Civil Procedure Checklist/Attack Sheet – Prof. Clark Fall 2010
Personal Jurisdiction
1. Was D present in forum state when he was served? Burnham v. Superior Court
a. Was he tricked into the forum state? Tickle v. Barton
The federal court is authorized to assert jurisdiction if the courts of the state in which the federal court sits could
assert jurisdiction over the defendant under Rule 4(k). Thus,
2. Is there a State long arm statute that authorizes it to exercise PJ under the circumstances in the case because
the Federal court borrows state long arm statute to obtain PJ (Rule 4(k))?
a. Blanket Long Arm Statute (Cal.)
b. Enumerated Long Arm Statute: Gray v. American Radiator
3. Is it constitutional under due process to exercise PJ?
We look and see that none of the traditional basis for jurisdiction apply here.
a. D a domiciary/citizen? Milliken v. Meyer
i. Property alone is not sufficient: Shaffer v. Heitner
b. Consent to PJ
i. Express consent: Keeton v. Hustler
ii. Implied consent:
1. State law: Hess v. Pawloski
2. Didn’t challenge PJ via Rule 12(b) or special appearance
c. Minimal Contacts Int’l Shoe
i. What are contacts or D’s activity in forum state:
a. None: WWVolkswagen
b. Causal or Isolated: Koulko
c. Single Act: McGee
d. Continuous but limited: Burger King
e. Continuous and systematic/substantial (Gen. Jurisdiction)
d. General Jurisdiction (Continuous and Substantial Contacts): Perkins v. Benguet/Frummer v. Hilton
Hotels
1. Claim did not arise out of contacts
2. Don’t worry about fairness
ii. Specific Jurisdiction)
1. Claim Arise out of Contacts/ D’s forum related activities: Int’l Shoe
Now we have to see if the contact is of the quality and nature to give rise to personal jurisdiction.
2. D purposely avail itself of the privilege of conducting activities w/in the forum state
invoking the benefits and protection of the laws directly or indirectly: Hanson v.
Denckla
a. Unilateral Activity of P or 3rd Party: Hanson v. Denckla
Did they reach out to sell or make contact with forum state or did they come to them?
Do they do business in forum state, go there, or have any benefit from the law?
b. Voluntarily sought to do business in or with forum state: Int’l Shoe
Not Random?
Did they solicit to them or did they access their info and contact them
c. Agent of foreign Co. doing significant amount of business on behalf of foreign
Co.
d. Effort to market to forum state: WWVolskwagen
e. Not mere foreseeability but should reasonably anticipate being haled to court
there: WWVolkswagen
f.
More than a contract: Burger King
g. Knowledge that products would make it to the forum state
How similar to Asahi: Full product/just a part or suing directly/through another party
h. Awareness that it would reach there + marketing it there: Asahi – O’Connors
Opinion
i. Mere awareness that a lot of it would get there bc foreseeability envokes
benefits and protections of law: Asahi – Brennan Opinion/Stevens Opinion
j.
Incorporated purposeful direction in forum of action outside forum: Pebble
Beach/Calder
i. Calder Effects Test if act was outside
1. Committed an intentional act
2. Act was expressly aimed at the forum state
3. Act caused harm and D knew it would in forum state
3. Notions of Fair play and substantial justice once minimum contacts established
a. Elements of Fairness
i. Burden on D
ii. Forum state’s interest in dispute
iii. Convenience to P
1. Witness and evidence
iv. Judicial system’s interest in obtaining most efficient solution
v. Furthering social policies
b. Only one that this was essential was Asahi
i. Haven’t seen this one be a factor of cases in U.S.
ii. Always bring up Asahi and if it was foreign or not in reasonableness
test
Service of Process and Notice
1. Served in proper manner to provide adequate notice
a. Person who served it – Rule 4(c)
i. Complaint and summons
ii. 18 and nonparty
iii. Specially appointed person by court
b. Waiving Service – Rule 4(d)
c. Serving an individual – Rule 4(e)
i.
ii.
iii.
iv.
State law where district ct. located
State law where D located
Delivered to individual personally
Left it at dwelling or abode w someone suitable age and discretion residing there
1. Dwelling or usual place of abode – Nat’l Dev. Co. v. Triad
2. Suitable Age
3. Suitable Discretion – Williams v. Capitol Transit
4. Resides there – Nat’l Dev. Co. v. Triad
v. Agent authorized by appointment or by law to receive service – Nat’l Equip. Rental v. Szukhent
1. Contract involved
d. Serving a corporation – Rule 4(h)
i. State law where district ct. located
ii. State law where D located
iii. By delivering it to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service
1. Ins. Co. of N. Amer. v. Hellenic Challenger
2. Fasion Page v. Zurich
2. Besides adequate, there must be reasonable notice to not violate Due Process – Mullane
a. Reasonably calculated to apprise interested parties of the pendency of the action
b. Publication
i. Were names and addresses known – Mullane
1. If not, could they be found – Cost/Benefit Analysis
ii. Is there family that could be easily reached – McDonald v. Mabee
iii. Was there also mail sent – Dobkin v. Chapman
c. Posting – Green v. Lindsey
d. Mail
i.
ii.
iii.
iv.
Was certified mail returned unclaimed: need more – Jones v. Flowers
Was real address given + publication – Dobkin v. Chapman
Is person mentally handicapped – Covey v. Town of Somers
Actually send notice not just request waiver – Chavez
3. Opportunity to be heard
a. Degree of harm to D’s interest from prejudgment remedy
b. Risk that the deprivation of D’s property will be erroneous
c. Strength of Ps interest in getting remedy
Subject Matter Jurisdiction
1. Diversity of Citizenship: 28 USC 1332
a. Complete Diversity – Strawbridge v. Curtis
i. Individuals must be: §1332(a)
1. Citizen of U.S; AND
2. Domiciliary of State
a. Person’s place of his true, fixed, and permanent home and principal
establishment (residence)
b. Has the intent to remain indefinitely (No definite intent to go elsewhere)
ii. Corporations are citizens at: §1332(c)(1)
1. State in which it is incorporated; AND
2. State in which it has its principal place of business
a. Nerve Center – Hertz Corp. v. Friend
iii. Unincorporated Associations (Partnerships)
1. Look at individual citizenship of each member
iv. Nominal Parties can be disregarded – Rose v. Giamatti
v. It matters at the time the suit is brought
vi. To change a domicile you must do all that stuff above
b. Amount-in-controversy
i. Sum claimed for must be greater than $75,000 and be made in good faith
1. All that matters is that it might be more than $75,000
2. Only dismissed if it proved to a legal certainty that the claim will be less than $75,000
ii. Aggregating Claims
1. 1P v. 1D  aggregate all
2. 1P v. 2D  both must be greater
3. 2P v. 1D  one must be greater
4. Multiple Ps can aggregate if they have a common and undivided interest
iii. Determining Amount-in-Controversy
1. Look at value to P
2. Look at the view point of the person trying to invoke diversity jurisdiciton
3. Look to the object sought to be accomplished by P’s complaint
2. Federal Question
a. 28 U.S.C. 1331 – “The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the U.S.”
b. Does the suit arise under the federal law that creates the cause of action?
i. If Yes, then there is Federal Question Jurisdiction
ii. If No, then look to see if P will have to establish a proposition of federal law in order to prevail.
1. If P’s claim requires proof of federal law then there is Federal Question Jurisdiction
a. Smith v. Kansas City Title
c. Must be on the face of a well-pleaded complaint which asks whether the P would have to raise a federal
issue including if the elements she needs to prove to establish her claim involve federal law.
i. Doesn’t count if the D is going to raise it as a defense – Louisville & Nashville v. Mottley
ii. Same is true of counterclaims or answers – it must be the original claim
d. 28 U.S.C. 1338 – Federal courts have exclusive jurisdiction over patents, trademarks, and copyrights
Removal
1. 28 U.S.C. §1441
a. 1441(a) – Only DEFENDANTS can remove from state to federal court.
i. Only authorizes removal of state court actions “of which the district courts of the U.S. have
original jurisdiction
ii. In multi-D case, you can only remove if all Ds agree to remove
iii. Only one court where it can be removed and that is “the district and division embracing the
place where such action is pending in the state court”
iv. The entire case gets removed not just claims
v. 3rd Party Defendant’s cannot remove
b. 1441(b) – Exception in DIVERSITY CASES if any of the Defendants area citizen of the state in which the
state action was brought, the case cannot be removed
c. 1441(f) – It doesn’t matter if the state court lacked jurisdiction over the case, the federal court can still
hear it
Venue (Place of trial in an action within a state)
1.
2.
3.
4.
Venue can be waived/consented to for failure to object to it
Some statutes or even contracts might regulate places for venue
To bring a suit against a D you need: PJ, SMJ, and proper venue
28 U.S.C. §1391
a. Diversity Cases §1391(a)
i. Judicial district where any D resides, if all Ds reside in same state
1. Resides is same as domicile for SMJ
ii. Judicial district which substantial part of the events or omissions giving rise to the claim
occurred Bates v. C&S Adjusters, Inc. (Weird letter)
iii. Judicial district in which D is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which the action may otherwise be brought
1. Fallback provision
b. Any other case §1391(b)
i. Same as above
ii. Same as above
iii. A judicial district in which any D may be found, if there is no district in which the action may
otherwise be brought
c. §1391(c) – Determining where a corporation resides so you can use it for §1391(a)(1) or (b)(1)
i. Corporation resides in a district in which you could get it for personal jurisdiction if that district
was a state. If not it is the place where it has the most significant contacts
Transfer of Venue
1. 28 U.S.C. §1404
a. §1404(a) – Case can be transferred to any other district where it might have been brought by the P
i. Hoffman v. Blaski
b. In Diversity Cases, the law that was in the original court follows the transfer cases.
i. Van Dusen v. Barrack, Ferens v. John Deere
2. 28 U.S.C. §1406
a. §1406(a)-(b) – a court can transfer a case to a proper venue if it is wrong or dismiss it, but either way it
must be done in the interests of justice
Forum Non Conveniens
1. The court can resist to impose its jurisdiction if the court isn’t a convenient forum at all even if it was properly
brought there.
2. They normally dismiss the case without prejudice and this is normally only done if there exists a more
convenient forum somewhere (Exception is the Islamic Republic of Iran v. Pahlavi)
3. All the factors for this are in Outline Page 21
a. Piper Aircraft Co v. Reyno
Joinder and Supplemental Jurisdiction
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

There is a two part process for the addition of claims or parties.
First the claims/parties have to be allowed by the rules of Joinder in the FRCP
Second these claims and parties must have supplemental jurisdiction over eachother
1. Do the Rules of Joinder Allow the Claim or Party to be Added
a) Additional Claims
 Rule 13 – Counterclaims
 13(a) – Compulsory Counterclaims
o Must arise out of the transaction or occurrence that is subject matter of claim
 4 Tests court can use but U.S. v. Heyward says needs to have a logical
relationship between the claim and counterclaim
o And Does not require adding another party over whom the court cannot acquire
jurisdiction
 13(b) – Permissive Counterclaims
o Be very careful with these bc these mostly won’t have supplemental jurisdiction
 13(g) – Cross-Claims
o Must arise out of the transaction or occurrence that is subject matter of claim
or counterclaim
 Again it must be a logical relationship – Lasa v. Alexander
 Cross claims are permissive not compulsory
 Can be used if you think he would be liable to you for some of the
damages
 13(h) – Joining Additional Parties
o Rules 19 and 20 govern the addition of a person as a party to a counterclaim or
crossclaim
 Rule 18(a) – Joinder of Claims
 Once a person has properly asserted a claim, counterclaim, crossclaim, or impleader he
can join as many claims as it wants
o Don’t have to be related at all
o Beware of supplemental jurisdiction
b) Additional Parties
 Rule 19 – Required Joinder of Parties
 19(a) –Person required to be joined if Feasible (3 possible reasons)
o In that person’s absence, the court cannot accord complete relief to existing
parties
o Without that person, you impair the person’s ability to protect his interest
o You leave existing party subject to risk of incurring multiple obligations or
inconsistent judgments
 19(b) – Person required when Joinder is NOT Feasible (bc of SMJ or PJ)
o Court can either proceed or dismiss the action
o Court has to balance
 Extent to which the person or current parties would be prejudiced
 Extent to which any prejudice could be lessened or avoided by
 Protective provisions in judgment, shaping the relief
 Whether judgment w/o person would be adequate
 Whether the P have an adequate remedy if action were dismissed
o Only dismiss actions if the party that can’t be joined is indispensable
 Provident Tradesmens Bank v. Patterson
 Rule 14 – Impleader/3rd parties
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


Used to bring in a party who is or may be liable to the 3rd party plaintiff for Part or all of
the claim against it.
 3rd party P only recovers from 3rd party D if the 3rd party P loses the suit
 3rd Party D
o Must assert any defense against the 3rd party P
o Must assert any compulsory counterclaims
o May assert any permissive counterclaims
o May assert any crossclaims against other impleaders
o May assert against the P any defense that the 3rd party P has to the P’s claim
o May assert against the P any claim arising out of the transaction or occurrence
that is the subject matter of the P’s claim
 P can assert any claim against the 3rd Party D as long as it arises out of the transaction or
occurrence that is the subject matter of the P’s original claim
 P can bring in his own 3rd party if he is getting sued for something (counter/cross claim)
Rule 20 – Permissive Joinder of Parties
 Plaintiffs
o 20(a)(1) – People can join as plaintiffs if:
 They assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series
of transactions/occurrences
 And any question of law or fact common to all Ps will arise in the action
 Defendants
o 20(a)(2) – People can be joined as Ds if:
 Any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions/occurrences
 And any question of law or fact common to all Ds will arise in the action
Rule 42 – Consolidation/Separate Trials
 42(a) – consolidation
 42(b) – court can order a separate trial on any issue/claim for convenience, to avoid
prejudice, or to expedite or economize
Rule 21 – Misjoinder/Nonjoinder
 At any time the court can add or drop or severe any claim against a party instead of
dismissing it
2. Does the claim or party have Supplemental Jurisdiction or an Independent Basis of Jurisdiction
a) The court must have Original Jurisdiction before Supplemental Jurisdiction can Apply
b) 3 Part Test of Supplemental Jurisdiction
1. Is there a constitutional Power under Article 3 to hear the claim?
 Constitutional power to hear a claim exists if:
o There is a proper claim within the jurisdiction of the court; AND
o The related claim arises from the same “Nucleus of Operative Facts” that forms
one constitutional case United Mine Workers v. Gibbs
2. Is there a statutory grant to exercise jurisdiction? Aka 28 U.S.C. 1367
 28 U.S.C. 1367
o §1367(a) – Codified Gibbs Operative nucleus of fact for claims as well as Joinder
of additional parties
o §1367(b) – Exception: In cases where the original jurisdiction was founded
solely by DIVERSITY jurisdiction, district court does not have sup. Jurisdiction
over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or
24, or over claims by people proposed to be joined as Ps under Rule 19, when
exercising supplemental jurisdiction over such claims would be inconsistent
w/ the jurisdiction requirements of §1332.

Thus, a P cannot bring a claim against an impleaded party who would
ruin diversity jurisdiction, but the impleaded party can sue him
 A P who is added by Rule 20 can however bring a claim against the main
D even if he doesn’t meet the amount in controversy if the original P
can meet this amount Exxon Mobil v. Allapattah
 However, if there are 2Ds you cannot do this bc then they
would be a party under Rule 20
3. Court must decide, based on discretionary factors, whether to hear the claim or not
 §1367(c) – Court can decline to exercise sup. Jurisdiction over a claim if:
o Claim raises a novel ? of State law
o Claim substantially dominates over claims which court has original jurisdiction
o District has dismissed all claims over which it has original jurisdiction
o Exceptional circumstances there are other compelling reasons for declining
 Confusing to jury?
 The court must actually apply these reasons if it is going to dismiss
o Executive Software North America v. U.S. District
Pleading
a) Rule 8 – General Pleading Requirements
i. 8(a)(1) – Jurisdiction
ii. 8(a)(2) – A short and plain statement of the claim showing that the pleader is entitled to relief
1. Facts not legal conclusion
2. Conley v. Gibson – no dismissal unless it appears beyond doubt that the P can prove no set of facts in
support of his claim which would entitle him to relief
3. Bell Atlantic v. Twombly – Factual allegations must be shown and the complaint must be plausible.
Must actually give facts that there was an agreement
4. Ashcroft v. Iqbal – Have to provide facts that they were actually discriminating against you
iii. 8(a)(3) – Relief
b) Ordinary Default Rule – Party seeking relief must carry the burden of proof
c) Rule 9 – Pleading Special Matters
a. 9(b) – In alleging Fraud or Mistake, a party must state with particularity the circumstances constituting
fraud or mistake
i. Denny v. Carey – Harmonize rule 8 and 9 and give sufficient factual allegations to enable D to
prepare a meaningful defense
b. Private Securities Litigation Reform Act
i. In outline if it is necessary for Securities Fraud
d) Rule 12 – Responding to Complaint with Motions
a. All different types that can be brought up
i. Failure to state a claim for which relief can be given
1. American Nurse Association v. IL – A complaint is not invalid or dismissible if they allege
facts that do state a claim with claims that are invalid
2. If complaint is dismissed most judges will give you one chance to amend it
b. Rule 12(f) – Motion to Strike
i. Can strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter
e) Rule 8(b) – Responding to the Complaint – ANSWERS
a. Defendant can admit, deny, or plead insufficient information in response to each allegation
b. 8(b)(1) – must state your defenses and admit/deny all allegations
i. General Denial – deny everything in the complaint
ii. Specific Denial – deny all allegations of a particular paragraph and each and every claim
iii. Improper Denial
1. Conjunctive Denial – deny allegations using the exact same words as complaint
a. Zielinski v. PPI – Erroneous general denial and was forced to admit to everything
2. Pregnant Denial – say things like we do not owe $10.
c. 8(b)(5) – lacking knowledge or information to admit or deny anything in a claim is deemed a denial
d. 8(b)(6) – Anything that you don’t deny or admit is deemed to be admitted, except for one that relates to the
amount of damages
f) Rule 8(c) – Affirmative Defenses
a. D must affirmatively state/plead any affirmative defense if he wants to use them at trial
i. If you do not plead or state an affirmative defense you lose it bc P has to have a chance to refute it
and not be surprised
b. Rule 8(c) – lists 19 affirmative defenses that must be pleaded
i. Other affirmative defenses are normally:
1. Something that will be contested at trial or D has to prove certain facts to get the defense
2. Something that relies on facts particularly with the D’s knowledge
ii. Ingraham v. U.S. (was a defense), Taylor v. U.S.(was not a defense)
g) Rule 15 – Amendments to Pleading
a. Want each claim to be decided on the merits rather than on procedural technicalities and now there is a
discovery process so pleadings don’t carry the burden of proving given facts
b. 15(a) – Amendments before Trial
i. Can amend before the other party responds in his answer or
ii. Can amend with opposing party’s consent or the court’s leave
1. In early stages court will mostly always let you amend
2. Normally only deny late when there was already a chance to amend, they are asserting
legally insufficient claims, it will prejudice, or is done in bad faith
3. Beeck v. Aquaslide – allowed amendment in good faith
c. 15(b) – Amendments during and after trial
i. Watch out because you can expressly or implicitly consent to issues being tried that are not in the
pleadings Moore v. Moore
d. 15(c) – Relation Back of Amendments
i. Claims relate back when they arose out of the conduct, transaction, or occurrence set out or
attempted to be set out in the original pleading
ii. Adding party can relate back when:
1. The amendment covers the same conduct, transaction, or occurrence as the original
pleading
2. The new party had notice of the action either within the statute of limitations or 120 days
after the complaint was filed
3. The new party knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity
a. Krupski v. Costa Crociere – this related back
h) Rule 11 – Sanctions
a. 11(a) – Signature
b. 11(b) – Representations to the Court – Certified after an inquiry reasonable under the circumstances:
i. No improper purposes (harass)
ii. No nonfrivolous arguments
iii. Facts have evidentiary support
iv. Everything reasonably based on belief or lack of info
c. 11(c) – Sanctions
i. You can get sanctions but before you bring the motion to the court you have to give opponent
notice and 21 days to try to correct this
1. Hadges v. Yonkers Racing Corp – no sanctions
2. Business Guides v. Chromatic Communications- Court said that any party who signs a
pleading, motion, or other paper has an affirmative duty to conduct a reasonable inquiry
into the facts and the law before filing
3. Chambers v. Nasco – Court have an Inherent power to punish conduct that abuses the
judicial process and discretion to fashion an appropriate sanction
i)
Rule 23.1 Derivative Actions Requirements
a. (a) – P must fairly and adequately represent the interest of the shareholders
b. (b) the complaint must be verified and must…(1),(2),(3)
i. Surowitz v. Hilton Hotels Corp – verification was fine bc there was a reasonable and good faith belief
followed by careful investigation bc of her son-in-law