the specific situation whereas Scalia will not look at each individual case
a) Brennan has flexibility in his analysis
ii. Burnham is flying to Hawaii on business and while flying over CA he is served and
airspace is deemed to be property of the state
1) Scalia’s Approach  Yes, personal jurisdiction because he is present in the forum state
(Grace v. McArthur – service over airspace is enough for jxn)
2) White’s Approach  This might be a little too far
3) Brennan’s Approach  This is not fair…must look at what actually happened here and
pretty unfair to subject to jurisdiction in this case
c. What is left of Pennoyer?
i. Status – so long as one spouse is domicile in a state, that court can has jxn to determine the
status, even if other spouse is a non-resident (divorce, child-custody, etc.)
ii. Waiver/Consent – voluntarily subjecting yourself to personal jxn in the forum state;
contracting for it ahead of time (forum selection clauses in K)
iii. Domicile – place where you reside and intend to make your permanent home, even if not
currently present within that state; also applies to where corporations are incorporated
7. Cyberspace – persons and property in cyberspace
a. Most courts apply the sliding scale approach – based upon level of interactivity on the site (the
more fully interactive website, the more likely to determine purposeful availment)
b. Digital Equipment Corp. v. Altavista Technology, Inc.
i. Digital, a MA corp, bought the rights to Altavista from ATI, a CA corp, and then licensed
certain rights back to ATI…they sued ATI in MA District Court for breach of K, trademark
infringement and dilution, and unfair competition
ii. Court took two step approach to determine if they had personal jxn over ATI
1) Is it possible for the court to exercise jxn under the long-arm statute?
2) Then, does the long-arm statute comply with the Constitution?
a) Relatedness
b) Purposeful Availment
c) Reasonableness
iii. Ct.’s analysis
1) Long-arm statute satisfied? – Yes
a) Transacting business in MA by entering into K with MA Co. and sold at least 3
times to MA residents thus business was going on in MA
b) Infringing on trademark confused residents…ATI knew the info was going into MA
where Digital was
c) Persistent connection with the state cause sold at least 3 times there
2) Constitutional Requirements
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a) Relatedness – clear connection between ATI’s contact with MA and the claims
b) Purposeful Availment (minimum contacts)
i) ATI argued they did everything they could to stay away from MA and that
customers unilaterally logged onto their sight
ii) Court said nature of tort was intentional and thus they knew it would have an
impact in MA – analogize to Caulder where knew publishing would have
greatest impact in CA
c) Reasonableness (after court finds relatedness & purposeful availment)
i) Burden on Δ
(1) Brennan type approach; if do something to cause a tort in another state, you
should consider being hauled into court there
ii) MA interest in the suit (Forum State’s Interest)
(1) The infringement allegedly occurred in MA and they have an interest in
protecting the citizens of their state
iii) Convenience of venue (burden on Π)
(1) Digital located in MA, so convenient for them
iv) Efficiency  administration of justice
(1) Agreement governed by MA law, and while not necessary to litigate in MA,
MA courts have greater knowledge of MA law and so it would be more
efficient to handle it there
v) Policy Arguments
(1) If Co. on internet can by subject to litigation all over the world, Δ might stop
using the internet or curtail internet activity
(2) Not as free to communicate over internet so might infringe on 1st
Amendment rights
(3) Countervailing concern that don’t want Δ to be able to use internet as a
shield, if something explosive done over internet, should be subject to jxn
just like if sent it into state via newspaper or mailing
vi) Don’t warrant that it would be unfair to subject to jxn in forum state
8. Waiving Due Process Objections by Agreement
a. Carnival Cruise Lines v. Shute
i. Shute, a WA resident, was injured onboard a Carnival ship off the coast of Mex…Carnival
is a Panama company located in FL…front of ticket said to read terms on back of ticket and
one was a forum selection clause stating litigation in FL
ii. The Bremen Test – while not favored, such clauses are still valid and Π has burden to prove
it was not valid
iii. Supreme Court applies a Reasonableness test to determine validity
1) The Cruise line has an interest in limiting forums where it can be brought to suit
2) Such a clause spares time and money in determining correct forum when going to court
3) Passengers get cost break because of limited costs of litigation when done in one place
4) There was no evidence the Shutes could not travel to FL
5) FL was not unreasonable because it is where Carnival is headquartered and where a
majority of cruises leave from and come back to
6) Notice of the clause was given and they had the opportunity to decline
iv. Dissent
1) The average person would not find/read the clause; cannot read it prior to purchase and
no refund if don’t accept the terms; however, Π attny conceded this issue
2) Form contract should be scrutinized more closely
3) The deregation clause here (confers jxn upon a state and excludes all other jxn) is
frowned upon because denies states’ sovereignty
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a) A propogation clause would have said FL Cts. Shall have jxn over disputes arising
from this relationship
4) Contrary to public policy
a) Increases costs for one party
b) Denies a party remedy
c) Not a subject of bargaining/negotiations
E. Subject Matter Jurisdiction
1. Two levels of courts
a. Federal – limited jxn; only certain cases they can hear in terms of subject matter
b. State – court of general jxn; have ability to decide a wide range of subject matter
2. 2 kinds of subject matter jxn – Article III, section 2 of Constitution
a. Diversity of Citizenship
b. Federal Question Jxn
3. Congress has ability to create the courts and to limit jxn as saw fit
4. CANNOT CONSENT to subject matter jxn
a. When consenting to personal jxn you waive your personal rights
b. When consenting to subject matter jxn you are waiving the rights of the State or Federal Court;
thus, you cannot waive subject matter jxn
5. Diversity Jurisdiction
a. 28 U.S.C. § 1332 limits diversity (these limits not in Constitution)
i. Complete diversity of citizenship on both sides of the case
ii. Amount in controversy must exceed $75,000
b. Diversity is determined at the time the suit is filed, does not matter what the parties do after the
filing of the suit
c. Corporations are citizens of both the state they are incorporated in and the state in which they
hold their principle place of business
i. Principle place of business – a company can only have one
1) Nerve Center approach – place where company can point to and say that is their hub
2) Administration test – where executive officers or headquarters is located
d. Citizenship of Individuals determined by the state in which they are domicile
i. Domicile
1) Live there (or something else like license, voter registration, etc.) and have intent to
make it permanent home
2) A person can change their domicile
e. Mas v. Perry
i. Married couple living in LA and files suit in Fed District Court against landlord for
installing 2-way mirror in apartment to watch them
ii. Question of complete diversity – landlord from LA, Mr. Mas is French citizen, Mrs. Mas
becomes question
1) She was originally from MS then lived in LA for a while and then IL
2) General Rule  a woman, upon marriage, takes the domicile of her husband
a) Here this is problem because would make her not a U.S. citizen
3) General Rule  maintain domicile until you choose to change it
a) Therefore, since she never intended to stay in any of the places she lived after MS,
MS is her domicile
4) There was complete diversity
iii. U.S.C. § 1332(a)(2) – alien diversity in regards to husband as he was foreign
iv. If Mrs. Mas did not have state citizenship of any particular state, diversity would not be
satisfied under U.S.C. § 1332(a)(1)
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f.
g.
h.
i.
v. Supplemental Jxn  Mr. Mas already has Federal Jxn and her case is from the same
operative facts and thus it makes sense to let the claims be litigated together from a judicial
economy standpoint
Tanzymore v. Bethlehem Steel Corp.
i. Tanzy filed in PA Fed Court against his employer, Bethlehem Steel, for injuries sustained
on the job
1) Under Rule 8(a) a complaint must contain the basis for subject matter jxn
a) Tanzy claimed he was domiciled in OH and Bethlehem was a DE corp with
principle place of business in PA
ii. Burden of proof on Tanzy to prove he was domiciled in OH, but he could not do this; he
was not really a citizen of any particular state
iii. Tanzy claimed no due process because not granted evidentiary hearing – court says when it
is matter of fed jxn, it is up to the court how they acquire the facts and an affidavit will
suffice and thus he got all the due process he needed
Pros/Cons of Diversity
i. Pros
1) Primary rationale for Diversity Jxn is that out-of-state claimants can escape local bias
2) In addition the attny for that client may be more familiar with Fed Court rules and
procedures
3) Fed Courts seen as more sophisticated
4) Jury pool is broader and more diverse (again bias issue)
ii. Cons
1) Often more expensive
2) Takes away ability of state courts to determine state law issues
Assuming complete Diversity, how do you calculate amount in controversy?
i. Π can aggregate as many claims as they have against the Δ, even if unrelated
ii. The claims of more than one Π cannot be aggregated to reach the jurisdictional amount if
the Π’s claims are separate and distinct – each Π must individually meet the amount in
controversy requirement
iii. When one Π satisfies amount and the other Π does not it is questionable whether the first Π
can bring in the second Π (favorable, but questionable)
iv. Π cannot aggregate separate claims against multiple Δs (unless Π’s claim against Δ1
involves a federal question and Π’s claims against Δ1 and Δ2 involve a common
transaction or occurrence)
v. Counter-claim cannot provide basis for jxn – only look at Π’s claim
vi. Compulsory counter-claim (arises from the same circumstances) has supplemental jxn
vii. Permissive counter-claim (unrelated to initial claim) has NO supplemental jxn unless it
meets diversity requirements or involves Federal question
viii. Separate counterclaims of a single Δ can be aggregated to reach the amount in
controversy requirement (regardless of whether counter-claims are compulsory or
permissive)
HYPOS (assume complete diversity) amount in controversy
i. Jared suing Tyson for assault and batter seeking $40,000 and for breach of K seeking
$40,000
1) This satisfies amount in controversy; can aggregate the claims whether or not they are
related
a) don’t want plaintiff trying to get around the rule, but the rule is that Π can aggregate
as many claims as they have against a single Δ
ii. Jared suing Tyson for assault and battery for $75,000 and Tyson has a counter-claim for
assault and battery for $100,000
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1) This does not satisfy the amount in controversy because does not exceed $75,000; the
$100,000 does not arise from Jared (Π)…it Tyson wishes to sue Jared, he can do so in
Fed Court
a) For diversity not going to look at what Δ asserts in the counter-claim, going to look
at Π’s assertion
b) A counter-claim cannot provide the basis for jxn…must be Π’s claim
iii. Jared suing Tyson for $80,000 and Tyson counter-claim for $15,000, Tyson’s counter-claim
arise from same circumstances as Jared’s claim
1) Jared’s claim satisfies amount in controversy requirement; the claims are related, both
arising out of the fight; there is jxn over the counter-claim
2) Compulsory counter-claim…arises out of the same circumstances…Tyson is required to
assert the counter-claim (rule 13) – supplemental jxn over a compulsory counter-claim
iv. Jared suing Tyson for $80,000 and Tyson counter-claim for $15,000, counter-claim is not
related to the original claim
1) Tyson cannot piggyback onto Jared’s claim if it is not related to; NO subject matter jxn
over a permissive counter-claim because unrelated to initial claim
v. Jared sues Tyson for assault and battery for $40,000 and Prince sues Tyson for negligence
for $40,000…can these claims be aggregated?
1) Cannot aggregate these claims of two separate Πs unless there is a common undivided
interest; if two people have the same, but separate claims against the defendant
vi. Jared sues Tyson for assault and battery for $80,000 and Prince sues Tyson for negligence
for $40,000…can these claims be aggregated?
1) Jared has amount in controversy requirement, can he bring in Prince? this question is
not completely answered
a) rationale in language of supplemental jxn statute that warrants it may be able to
come in
vii. Can one Π aggregate claims against multiple Δs?
1) No; even if claims are related, Π cannot aggregate separate claims against multiple
defendants
6. Federal Question Jurisdiction
a. 28 U.S.C. § 1331
i. Original jxn of civil actions arising under Constitution, federal laws, treaties of U.S.
ii. Some sort of federal law must be in question
1) Holme’s creation test  suit arises under the law that created the cause of action; if
fed. law created the cause of action, then you have federal question jxn no matter what
2) When cause of action/right to relief arises under a substantial question of federal law
b. Π’s well-pleaded complaint must include the federal question, cannot be in Δ’s anticipates
defense – court only looks within the four corners of the complaint
i. Benefits of well-pleaded complaint rule
1) If defenses never come up in court then they are incorrectly in federal court
2) Weed out possible cases by looking solely at complaint, courts don’t have to hear the
case before determining jxn
c. Louisville & Nashville RR Co. v. Mottley
i. Mottley injured on RR and reached agreement that they would travel for free for life in lieu
of filing suit against the RR – Congress passed law could not give free rides or passes on
the RR and so RR did not give Mottley’s passes anymore
ii. Mottleys sue in Fed Court in KY for specific performance of breach of K
1) Sue in Fed court because Δ were going to argue it was a federal act, but Πs were going
to argue the rule did not apply to them
2) Also argue the statue was in violation of 5th amendment rights
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iii. Supreme Court said no jxn, because federal question must be presented in Π’s well-pleaded
complaint (comply with standards under rule 8)
iv. Question of jxn in federal court can be raised at anytime during the process
v. Declaratory Judgment Act
1) Federal statute that lets the case be flipped, where the RR will re-file the case first and
declare its defenses as to the federal statute – this is a mirror image of what has been
filed and the issues really haven’t been changed
2) If Π’s well-pleaded complaint did not raise a fed question, then Δ’s can’t either
d. General Rule  if a federal question is pivotal to the state law claim, then can be filed in
federal court – this is tricky
7. Supplemental Jurisdiction
a. U.S.C. § 1367
i. Prior to this, Pendant Jxn (when Π files both a fed and state claim over Δ) and Ancillary Jxn
(Π files federal claim against Δ who then filed counter-claim based on state law; or another
other secondary suit that branches from initial case)
ii. Now combined into one – Supplemental Jxn
b. U.S.C. § 1367
i. (a)  general supplemental jxn; “so related to claims in the action within such original jxn
that they form part of the same case” – if a state claims and a federal claim derive from a
common nucleus of operative facts – the claims are so related that a state claims would
come in under the federal jxn
1) Adding parties to a lawsuit will be covered as well except part b
ii. (b)  when initial claim gains federal jxn based on diversity of citizenship, cannot add
another Δ who does not meet the diversity requirement
1) This only applies to PLAINTIFFS; does not apply to Δs…third party complaints do not
fall under this rule
2) Purpose was to prevent Π from circumventing diversity requirements
iii. (c)  incorporates the discretionary components incorporated in Gibbs case, the court’s
ability to decline supplemental jxn as to their discretion
iv. (d)  overrides the statute of limitations when state claims are thrown out of fed court
c. United Mine Workers v. Gibbs
i. Labor dispute between rival unions prevented Gibbs from opening a new mine and resulted
in the loss of his job and lost Ks…he filed suit in Fed Court for violation of Federal Labor
Act and a common law/state law claim of tortuous interference with K
ii. District Court entered judgment solely on the state claim of tortuous interference, they
threw out the federal claim
iii. Supreme Court held they were right in asserting pendant jxn over the state law claim
1) The claims arose from a “common nucleus of operative facts”
2) Policy rationale for this
a) Don’t have to litigate same issue twice and risk inconsistent judgment – don’t want
courts reaching different conclusions for the legitimacy of the system; therefore,
want one court deciding claims that are so closely related
iv. Pendant Jxn is a doctrine of discretion, not a Π’s right
1) Basis for not exercising pendant jxn
a) Rule 42(b) – a fed trial court an bifurcate claims in a case
i) When claims are significantly different they could confuse a jury
b) If state claim dominates over the federal claim, which is minor
2) Courts will look at
a) Judicial economy
b) Convenience of the parties
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c) Fairness to the parties
v. Since here the federal claim failed after trial, and while they could have denied jxn over the
state claim, they were not incorrect in maintaining pendant jxn
8. Removal Jurisdiction
a. If a Π files in state court and it is later determined that they could have filed in federal court,
then a Δ can petition to remove it to federal court
b. U.S.C. § 1441: Actions removable generally
c. U.S.C. § 1446: Procedure for removal
i. (a) Δs desiring to remove a civil action shall file in the district court of the U.S. for the
district and division within which such action is pending a notice of removal signed
pursuant to rule 11 and containing a short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders served upon such Δ or Δ’s in such
action;
ii. (b) The notice of removal shall be filed within 30 days after receipt by the Δ of the initial
pleading setting forth the claim for relief upon which the action is based or within 30 days
after the service of summons upon Δ whichever period is shorter (a case may not be
removed more than one year after commencement of the action)
iii. (d) Promptly after filing of such notice of removal the Δ shall give written notice to all
adverse parties and shall file a copy of the notice with the clerk of the state court…and the
state shall proceed no further unless and until the case is remanded
d. Caterpillar Inc. v. Lewis
i. Procedural Posture
1) Lewis (KY) sued Caterpillar (DE and IL) and Whayne (KY) in KY state court for
injuries he sustained while operating a bulldozer; the insurance company (MA) filed
subrogation claims against both defendants (NO Diversity here)
2) Lewis settled claims with Whayne out-of-court and Caterpillar then filed petition to
remove case to federal court – case gets removed to KY District Court
3) Lewis objects to the removal because insurance company did not settle with Whayne
and thus they are still a party to the case…this objection is denied by the district court
4) Trial finds for Caterpillar; judgment vacated by appellate court; Supreme Court decides
judgment should not have been vacated
ii. Supreme Court agrees error made in not granting initial objection, but now that there has
been a trial there are other things to consider
1) Before judgment, the insurance company had settled with Whayne and thus there was
diversity of citizenship at the time the case was completed
2) Considerations of finality, duplicity, judicial economy
3) Denied Π’s argument that this will encourage Δs to manipulate the system
e. If a diversity action is filed in state court and it is the state in which the Δ is in, the Δ cannot
remove the case to federal court – he has no reason to fear bias in his own state
i. However, if federal law claim filed in state of Δ, Δ can remove to federal court because it is
an issue of federal law
f. Removal only applies to Δ; looks only at well-pleaded complaint
i. Counter-claim based on federal law cannot remove a case to federal court
g. Notion of Harmful Pleading – if Δ can prove Π manipulated claim to cover up a federal claim
under state law so it would be litigated in state court, removal will be granted
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