1) Personal Jurisdiction
a) General Considerations
i) Personal Jurisdiction encompasses 3 sorts of actions
(1) In personam
(2) Quasi-in-rem
(3) In Rem
ii) An exercise of Personal Jurisdiction must be made pursuant to an authorization of
(1) Statutory Authority in the form of a Long Arm Statute, which may authorize jurisdiction
(a) Up to the limits imposed by the Constitution, OR
(b) To the enumerated limits of the statute
(2) AND, Constitutional Authority as interpreted by the line of precedent stretching from Pennoyer
through Shoe and Asahi
iii) Notice
(1) Actual notice is not required by Due Process
(a) Must, however, be reasonably calculated under the all circumstances to apprise interested
parties
(2) An otherwise effective attempt at notice can become ineffective if party serving notice has reason to
know that the attempt at notice was ineffective
b) Specific Jurisdiction
i) D must have sufficient minimum contacts with the Forum State such that the D may be said to have
purposefully availed itself of the benefits and protections of the laws of the Forum and the D’s contacts
must be sufficiently related to P’s Cause of Action
(1) A single contact may be sufficient, given sufficient relatedness to claim
(a) Single contact must now pass “contract-plus” analysis
(i) Nature of prior negotiations
(ii) Contemplated future consequences
(iii) Terms of K
(iv) Course of dealings b/t parties
(2) Relatedness of contacts to claim may be thought of, depending on the jurisdiction, as
(a) “Arising out of” (Majority view)
(b) “Related to” (But/for)
(3) Purposeful availment may require foreseeability
(a) If D’s connection with the Forum State is such the he should “reasonably foresee” being “haled
into CT” in the Forum, then the D may be said to have purposefully availed himself
(b) Within the context of whether a D’s product being placed into the Stream of Commerce will
suffice to evidence Purposeful Availment, there is no consensus as to what is required, but Asahi
provides us with 3 tests
(i) Brennan: “Mere” foreseeabililty is sufficient- If ∆ knows that it is possible that product will
end up in Forum, ∆ has purposefully availed by placing goods into Stream of Commerce
(ii) O’Connor: “Additional Conduct” directed towards the Forum is required
(iii) Stevens: Whether placement of a product into the Stream of Commerce will suffice will
depend on the Volume, Value, and Volatility (safety/hazardness) of the products in question
ii) Provided sufficient contacts, an exercise of Specific In Personam Personal Jurisdiction must also
comport with “traditional notions of fair play and substantial justice” (Shoe)
(1) To see whether an exercise is so reasonable, consider exercise in the light of the Asahi test
(a) Burden on the D (principle focus)
(b) Interest of the forum in adjudication
(c) P’s interest in convenient and efficient relief
(d) Interest of interstate judicial system in efficient resolution
(e) Shared interest of several states in furthering substantial social policies
(2) Under Shaffer, an exercise of Quasi-in-rem jurisdiction is subject to the same reasonableness
analysis
(a) Not clear what status of actions In Rem is
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(b) Certain Justices, notably Brennan, maintain that Shaffer entails that all jurisdictional inquiries
must comport with “traditional notions…”
iii) Brennan envisions a sliding scale b/t purposeful availment and reasonableness in which a deficient
showing of one may be overcome by a particularly strong showing of the other
c) General Jurisdiction
i) Personal Jurisdiction is assumed to be authorized when it is being asserted over a domiciliary of the
forum state
ii) D may consent to the exercise of jurisdiction through
(1) Waiver of the defense of personal jurisdiction
(2) Engaging in an act for which consent is implied statutorily (e.g. Driving car in Hess)
(3) Consent to an agreement containing a forum selection clause
iii) Tag/transient jurisdiction is still considered a sufficient means of asserting jurisdiction (Burnham)
(1) Scalia maintains that tag service still authorized because of its “historical pedigree”
(a) Part of the “traditional notions of fair play and substantial justice” embodied by the
requirements of Shoe
(2) Brennan maintains that Shaffer held that all Personal Jurisdiction analyses, except possibly In Rem,
need to comport explicitly with the principles enunciated in Shoe
iv) An exercise of jurisdiction may be proper where the D has authorized an agent to act on his behalf in
the Forum State
(1) Authorized on the basis of the agent serving as a proxy for D’s presence
v) An exercise of General Personal Jurisdiction may be authorized when the D’s contacts with the Forum
State are deemed to be sufficiently “continuous and systematic” in nature, despite the fact that the D’s
contacts are not related to the P’s Claim/Cause of Action
(1) No explicit test enunciated, though clues given in Perkins and Helicopteros
2) Subject Matter Jurisdiction
a) 3 Heads of Jurisdiction
i) Diversity
(1) Article III grant only requires minimal diversity, 28 USC § 1332 interpreted to require complete
diversity
(2) 28 USC § 1332
(a) Complete Diversity of parties
(i) No adverse parties may be from same state
1. Residency of parties determined by domiciliary status
2. Residency of corporations for diversity
a. State in which incorporated
b. Principal place of business
i. Nerve center
ii. Corporate activities
iii. Total Activities (closest to majority rule)
3. If alien permanent resident, citizen of state in which domiciled
(ii) Time of Filing Requirement
(b) Amount in Controversy must exceed $75,000
(i) Aggregation
1. Ok if One P v. One D, even if claims unrelated, not ok if multiple parties on either side
a. Exception- Class actions
2. Ok if multiple Ps with common interest (res)
3. Class actions
a. Requirements
i. Numerosity of Ps
ii. Adequacy of Representation
iii. Typicality
b. Pre-CAFA
i. Complete diversity required
c. Post-CAFA
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i. Minimal diversity allowed
ii. Amount in controversy must exceed $5 mil
iii. Exceptions- Local controversy, Home State (2/3 of parties), Discretionary
Exception
ii) Alienage
(1) Analogous to Diversity, only with alien
(a) US citizen must be primary party
(i) Aliens may not be adversary parties when no US citizen is primary party
(b) Amendment- If alien permanent resident, citizen of state in which domiciled
(i) Intended to limit exercise of federal jurisdiction
1. So, no permanent resident alien v. alien
iii) Federal Question
(1) Constitutional grant is broader than interpreted statutory grant
(2) Interpreted statutory grant (28 USC § 1331) embodied in well-pleaded complaint rule
(requirement of essential federal ingredient)
(a) Presence of federal issue in counter-claim or anticipated defense is insufficient
(3) Artful pleading doctrine- Attempt by P to obtain or avoid federal jurisdiction through manipulation
is not allowed
(a) Example- pre-emption
(4) Federal Cause of action is sufficient, but state Cause of Action may suffice if right to relief depends
on construction or application of federal law
(a) Must be stated federal issue
(b) Disputed and substantial
(c) Resolution must not violate congressionally approved balance of federal and state
responsibilities
b) Supplemental Jurisdiction (only FQJ common nucleus)
i) Prior to adoption of 28 USC § 1367, courts concerned with ancillary jurisdiction (counter claims),
pendent party, and pendent claim jurisdiction (common nucleus)
ii) 28 USC § 1367 collapses these distinctions into supplemental jurisdiction
(1) Under 28 USC § 1367(a), if basis for Federal SMJ over claim is Federal question, do the claims
relying on supplemental jurisdiction arise out of the same common nucleus of operative facts?
(2) If basis is diversity or alienage, do the claims fall within the 1367(b) exceptions?
(3) 1367(c) provides discretion for CT to refuse supplemental jurisdiction on the grounds that
(a) Claim raises a novel or complex issue of state law
(b) State law claim substantially predominates
(c) District CT has dismissed all claims over which it had original jurisdiction
(d) There are exceptional, compelling reasons for declining jurisdiction
3) Forum
a) Venue- Restricts P forum shopping, assure suits are tried in someplace with relationship to claim, balance
public and private interests, venue may be waived, there are certain federal special venue provisions
i) 4 Questions
(1) Does special venue statute govern?
(2) Are all Ds resident in the same state?
(3) In which district did events or omissions occur?
(4) Access to Fallback provisions?
ii) 1391
(1) (a) founded only on diversity
(a) (1) district where D resides, if all Ds reside in same State
(b) (2) substantial part of the events or omissions giving rise to the claim
(c) (3) Fallback- any district where D subject to PJ
(2) (b) founded on anything other than diversity
(a) (1) district where D resides, if all Ds reside in same state
(b) (2) substantial part of the events or omissions giving rise to the claim
(c) (3) Fallback- any district where D may be found
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(3) (c) Corporation is resident in any state in which it is subject to PJ
(a) If state has more than one district, deemed to reside in any district where contacts would be
sufficient to subject it to PJ if district were a separate state
(4) (d) Alien may be sued in any district
iii) Residency for purposes of venue
(1) Individuals- domicile
(2) Corporations- 1391(c)
(3) Voluntary Associations- Residency of the association
iv) Local Action Doctrine- For real property, state where property is located
v) Pendent Venue
(1) Venue may be proper with regards to improperly venued claim if it is joined to properly venued
claim by common nucleus of operative facts
b) Forum nonconveniens
i) CT having jurisdiction may decline to exercise that jurisdiction if CT determines that action would be
more appropriately tried in another jurisdiction.
(1) CTs are given considerable deference in Forum Nonconveniens decisions
ii) CTs apply 2 prong test (Piper (citing Gilbert))
(1) Is there an adequate alternative forum?
(2) Balancing of public and private interests
(a) Private interests
(i) Ease of access to sources of proof
(ii) Availability of witnesses
(iii) Costs of witness attendance
(iv) Ability to enforce judgment
(b) Public Interests
(i) Administrative difficulties
(ii) Affect on the lives of citizens
(iii) Local interest in local controversies
c) Transfer of Venue
i) Change of Venue Statute, 28 USC § 1404 (a)
(1) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where the action may have been brought
ii) Curing Defective Venue, 28 USC § 1406 (a)
(1) The district court of a district in which is filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought
iii) Smith factors with regards to transferability
(1) P’s choice of venue, which is accorded substantial deference
(a) Accorded less deference when P is alien
(2) Availability and convenience of parties and witnesses
(3) Location of counsel
(4) Location of books and records
(5) Cost of attendance of witnesses and other trial expenses
(6) Place of the alleged wrong
(7) Possibility of delay or prejudice if transfer granted
d) Removal
i) Allows D to counter-forum-shop, removal only allowed from state CT to federal CT
(1) 28 USC § 1441(a) allows removal if district could have exercised original jurisdiction
(a) “District or division embracing the place where such action is pending”
(2) 28 USC § 1441(b) provides for resident D exception
(a) No removal if any D is being sued in home district
(b) Only applicable in diversity cases
(3) 28 USC § 1441(c) “separate and independent claims”
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(a) Declared unconstitutional b/c purportedly conferred jurisdiction exceeds Gibbs’ common
nucleus of operative facts standard
(4) Federal CT retains discretion to remand if state law claims come to dominate
4) Erie Doctrine
a) Under Erie, CT applies state substantive law and federal procedural law
b) York threatens that framework with Outcome Determinativeness test
i) Presumably, any difference in law could be outcome determinative
c) Bird Balancing Test
i) Does relevant state law strongly implicate state’s interests?
ii) Are there countervailing federal interests?
iii) Is the application of the law outcome determinative?
d) Hanna declares that Erie decision primarily concerned with 2 aims (Twin Aims test)
i) Discouraging forum shopping
ii) Ensuring equal protection of citizens regardless of citizenship
e) 3 questions
i) What’s the basis for Subject Matter Jurisdiction?
(1) If federal question, no Erie issue, case governed by federal law
ii) Does issue involve Federal Rule of Civil Procedure?
(1) If yes, under Hanna, the only question is whether valid and constitutional exercise of CT’s Power
under Rules Enabling Act
(a) Provided that’s the case, one never gets to Hanna Twin Aims test
(b) Supreme CT has never held that a rule exceeded
iii) If not governed by Federal Rule of Civil Procedure, employ Hannah Twin Aims test
(1) Discourage forum shopping
(2) Equal protection regardless of citizenship
(a) How might rule differences affect treatment of parties?
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Realtedness – contacts + related to COA
Contact cannot be Unilateral- Hanson
Erie: when Erie inquiry indicated that state law must prevail and venue has been properly transferred the state law
applied is the state law of the transferor venue; maintain some degree of π master of complaint privileges
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