Civil Procedure Outline.
I.
Introduction
A. Sources of Civil Procedure.
1. Constitution.
2. Statutes.
3. FRCP.
4. Common Law.
5. Local Court Rules.
6. Judges Rules.
7. Party Stipulations.
B. What is Required for Federal Jurisdiction.
1. Personal Jurisdiction.
2. Subject Matter Jurisdiction.
3. Proper Venue.
4. Proper Notice.
5. Proper Service of Process.
C. Jurisdiction
Jurisdiction is the power or authority for a court to legally adjudicate a matter.
D. Competing Goals of an Adversarial System:
1. Fairness. Notice to parties, and a chance to defend oneself.
2. Accuracy.
Finding the legal truth.
3. Uniformity.
Treat all cases alike; achieved through compliance with rules.
4. Efficiency.
Conservation of judicial resources, time, money, etc.
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Pleadings and Responses.
II.
Generally
A. Pleadings Definition: Rule 7(a).
1. All documents filed with the court to initiate litigation, not limited solely to complaint.
2. Consists of the complaint, answer, reply, cross-claim, 3rd party complaint, etc.
B. Functions
1. Give notice to parties of the nature of claims and defenses, helps prepare a case.
2. Eliminates insufficient claims and shams.
3. Narrows the issues of a case to focus and streamline the trial.
4. Focuses and guides all parties to the case.
C. Policies.
1. Promotes Accuracy and uniformity to some extent, deciding what is really important.
2. Uniformity. Rules are designed to provide a standard in pleading and litigation results.
3. Promotes Fairness to the defendant, informing him why he is being sued.
4. Efficiency. Eliminates shams and insufficient claims and defenses.
5. OVERALL: Less emphasis on the quality of the pleading, and skill of the lawyers.
D. Ethical Pleadings: Rule 11.
1. Requirements:
a) Evidentiary Support.
b) Certification Requirement. Must sign all papers.
c) Complaint is not being presented for an improper purpose.
d) Claims are warranted by law or non-frivolous argument (Brown v. Bd. of Ed.).
e) Business Guides: Rule 11(b)(3)-(4). Must be a reasonable inquiry into facts.
2. 21 Day Safe Harbor Rule.
The party against whom the motion is served has 21 days to correct this problem or
withdraw their pleading. But note, Rule 12a allows only 20 days to file an answer.
3. Sanctions:
a) May be imposed on the attorneys, law firms, or parties that violate 11(b).
b) Court should limit them to what is sufficient to deter repetition of conduct.
c) If the behavior is not willful, sanctions may still be imposed. There is no
protection for good faith.
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III.
Stating a Sufficient Claim.
A. Factual Sufficiency.
1. Basic Requirements: Rule 8.
a) State the Jurisdictional Grounds.
b) Demand for Judicial Relief. What will fix plaintiff’s problem.
c) “Short and plain statement of the claim showing that pleader is entitled to
relief.”
2. Heightened Standard: Rule 9(b).
a) Complaints alleging fraud, mistake, or condition of mind are treated specially.
b) Rule 9(b) requires detailed evidentiary pleadings because such allegations
accuse the defendant of serious moral turpitude.
c) Policy:
(1) These are very damaging allegations to one’s reputation thus a higher
standard, and increased burden on the defendant to prove them.
(2) More notice to the defendant of what he specifically did wrong.
(3) In terrorem effect. Diminished possibility that plaintiff will pursue a
groundless claim or bigger settlement because D does not want the
publicity of a lawsuit.
B. Challenging a Pleading.
1. Motion for More Definite Statement: Rule 12(e).
a) If a pleading is so vague or ambiguous that a party cannot reasonably be
expected to frame a responsive pleading, the party may for a more definite
statement before interposing a responsive pleading.
b) The motion shall point out the defects and details desired. If the motion is
granted and not obeyed within ten days, the court may strike the pleading, or do
whatever else it wishes.
c) Thus, the defendant must show that the complaint is so unintelligible or vague
the he could not reasonably be expected to frame a response.
2. Failure to State a Claim: 12(b)(6).
a) The facts are clear and unambiguous.
b) There is a valid theory of recovery under the law.
c) However, even when in a light most favorable to the plaintiff, the facts averred
by the plaintiff do not support a claim for recovery.
C. Burden of Proof.
1. In most cases the burden of proof follows the burden of pleading.
2. Exception: A Gomez-type plaintiff that has immunity and is the only who knows if he
acted in bad faith. An effort to promote civil rights cases.
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IV.
Responding to the Claim.
A. Options.
1. Pre-Answer Motions:
Under Rule 12.
2. Answer the Complaint: Must respond within 20 days after service.
3. Do Nothing:
a) Default judgement will be entered, limited to amount sought in the complaint.
b) Why take this approach? Would cost more to defend the suit. Fear that you
might loose. Fear of discovery. Court does not have either PJ, SMJ, or Venue.
B. Pre-Answer Motions: Rule 12.
1. Advantages:
a) Avoid admitting facts if the motion succeeds.
b) More time. Have until 10 days after the motion is denied to file an answer, plus
the time it takes the judge to rule on the motion.
2. Disadvantages:
a) Expense.
b) Because complaints are so flexible, they are rarely successful.
c) Failure to include certain 12(b) motions results in a waiver of those motions.
C. Answer.
1. Rule 12(a).
Defendant shall serve an answer within 20 days after being served, or ten days after
denial of the motion, or 10 days after a more definite statement is given.
2. Rule 8(b).
a) A party must state in short and plain terms their defenses to each claim asserted
in the complaint, and shall admit or deny the averments upon which the adverse
party relies.
b) Claims can be admitted or denied in general or in part.
c) A defendant may claim that he has insufficient knowledge as to a particular
knowledge, this has the effect of a denial.
3. Admission: Taken as a legal truth and CANNOT be amended.
4. Denial:
Puts a fact in dispute, and CAN be amended later on.
5. Remember: Rule 11 requires a reasonable inquiry with respect to all claims. This
means there is constructive knowledge of everything within your control.
D. Affirmative Defenses.
1. Rule 8(c): A party shall set forth all affirmative defenses and avoidances in the answer.
2. Confession and Avoidance.
Defendant says, “Everything you allege is true, but I have a reason why I am no liable.”
3. Burden of Proof.
Clearly on the Defendant because only he can plead an affirmative defense.
E. Other Defenses.
1. Four Disfavored Defenses:
a) Lack of Personal Jurisdiction.
b) Improper Venue.
c) Insufficiency of Notice.
d) Insufficiency of Service of Process.
2. Three Favored Defenses:
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a) Failure to state a claim upon which relief may be granted.
b) Failure to join an indispensable party.
c) Failure to state a legal defense to a claim.
3. Most Favored Defense:
Lack of Subject Matter Jurisdiction: May be raised at any time, even sua sponte.
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V.
Amendments: Rule 15.
A. When.
1. Party may amend their pleadings once as a matter of course before response is served.
2. If no response is necessary then 20 days from service to the other party.
3. Otherwise only by leave of court or written consent of the adverse party.
4. Leave shall be given freely when justice so requires.
B. Statute of Limitations: Rule 15(c).
1. Relation Back.
When the applicable statute of limitations expires between the date of original
pleading and the date of the proposed amendment, the party can amend as long as it
relates back to the original claim.
2. Requirements: (AquaSlide, Moore, Bonerb)
a) Party may be allowed to amend their pleading if the actual Statute of Limitations
allows for it; or
b) If the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading; (Relates Back) or
c) If the amendment changes the party against who the claim is asserted and:
(1) They have received notice of an institution of the action; and
(2) They will not be prejudiced in maintaining a defense; and
(3) The party knew or should have known that but for the mistake
concerning identity of the proper party, the action would have been
brought against them.
(4) Must be brought within 120 days, as per rule 4m.
3. Amendments to conform to the evidence.
a) When issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respect as if they had been raised in the
pleadings.
b) Such amendments to the pleadings shall be made as necessary.
c) Failure to amend does not affect the result of the trial of these issues.
d) The court may allow the pleadings to be amended freely.
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4. Statute of limitations.
a) Starts when the original action in question occurs.
b) The length of the statute depends on the jurisdiction.
c) Tolling – The Statute of Limitations stops counting when you file a complaint,
when you serve the complaint, or for fraudulent concealment. You then have an
additional 30 days if the case is dismissed to file any other actions.
C. Things to Remember.
1. The earlier you file a motion to amend, the more likely that it will be granted
2. If the amendment does not relate back to the original claim, and the Statute of
Limitations is up, it is prejudicial.
3. When amending, the court looks at the reason the amending party has. Is there bad
faith? Is there prejudice to the other party?
4. You can amend at trial by obtaining a leave of court, although prejudice is more likely.
a) If you amend, and the Plaintiff does not object and it conforms to the evidence,
you just continue with the trial.
VI.
Removal and Remanding.
A. Policy:
1. Offers an out-of-state the use and protection of the federal court system.
2. The federal courts have a less of an interest in cases where the defendant is a citizen of
the forum state. He does not need any protection because there likely won’t be any bias.
B. Elements of §1441:
1. The District Courts must have original jurisdiction over the action.
a) Diversity of Citizenship.
b) Federal Question.
2. Federal question cases may be removed regardless of the citizenship of the parties.
3. Cases based on diversity of citizenship may only be removed if none of the defendants
are citizens of the forum state.
4. The case can only be removed to the District Court in which the current court sits.
5. Only the defendant may remove the case, plaintiff already exercised his venue choice.
6. If a federal question is joined with a non-removable claim, entire case may be removed.
C. Procedure for Removal §1446.
1. Defendant files removal papers with the local district court, containing a short, plain
statement of the grounds for removal and a copy of all documents.
2. Notice of Removal must be filed within 30 days of the original complaint.
3. Defendant must then notify all parties and the state court.
D. Procedure After Removal §1447 ( Remand ).
1. Motion to Remand on any defect in the removal must be made within 30 of removal.
2. If Court lacks SMJ, it may remand the case at any time.
3. If Plaintiff then seeks to join additional parties who would destroy SMJ, court may deny
the motion or permit joinder and remand the case (based upon Plaintiff’s good faith).
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Supplemental Jurisdiction.
VII.
Supplemental Jurisdiction.
A. Gibbs.
1. Rule:
Federal Courts have pendant jurisdiction over state law claims that are joined with a
permissible federal claim, or an anchor claim. The two claims must arise from a
common nucleus of operative facts.
2. However, courts are not required to entertain related claims.
3. Test:
a) Plaintiff must assert a sufficient federal anchor claim.
b) The two claims must derive from a common nucleus of operative facts.
c) Claims must be such that the plaintiff would “ordinarily be expected to try them
all in one judicial proceeding.”
B. § 1367: Supplemental Jurisdiction.
1. Except as provided in (b) and (c), District Courts have supplemental jurisdiction:
a) over all other claims that are so related to claims in the action that they form part
of the same case or controversy; and
b) This shall include claims that involve the joinder or intervention of additional
parties.
2. In diversity cases, courts shall not have supplemental jurisdiction over claims by
plaintiffs against persons made parties under Rule 14, 19, 20, or 24..
3. District Courts may decline to exercise supplemental jurisdiction if:
a) The claim raises a novel or complex issue of state law.
b) The claim substantially predominates over the original claim.
c) District Court has dismissed all claims over which it has original jurisdiction.
d) In exceptional circumstances, there are other compelling reasons to do so.
C. Reasons to join additional parties.
1. Spread the claim around.
2. Seek Deeper Pockets.
3. Leverage against other parties.
4. Economically advantageous for joint discovery.
5. Bring parties in to have discovery against them.
6. Join all defendants in a single court.
D. Policy for Joinder.
1. Consistency.
All outcomes relating to a single transaction or occurrence should be consistent.
2. Efficiency.
Is greatest when claims have evidentiary overlap and everyone is there.
3. Finality / Global Settlement.
Concluding all claims at one time. Encourages joinder of all claims, even if unrelated.
VIII. Joinder
A. Joinder of Claims and Remedies: Rule 18.
1. A plaintiff may join all claims that he has against the same defendant.
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2. This joins claims with no transactional nexus.
B. Permissive Joinder: Rule 20.
1. Any parties may be joined as defendants or plaintiffs:
a) Whose claims stem from a Common Transactions or Occurrence, and
b) A common question of law or fact.
2. Common Transaction or Occurrence.
a) Claims only need to be reasonably related to the main claim (Kendra).
b) Are there enough ultimate factual concurrences that it would be fair to the
parties to require them to defend jointly against them.
3. Exam:
a) Explain that permissive joinder requires T&O plus CQ.
b) Prove that we do have T&O plus CQ.
C. Compulsory Joinder: Rule 19.
1. Generally.
a) Raised by a 12(b)(7) motion.
b) Purpose:
Compulsory joinder asks who are the absolutely necessary parties to this case,
without whom the action should not proceed; parties necessary for adjudication.
2. Two types of situations:
a) If the outside party is not joined, the current parties cannot get complete relief.
b) If the outside party is not joined, his or her rights might be prejudiced.
3. Rule 19 (A): The person shall be joined if:
a) In the person’s absence, complete relief cannot be grated to those already party.
b) The person claims and interest relating to the subject of the action and is so
situated that the disposition of the action in the person’s action may:
(1) Impair or impede the person’s ability to protect that interest.
(2) Leave any of the person’s already joined as parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest.
c) The court can exercise Personal and Subject Matter Jurisdiction.
4. Rule 19 (B): Necessary and Indispensable Parties.
a) To what extent a judgement in his absence would be prejudicial to the person or
those already joined as parties.
b) The extent to which the relief may be shaped to reduce prejudice.
c) Whether a judgement rendered without the person would be adequate.
d) Whether the plaintiff would have adequate remedy if the action was dismissed.
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IX.
Counterclaims and Crossclaims: Rule 13.
A. Counterclaims
1. Rule 13(a): Compulsive Counter Claims.
a) A pleading shall state as a counter-claim any claim which the pleader has
against any opposing party, arising out of the same Transaction or Occurrence.
b) Except for:
(1) Claims which are already being adjudicated.
(2) Claims over which the court cannot get personal jurisdiction.
c) This is mainly for efficiency and economic reasons.
2. Rule 13(b): Permissive Counter Claims.
a) A pleading may state as a counter-claim any claim against an opposing party
that does not arise out of the same T&O.
B. Cross Claims: Rule 13(g).
Cross-claims may arise out of :
1. The transaction or occurrence that is the subject of the original action.
2. The transaction or occurrence that is the subject of any counter-claim.
3. Relating to any property that is the subject matter of the original claim.
OR
4. It may claim an opposing party is liable to the cross-claimant for all or part of a claim
asserted against the cross-claimant.
C. Additional Parties: Rule 13(h).
Persons other the original parties may be subject to counter-claims or cross-claims.
X.
Third Party Claims: Rule 14.
A. Rule 14(a): When defendant may bring in a third party.
1. A defendant may bring a claim against a third-party defendant, who is or may be liable
for all or part of the plaintiff’s claim against the defendant.
2. This can be done without “leave of the court” within 10 days of filing the answer.
3. Third party defendant may:
a) Counter-claim the defendant.
b) Cross-claim any other third-party defendant.
c) Assert a defense against the plaintiff’s claim.
d) May assert a separate claim against the plaintiff, arising from same T&O.
4. The plaintiff may assert any claim against the third-party defendant he might have
arising from the same T&O.
5. Third-party defendants may proceed against any person not a party to this action. In
other word, he may bring in a fourth-party defendant.
B. Rule 14(b): When a plaintiff may bring in a third party.
1. When a counter-claim is asserted against a plaintiff, the plaintiff may cause a third party
to brought in under circumstances which would entitle a defendant to do so.
XI.
Intervention: Rule 24.
A. Intervention of Right.
1. When a statute says that you can.
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2. When the lawsuit is about an interest or property that may, as a practical matter, impair
or impede the applicant’s ability to protect that interest.
3. Unless: the applicant’s represented by existing parties.
B. Permissive Intervention.
1. Anyone may be permitted to intervene in an action:
a) When a statute confers a conditional right to do so.
b) When an applicant’s claim or defense, and the main action have a common
question of law or fact.
2. In making such decision, the court will consider if the intervention would unduly delay
or prejudice the adjudication of the rights of the original parties.
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Personal Jurisdiction.
XII.
PJ Generally.
A. Two Questions.
1. Is there Personal Jurisdiction under the Long Arm Statute?
2. Would exercising Personal Jurisdiction comport with the Due Process clause of the
14th Amendment?
B. How to obtain PJ.
1. Consent.
The individual or corporation may consent to personal jurisdiction. This may not
later be challenged by defendant. Defendant may consent in a contract to personal
jurisdiction (Carnival Cruise Lines), or to use a specific state’s laws in adjudicating
a matter (Burger King).
2. Power.
A court may exercise its power to exert the Personal Jurisdiction granted by long
arm statutes and the constitution.
C. Types of Personal Jurisdiction.
1. Common Law.
a) In Personum.
Jurisdiction over the defendant’s person. Court has the power to issue a
judgement over the defendant personally.
b) In Rem.
Jurisdiction over a thing, an object, or piece of property.
c) Quasi in Rem.
Judgement over a person by way of their property, and the court must first seize
or attach the property. However, judgement can only be made over the seized
property, and cannot be sued over in another state.
2. FRCP (Only In Personum ).
a) Uniform Approach ( Shaffer ).
Quasi in Rem jurisdiction may only be exercised when there are such “minimum
contacts” that in personum jurisdiction also exists.
D. Service Within Forum State.
1. Burnham v. Superior Court.
Service within forum state always satisfies the Due Process Requirements.
Defendant was served divorce papers while in California on a business trip. Court held
that California had personal jurisdiction over defendant because he satisfied “minimum
contacts” requirement; and the traditional notion of state sovereignty over those within
its borders.
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E. Domicile.
1. Milliken v. Meyer.
“A state which accords privileges and affords protection to a person and his property by
virtue of his domicile may also exact reciprocal duties.”
a) Jurisdiction may always be exercised over a citizen, even if he is temporarily out
of state.
b) Domicile is more restrictive than residence. A person can only have one
domicile, but one can have many residences.
c) Domicile = Current Dwelling + Intention to Remain Indefinitely.
F. Going to the “Limits of Due Process.”
This phrase is intended to mean that a state’s long arm statute should be interpreted in a
liberal manner or very broadly.
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XIII. Due Process.
A. In General
The Due Process Clause of the 14th Amendment establishes the limits of when a state may
exercise personal jurisdiction over an individual. However, if such exercising PJ would be
unreasonable, then a court may not choose not to.
B. Minimum Contacts (International Shoe v. Washington).
The courts of a state may exercise personal jurisdiction over a person if he has sufficient
minimum contacts that it would be fair to require him to return and defend a lawsuit there.
1. Nature and Extent of Contacts.
a) Random or Fortuitous Acts.
Miscellaneous or random contact with a state, as well as fortuitous acts
connected with the forum state are not enough to support PJ.
b) Continuous or Systematic Behavior.
Certain isolated acts, because of their “quality and nature” will support personal
jurisdiction.
In general, the more continuous and systematic that one’s contacts are with the
forum state, the more likely it is that PJ is constitutional.
c) Notes.
(1) An individual may have minimum contacts even though he has never set
foot in the forum state. E.g., one may cause harm in another state
without ever going there (mail bomb).
(2) Minimum Contacts are analyzed at the time of the activity in question,
not at the time when suit is brought.
2. Relatedness of Contacts to Claim.
a) Specific Jurisdiction.
In general, a court may exercise personal jurisdiction over a person only if the
claim specifically relates to the person’s contacts with the forum state.
b) General Jurisdiction.
(1) However, if the defendant’s contacts are of such a continuous and
systematic nature, a court may be able to exercise general jurisdiction.
(2) General Jurisdiction allows a court to adjudicate any claim over the
defendant. The claim does not have to relate to defendant’s contacts
with forum state.
3. Purposeful Availment ( Hanson v. Denckla ).
a) Defendant must have purposefully availed himself of the privileges of
conducting business within the forum state, invoking the benefits and protection
of its laws. Voluntary exposure to a state’s laws.
b) Stream of Commerce.
(1) World Wide Volkswagen. The car dealer and distributor were not
subject to PJ in Oklahoma because they had not sought any direct
benefits from the state.
(2) The dealer did not sell cars there, did not advertise in the state, and did
not attempt to cultivate customers there.
(3) In Asahi, Justice O’Conner rejects the notion that mere awareness that
a product might end up in the forum state eventually satisfies purposeful
availment.
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(4) BUT: in his dissent, Justice Brennan felt that there are minimum
contacts, and even so “reasonableness” trumps min. contacts.
(5) HOWEVER: O’Connor then says that she can make the argument that
it is not reasonable to assert jurisdiction here. Not in state’s interest.
(6) However, in Keaton v. Hustler Magazine, defendant was found to have
purposely availed himself because he knowingly distributed his
magazines within the state, and intended to profit from their sale.
C. Reasonableness.
Where the defendant has purposely directed activities toward the forum sate, jurisdiction is
presumed to be reasonable. The defendant will have to make a “compelling case” that other
considerations make jurisdiction unreasonable. Burger King. Court examined these factors:
a) Burden on  to litigate in foreign state. (indiv. vs. multi-national corp.)
b) State’s interest in litigating suit. (Fl. Corp.)
c) Plaintiff’s interest in a convenient and efficient forum.
d) Judicial system’s interest in most efficient resolution. (Fl. Ct. for Fl. Law)
e) Shared interest of other states.
2. This is illustrated in Asahi, where the Court held that it would be unreasonable to expect
exercise jurisdiction, even if minimum contacts did exist.
D. Policy
There are situations where a defendant might have the minimum contacts necessary for a state to
exercise personal jurisdiction. However, if it would be unfair or unreasonable for the forum state
to do so, the court may choose not to exercise the power. Factors to consider:
1.
2.
3.
4.
5.
6.
7.
Extent of purposeful injection into forum.
Burden on Defendant of defending in the forum.
Extent of conflict with sovereignty of defendant’s home state.
Forum state’s interest in adjudicating dispute.
Most efficient judicial resolution of dispute.
Importance of forum to Plaintiff’s interest in convenient and effective relief.
Existence of an alternate forum.
XIV. Long Arm Statues.
A. Purpose.
1. The Constitution only defines the limits of due process and personal jurisdiction, it does
not confer any power upon the states.
2. State legislatures must confer this power to their courts.
3. This is done through Long Arm Statutes.
Rule 4(k) Federal district courts use the Long Arm statutes of the state in which they
reside. Thus a Federal Court in Maine uses the Main Long Arm Statute.
B. Types of Long Arm Statutes.
1. Full Scope.
a) State legislatures grant their courts jurisdiction on “any basis not inconsistent
with the US Constitution.”
b) Policy:
The statue is self-adjusting and will never need to be revised if interpretation of the
Constitution changes. Thus, any new power is automatically conferred.
2. Enumerated Statute.
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a) Authorize jurisdiction based upon specific types of contact with the forum state.
Passed in reaction to the International Shoe decision.
b) Policy:
(1) Historical. This is how it was first done.
(2) Informational. Provides guidance to non-residents about the laws of the
forum state in a clear manner.
(3) Discretion. Some states may not want their courts to adjudicate cases
having little or no contact with the state.
C. The “Bulge.”
1. Applying a Long Arm Statute is NOT ALWAYS CONSTITUTIONAL.
2. In some cases, an otherwise constitutional long arm statute would be unconstitutional if
applied. See Crocker v. Hilton International Barbados.
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XV. Challenging Personal Jurisdiction
A. Challenge in Rendering State.
1. FRCP Approach.
a) Rule 12(b)(2).
(1) Def. must makes a 12(b)(2) motion to dismiss for want of jurisdiction.
(2) This does not subject the defendant to the jurisdiction he is protesting.
b) When: Must be filed either in a pre-answer motion or in the answer.
c) Motion is waived if:
(1) Another 12(b) pre-answer motion is filed, and a lack of jurisdiction
claim is not made.
(2) Defendant fails to challenge personal jurisdiction in either a pre-answer
motion or in the answer.
d) Policy:
(1) Efficient. You don’t want to get half way through a trial and then have it
thrown out.
(2) Logical. Build a case from the ground up.
(3) Fairness.
(a) Defendant can quickly and easily challenge the power of the
court without wasting resources.
(b) Plaintiff relies on the court to provide relief. It is important to
decide first if the present court is the proper one.
2. Common Law Approach.
a) Special Appearance.
(1) In some states a defendant may appear before the court to challenge PJ.
But only Personal Jurisdiction may be argued.
(2) If Defendant argues on the merits of the case at all, it is assumed that he
consents to the court’s jurisdiction.
b) Limited Appearance ( in rem only).
(1) Defendant appears to defend a case on the merits, but is subject to
liability only to the extent of the property attached by the court.
(2) The court does not really have personal jurisdiction in this case.
Defendant is only in the state to defend against the charges.
B. Challenge in Enforcing State.
1. Collateral Attack.
a) Defendant has the option to ignore the initial trial on the merits of the case, and
wait to challenge personal jurisdiction in the enforcing state.
b) But you may only argue personal jurisdiction, and not the merits of the case.
Because you did not show up for the original trial, a default judgement has
already been entered against you.
c) Defendant cannot attempt a collateral attack if he appeared at the first trial, or if
the trial was held in defendant’s home state.
C. Full Faith and Credit Clause.
1. Requires the courts of each state to honor the judgements of other states by entering
judgments upon them and allowing out-of state plaintiffs to collect upon them.
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2. This allows a plaintiff to sue a defendant in State A, and then collect the judgement in
State B where defendant owns property.
3. This means that an issue will only be adjudicated once. The merits of the case will be
argued once, and PJ will be argued once. However, the issues may be argued in
different states.
Subject Matter Jurisdiction
XVI. In General.
A. Sources of Subject Matter Jurisdiction
1. Article III, Sec. 2 of the Constitution sets forth those the types of cases that may be
heard in a federal court.
2. Congress must then grant this power to the Federal District Courts.
B. Two Types of Federal Jurisdiction.
The Constitution gives the Federal courts system the right to hear cases that involve a particular
national interest.
1. Diversity Jurisdiction.
2. Federal Question.
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XVII. Diversity Jurisdiction.
A. Sources
1. Article III, Sec. 2.
Fed. courts have original jurisdiction in cases “between citizens of different states”
2. 28 USC § 1332.
Fed. courts have original jurisdiction in diversity cases where the amount in controversy
exceeds the sum or value of $75,000.
B. Policy
1. Protection for the Defendant.
There was originally a fear that an out-of-state defendant might not be able to receive a
fair trial. BUT, this has been debated for a long time, is there still a bias?
C. Requirements
1. Amount in Controversy exceeds $75,000.
a) There only needs to be a “good faith” claim for damages, the defendant does not
actually have to recover this amount. Unless it can be shown that the claim is
really for a smaller amount.
b) In a joinder case, usually only one plaintiff has to have such a claim.
c) A plaintiff may add claims against the same defendant to reach the threshold,
but may not add claims against several defendants.
d) Several plaintiffs cannot add their claims together, each plaintiff must qualify
individually.
e) Under §1332(b), if the plaintiff is awarded less than the sum or value of
$75,000, the court may deny costs to the plaintiff or even impose costs.
2. Complete Diversity of citizenship §1332.
a) Individuals.
(1) Citizenship is equated to domicile, so there is only one.
(2) Resident Aliens are to be “citizens” of the state in which they reside.
(3) Domicile = Present Residence + Intent to remain indefinitely.
There is no fixed point or definite date that one will move.
b) Corporations – Two Citizenships.
(1) State of Incorporation.
(2) “Principal Place of Business.”
c) “Principal Place of Business.”
A corporation will most likely be perceived as local where it employs the most
people, conducts the most activities, or has the most interaction with the public.
Remember the purpose of diversity jurisdiction is to protect the defendant.
(1) A definable center of productive activities, it is usually where the most
business is done. Where the most people are employed.
(2) Corporate Nerve Center. For a large and diverse corporation like an
airline or FedEx, they have contact in every state. Therefore look to the
place where they control or coordinate the company’s activities from.
XVIII. Federal Question Jurisdiction.
A. 28 USC § 1331.
The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
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B. Well Pleaded Complaint Rule.
1. A complaint, on its face, must state a federal cause of action.
2. Must allude to a violation of federal law, treaty, etc.
3. In good faith.
4. Federal Question Jurisdiction cannot rest on an anticipated defense. It must be an
original cause of action.
C. Policy Advantages.
1. Efficiency.
Makes a SMJ determination early, conserves judicial time and resources.
2. Gatekeeper.
Allow only those clearly federal questions into federal court.
3. Federal Judicial Expertise.
4. Promotes Federalism.
Leaves clearly state law questions to the state courts to decide.
5. Gives Plaintiff a choice of court.
D. Policy Disadvantages.
1. Fairness.
May be lost because of a “poor complaint,” even though there is a clear
underlying federal issue. Forces such plaintiffs into state court.
2. Efficiency.
Prolongs an important federal question.
3. Values.
Places a premium on technicalities and distinctions.
E. Test for Federal Questions.
1. Substantial.
Is this really a substantial and important issue? Is this a challenge to constitutionality, or
merely a violation of a federal statute?
2. Necessary.
Are there other possible theories of recovery? If so, then it might not be necessary to
hear the case in federal court.
F. Certiorari.
28 USC § 1257.
Decisions from the highest court in a state may be reviewed by the Supreme Court if they seem
repugnant to the Constitution.
XIX. Notice.
A. In General
1. Two Prongs:
a) Constitutional (Notice).
b) Statutory Requirement (Service).
2. Waiver v. Consent:
a) Contest that court has a limited scope of jurisdiction. Whether implied or
expressed, one challenges PJ.
b) Respond to service and waive a right to collateral challenge.
3. How to prevent this issue:
Expressly state a forum selection clause within the contract. Protect both parties with
such pre-determinate clause. Carnival Cruise Lines.
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B. Constitutional Prong.
Due Process, under the 14th Amendment guarantees all parties the right to notice of an
intention to adjudicate rights and an opportunity to be heard.
1. Mullane.
The maximal limits of notice set out in the Constitution were interpreted in Mullane
v. Hanover Bank. The court established a reasonable standard.
2. Reasonableness Test.
a) The means employed to notify a defendant must be such as one desirous of
actually informing the absentee might reasonably adopt. However, this may be
limited by economic considerations.
b) Use a cost/benefit analysis. Such that the form of notice is generally reasonable
in light of all the circumstances.
c) However, publication will not suffice if defendant’s name and address are
known.
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C. Statutory Prong: Rule 4.
1. What:
a) Requirements of the Form.
b) After being filed and signed by clerk, each defendant must be served.
2. By When:
a) 4(c)(1) A summons must be served by the plaintiff, and accompanied by a copy
of the complaint, within the time limit established in 4(m).
3. By Whom:
a) 4(c)(2)(a) Any person 18 or older who is not a party to the case.
b) 4(c)(2)(b) Or at plaintiff’s request, a US Marshall.
4. Waiver:
a) 4(d)(1) – A defendant who waives service, does not waive the to contest
jurisdiction, or anything else. He just waives service.
b) 4(d)(2)–Defendant has duty to avoid unnecessary costs of personal service
c)
(2)(a) – Must be in writing and addressed directly to defendant.
d)
(2)(b) – Must use 1st Class Mail or some other equivalent means.
e)
(2)(c) – Must include a copy of the complaint.
f)
(2)(d) – Shall inform  of the consequences of not waiving service.
g)
(2)(e) – Shall state the date on which request is sent.
h)
(2)(f) – Must allow at least 30 days to respond.
i)
(2)(g) – Must attach an extra copy, and prepaid means to respond.
The Court shall impose the costs of personal service if there is no waiver. This includes the
actual costs of serving process and a modest attorney’s fee. However, in return one would
receive 60 days to provide an answer instead of 20.
5. Corporations:
a) Waiver: Rule 4(d)(2)(a) Waiver must be sent directly to the person from whom
waiver is sought within the company. A specific agent of the company.
b) Service: Rule 4(h)
(1) In a judicial district of the US:
As described in 4(e), or hand delivery to an officer, manager, or general
agent, or any other agent authorized by appointment or law to receive
service of process, by mailing a copy to the defendant.
(2) Outside of the US. As described in 4(f), except personal delivery.
6. How: Rule 4(e)(1)-(2):
(1) Pursuant to the laws of the forum state, or the laws of the state in which
process will be served.
(2) Serve the process personally, or leave the summons with a copy of the
complaint at a dwelling or abode, with a person a suitable age and
discretion who resides therein.
7. Time 4(m):
120 days to serve process, or the case will be dismissed. However for “good cause” the
plaintiff will be given extra time.
8. Property 4(n):
May assert jurisdiction over property in certain situations.
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XX. Venue.
A. Purely Statutory
The rules for venue are purely statutory, and established in 28 USC §1391. Plaintiff must choose
one on the possible venues in the statue, from those that already meet PJ and SMJ requirements
1. 28 USC § 1391.
a) Subsections (a) (b): Individuals.
(1) If all defendants reside within the same state, Pl. may pick any one if
their districts.
(2) P may choose a district in which a substantial amount of the events or
omissions occurred, or a substantial amount of the property in question
is located.
(3) Wherever the Defendant may be found, or is subject to PJ Jurisdiction
at the time the action is commenced.
b) Subsection (c): Corporate Residences.
(1) Corporation reside in any judicial district for which they can be found
to have the “minimum contacts” of personal jurisdiction.
B. Transfer
Traditionally, a plaintiff’s choice of forum is not, unless the current venue violates §1391 or
there is clearly a more convenient venue. However, this bias does not exist for foreign
plaintiffs.
1. § 1404 -- More convenient venue statute.
a) Used in conjunction with a 12(b) motion, this statute allows a case to be
transferred to a more convenient venue.
b) Grants wide latitude for the judge to act. He can place stipulations or
conditions upon any potential transfer.
2. § 1406 -- An Improper venue statue.
a) Used in conjunction with a 12(b) motion.
b) If venue is improper, the court may dismiss the case or transfer it to the proper
venue.
c) If not venue is not objected to in a timely manner, the court may waive the
motion.
C. Forum Non Conveniens
Common Law doctrine used to dismiss a case for the purpose of holding trial in another
venue. Used when the case cannot be transferred, therefore used mostly to transfer outside
of the country.
1. Public Interest Factors.
a) Those which affects the convenience of the forum.
2. Does the current venue have sufficient interest to merit the resources necessary for trial,
or is there a better venue.
3. Private Interest Factors.
(1) Those which affects the convenience of the litigants.
b) Would a trial in the current venue be oppressive to the defendant, and out of all
proportion to the plaintiff’s convenience
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XXI. Personal Jurisdiction Analysis
A. Long Arm Statute
1. Language of the Statute.
2. Legislative History.
3. Analogies.
B. Due Process
1. Minimum Contacts ( International Shoe ).
a) Nature / Extent of Contacts.
b) Relatedness of Contacts to claim.
c) Purposeful Availment ( Hanson ).
2. Reasonableness ( Burger King and Asahi ).
a) Factors to Consider:
(1) Extent of purposeful injection into forum.
(2) Burden on Defendant of defending in the forum.
(3) Extent of conflict with sovereignty of defendant’s home state.
(4) Forum state’s interest in adjudicating dispute.
(5) Most efficient judicial resolution of dispute.
(6) Importance of forum to Pl.’s interest in convenience and effective relief.
(7) Existence of an alternate forum.
Continuous / Systematic
Single / Isolated
Related
Unrelated
Yes
Maybe
Maybe
No
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Personal Jurisdiction Checklist
A. Was the Defendant Served in the forum state?
Yes – There is valid Personal Jurisdiction under Burnham.
No – Continue with (B).
B. Does the forum state’s Long Arm statute provide for jurisdiction over Defendant?
Yes – Go to (C).
No – Forum CANNOT exercise Personal Jurisdiction. Even if defendant has
“minimum contacts” with the state.
C. Does Defendant have minimum contact with the forum state, sufficient enough to
give him a reasonable expectation of being hailed before that state’s courts?
Yes – If defendant consents to jurisdiction, or he is domiciled in the forum, he has
sufficient contacts to justify Personal Jurisdiction. Otherwise go to #4.
No – Go to (D).
D. Are the defendant’s contacts with the forum state voluntary?
Yes – Go to (E).
No – Defendant lacks “minimum contacts,” and forum cannot exercise Personal Jurisdiction
over defendant.
E. Does the cause of action relate to defendant’s contact with the forum state?
Yes – There is “Specific Jurisdiction.” Personal jurisdiction in this case may only be
exercised if the claim relates directly to defendant’s contacts with the state. Go
to (F).
No – Jurisdiction will either be “General,” or it will not exist. In order to obtain General
Jurisdiction over the defendant, his contacts with the forum state must be “continuous
and systematic.” If they are not, forum state cannot exercise General Jurisdiction. If
there is general jurisdiction, go to (F).
F. Is assertion of Personal Jurisdiction Reasonable? Does it comport with
traditional notions of fair play and justice?
Yes – Forum state may assert Personal Jurisdiction.
No – Forum state may not assert Personal Jurisdiction.
ANSWER: If minimum contacts are satisfied, it would be extremely unusual for the
exercise of jurisdiction to be unreasonable. The interests of the plaintiff and the
forum will generally justify even a serious burden on the defendant. ( Asahi v.
Superior Court. )
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Removal Checklist
G. Allows Defendant to take advantage of the Federal Court System.
1. An exception to the rule that Plaintiff chooses the court.
2. Policy: To offer protection of the Federal Courts to the Defendant.
3. Only Defendant may invoke Removal.
4. May remove only Civil Actions that could have originally been brought in federal court.
5. Defendant may not remove a case on diversity grounds, if he is in his home state.
H. Dealing with Removal Hypotheticals:
1. Determine if a Federal Court would have Subject Matter Jurisdiction.
a) Diversity of Citizenship.
b) Federal Question.
2. Look to Procedural Questions.
a) § 1441, 1446, 1447
(1) Timing.
(2) Place.
(3) Is Defendant a citizen of the forum state – if so, cannot remove on
diversity grounds.
Condensed Supplemental Jurisdiction Checklist:
I.
Is there an independent basis for the claim:
1. Federal Question.
2. Diversity Jurisdiction.
J. If not, does §1367(a) apply supplemental jurisdiction?
1. Is there a common nucleus of operative facts (Gibbs).
K. Do any of the §1367(b) exceptions apply?
L. Do any of the §1367(c) exceptions apply?
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Jurisdiction Checklist.
XXII. Does the court have original jurisdiction over the claim?
A. Is the claim a federal question under §1331 ?
1. Yes – There is jurisdiction.
2. No – Go to B.
B. Does the court have Diversity jurisdiction under §1332?
 Is there complete diversity? Are all parties from different states?
 Is the amount in controversy in excess of $75,000?
1. Both
– There is jurisdiction.
2. One
– The federal courts do not have jurisdiction over this claim.
3. None
– The federal courts do not have jurisdiction over this claim.
XXIII. Are there any additional claims?
A. Does the court have original jurisdiction over the additional claim?
1. Is the additional claim a federal question under §1331?
a) Yes – There is jurisdiction.
b) No – Go to #2.
2. Does the court have Diversity jurisdiction under §1332?
 Is there complete diversity? Are all parties from different states?
 Is the amount in controversy in excess of $75,000?
a) Both
– There is jurisdiction.
b) One
– No Original jurisdiction. Go to B.
c) None
– No Original jurisdiction. Go to B.
B. Does the court have Supplemental jurisdiction over the additional claim?
1. Is the additional claim arise out of the original case or controversy.
a) Yes – Go to #2.
b) No – Sayonara. Claim cannot be brought.
2. Is the initial claim a federal question?
a) Yes – Then any claim may be brought, however the court may decide to sever
the additional claim so that it can be brought in a separate trial, or remand the
additional claim to state court.
b) No – Go to #3.
3. When the initial claim was heard on diversity grounds?
a) Plaintiff may bring any claim, except against parties brought in by Rule 14, 19,
20, 24.
b) If a plaintiff wants to bring a claim against a party brought in under rules 14, 19,
20, 24, the claim must satisfy the requirements of original jurisdiction.
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