Personal Jurisdiction Over Corporations/Non-Resident Persons Answer Checklist
If not the place where the corporation was incorporated or its principal place of business, then go into the
following analysis:
Initial
1. Is the State’s Long Arm Statute Satisfied for which the district court is located? See FRCP 4(k)(1)(A),
If so, then must meet the due process clause requirements for personal jurisdiction…
2. Motion to object to personal jurisdiction filed before other motions? If not, then personal jurisdiction is
not waived under Rule 12(h)(1).
Waiver of Service?- Does not bar objections to personal jurisdiction according
to Rule 4(d)(1).
Analysis
General Jurisdiction?
“Systematic and Continuous” contacts sufficient for general jurisdiction under Helicopteros/International Shoe.
Corporations can always be sued in their principle place of business/incorporation. Individuals can always be sued
in their domicile state.
Specific Jurisdiction?
Contract Theory
Remember that Forum Selection Clauses only bind the two parties that are contracting. If forum selection clause
comes into play- see Burger King and factors. Also, a single contract may be enough to establish minimum contacts
if the D has “reached out” to the P across state lines in order to obtain it (McGee). See no “reaching out”=no PJ in
Hanson
Intentional Wrong (Effects Test)
Was it an intentional wrongdoing under the Calder and Colts effects test expressly aimed at the forum state,
knowing that the harmful effects would be felt primarily there, and the defendants would "reasonably
anticipate being haled into court there?”
Stream of Commerce
Purposeful availment (via minimum contacts)- reasonably anticipate being haled into court
1. Does it meet the distribution requirements for the silent majority under Asahi? (Justice Brennan, and
Steven’s)- believe that knowledge of a product will be distributed in the stream of commerce to a state in
substantial quantities is sufficient to amount to purposeful availment
2. Contrast with O’Conner’s opinion (dissent) in Asahi, which requires some active marketing for the forum,
or control over the distribution.
3. Finally, compare and contrast between stronger/weaker case with Worldwide and Asahi
Reasonableness (fair play and substantial justice)-separate prong (Asahi)
1. What is the burden on the defendant?
2. What are the interests of the forum state?
3. What is the interest of the plaintiff?
4. Does the allowance of jurisdiction serve interstate efficiency?
5. Does the allowance of jurisdiction serve interstate policy interests?
-Lesser showing of minimum contacts may be mitigated by much reasonableness and vice versa
Analyzing PJ over Physical Presence
1. Minimum contacts isn’t analyzed under tag jurisdiction (served while in-state). If you are served while
in state, you are subject to personal jurisdiction, period (Burnham)
Analyzing in Rem and Quasi in Rem
1. Must be attached at the onset of the suit (Pennoyer)
2. Must meet minimum contacts standard (under Shaffer)
a. Shaffer notes that the existence of physical property usually satisfies min. contacts
standards anyway.
Analyzing Motions to Transfer
1. Is it a forum in which the action might have been brought? Transferee court must have personal
and subject matter jurisdiction over the parties and is a proper venue.Check jurisdiction
(contacts) over all of the D’s
a. No consent to a transfer if jurisdiction not initially established!
“Where it might have been brought is a determination for the outset of a
lawsuit”(1404(a))
b. Must be a place where the plaintiff could have filed at the time of the bringing. D
cannot establish contacts in form post-filing. Hoffman
c. Remember that P’s choice of law still applies after transfer! Ferens
2. Is it a more convenient forum? Analyze factors. Remember that it requires a lesser showing than
FNC!
a. “For the convenience of parties and witnesses, in the interest of justice” (1404(a))
Analyzing Forum Non-Conveniens Motions
Note: Can be made at anytime- is a common law motion and not a Rule 12 motion to dismiss
that must be made at the outset of a lawsuit. Note Also: Look for evidentiary factors in ALL
forums.
1. Is there an alternate forum that exists?
a. Would the alternative forum have power over the parties?
b. Weigh the Interest Factors:
Gilbert Factors Analysis:
Public Factors: congested litigation, jury duty burdening citizens with no relation to the
litigation, localinterest in dispute, jury confusion with complex choice of law
Private Factors: Relative ease of access to evidence, cost of obtaining witnesses, availability
of compulsory process/cost enforceability of judgment, relative cost of moving to a different
forum for theplaintiff/defendant, oppressiveness to the defendant is out of proportion to
the convenience of the plaintiff.
c. Do the interest factors weigh against P’s choice of forum?
Relevant Cases: Gilbert (dismissed due to more conv. Forum in US) Piper (foreign citizens
dismissed due to more convenient forum abroad) Wiwa (not dismissed due to U.S. citizens
and unfavorable foreign law)
Analyzing Removal Jurisdiction
1. Removal Jurisdiction authorized by 28 U.S.C. 1441
a. “any action in which the district courts of the U.S. had original jurisdiction may be removed”
i.
Is there diversity jurisdiction? (requires complete diversity under Strawbridge
ii.
Is there federal question jurisdiction?
a. Well-pleaded complaint rule under Motley: Only if a federal issue is
necessary to the plaintiff’s cause of action. (See Subject Matter Jurisdiction)
iii.
Supplemental Jurisdiction over remaining state-law claims viable: see 1367
iv.
Only can be removed by defendant, and only non-citizen of forum D can remove
in ordinary diversity
Analyzing Personal Service/Notice
1. Was service proper? (Method of service in federal court is governed by FRCP 4(e)
a. Was it served in person (then okay)
b. If not, then was it left at the person’s dwelling house (or usual place of abode) with a
person of suitable age and discretion residing therein? (FRCP 4(e)(2)).
2. Was service timely?
a. Under FRCP 4(m) the plaintiff has 120 days after filing the complaint to affect service.
3. Was service Constitutional?
a. Standard is notice “reasonably calculated,” and not actual notice (Under Mullane)
b. Pennoyer substituted service still stands; must be reasonably calculated
Analyzing Diversity Jurisdiction (1332)
1. Is there complete diversity at the onset of the lawsuit (see Mass v. Perry) (see Strawbridge for
complete diversity)
a. Citizenship is determined by domicile. Mass v. Perry
2. Is the amount in controversy greater than $75,000?
a. Determined by plaintiff’s complaint unless there is a “legal certainty” that he cannot
recover the pleaded amount. Attorney’s fees are normally included.
b. Plaintiff’s claims may be aggregated when:
i. P asserts multiple claims against a single D, whether or not they are
transitionally related
ii. P joins several D’s to the same claim pursuant to FRCP 20 and the D’s have a
common undivided interest or title claim.
iii. In circumstances of a class action or large suit if transactionally related and
anchor claim meets AMC (see Allapattah)
1.
2.
3.
4.
Analyzing Subject Matter Jurisdiction (Federal Question) Known as 1331
Check for the existence of diversity jurisdiction (1332). If not diversity, go into analysis of 1331
The court has an ongoing duty to analyze its subject matter jurisdiction: Rule 12(h)(3)
To arise under 1331, the complaint must meet the “well pleaded complaint,” which states that a
claim must arise under the Constitution or a federal statute.” Mottley. This is judged on the face
of the plaintiff’s complaint and cannot be based on potential defenses. Mottley.
Grable created a three pronged test to determine the existence of federal question: (1) does the
state law claim raise a substantial federal issue; (2) is there a strong federal interest in resolving
the dispute; (3) would it alter the balance between State and Federal courts, “opening the flood
gates” of litigation in the federal system?
a. To determine what constitutes a Federal Issue: examine the federal interests:
i.
Grable (Dispositive, Must Use)- (IRS notice dispute case)- Examine if congress’
intent is being violated in not following the statute to help determine federal
interest. (Note: There was no federal cause of action in this case)
Clarifying Cases that Must be Compared and Contrasted:
ii.
Smith- (bonds case)- federal Constitutional issue was so substantial as to warrant
federal jurisdiction.
iii.
Merrell Dow- Can be read that unless Congress has created a private cause of
action, violation of a federal standard is not sufficient for FQJ.
a. Distinguished: (Merrell Dow footnote 12): Higher federal interest in
Smith was basis for FQJ.
b. Primary Concern in Merrell was opening the doors for a flood of
litigation. If this is not a possibility (ala. Smith), then stronger claim
for FQJ. (example from prior test as a State being a party).
Analyzing Supplemental Jurisdiction (1367)
Checklist (1367)
1. Is it part of the same operative nucleus of fact? Gibbs (holding that even if federal law claims
are dismissed at the end of a lawsuit, state law claims can still be decided on)
2. If yes, is there a federal question claim (If yes, okay. If not, proceed)
3. If solely diversity, then WATCHOUT- proceed
4. Who is joining the claims?
a. If by D then ok
b. If by P, then those joined under the following rules are barred
Look at exceptions:
14- Plaintiff bringing a third party claim.
19-Persons required to be joined if feasible (have to be there for lawsuit to
proceed.)
20-Permissive joinder of parties. Plaintiffs may be joined under rule 20.
Defendants cannot(not essential to lawsuit)
24- Parties intervening as plaintiffs.
When joining these claims would be inconsistent with 1332 (diversity cases). Supplemental jurisdiction
cannot be used to circumvent the requirements for complete diversity. Owen. If the plaintiff really
deems it necessary, he can sue all parties in state court without having to worry about a federal issue.
5. Allowing plaintiff’s to be joined under rule 20/23 created a loophole that congress may not
have intended to create. Because of this rule, in Allapattah, it was held that when an anchor
claim meets the requisite amount in controversy, other plaintiffs may be joined who do not
meet the AMC.
Analyzing the Extent of Congressional Powers
1. Is it authorized under the constitution?
2. How has the judiciary interpreted the matter (not dispositive)
Congress has the power to correct, through legislative amendments, the Supreme
Court’s constructions of its statutes. Congress has done so with the supplemental
jurisdiction statute. Examine the plain language to see if really contrary to the question.
Examples of modification to the plain language:
a. Requirement for complete diversity
b. Well pleaded complaint rule (Constitution simply said arising under)
Analyzing Discovery
FRCPRule 26(a): must unilaterally disclose anything at the beginning of discovery that will be used in
support of the disclosing party's claims or defenses, unless it's for impeachment
FRCP Rule 26(b): Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and reasonably calculated to lead to the discovery of admissible evidence,
unlikely to be overly burdensome
Objections to production, court uses FRCP 26(b)(2)(c): discovery allowed unless the court finds that it is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive. ….or iii. The burden or expense of the proposed
discovery outweigh its benefits.
Judicial Management of Discovery: 26(f)
Failure to comply with courts request could equal sanction under 37(b).
Relevant means making it more or less likely that a material fact exists or does not exist
Analyzing Attorney-Client Privilege
1. All communications between the client and attorney concerning therepresentation are protected
from compelled disclosure. ACP can be destroyed by the disclosure of communication to third parties. If
an non-client is present during an interview between attorney/client, it's notprivileged.
2. For corporations, the ACP extends beyond the managerial “control group” all the way down to lowerlevel employees. (Upjohn). Facts behind ACP NOT privileged, merely communications themselves.
Analyzing Work Product
1. Was the material in question prepared in anticipation of litigation? (Hickman)
A. Yes, then it is protected by work product privilege UNLESS
i. the opposing party shows a substantial need for them AND
ii. the substantial equivalent of the WP can’t be obtained without undue hardship
B. No, not privileged, unless ACP applies
Analyzing Class Actions
1. First, does the proposed class meet the requirements of Rule 23(a):
a. numerosity:the class is so numerous that joinder of all members is impracticable
b. commonality:there are questions of law or fact common to the class
c. typicality:the claims or defenses of the representative parties are typical of the claims or
defenses of the class
d. adequacy of representation:the representative parties will fairly and adequately protect the
interests of the class
Adequacy of representation can usually be assumed. Typicallity analysis can be done here.
2. If so, which subsection of Rule 23(b) does the class fit:
1.prosecuting separate actions would create a risk of inconsistent verdicts that would establish
incompatible standards of conduct or impair their ability to protect their interests
2.injunctive relief is appropriate to the class as a whole
3.questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy
Predominance Issues:
1. Variations in State Law: because most state apply laws of state where harm occurred,
potential for “Esperanto”/multiple jury instructions that are confusing to jurors. (Bridgestone,
Rhone-Poulenc)
2. Variation in types of injuries: different types of injuries, injuries that haven’t manifested yet
(AmChem)
3. Variation in causation: difficulty in determining similar causes in diverse situations
(Bridgestone)
Superiority Issues
1. Judicial Blackmail: is the D under intense pressure to settle, due to the high risk of financial
loss, despite success in previous individual trials? (Rhone-Poulenc)
2. Are the claims of the class members infeasible to support individual litigation (Eisen) or worth
a significant amount of money (Rhone-Poulenc).
3. Immature claims (such as novel mass torts) are better suited to individual trials to establish
“market model” true values of harms
3. If Rule 23(b)(3), then weigh factors:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
4. Notice: must direct to class members the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through reasonable effort. The notice
must clearly and concisely state in plain, easily understood language: (OPT OUT) (Mullane) Plaintiff must
pay for the costs of notice (Eisen) no matter how expensive. Preliminary trials on the merits to decide if
Ds should help pay cost of notice not allowed.
Class Action Settlements
1. Are allowed, but heightened scrutiny given to adequacy of representation and predominance
requirements; less scrutiny given to manageability requirements (superiority)
2. Adequacy of Representation especially impt because class representatives probably have manifested
injuries, while possible unnamed class members have not manifested symptoms yet. (immediate
payments vs. delayed inflation-protected payments) (See Amchem)
3. Rule 23(c)(3): everyone
Pleading and Analyzing Rule 11 Sanctions
1. FRCP 11: Attorney has a non-delegable duty to conduct a reasonable inquiry into the factual
and legal background of the case personally before signing a complaint.
a. inadequate inquiry not saved by meritorious claims (Garr)
b. if statute of limitations is about to run, may have defense
2. The factual allegations either have evidentiary support or likely will after reasonable opportunity for
investigation.
3. You must first file a Rule 11 motion with the opposing party to give them 21 days (safe harbor) to
withdraw the frivolous complaint, before bringing it before the court.
Analyzing Motion to Dismiss
1. FRCP 8: A pleading must contain a short and plain statement showing the pleader is entitled to relief
2. FRCP 12(b)(6): Dismissal for failure to state a claim upon which relief can be granted
3. All claims that are mere legal conclusions should be disregarded
a. formulaic recitation of the elements of a cause of action is insufficient (Iqbal/Twombly)
4. Remaining factual allegations must, when accepted as true, state a plausible, not merely conceivable,
claim for relief in order to survive motion to dismiss
a. Is there another, equally likely alternative explanation?
b. must be “something more,” a nudge more probable than conceivable
5. To protect defendants from the high cost of discovery
6. Viewed in the light most favorable to the non-moving party
Analyzing Summary Judgment Rule 56
1. Identify burdens of the moving/non-moving parties
a. Example- If the moving party in SJ does not have the burden of proof (usually D),
then SJ can be granted simply by showing that the other side has failed to meet its
burden. Celotex. Plainitiff must then move and show that there is a genuine issue of
material fact, that a “reasonable jury could find in my favor”
b. Must view the evidence in the light most favorable to the non-moving party
2. The standard for summary judgment matches the in trial standard. Example: Anderson (holding
that the clear and convincing standard for libel applied at summary judgment level)
Analyzing Judgment as a Matter of Law (JMOL)
Rule 50 (a) before an issue has been submitted to a jury (b) no later than 10 days after jury submission
Relative Analysis:
1. Was there sufficient evidence to support the jury’s decision (Dixon) (holding that no reasonable
jury could have made the inferences that the P was asking)
2. Compare to the standards in Celotex and Liberty Lobby for factual comparisons since only one
case. Comparisons to the standards of Twombly and Iqbal.
Analyzing Claim Preclusion- “Res Judicata”
Four pronged test:
1. Same parties?
2. Could the claim have been brought in a prior proceeding? Rush. And was it?
3. Was the suit “on the merits”- “with prejudice” is interpreted to mean cannot be brought
again.
a. Costello- Holding that dismissal for failure to file an affidavit was a “curable defect”
and not a judgment on the merits
b. Dozier- Holding that dismissal for lack of AMC was a judgment on the merits, not a
“curable defect”
4. Determine if prior claim is part of the same transactional occurrence:
Defined by the restatement:
a. When valid and final judgment…the action extinguishes all rights an remedies
against the defendant…arising out of the same transaction or series of connected
transactions…
b. What constitutes a transaction “is considered pragmatically…whether the facts are
related in time, space, origin, or motivation, whether they form a convenient trial
unit, and whether their treatment as a unit conforms to the parties expectations or
business understandings or usage”
Changed circumstances does not negate claim preclusion .(Federated) (holding that plaintiffs cannot rebring claim despite favorable change in law) (P did not appeal judgment, refilled in state court, was
removed, lost on res judicata)
*Mintority view: Claims involving different legal wrongs and not necessarily different transactions are
not precluded. Herendeen. (Employment dispute. First suit was for breach of contract and loss of
income dismissed. Second suit for loss of pension benefits allowed)
Analyzing Collateral Estoppel
A. Must have been necessarily decided (Blue Goose)
B. Must have been actually litigated and determined
C. Must be the same issue
D. Not necessarily same party: Due Process Concerns: mandates that collateral estoppel not be applied
to a party that has not actually litigated the issue in dispute, unless that party is in legal privity to a party
that did actually litigate it. In other words, every disputant is entitled to a day in court and cannot
ordinarily be bound by the negative result of another disputant's suit, even if that other disputant had
exactly the same legal and factual arguments. Anyone who issue preclusion is presented against must
has been represented under represented under Taylor
1. Can you use offensive issue preclusion? See Parklane
a. Would using NMOCE:
(1) encourage plaintiffs who can easily join the first suit to use a "wait and see" approach by
waiting for another plaintiff to win on the merits then bringing a second suit and claiming
estoppel, thus increasing the volume of lawsuits;
(2) deprive a defendant of a right to a full and fair hearing if the first suit on which estoppel is
claimed was trivial;
(3) invoke collateral estoppel from a prior suit that is itself inconsistent with other lawsuits on
the issue;
(4) deprive the defendant of procedural differences between the two lawsuits, such as
differences in discovery rules.
(5) could the party requesting CE have intervened in the previous suit?
2. Can you use non-mutual defensive collateral estoppel? See Bernhard
a. Used by a new defendant in a subsequent suit who wants to assert a final judgment on an
issue(s) against the plaintiff from the first suit
b. creates pressure for plaintiffs to join all possible Ds in the first suit
Exceptions to Rule against non-party preclusion (issue ): (Taylor) No virtual representation
1) a person agrees to be bound bydetermination of issues in an action between others
2) a substantive legal relationship exists between the person to be bound and the prior party
3) person adequately represented by someone with the same interests who was a party (alignment of
interests, some notice by the non-parties, party undertook in representative capacity knowingly)
4) party assumes control over the litigation in which the judgment was originally rendered
5) Person who was not involved in a litigation later brings suit as the designated representative proxy of
a party to a prior suit
6) statutory schemes that expressly forbid successive litigation by other people.
Erie Analysis for Procedural Rule Determinations
Test Established in Hanna and Refined in Gasperini
1. Is there a federal law or rule broad enough to cover the issue?
c. Even when the federal law does not directly address the state law issue, if the state
law issue bears on the federal law issue, then federal law will govern. Stewart.
(largely narrowed in Gasperini)
d. However, federal courts will often read federal law narrowly to accommodate state
interests.
2. Is the adoption of the law outcome determinative in light of the twin aims of Erie?
Does it encourage forum shopping (primary consideration)
Inequitable administration of the law (really relates to forum shopping)
3. If not, federal law. If so, then weigh the countervailing state rights and the federal interest in an
independent judiciary.
If there is no federal interest, apply state law (in theory). If there is a federal interest,
and no state interest, then apply federal law. If there is a federal and state interest, then
can it be accommodated (is it an either/or scenario)? If it cannot be accommodated,
then federal law probably applies.
Supporting Case Law:
Guaranty Trust- (overruled) Held that State procedural law applies whenever it affects the outcome of a
case
Byrd: When there is outcome ambiguity, weigh the relevant federal/state interests. (held for stronger
federal interest in allowing a jury to determine worker’s compensation)
Hanna: First developed “two track” test. At this point, Byrd would be overruled (no longer considering
state interests). Held that federal rule for service outweighed Massachusetts rule for service.
Stewart: Dispute over whether AL forum selection clause would overrule 1404 motion. Rephrases the
tract 1 doctrine to if the federal and state law “directly collide.” Found that they do here.
Scalia Dissent: 1404 should be read narrowly. Does not directly collide. Should have gone into
unguided Erie analysis.
Gasperini- Dispositive case. Refined the test in Hanna to once again include state interests in the
unguided Erie analysis (above). Created a system that allows for state law accommodation.
Scalia Dissent: Majority commits classic Erie mistake: cites Hanna “outcome determination was
never intended to serve as a talisman” Hanna. Should have been a track 1 claim, federal review
law is sufficiently broad.
Majority’s plan reduces forum shopping more at trial level, while Scalia’s proposed solution makes the
appellate level pro-P and maintains the federal standard at the trial level, which would probably
increase forum shopping.
Analyzing Joinder
Parties
Plaintiff v. Defendant
Plaintiff v. 3d Party
Defendant
Permissive
18(a): any claim related or not.
Rationale: let them get it out.
14(a)(3): additional claim arising
out of transaction or occurrence
that is the subj. matter of P’s
claim against orig. defendant
Compulsory
Claim Preclusion: any claim arising out of
the same transaction or occurrence.
Parties
Defendant v. Plaintiff
(counterclaim)
Permissive
13(b): any claim that is not
compulsory, regardless of
relatedness.
Named Defendant v.
Named Defendant (crossclaim)
13(g): if the claim arises out of the
transaction or occurrence that is
the subj. matter of the original
action or of a counterclaim which
relates to any property that is the
subject matter of the orig. action.
14(a)(1): If 3d party D is liable for
claim against D.
Rationale: unfair to D if he has to
initiate a separate lawsuit.
14(a)(2)(B) permissive counterclaim
against D that is not compulsory.
Named Defendant (3d
party plaintiff) v. ThirdParty Defendant
(Indemnity)
Third-Party Defendant v.
Named Defendant (Thirdparty Plaintiff)
Third-Party Defendant v.
Plaintiff
14(a)(3): any claim that is not
compulsory or cross claim against a
co-party if the claim arises out of
the transaction or occurrence that
is the subject matter of the orig.
action or claim by 3d-party P
against 3d-party D.
Compulsory
13(a): that arises out of the
transaction or occurrence that is
subj. matter of the opposing party’s
claim and which does not require
adding another party over whom
the court cannot acquire
jurisdiction.
No compulsory cross-claims but
there may be some preclusive
effects on omitted cross-claims.
Rationale: D did not choose forum,
beef between Ds should be
litigated in Ds’ chosen forum.
14(a)(2)(B) any claims that arise out
of the transaction or occurrence
that is subj. matter of the 3d party
P’s claim and which does not
require adding another party over
whom the court cannot acquire
jurisdiction.
Any defense under R. 12 and any
counterclaim that that arises out of
the transaction or occurrence that
is subj. matter of the P’s claim and
which does not require adding
another party over whom the court
cannot acquire jurisdiction.