Civil Procedure
I. PERSONAL JURISDICTION
1. The Origins
A. Pennoyer v. Neff (1877)
i) Importance
(a) Defines limits of state's jurisdiction
(b) Defines due process in Constitutional terms
(c) *Physical power is sufficient and necessary
ii) Decision upheld for 2 reasons
(a) Neff was not properly served, i.e. personally
(b) State did not have jurisdiction over Neff - he wasn't in the state
iii) 2 Types of personal jurisdiction
(a) in personam - over the person.
(1) Can attempt to satisfy judgment through any asset.
(2) This requires physical power over the defendant, which is both necessary
and sufficient to establish jurisdiction.
(b) in rem - over the thing
(1) i.e. real estate - attached at the outset of the lawsuit.
(2) judgment can only be satisfied through sale of that property
 Under Pennoyer, constructive service is constitutional for in rem proceedings.
 landowner should have contacts in the state and an obligation to keep
track of the land so he would be likely to discover that it was part of a
lawsuit
iv) Conceptual Scheme
(a) power
(b) consent
(c) notice
B. 14th Amendment
i) Post Civil-War Amendment, intended to limit state's power
ii) Pennoyer was decided in the shadow of it's passage and interpreted to
require notice of lawsuit by party and opportunity to respond
C. Challenge and Waiver
i) Options for individuals if they believe that are not subject to personal
jurisdiction
(a) Do nothing = collateral attack
(1) risky
(b) Answer
(c) Motion to dismiss under 12(b)(2)
(d) Special Appearance
(1) some states allow this by statute
(2) not seen as consenting to jurisdiction, just appearing to challenge it
ii) Rule 12
(a) 12(g)(2) = all motions available must be made at the same time
(b) 12(h)(1) - 12(b)(2)-(5) = defenses are waived if they are omitted from the
original motion.
(c) 12(h)(2) - 12(b)(6)&(7) = can be raised later - failure to state a claim and failure
to join a party
(d) 12(h)(3) = subject matter jurisdiction cannot be waived and can be raised at
any time
2. Modern Constitutional Formulation of Power
A. Redefining Constitutional Power
i) Milliken v. Meyer (1940)
(a) "Domicile in the state is alone sufficient to bring an absent defendant within the
reach of the state's jurisdiction for purposes of a personal judgment by means
of appropriate substituted service."
(b) Conceptual Scheme
(1) physical power
(2) consent
(3) DOMICILE
ii) International Shoe Co. v. Washington (1945)
(a) International Shoe, a Delaware corp. with principal place of business in
Missouri employed salesman to take order in Washington, who required them
to pay taxes for those salesman
(b) The issue was whether Washington had jurisdiction over International Shoe,
based on the activities of their salesmen there
(c) The court held that they did based on:
(1) MINIMUM CONTACTS
(2) by enjoying the benefits of the state's privileges, they are subject to the
laws of that state
(3) the activities carried on by Int'l Shoe in Washington were SYSTEMATIC
AND CONTINUOUS
(4) ". . . in order to subject a defendant to a judgment in personam, if he
be not present within the territory of the forum, he have certain
MINIMUM CONTACTS with it such that the maintenance of the suit
DOES NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND
SUBSTANTIAL JUSTICE."
(5) the activities of the salesmen were the very activities that were the taxable
activities that led to the suit
 the more closely linked the contacts and the facts giving rise to the
claim, the more likely the court is to uphold jurisdiction
(d) General Jurisdiction
(1) International Shoe did nothing to disturb the rule that when a corporation is
doing business in a state such that its contacts are "substantial," even
cases unrelated to the corporation's activities within the state may be
brought against the corporation there
iii) McGee v. International Life Insurance Co. (1957)
(a) California man reinsures himself with Texas company that had purchased his
life insurance provider. International Life refused to pay the policy, McGee
won a judgment in Cal., but Texas refused to grant the decision full faith and
credit
(b) Question was whether this one transaction was sufficient to allow Cal. to have
jurisdiction over International Life
(c) Court ruled that the 14th Amendment allowed this
(1) the contract was sufficient in that it was substantial
(2) the relationship the company had with the state was SYSTEMATIC AND
CONTINUOUS
(3) California has an interest in providing an effective means of redress for its
citizens
iv) Hanson v. Denckla (1958)
(a) Mrs. Donner's Trust Fund fight - the bank was in Delaware and the litigation
was in Florida
(b) A STATE MAY NOT EXERCISE JURISDICTION OVER A NON-RESIDENT
DEFENDANT IF THE CONTACTS WITH THE FORUM STATE ARE
INSIGNIFICANT AND THE CLAIM DOES NOT ARISE FROM THOSE
CONTACTS
(c) Mrs. Donner decided UNILATERALLY to move to Florida
(1) a corporation should not be expected to be hailed to court wherever the
people they do business with go.
(d) the Corporation did not personally avail itself to the forum state
B. Absorbing In Rem Jurisdiction
i) Quasi - in rem = the asset seized is different from the merits of the case
(a) attached because it was of value, not because it was at issue
ii) Harris v. Balk (1905)
(a) SCOTUS upholds judgment of awarding one person's debt to another
(b) was attached at outset of initial case
(c) Leads to . . .
iii) Shaffer v. Heitner (1977)
(a) the assertion of jurisdiction over property must be viewed as jurisdiction over a
person's interest in that property
(b) ERODES THE DISTINCTION BETWEEN IN PERSONAM AND IN REM
JURISDICTION
C. Specific Jurisdiction: The Modern Cases
i) World-Wide Volkswagen Corp. v. Woodson (1980)
(a) simply PLACING A PRODUCT INTO THE STREAM OF COMMERCE with
the foreseeability that it may travel to another state IS NOT SUFFICIENT
for minimum contacts
(b) WWV and Seaway did not purposely avail themselves to the forum state (OK)
(c) the action of the Audi owner was unilateral
ii) Asahi Metal Industry Co. v. Superior Court (1987)
(a) subjecting Asahi to jurisdiction violated traditional notions of fair play and
substantial justice - Japanese Corporation
(b) the placement of a product into the stream of commerce, without more,
is not an act of the defendant purposefully directed toward the forum
State.
(c) Determination of reasonableness of the exercise of jurisdiction in each
case will depend on:
(1) the burden on the defendant
(2) the interests of the forum State in adjudicating the complaint
(3) the plaintiff's interest in obtaining relief
(4) the interstate judicial system's interest in obtaining the most efficient
resolution of controversies, and
(5) the shared interest of the several States in furthering fundamental
substantive social policies
iii) Rule 4(k)(1) = Jurisdictional reach of state court and federal court in
that state is the same
iv) Burger King Corp. v. Rudzewicz (1985)
(a) Asahi "upside-down"
(b) the defendant had personally availed himself of the benefits and protections of
Florida laws by entering into contract with Burger King (FL.)
(c) contract had substantial connection with that state (McGee)
(d) Personal Availment to forum state matters
v) Pavlovich v. Superior Court (2002)
(a) Pavlovich did not personally avail himself to California laws because his
website was not interactive, and only posted information
(b) His knowledge that the information "may harm" industries usually associated
with California was not enough to establish purposeful availment under the
effects test employed by the court
D. General Jurisdiction
i) The contacts with the forum are so severe that the company is subject to
jurisdiction for suits that may not arise out of the contact
ii) Perkins v. Benguet Consolidated Mining Co. (1952)
(a) Example of NECESSITY JURISDICTION
(1) lawsuit could not have taken place anywhere else
iii) Helicopteros Nacionales de Colombia, S.A. v. Hall (1983)
(a) Mere purchases were not enough to establish continuous and
systematic contact with Texas
iv) Burnham v. Superior Court (1990)
(a) Transient Jurisdiction
(1) physical power is sufficient for jurisdiction
 but cannot kidnap or fraudulently deceive someone to come into state - not
fundamentally fair
3. Consent as a Substitute for Power
A. Rule 12(b)(2) = defense is waived if not raised - consent to personal jurisdiction
B. Carnival Cruise Lines, Inc. v. Shute (1991)
i) FORUM SELECTION CLAUSES ARE ENFORCEABLE, because:
(a) cruise line has a special interest in limiting the number of fora in which it could
be subject to suit, because they have passengers from everywhere
(b) they dispel confusion about where suits will be brought, thereby saving litigants
and the court system time and money
(c) other passengers benefit in the form of reduced fares
C. Clauses
i) Choice of law clause - Burger King
(a) law of particular will govern the disagreements
ii) Consent to Jurisdiction clause
(a) parties waive challenges to personal jurisdiction
iii) Forum Selection Clause - Carnival Cruise
(a) limit fora to single location
iv) Arbitration Clause
(a) takes dispute out of judicial system and puts it into arbitration procedure
v) Cognovit clause
(a) consent to jurisdiction and also waiver of right to assert defense and right to
trial and appeal
4. The Constitutional Requirement of Notice
A. In General
i) In order to exercise jurisdiction over a defendant a forum must have either
power or the defendant's consent
ii) individuals being sued in personam must receive some form of notice
B. Wuchter v. Pizzuti (1928)
i) non-resident motorist statute in NJ made driving on the highway consent to
laws of NJ, and Secretary of State was agent for serving process
ii) Not valid because it did not require actual notice to defendant although
there had been in this case
C. Mullane v. Central Hanover Bank & Trust Co. (1950)
i) The leading case on Notice
ii) "NOTICE REASONABLY CALCULATED, UNDER ALL THE
CIRCUMSTANCES, TO APPRISE INTERESTED PARTIES OF THE
PENDENCY OF THE ACTION AND AFFORD THEM AN OPPORTUNITY
TO PRESEN TEHIR OBJECTIONS."
D. Rule 3 Commencing an Action
i) Civil Action is commenced by filing a complaint with the court
ii) For federal courts at least, the statute of limitations stops when the suit is
filed, many states require defendant to be served first
E. Rule 4 Summons
i) (c) Service - who can serve
(a) any person who is at least 18 years old and not a party
(b) at plaintiff's request, court may order that service be made by a US marshal or
deputy marshal or by a person specially appointed by the court
ii) (e) Serving an individual within a Judicial District of the United States
(a) follow state law for service, OR
(b) personally delivering a copy of the summons and of the complaint
(c) leaving a copy of each at the individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there
(d) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process
(e) Waiving service - sends request by mail asking defendant to waive
service
(f) saves costs
(g) Defendant extends time to answer (carrot) - extends to 60 days for domestic
defendant, 90 for international
(h) Defendant avoids expenses associated with service (stick) - will be responsible
for costs of service, can include attorney's fees
iii) (m) If defendant is not served within 120 days of filing lawsuit the complaint
must be dismissed or the court must give a time for process to be served,
unless plaintiff can show good reason (i.e. serving Osama Bin Laden)
(a) Cannot obtain jurisdiction by sending waiver of service even if defendant had
recently visited the state and could have been served at that time
iv) (k) If defendant is subject to long arm statute of the state, he would be
subject to jurisdiction of the federal court in that state
(a) when party is joined to a lawsuit under Rule 14 or 19, can be served within 100
miles from where summons was issued - only applicable in a narrow set of
joinder cases
(b) when authorized by federal statute (i.e. interpleader)
v) (f) for foreign defendants, follow the Hague convention if nation is signatory
(a) if not part of the convention:
(1) by means reasonably calculated to give notice:
 as prescribed by the foreign country's law for service in that country in an
action in its courts of general jurisdiction;
 as the foreign authority directs in response to a letter rogatory or letter of
request; or
 unless prohibited by the foreign country's law, by:
 delivering a copy of the summons and of the complaint to the individual
personally; or
 using any form of mail that the clerk addresses and sends to the individual
and that requires a signed receipt; or
 by other means not prohibited by international agreement, as the court orders.
vi) (d) to serve an individual in the U.S., can follow state law or deliver a copy of
summons and complaint to individual personally, leave it at their home with
someone of suitable age and discretion, or deliver to an agent authorized by
appointment or law to receive service
(a) Challenging proper service - typically would appeal but if there is a default
judgment and the defendant does not find out soon enough to appeal can file
motion under rule 60(b)
(b) Sewer Service - process server fails to serve process and provides a false
affidavit of service
vii) (h) Serving a Corporation, Partnership, or Association
(a) In a Judicial District of the U.S.
(1) in the manner prescribed by Rule 4(e)(1) (state law) for serving an
individual; or
(2) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process AND - if the agent is one authorized
by statute and the statute so requires - by also mailing a copy of each to the
defendant; or
(b) at a place not within a Judicial District, in any manner prescribed by Rule 4(f)
for serving an individual, except personal delivery under (f)(2)(C)(i)
5. Self-Imposed Restraints on Jurisdictional Power
A. Long-Arm Statutes
i) Established by states to limit their jurisdictional reach
(a) Some are as broad as Constitution will allow, i.e. California
(b) Others limit the state's reach, i.e. FL., N.Y.
ii) Gibbons v. Brown (1998)
(a) FL long-arm statute allows personal jurisdiction over a defendant who is
ENGAGED IN SUBSTANTIAL AND NOT ISOLATED ACTIVITY WITH FL
(b) by filing a lawsuit in FL., Gibbons did not engage in substantial activity with the
state
iii) *Evaluating Jurisdiction
(a)
(b)
(c)
(d)
Has the state claimed jurisdiction? (Does it pass the long-arm statute?)
Is the statute/claim of jurisdiction Constitutional? (International Shoe)
Has the State provided for the kind of service used?
Is the service Constitutional? (Mullane)
B. Venue
i) Statutory Issue - where in the state (which has personal jurisdiction) will it
be brought?
ii) 28 USC § 1391 Venue Generally
(a) Diversity Cases
(1) where any defendant resides (if all defendants resided in the same state),
or
(2) where a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is
situated, or
(3) district in which any defendant is subject to personal jurisdiction at the time
of the commencement of the action (if there is no district in which the action
may otherwise be brought)
(b) Federal Question cases
(1) in any district court where any defendant resides (if all defendants reside in
the same State)
(2) district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of the property that is the subject of
the action is situated, or
(3) a district in which any defendant may be found (if there is no district in
which the action may otherwise be brought)
(c) For Corporations
(1) they are deemed to reside in any judicial district in which it is subject to
personal jurisdiction at the time the action is commenced
(2) in a state with multiple jurisdictions, Corporations are deemed to reside in
any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction
(d) Aliens = may be sued in any district
iii) Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (1997)
(a) applying International Shoe standards, the court found that due process was
satisfied by defendant's appointment of exclusive U.S. sales agents and its
customizing of its products for the U.S. market
(b) if the case involved only foreign defendants, venue could be in any district
under 1391(d), but since there were American defendants as well, must show
contacts in the Eastern District of VA to make venue appropriate
C. Declining Jurisdiction
i) Forum Non Conveniens
(a) common law concept - not statutory, available in federal and state court
(b) Piper Aircraft v. Reyno (1981)
(1) Issue #1 - removal to federal court due to diversity jurisdiction 28 USC 1441
(2) Issue #2 - transfer to PA under 1404(a)
(3) Issue #3 - motion to dismiss under forum non conveniens
(4) Court applies Gilbert Analysis = balance private interest and public
interest
 public interest won out
 confusion of different laws
 Scotland's interest in litigating the matter (plane crash occurred there)
(5) *unfavorable law is no reason to dismiss based on forum non conveniens
 plaintiff had sued in U.S. because of favorable tort law
(c) In re Union Carbide (1987)
(1) Indian plaintiffs sue in NY for gas explosion occurring in India
(2) case is dismissed on basis of forum non conveniens
 difficult to get witnesses (there were thousands) to NY to litigate
(d) Guidi v. Inter-Continental Hotels (2000)
(1) Emotional burden of plaintiffs (private interest) outweighs convenience of
trying case in Egypt
ii) Transfer
(a) 28 USC 1404
(1) presupposes 2 or more appropriate venues
(2) defendant argues that there is a more convenient venue, and in the interest
of justice should be tried there
(3) judge "may" move it to the more appropriate venue
(b) 28 USC 1406
(1) presupposes one appropriate venue and the lawsuit is in an improper
venue
(2) defendant makes a motion to dismiss under Rule 12(b)(3) (improper
venue)
(3) "shall dismiss" or transfer to where it could have been brought
 judge can move it to appropriate venue
(c) 28 USC 1407 Multi district litigation
(1) judge may transfer cases in order to consolidate the action
(2) limited to the pretrial stage
(3) often for mass tort cases
(d) 28 USC 1631
(1) transfer for want of jurisdiction if case is brought in court without jurisdiction
(2) court can transfer case to that other court
II. SUBJECT MATTER JURISDICTION OF THE FEDERAL
COURTS
1. Idea & Structure
A. Federal Courts are of limited jurisdiction, can only hear cases enumerated in
Article III, Sec. 2
i) arising under the Constitution, Laws of the U.S. and Treaties
ii) cases affecting ambassadors, other public Ministers and Consuls
iii) admiralty and maritime Jurisdiction
iv) Controversies where the U.S. is a party
v) between a State and citizens of another State
vi) between citizens of different States
vii) citizens of the same State claiming Lands under Grants of different States,
viii)
between citizens of a State and foreign States, citizens, or subjects
B. 28 USC 1331 Federal Question
i) district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws or treaties of the U.S.
C. 28 USC 1332 Diversity of Citizenship; Amount in Controversy; Costs
i) district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between (a) citizens of different states
(b) citizens of a State and citizens or subjects of a foreign state;
(c) citizens of different States and in which citizens or subjects of a foreign state
are additional parties; and
(d) a foreign state as plaintiff and citizens of a State or of different States
D. Rule 8(a)
i) requires complaint to contain claim for subject matter jurisdiction
ii) the "well-pleaded" complaint rule
(a) must assert a claim in which the district courts have subject matter jurisdiction
2. Federal Question Jurisdiction
A. Louisville & Nashville Railroad v. Mottley (1908)
i) CLAIM ARISING UNDER FEDERAL LAW MUST BE IN THE
COMPLAINT
(a) NOT ENOUGH TO ANTICIPATE A DEFENSE THAT WOULD ARISE
UNDER FEDERAL LAW
ii) plaintiff's claim was a breach of contract under state law
iii) subject matter jurisdiction raised "sua sponte" by SCOTUS
(a) Rule 12(h)(3) = this can be raised at any time - and the court must dismiss
B. Challenging Federal Subject Matter Jurisdiction
i) move for dismissal under Rule 12(b)(1)
ii) think of it as attacking:
(a) the claim = there's no federal claim, therefore no federal jurisdiction, or
(b) jurisdiction = there's no jurisdiction because there's no claim arising under
federal law
iii) move for dismissal under Rule 12(b)(6)
(a) the SCOTUS has said that if there's any arguable basis for a federal claim, the
district court should examine the federal question not as a matter of jurisdiction
but on a Rule 12(b)(6) motion to dismiss the substantive claim
iv) Situations
(a) party appears, challenges subject matter jurisdiction of a federal court, and
lose
(1) they are bound by this determination
(2) they may not thereafter challenge the judgment in a second action
(b) party appears, but fails to challenge the subject matter jurisdiction
(1) may generally not attack that judgment in another court
(c) party defaults
(1) unclear
(d) challenging both subject matter jurisdiction and personal jurisdiction
(1) if claim is dismissed based on subject matter jurisdiction
 plaintiff may bring suit again in State court
(2) if claim is dismissed based on personal jurisdiction
 precludes plaintiff from refiling in state court in the same state
(3) the district court is free to dismiss on either ground
C. "Arising under" defined more broadly in Article III than in 1331
D. Borderline cases with broad implications found to arise under federal law
E. Must be substantial federal question in addition to being on the face of the
claim
3. Diversity Jurisdiction
A. 1332 restricts diversity jurisdiction more than Article III
i) Domicile is what matters = residing with intent to remain
B. DIVERSITY CASES ARE STATE LAW CLAIMS
i) offers a neutral forum
C. Strawbridge v. Curtiss (1806)
i) Requires "complete diversity"
ii) Exceptions
(a) 1335 (Interpleader Actions) requires minimal diversity
(1) allows jurisdiction so long as 2 or more claimants are diverse
(b) The Class Action Fairness Act of 2005 (CAFA)
(1) provides for federal diversity jurisdiction in class actions over amounts in
excess of $5 million in which "any member" of the class possesses the
requisite diversity
D. Newman-Green, Inc. v. Alfonzo-Larrain (1989)
i) permitted a court to retain jurisdiction by dismissing a non diverse
party not held to be indispensable
E. Partnerships
i) for diversity purposes are not considered as entities but as collections of
individuals
F. Corporations
i) 1332(c)(1) State of Incorporation and principal place of business
ii) Principal place of business not always clear - Approaches:
(a) Nerve center approach
(1) where executive and administrative functions are controlled
(b) Muscle test
(1) where bulk of operations take place
G. Legal representative of estate deemed citizen of same state as decedent
H. Time for measuring citizenship for diversity purposes is as of the date on which
the complaint is filed in federal court
I. Redner v. Sanders (2000)
i) represents that it is possible to be "stateless"
(a) plaintiff was resident but not citizen of France, citizen of U.S. but not resident of
any State
ii) Domicile is what matters
(a) there simply was not enough information about plaintiff's domicile
J. Exceptions to Diversity
i) even if there is diversity, courts will decline to hear:
(a) Family Law cases
(b) Probate cases
K. Saadeh v. Farouki (1997)
i) 28 USC 1332 was meant to limit diversity jurisdiction, not to expand it
L. Amount in Controversy
i) currently greater than $75,000
ii) must appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal on these grounds
iii) determining amount for plaintiff seeking an injunction
(a) determine value of injunction to plaintiff
(b) cost to defendant of complying
(c) cost or value to party invoking diversity jurisdiction
iv) Aggregating claims
(a)
(b)
(c)
(d)
2 plaintiffs v. 1 defendant = no aggregation
plaintiff can aggregate 2 or more claims against 1 defendant
if one plaintiff is over $75,000 and the other is not, both can sue in federal court
multiple plaintiffs or multiple defendants with a common undivided interest and
single title or right = the value of the total interest will be used
4. Supplemental Jurisdiction
A. History
i) Pre-1990 called pendent and ancillary jurisdiction
(a) Pendent = plaintiff brings federal claim and a state claim - the state claim is
"appended"
(b) Ancillary = defendant adds a claim in (counter-claim)
(c) Federal and state claims relate to same set of facts or problem
(d) "COMMON NUCLEUS OF OPERATIVE FACT"
(e) also applies to counterclaims arising out of same occurrence
(f) No "pendent party" jurisdiction - cannot add defendants with state claims
against them
ii) United Mine Workers v. Gibbs (U.S. 1966)
(a) plaintiff brings suit against UMW on a federal labor law claim (arising under), as
well as state claims (breach of contract, tortious interference w/ contract, etc.)
(b) SCOTUS says the federal court can hear the entire case because it's all seen
as "one controversy"
iii) SCOTUS case in 1989
(a)
(b)
(c)
(d)
family dies in plane crash, widow brings suit in district court
she alleges FAA is responsible, also the city of San Diego
actions arise form the same nucleus of operative fact as in UMW
plaintiff wants to keep defendants together so that they cannot each blame the
other in separate suits
(e) SCOTUS holds that she can't join the 2 based on pendent party jurisdiction
(f) THIS CASE LEADS TO . . .
iv) Post-1990 = 28 USC 1367 Supplemental Jurisdiction
(a) . . . in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy . . . shall include claims that involve the
joinder or intervention of additional parties
(b) [for diversity cases] the district courts shall not have supplemental jurisdiction
under subsection (a) over claims by plaintiffs against person [joined under 14,
19, 20, or 24], or over claims by persons proposed to be joined as plaintiffs
under Rule 19, or seeking to intervene under Rule 24, when exercising
supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of section 1332.
(c) The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction
(d) period of limitations for any claim asserted under subsection (a), and for any
other claim in the same action that is voluntarily dismissed at the same time as
or after the dismissal of the claim under subsection (a), shall be tolled while the
claims is pending and for a period of 30 days after it is dismissed unless State
l;law provides for a longer tolling period
(e) IN GENERAL
(1) 1367 (a)




pendent and ancillary jurisdiction from UMW
last sentence based on widow case - *now can have pendent party jurisdiction
ALLOWS SUPPLEMENTAL JURISDICTION FOR DIVERSITY CASES
court never liked pendent party jurisdiction, especially for diversity cases, so . .
.
(2) 1367 (b)
 shall not have supplemental jurisdiction for diversity cases
B. In Re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation
(2007)
i) court exercises supplemental jurisdiction because the claims were
connected by a common nucleus of operative fact
ii) factors for determining whether the federal and state claims are connected
by common and operative facts:
(a) compare he facts necessary to prove the elements of the federal claim with
those necessary to the success of the state claim, and also may ask,
(b) whether the state claims can be resolved or dismissed without affecting the
federal claims
C. Szendry-Ramos v. First Bancorp (2007)
i) court does not exercise supplemental jurisdiction because the claims
fell under 1367 (c)(1) & (2)
ii) The state claims predominated
iii) the claims were uniquely Puerto-Rican (where the case was)
(a) involved ethical guidelines for attorneys, and PR did not adopt the same
standards as the rest of the U.S.
5. Removal
A. 1441 - Removable Actions (see diagram)
i) defendant may remove from state court any civil action over which the
federal district courts have original jurisdiction
ii) diversity cases can be removed only if non of the defendants are a citizen of
the state in which the lawsuit is brought
B. 1446 - Procedure for Removal
(a) A defendant or defendants desiring to remove any civil action or criminal
prosecution from a State court shall file in the district court of the United
States for the district and division within which such action is pending a
notice of removal signed pursuant to Rule 11 . . . containing a short and
plain statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or
defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading setting fort the claim for federal relief
upon which such action or proceeding is based, OR within 30 days after
the service of summons upon the defendant if such initial pleading has
then been filed in court and is not required to be served on the defendant
whichever period is shorter.
(c) If the case stated by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case
is one which is or has become removable, except that a case may not be
removed on the basis of jurisdiction conferred by Section 1332 of this
title more than 1 year after commencement of the action . . .
(d) Promptly after the filing of such notice the defendant or defendants shall
give written notice thereof to all adverse parties and shall file a copy of
the notice with the clerk of such State court, which shall effect removal
and the State court shall proceed no further unless and until the case is
remanded . . .
ii) IN GENERAL
(a) Defendant must file short and plain statement of grounds for removal
(b) Defendant must file notice of removal within 30 days of service of process or
within 30 days of the amended pleading which makes it removable but no later
than 1 year after the commencement of the action
(c) *1-year rule in 1446(c) may allow plaintiffs to manipulate system by joining non
diverse parties, then dropping them after 1 year
(1) would run into ethical problems though - highly risky
C. 1447 - Procedure after Removal
(a) the district court now has power to issue all necessary orders and
process to all parties involved
(b) may require removing party to file with its clerk copies of all records of
proceedings
(c) A motion to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days after the filing
of the notice of removal under section 1446(a). If at any time before
final judgment it appears that the district court lacks subject matter
jurisdiction, eh case shall be remanded. An order remanding the case
may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal. A certified copy of
the order of remand shall be mailed by the clerk to the clerk of the State
court. The State court may thereupon proceed with such case.
(d) An order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise, except that an order
remanding a case to he State court from which it was removed pursuant
to section 1443 [civil rights cases] of this title shall be reviewable by
appeal or otherwise.
(e) If after removal the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may deny
joinder, or permit joinder and remand the action to the state court.
ii) IN GENERAL
(a) Motion to remand to sate court for any basis other than subject matter
jurisdiction must be filed within 30 days - district court makes decision whether
to remand
(b) Case can be remanded for lack of subject matter jurisdiction at any time
(c) defendant may be required to pay costs with order of remand
D. Caterpillar, Inc. v. Lewis (1996)
i) District Court incorrectly denies motion to remand back to State court, and
defendant wins case
ii) SCOTUS rules that the judgment still stands because the subject
matter was the same at time of decision
(a) saves time and money since case has already been litigated on its merits
iii) Also, by time decision was made, there did exist diversity jurisdiction (while
at time of incorrect denial of motion to remand there was not)
III.THE ERIE PROBLEM
1. State Courts as Lawmakers in Federal System
A. Historical Context
i) 1st Judiciary Act (1789)
(a) Rules of Decision Act = "The Laws of the Several States, except where the
Constitution or Acts of Congress otherwise require or provide, shall be
regarded as rules of decisions in civil action in the courts of the United States,
in cases where they apply"
(b) Bill # 1, in the First Session of the First Congress (now codified as 1652, infra)
ii) Swift v. Tyson (1841)
(a) SCOTUS determines that "laws" as used in the RDA only referred to
statutes of the states, and not the state's common law
(b) the case dealt with a "bill of exchange," which afforded the defendant defenses
depending on whether New York law applied or if the federal court sitting in
New York could apply "federal common law"
(c) this decision allowed many federal courts to ignore state law and decide
decisions based on pretty much whatever they wanted
(d) later overruled by Erie
iii) Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.
(a) exemplifies the type of decisions that Swift allowed
(b) RR station wants to give exclusive rights to fares to Brown and Yellow - illegal
under applicable KY law
(c) Brown and Yellow reincorporated in TN, so that they're diverse
(d) Brown and Yellow wins in district court because this was allowed under federal
law
B. § 1652. State Laws as Rules of Decision
i) The laws of the several state, except where the Constitution or
treaties of the United States or Acts of Congress otherwise require or
provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.
(a) **important to note that there's are STATE LAW CASES
C. Erie Railroad v. Tompkins (1938)
i) overrules Swift decision
ii) EXCEPT IN MATTERS GOVERNED BY THE FEDERAL CONSTITUTION
OR BY ACTS OF CONGRESS, TEH LAW TO BE APPLIED IN ANY
CASE IS THE LAW OF THE STATE (SUBSTANTIVE LAW)
iii) Twin Aims of the decision
(a) It promoted forum-shopping
(b) It led to inequitable administration of the laws
iv) There is no federal general common law
(a) however, there is federal common law (i.e. maritime law), and judges can fill in
the gaps of the statutory scheme, but not "general" federal common law
v) constitutional arguments
(a) the structure of the federal system
(b) violates equal protection of the laws
(c) violated due process
D. Klaxon Co. v. Stentor Elec. Mfg. Co. (1941)
i) THE COURT MUST APPLY THE LAW OF WHERE THE COURT SITS
E. VanDusen v. Barrack (1964)
i) EVEN WHEN A CASE IS TRANSFERRED TO A FEDERAL COURT IN
ANOTHER STATE IT "TAKES WITH IT" THE SUBSTANTIVE LAW AND
CHOICE OF LAW RULES OF THE STATE WHERE IT WAS
ORIGINALLY FILED
2. Limits of State Power in Federal System
A. 1938
i) both Erie was decided, and the Federal Rules of Civil Procedure were
enacted
ii) **COLLISION COURSE**
(a) Federal Procedural Rules vs. State Procedural Rules
B. Interpreting the Constitutional Command of Erie
i) Guaranty Trust Co. v. York (1945)
(a) whether to use state or federal statute of limitations
(b) OUTCOME DETERMINATIVE TEST: IF THE STATE RULE USED
DETERMINES THE OUTCOME, IT SHOULD BE USED
(1) use as a tool when the rule is outcome determinative and would either help
or hurt your client's position
C. § 2072
i) Procedure for District Courts is determined by Supreme Court
D. Following Guaranty - the high-water mark for SCOTUS deference to State
courts - 4 cases where state law is followed
i) Ragan v. Merchants Transfer & Warehouse Co. (1949) = lawsuits begin for
statute of limitations purposes
(a) Rule 3 vs. KS practice
(b) Erie > state law governs + Guaranty > outcome determinative = follow KS
practice
ii) Cohen v. Beneficial Industries Loan Corp. (1949) = shareholder required to
post bond for expense if suing his corporation
(a) 23.1 vs. NJ statute
(b) state statute wins
iii) Woods v. Interstate Realty Co. (1949) = MS statute barring out-of-state
corps. from suing in state courts
iv) Bernhardt v. Polygraphic Co. of America (1956) = VT barring of arbitration
of employment practices
E. Byrd v. Blue Ridge Rural Electric Coop. (1958)
i) REQUIRES COURTS TO BALANCE STATE INTERESTS AND
FEDERAL INTERESTS
ii) In this case, the 7th Amendment right to trial by jury weighed heavily in favor
of the suit following federal rules because it guaranteed a jury trial
(a) use this case as a tool, when there's something to balance in your client's favor
iii) Test
(a) Is the state practice "bound up" with the definition of the rights and obligations
of the parties?
(1) if so, state law governs
(b) Even if it isn't part of the substantive rights and obligations, would its
application determine the outcome of the case?
(c) **If so, are there "affirmative countervailing" considerations of federal
judicial administration present?
(1) if so, go with the federal law
F. Hanna v. Plumer (1965)
i) *CHOICES BETWEEN STATE AND FEDERAL LAW ARE NOT TO BE
MADE AUTOMATICALLY BASED ON ANY LITMUS TEST, BUT
RATHER BY REFERENCE TO THE POLICIES UNDERLYING THE ERIE
RULE:
(a) DISCOURAGEMENT OF FORUM-SHOPPING
(b) AVOIDANCE OF INEQUITABLE ADMINISTRATION OF THE LAWS
ii) in this case, the service of process employed (according to the Federal
Rules)would not have encouraged forum-shopping, nor would it have led to
different results
(a) *concentrates on how prospectively this is true (not necessarily in the case)
iii) this is how you get around the outcome-determinative test
iv) If Federal Rule of Civil Procedure conflicts with State rule (if no
conflict, no problem - state law just adds to federal rule)
(a) Is the Federal Rule Constitutional? (it always is)
(b) Is it a procedural rule and not arguably substantive?
(c) Is the procedure Constitutional?
(1) *If the last 2 are yes, use the Federal Rule
G. Certification
i) Federal Court can certify a question of State law to that State's highest court
if there is a state statute allowing for this
(a) produces confusing answers to questions
(b) often is ineffective