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Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

I.

PERSONAL JURISDICTION
a. What it is: i. DEF: The authority of a given court to exercise power over an individual or entity & to adjudicate their rights. 1. The power comes from statutes, constitutions, and court judgments but jurisdiction is largely defined by congress 2. When a court lacks personal jurisdiction over a party, any resulting judgment it enters will not be binding and enforceable ii. 3 Types: 1. In Personam (Courts power over a person) 2. In Rem (Courts power over a property) 3. Quasi In Rem (Courts power over a property when action is not really about property) iii. Why does it matter? 1. Due Process Clause of 14th amendment A. All persons must be afforded the same treatment under the law 2. Full Faith & Credit Clause A. All states must recognize, accept, & enforce laws & judgments of other states. iv. Traditional Views: 1. Pennoyer v. Neff A. Main issue is over presence B. A state can exercise PJ over a for these reasons: i. Consent ii. Transient Presence must be served while in the state iii. Domicile C. Dr. Snake Oil Hypo: Under Pennoyer standard, the traveling Dr. Snake Oil would not be held under the state he was traveling ins jurisdiction. 2. Hess v. Pawloski A. The idea of implied consent can fulfill the presence requirement. When corporations were involved, the court decided that doing business within the state would fulfill the presence requirement, rather than the consent requirement. B. Dealt with a motor vehicle long arm statute v. Modern: International Shoe (Minimum Contacts Analysis) b. Long-Arm Statutes i. DEF: A jurisdictional statute that articulates the specific range of circumstances when a state will attempt to subject foreign s to jurisdiction in that state. (Its the states choice of when to impose jurisdiction on a ) ii. 2 Types: 1. Unlimited (Promulgated/Rhode Island Model) A. State allows exertions of personal jurisdiction under the full extent of the constitution. B. When a state has implemented this kind of long-arm statute, it leads to a single step process in evaluating the Constitutionality of applying PJ to the . 2. Enumerated Statutes (Limited /New York Model) A. State specifies particular enumerated acts over which the state will extend jurisdiction. B. A state may not be able to subject a to jurisdiction by its own laws without violating the due process clause iii. Gust v. Flint: Supreme Court of GA (1987) No PJ 1. Rule: In order for GA to exercise PJ, must meet criteria for GAs LAS, which includes the necessity for substantial or sufficient business with GA (Nature of contacts) 2. *(This is the old interpretation before the court held differently in the next case since the legislature refused to change the statute) iv. Innovative Clinical v. First Bank of Iowa: Supreme Court of GA (2005) Yes PJ 1. The court held that if someone transacts business in GA, then they are able to assert PJ as long as it is constitutional (so, as long as there are sufficient minimum contacts)

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

c. Notice: i. A must receive constitutionally sufficient or adequate notice of proceedings which they are a party to. The purpose of the notice is to afford the sufficient opportunity to appear and defend itself in the action part of due process ii. Without proper notice, other states are not obliged to give the judgment full faith and credit. iii. 1st ask what kind of service the statute requires (usually requires personal service, but there are some settings that personal service is not required, so), then look to constitution to see if other means are in line with due process depends on facts of the case (usually default to personal) iv. Asks: what would a reasonable person who is actually seeking to give notice do? 1. Alternatives reasonably available? (Not just possible, must be reasonable) 2. Are those alternatives more likely to actually give notice than the method used? v. Evaluated Ex Ante, not Post Hoc (So, its not viewed from hindsight & is viewed in the abstract) vi. Mullane v. Central Hanover Bank & Trust (1950) 1. Factors to determine if publication was sufficient: A. The reasonableness of expense of notification by mail B. Availability of names and addresses of beneficiaries 2. Process and notice must: A. Reasonably convey the required information B. Afford a reasonable amount of time for those interested in making an appearance C. Publication isnt sufficient when there is a small chance anyone will see it, but it is okay when the person is missing or unknown. 3. The court said the standard is HIGHLY FACT-SPECIFIC - one of general reasonableness in view of all the circumstances but process which is a mere gesture is not sufficient for due process. vii. Dusenbery v. United States (2002) 1. FBI sent forfeiture notice to prison inmate. Inmate said he never got it. 2. Court says that under these facts, the constitution doesnt call for actual notice; requires that notice that is given be reasonably calculated to inform the affected party. 3. The dissenting opinion (Ginsburg, Stevens, Souter, and Breyer) says that the s method was substantially less likely to bring home notice 4. The way the BOP handles mail delivery was changed after this case, proving that the dissent had a valid argument but they just didnt want to step on the BOPs toes. viii. Jones v. Flowers (2006) 1. Rule: when knows that did not receive notice, they must take reasonable, additional steps to deliver the notice A. Even though Jones should have been more diligent with his property B. Certified mail is not required, but the added notice to the government that it was not received increases the burden 2. Basically says that the individual must do what a reasonable person who actually wants to convey the notice would do. 3. The dissent (Thomas, Scalia, and Kennedy) argue that the means of notice were reasonably calculated to inform the of his loss of property since the notices were sent to his address that he had provided to the state. Also, when the letters were returned, they published the notice in a newspaper. A. They claim that due process requires nothing more than what did, especially considering the circumstances (where did not pay his takes and did not report any change of address.) (CONSTITUTIONAL ANALYSIS) d. General Jurisdiction: i. DEF: When a may be subjected to PJ within a state based wholly on contacts having no relation to the underlying claims being asserted. **Continuous and Systematic contacts with the state** (This is rare and the threshold for obtaining it is high) 1. A person is subject to general jurisdiction in their state of domicile 2. A corporation is subject to general jurisdiction in their state of incorporation and their principal place of business

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

ii. Goodyear Distributing Company v. Brown (tells us that continuous and systematic nature of the contacts can be judged based on whether or not can be considered at home in forum state) 1. Bus overturned in France because of tire and boys on board were killed. Parents sued Goodyear USA, Luxembourg, Turkey and France. 2. Stream of Commerce was insufficient for general jurisdiction because s were not regarded as at home in the forum, contacts were not continuous and systematic, and company did not purposefully send any tires to forum some just made it there through intermediaries. Circumstances here were more like Helicopteros than Perkins 3. **Established a sliding scale between Perkins and Helicopteros iii. Perkins v. Benguet Consolidated Mining Co. Yes PJ 1. WWII Mining Company in Philippines. Pres/GM/Perkins returns to OH to run business from there. Suit filed in OH was unrelated to s activities there. 2. Rule: Where has continuous and systematic contacts/activities within the forum state, that state can choose to either decline or take jurisdiction over any claim, even those outside the nature of s contacts. 3. Fairness is a big issue here Continuous and systematic contacts must be sufficiently substantial and of such a nature where it is fair to exercise jurisdiction. 4. Determined that it is necessary to look at the context of the contacts here, there would have been no other place to sue iv. Helicopteros Nacionales de Columbia, S.A. v. Hall No PJ 1. Helicopter purchased, maintenance, and trained with pilots in TX by . Crashed in Peru. sued for wrongful death in TX from the crash in Peru. 2. Rule: The court applied the test from Perkins and found that mere purchases, even if occurring at regular intervals, are not enough to warrant a states assertion of in personam jx over a non-resident corporation in a cause of action not related to those purchase transactions Contacts must be extensive, not minimum. 3. No Majority on arise out of: court didnt clarify whether claims need to arise out of actions in the state or if related to activities in the state are enough A. Both parties agrees that the contacts didnt arise out of the activities within the forum, but Kinkopf says they just had a bad lawyer and should have argued specific jurisdiction because they likely would have gotten that. B. Justice Brennan argued that the contacts were related to the issue and should qualify as fair and reasonable, but the majority left open the option that a claim related to the in-state activities will be enough to trigger the less demanding standard rather than that of Perkins. e. Specific Jurisdiction: i. DEF: Jurisdiction that relates to a specific set of facts giving rise to a lawsuit, and which arises out of the contacts that a has with the forum state. Most common type of territorial jx 1. The issue here always starts with International Shoe: Minimum contacts such that the assertion of jurisdiction in the forum state comports with the traditional notions of fair play and substantial justice.
Nature of Contacts Continuous and Systematic Isolated and Sporadic Related Jurisdiction Specific Jx if purposeful availment & reasonableness req. are satisfied Unrelated General jx if contacts substantial No jx

2. Facts: DE company conducts business in WA through middle men salesmen, but has no office and makes no contracts in WA. WA sues for unpaid contributions. A. Provided a way to assert jurisdiction without presence within the forum 3. Purposeful Availment: to the extent the corporation exercises the privilege of conducting activities within the state, it enjoys the benefits and protections of the laws of the state which, in turn, gives rise to obligations related to those activities 4. Ways to determine minimum contacts: A. How substantial are the contacts within the state? i. The quality and nature of the activity ii. Must be continuous and systematic B. Are these contacts related to the suit?

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

ii. McGee v. International Life Insurance Co: 1. Personal jurisdiction may be appropriate when there is a single contact, as long as the suit is based on this connection 2. The court holds that as long as the s burden does not exclude due process, the assertion of specific jx by the state is acceptable. 3. They also noted that the state had a strong interest in protecting its citizens, by giving them a local forum in which to litigate. 4. *Substantial connection (this is the least stringent requirement for contact with the forum state that SCOTUS has upheld) iii. Hanson v. Denckla 1. Money + Family + Death = Litigation case. Does DE or FL have jurisdiction? 2. The unilateral activity of those who claim some relationship with a non-resident CANNOT satisfy the requirement of minimum contact with the forum state. A. must purposefully avail itself of the privilege of conducting activities within the forum state, thus invoking benefits & protections of its laws. 3. The court still insisted on minimum contacts between the state and the non-resident (it was not enough that the subject of the suit had ample connections with the forum state.) iv. World-Wide Volkswagen Corp v. Woodson NO JX 1. Facts: Family purchased Audi in NY, while driving through OK, they got hit by an uninsured drunk driver and the car exploded. Family sued manufacturer, dealer, distributor, and retailer in OK. 2. Company had no contacts, ties or relations with OK except for this isolated incident s unilateral activity took the car to OK, and they could not foresee being haled into court there. 3. Established 2 important concerns when deciding minimum contacts: A. Reasonableness/fairness factor: (The LOVE TRIANGLE) i. *Burden on ii. *Interest of forum state in adjudicating the case iii. *s interest in complete and effective relief iv. Interest in judicial efficiency v. Shared interest of several states in furthering the social policy 1. Relationship between 5 factors and Minimum Contacts a. WWV: These 2 are separate and distinct. A case must satisfy both MC and fairness factors before a forum state can exercise jurisdiction. b. Burger King: Sliding scale between PA and reasonableness. Weakness on 1 aspect may be compensated by strength on the other and forum state may still exercise jurisdiction. 2. Now they are SEPARATE INQUIRIES, NO SLIDING SCALE 3. The s interests almost always count because they act as an incentive structure getting compensation for the injured within a state will help others act safe & reasonable within the state. B. Federalism the interdependence of the states while respecting the sovereignty of each state 4. Foreseeability: A. NOT the mere likelihood that a product will find its way there. It is whether they purposefully avail themselves of the forum state B. Is it if should reasonably anticipate being haled into court there v. Kulko v. Superior Court (1978) 1. A father who allowed his minor daughter to live with her mother in CA was not subject to jx for divorce proceedings in CA 2. Burden on too high and did not seek out the benefits of the state by purposefully availing himself of the benefits & protections of forum state (Kinkopf disagrees w/ PA claim).

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

vi. Keeton v. Hustler Magazine 1. Woman sues Hustler over a cartoon in NH because its only forum where statute of limitations has not run. 2. Holding: State may exert jurisdiction over a national publication where a substantial amount of copies are regularly sold there. A. B/c they circulates a large number of copies there, the s contacts were not random, isolated, or fortuitous, so it purposefully availed itself of the benefits and protections of the state B. Also because the harm was suffered in the forum state (the scumbag is guilty) 3. They also held that the s contacts with the forum state are irrelevant. vii. Calder v. Jones (Calder Effects Test) 1. Facts: Article written in FL about in CA. Suit filed in CA. 2. State may exercise jurisdiction over a if their intentional conduct in another state is directed towards and causes damages in the forum state. 3. Because the forum state was the focal point of the action and effects, the should expect being haled into court there. 4. Effects test has varying success 5. Relevant hypo: badly aimed bomb. viii. Burger King Corp. v. Rudzewicz (1985) (NOT APPLICABLE LAW) 1. opened BK franchise in MI, fell behind in payments, refused to shut down franchise. BK is FL corp. and sued in FL. 2. Brennan tried to make minimum contacts a sliding scale approach saying that the more fairness that applies, the less availment that is needed and visa versa. A. Said that as long as the jurisdiction was constitutional and fair, then there was no problem with suing there doesnt have to be the best forum 3. The court held that the s were not surprised by the decision to litigate in the forum state because it was in their contract, so jx was proper. 4. Said that there is no overarching formula for minimum contacts the facts of each case must always be weighed to determine jurisdiction based on the quality and nature of the interaction. ix. Asahi Metal Industry Co. v. Superior Court (1987) 1. Facts: After initial products liability suit was settled, Taiwanese manufacturer sued Japanese corporation for indemnity. 2. Stream of Commerce: Movement of goods from manufacturers through distributors to consumers. By selling a product, it takes the product to a foreign place that the corp. knows about/can foresee. 3 views on how SoC affects Minimum Contacts: A. OConnor (Main opinion joined by Rehnquist, Powell, Scalia): Placing item in the SoC, with mere awareness that it may get to the forum state is not enough to satisfy minimum contacts. The business must still purposefully avail themselves with some type of directed actions towards the state. i. Separate inquiries for PA & reasonableness (PREVAILING METHOD) ii. Foreseeability is not enough iii. Examples of directed actions: advertising, altering the product to meet specific requirements of the forum, marketing through an agent, targeted call centers, etc. iv. Also claimed that even if there were minimum contacts, it would not be fair to exercise jx because of the 5 factors established in WWV no jx B. Brennan (joined by White, Marshall, Blackmun): Placing item into SoC with knowledge it could get to the forum state is enough to satisfy minimum contacts. i. Sliding scale approach looks at PA & Reasonableness together a deficit in one may be outweighed by the other (NO LONGER USED) ii. Foreseeability is sufficient for PA iii. Asahi placed their product in SoC valid jx C. Stevens: (Hybrid opinion) Said that it was so unreasonable that he didnt need to address the purposeful availment issue. Said fairness was more important than reasonableness.

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

i. Since it was a large amount probably jx x. J. McIntyre Machinery, Ltd. V. Nicastro (4/2/3 split no firm rule!) 1. Nicastro injured his hand using McIntyre machinery. Sued foreign corporation (UK) for product liability. Court was split 3 ways! 2. Kennedy (Plurality opinion, +CJ Roberts, Scalia, Thomas no jx): The sovereigns exercise of power requires some act by which the purposefully avails itself, this availment is what makes jurisdiction consistent with traditional notions of fair play and substantial justice A. Need a substantial connection which shows that they targeted the forum because this shows consent (actual or implied) or submission to the jurisdiction of the forum state. B. Placing item into the SoC without more is NOT enough (no matter the volume) C. Must have DIRECTED ACTION! D. Similar to OConnor opinion in Asahi foreseeability is not enough E. No sliding scale or separate and distinct test PA is fair, so there is no separate consideration of fairness 3. Bryer & Alito: (Middle ground position - no jx)The relationship between the , the forum, and the litigation must be such that the contacts yield fairness and reasonableness (availment, fairness, & precedent) A. Consent is an element of fairness B. 2 views towards SoC: i. Placing something in the SoC with mere awareness is not enough, must direct some form of activity towards the forum state, OR ii. If the SoC brings a high volume of business to the forum state, that MAY be enough. C. THIS IS THE LEADING POSITION (moderate can gather people from both sides and get enough votes) D. McIntyre did not avail themselves, it would be unfair and no precedent finds a single sale sufficient. 4. Ginsberg (+ Sotomayor, Kagan yes jx): Fairness and reason are the most important in determining jurisdiction. A. Availment and reasonableness/fairness are evaluated separately B. Consent is not as important as fairness C. Placing an item in the SoC with a reasonable certainty it will reach the forum is enough for PA. D. Directing activities towards the entire US is enough they did not have to direct activities towards a specific state. E. Contacts related to the lawsuit may be enough to have jurisdiction, although they do not reach the level of consent F. Notes this is a case regarding specific jurisdiction, not general jurisdiction, so the court should really consider the fact that the harm was felt in the forum state

f. Internet Contacts and Personal Jurisdiction


i. Actionable wrongdoing on the internet has become an issue which the courts now need to address an appropriate way of providing a fair remedy (ex: defamatory comments, fraud, etc.) ii. Inset Systems, Inc. v. Instruction Set, Inc. (1996) 1. Facts: Action for damages and injunctive relief based on an alleged trademark infringement of an internet domain address and toll-free number 2. *Early, fumbling effort at internet cases this decision would not survive McIntyre. 3. When the advertises towards the residents of a forum state, it is purposefully availing itself to that state and submitting to jx. (Even if it is advertising in every state) 4. Because a website is available continuously and allows thousands of residents from any state to view it, it serves as availment of the benefits of all states. iii. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (1997) 1. Action for trademark infringement for internet domain name 2. Bases whether or not jx is proper on the quality and nature of commercial activity. 3. Developed a sliding scale approach.

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

A. Actively doing business over the internet: PJ is proper i. Enters into contracts with residents of foreign jurisdictions that involve knowing and repeated transmission of computer files over the internet ii. EX: Zippo case, Inset Case, Any site where you buy things B. Interactive Websites: PJ MAY be proper. i. runs a website where a user can exchange information with the host computer. ii. EX: Product questionnaire sites, samples, marketing surveys iii. Depending on an examination of the level of interactivity and commercial nature of the exchange of information that appears on the website, jurisdiction may or may not be proper. iv. Example: when information was published about a club online, but there was no purchasing, there was no jurisdiction C. Passive Websites: NO PJ i. simply posts information on a website which is accessible to users in a foreign jurisdiction. EX: blogs 4. *Needs something more than just being a website for jurisdiction to be found iv. Young v. New Haven Advocate (2002 court of appeals 4th cir) 1. Facts: CT newspapers wrote articles, which were published on the internet, which discussed conditions in VA prisons, one mentioning - a VA warden. 2. Holding: No jurisdiction over foreign newspaper if they do not have sufficient contacts with the forum state or direct activities towards the forum state. A. The court also held this case didnt have a relation to Calder, because the articles were discussing policy in CT and did not direct their efforts to harm . 3. The articles were not focused on or targeted at VA they did not purposefully avail. 4. INTERNET PA: , either by business activities as a whole or the internet specifically, must do something either targeted at the forum state or which invokes the benefits and protections of the forum state in order for jurisdiction to be proper. g. Power over Property (In Rem and Quasi In Rem) i. Shaffer v. Heitner held that all assertions of jurisdiction (In rem and in personam) are to be addressed under the standard of International Shoe (minimum contacts evaluation) 1. Facts: Property (stocks) seized from s in DE in share-holders derivative suit against s who worked for DE incorporated company. 2. Property ownership alone is not sufficient for the assertion of personal jurisdiction A. Jurisdiction over property is jurisdiction over persons interest in property 3. Court does not believe that simply holding a position within a company or owning stock in it constitutes PA. There is no statute of consent, so the interest of the state over these types of matters must not be important (DE enacted statute of consent after this case) 4. Influence of this case on different types of jurisdictions: A. In personam not influenced by this decision because International Shoe standard was employed, except that property can no longer be seized/attached in order to bring a to court. B. In Rem If the action deals with the property itself, there WILL still be jurisdiction ownership of the property will establish minimum contacts. But presence of property alone is insufficient to establish jurisdiction. C. Quasi In Rem no longer exists as separate inquiry, a state cannot exercise jurisdiction by simply attaching property that a person may have in the state if it is not directly related to the suit. 5. There could be a challenge to this ruling based on the dissent its not a settled issue.

h. Presence/Transient/Tag Jx

i. May suffice for the assertion of jx over the without the need for a minimum contacts analysis, but the court is divided over this topic ii. Burnham v. Superior Court 1. Facts: Husband filed for divorce in NJ, wife filed in CA and served husband with process while he was in CA (for 3 days) visiting his children,

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

2. Holding: A state may exercise jurisdiction over a person who is served with process in the state. 3. **NO MAJORITY RULE** 4. Scalias Opinion: A. Based on Tradition says applying transient jurisdiction is appropriate whenever the person is served in the state (presence is always enough) because it was the basis for due process and helped to define traditional notions of fair play and substantial justice B. He characterizes Shaffer as only dealing with asserting jurisdiction over absent, non-resident parties based solely on property. However, Shaffer was actually referring to all assertions of jurisdiction (none of Shaffer justices joined Scalia) C. Wants to give Due Process certainty because: i. Economy: courts will not have to see cases about the same question if there is a solid rule. ii. Nature of the law itself: he wants an objective rule, not subjective (Brennans approach) which may be influenced by the individual values of the judge or the times. D. Would likely uphold that jurisdiction was proper whether or not presence was voluntary. 5. Brennans Dissent: A. Does not believe that reliance on tradition alone is enough to validate a rule. The dissent believes the rule should evolve with the times. B. Agrees with Shaffer that ALL assertions of jurisdiction should be evaluated by International Shoe standard - so in some instances, its not enough to establish PJ C. May have been a different holding by Brennan if he was not VOLUNTARILY. 6. All justices upheld General Jx in this case (because he was voluntarily present, served in state, and had contacts in CA His kids) 7. In almost all situations both agree that voluntary presence and in-state service can confer jurisdiction. (UNLESS s presence is so fleeting as to raise concerns) 8. The weight of authority favors limiting transient jurisdiction only to natural persons, not corporations.

i. Consent/Waiver
i. may waive objections to jurisdiction by actual consent, implied consent, or by failing to object. The traditional rule is that where a consents to jurisdiction in a foreign state, jurisdiction does not offend due process. ii. The parties consent to personal jurisdiction in a particular forum (Although International Shoe rejected Hess implied consent as a constitutional basis for jx, it did not eliminate actual consent as a permissible basis for exercising PJ over s) iii. Consent must be valid to be enforceable. iv. Carnival Cruise Lines, Inc. v. Shute (1991) 1. Facts: Shutes went on a cruise, wife was hurt on cruise, they sued Carnival for negligence in WA. The ticket had a forum selection clause on the back that said all claims will be litigated in FL (most convenient for Carnival). 2. Held that consent to a forum selection clause on a ticket was acceptable to enforce jx unless it is fundamentally unfair. 3. To determine fundamental fairness: A. Why was the forum chosen? (Clause made in good faith rather, no evidence of bad faith?) i. Was the location chosen to discourage litigation? ii. Was the location chosen to take advantage of a favorable relationship? iii. Is the forum biased in favor of ? B. How was the K formed? (Evidence of Fraud/Overreaching in obtaining assent?) i. Was there sufficient notice of the clause before the K was signed? Was that notice in small print/difficult to see? ii. Duress, fraud, overreaching, disparate bargaining power, etc.?

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

4. Notice of the clause must be held as sufficient to enforce the suggested jurisdiction. 5. A forum selection clause does NOT automatically determine the jurisdictional outcome they are persuasive, not determinative v. Other ways to consent: 1. State Domestication statutes (when corporations have to appoint agents for service in order to conduct business there) 2. Consent by Estoppel (May occur when a is uncooperative in a courts effort to determine whether PJ exists)

j. Personal Jurisdiction in the Federal Courts


i. Federal assertion of PJ is similar to states PJ. ii. Rule 4(k) Territorial Limits on Effective Service
1. In General- Serving a summons or filing a waiver of service establishes PJ over a : A. Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; i. Most relevant provision in most cases because the conditions for invoking the other portions are less frequently present. ii. Therefore, the jurisdictional reach of the federal courts will typically be coextensive with the territorial reach of the states in which those courts are located. B. Who is party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or i. 100-mile Bulge Rule When can be served within 100 miles from courthouse where suit will be litigated C. When authorized by a federal statute. i. Jurisdiction can depart from the limits of their host states where there is a federal statute, but such provisions are rare. Federal Claim Outside State-Court Jurisdiction - For a claim that arises under federal law, serving a summons or filing a waiver of service establishes PJ over a if: A. The is not subject to jurisdiction in any states courts of general jurisdiction; and i. National Jurisdiction- very rare exception where a cause of action arises under federal law, the suit is brought in federal court, and there is no particular state which would be able to exercise personal jurisdiction. You must show that the D has minimum contacts with the U.S. as a whole and that they have purposefully availed themselves of the US market. Would easier in some cases, especially those which involve foreign manufacturers (Ex: Mcintyre). B. Exercising jurisdiction is consistent with the United States Constitution and laws.

2.

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

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II.

SUBJECT MATTER JURISDICTION (Jurisdiction over the claims)


a. Constitutional Framework: i. Article III, 2 of the Constitution sets the outer limits of federal subject matter jurisdiction; congress must confer such jurisdiction on lower federal courts before it may be exercised, making them courts of limited jurisdiction. Congress has conferred some, but not all of the jurisdictional authority contained within Article III. ii. *An individual CANNOT consent to subject matter jurisdiction in the federal courts iii. Subject matter jurisdiction is not an individual right, it deals with the inherent power of the courts iv. An objection to SMJ can be made by any party, including the court, at any time before the final judgment is made. b. Diversity Jurisdiction (Federal jurisdiction based on the status of the parties) i. Statute: 28 U.S.C 1332 1. The matter in controversy must EXCEED $75,000 2. 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 D. A foreign state as and citizens of a state or of different states. 3. For the purposes of this section, 1335, and 1441, an alien admitted to the US for permanent residence shall be deemed a citizen of the state they are domiciled. 4. Exists when these two things are present: A. There is diversity of citizenship in one of the ways set forth by the statute B. The jurisdictional amount in controversy requirement is satisfied. 5. Burdens: A. Burden of pleading is on the party that invokes federal jurisdiction B. Burden of proof is on the party that challenges federal jurisdiction C. Could be either or pleading or challenging, depending on situation ii. Diversity of Citizenship: 1. Standards of Diversity: A. Constitution: i. Requires minimal diversity: where at least one party on each side is diverse from an adverse party. You must have one party on each side that is from a different state than the rest ii. Only available for specific types of cases B. Statutory/Common Law Interpretation: i. Requires complete diversity: all adverse parties must be diverse. Thus, you cannot have any one state on both sides of the equation ii. THIS IS THE PREVAILING VIEW (at least by SCOTUS) C. Despite jurisdiction, federal courts cannot hear cases seeking issuance of a divorce, award of spousal support, or child custody decrees (nor can they probate or annul a will) 2. Time of filing rule: The domiciles/Diversity of parties is determined at the time the complaint is filed, so any subsequent changes in citizenship will NOT affect diversity. A. There is an exception for when a case lacks complete diversity and the party which destroyed complete diversity is dismissed from the case. 3. Domicile of Individuals v. Corporations A. Individuals = domicile is their true, fixed and permanent home where they intend to stay/return i. Mas v. Perry (pervert/LSU case)- Residence within a state (or U.S. territory) coupled with the intention to remain there for an indefinite period of time makes you a domiciliary of that state. 1. Also determined that typically, the bears the burden of proof of domicile unless its removal jurisdiction.

Civ Pro Outline (Kinkopf)

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2. A woman does not lose her US Citizenship or state of domicile when she marries. ii. Person can only have 1 domicile, even if they have multiple residences. iii. Persons domicile doesnt change until theyve established a new one. iv. These requirements make changes a subjective determination B. Corporations = Domiciled where it is incorporated and where it has its principal place of business. i. The principal place of business is determined by the Nerve Center Test (which means the locus of corporate decision making authority and overall control center usually headquarters) C. Unincorporated Associations (Partnerships, LLCs, unions) = domicile depends on the citizenship of all constituent members of the organization theyre citizens of every state in which its members are citizens D. Legal Representatives = Deemed a citizen of the state where the decedent/incompetent is a citizen E. Stateless Persons = Do not qualify for diversity jurisdiction 4. Alienage Jurisdiction A. Special class of diversity jurisdiction involving a non-U.S. citizen. B. Permanent resident aliens are treated as citizens of the state where they are domiciled. C. 1332 does not confer diversity jurisdiction over a lawsuit between an alien on one side, and an alien and a citizen on the other side, regardless of the residence status of the aliens (there has to be a U.S. Citizen on each side) D. Actions involving non-U.S. Citizens who are not citizens or subjects of any state do not qualify for federal diversity = Stateless i. U.S. Citizens domiciled abroad and American Indian tribes are considered stateless ii. The presence of a stateless party will destroy diversity jurisdiction Parties Description Jurisdiction P (VA) + French Citizen v. D (NY) + German Citizen US Citizens of diff states w/ foreign citizens - additional parties Yes P (VA) v. German Citizen US Citizen v. Foreign Citizen Yes P (VA) v. D (NY) + German Citizen US Citizens of diff states w/ foreign citizens - additional parties Yes French Citizen v. German Citizen 2 foreign citizens No French Citizen v. D (NY) + German Citizen Need US citizen on both sides No P (VA) + French Citizen v. D (NY) + French Citizen Doesnt matter where foreign citizens are from Yes iii. Amount-in-Controversy Requirement 1. Damages alleged must EXCEED $75,000 (See 28 U.S.C. 1332(a)) 2. Del Vecchio v. Conseco, Inc. (2000) A. Facts: sues for unjust enrichment based on insurance policy switch. brings suit on behalf of himself and others similarly defrauded. There is complete diversity between parties. B. The amount claimed must be made in good faith and may not allege excessive damages or inappropriately aggregate claims in order to meet the amount-incontroversy requirement. C. The court established that it is not allowable for multiple s to aggregate multiple jurisdictionally insufficient damages in order to qualify for diversity jurisdiction (rare exceptions for a single res or one estate where recovery is an undivided interest) D. If punitive damages are required to meet the amount-in-controversy, there is a 2 part test to determine if they may be applied i. Are punitive damages recoverable as a matter of law? 1. Checked according to controlling state law 2. Depends on the specific cause of action ii. If 1 is yes, then ask whether it is clear beyond a legal certainty that the would NOT be able to recover the jurisdictional amount?

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1. If it is at all possible that they may reach the amount, then the claim will go forward. 2. Party invoking federal jurisdiction must prove they would it would be enough 3. Some jurisdictions say that the amount can be reached from either viewpoint 4. Must be made in good faith. 3. Rules for Aggregating Claims:
Single s may aggregate claims against a single Single s may NOT aggregate claims against multiple s (except in joint liability claims) Multiple s may aggregate claims only if they are based on a common undivided interest (involves a joint claim for the common amount rather than aggregation of two amounts) Multiple s may not aggregate separate and distinct jurisdictionally insufficient claims to reach the jurisdictional amount, even if factually related. P (Claim 1 + Claim 2) v. D = YES P (Claim 1) v. D1 + P (Claim 2) v. D2 = NO P (Joint liability claim) v. D1 + D2 = YES (P1 + P2) (Claim 1) v. D = YES

P1 (Claim 1) + P2 (Claim 2) v. D = NO

A. CAFA in 2005, Congress passed the Class Action Fairness act, allowing federal jurisdiction over class actions where class members claims in the aggregate total over $5,000,000 and any class member is diverse from any defendant (minimal diversity) c. Federal Question Jurisdiction i. The authority of federal courts to hear cases over federal constitutional, statutory, or treaty law. ii. Statute: 28 U.S.C. 1331 1. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States A. Original jurisdiction means that claims that qualify for jurisdiction under this statute may be brought initially in federal court, independent of any other claims. iii. The Constitutional Standard 1. Osborn v. Bank of the United States (1824) A. Article III confers jurisdiction whenever the claim will address a federal question. This creates an effective forum for the enforcement of federal law. B. Congress may confer jurisdiction whenever a federal question forms an ingredient of the claim C. This case was decided before 1331 was adopted iv. The Well-Pleaded Complaint Rule 1. ASK: Is enforcing a federal right? 2. To qualify for statutory federal question jurisdiction, the presence of a federal question must appear in the s presentation of his case in the context of a well-pleaded complaint, that is, one that limits itself to a statement of its own cause of action. A. Only s affirmative statement of the claims will be considered must raise a substantial federal question or issue of federal law B. Federal questions appearing only as defenses raised in response to a complaint will not be sufficient. Neither will allegations in the complaint that simply anticipate and articulate potential federal law defenses. C. The presentation of federal questions in counterclaims responding to the initial complaint is insufficient for federal question jurisdiction. D. This rule allows to be the master-of-the-complaint 3. The Artful Pleading Doctrine A. Courts will not permit the manipulating federal jurisdiction through an artfully plead complaint whether attempting to avoid or obtain federal jurisdiction. i. When a wants federal jurisdiction may attempt to bring up the s defenses to their claims as matters of federal law, in an attempt to make the whole claim seem like it is under federal law. ii. When a wants to avoid federal jurisdiction may plead a state law claim in an area where the federal law supersedes state law. This falls under the complete preemption doctrine: when a drafts their complaint

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v.

vi.

vii. viii.

to fall under state law (but the same or a similar federal statute or law is available), the attempt will not succeed. Louisville & Nashville Railroad Co. v. Mottley (1908) 1. received free passes on RR due to settlement from prior suit, the RR stopped allowing their use due to a new federal law, which the s claim is unconstitutional. Court challenges jurisdiction. 2. Holding: since the s did not raise a federal question in their complaint, there is no federal question jurisdiction. 3. Basically, the federal ingredient cannot be in s complaint because they believe that the will raise it as a defense. 4. POLICY (for not allowing anticipated defenses to obtain federal jurisdiction): A. You shouldnt anticipate defenses in general, you could be wrong B. By only using the original complaint, it provides an element of certainty, consistency, and efficiency C. Limits scope of cases that may invoke federal jx so it doesnt get out of control D. Protects federalism keeps federal court from overreaching The Essential Federal Element Requirement 1. Question is whether state-law claim raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities A. The presence of a federal question becomes difficult when state law claims are asserted that need a holding on a federal issue for ultimate resolution. 2. Different tests: A. Holmes Creation test (1916): A suit arises under the law that creates the c.o.a. B. Smith Standard (1921): The s entitlement to relief depended upon determining the constitutionality of the Act, a federal issue enough for jx in fed court. C. Moore v. Chesapeake & Ohio (1934): held federal jx not proper because the elements of the c.o.a. did not require a determination of federal law. (Federal law was only involved in s answer to s defense, and that was too remote) D. Merrell Dow Pharmaceuticals, Inc. v. Thompson (1986): This case was an attempt to clarify the idea of federal question arising out of a state law claim, but they denied removal jurisdiction because of failure to find a federal private cause of action dealt with APPLICATION of law (fed court didnt want to do) 3. Grable v. Darue (2005) A. Facts: IRS seized property, notified and sold it. contested saying he was not notified exactly the way the statute required, making the sale invalid. moved the case to federal court to interpret the notice statute in federal tax law. B. Holding: The national interest was sufficiently substantial to support the exercise of federal question jurisdiction, which would not distort any division of labor between the state and federal court. i. Although there was no designated federal c.o.a., that should be interpreted as related to but not dispositive of congressional intent. ii. Since the issue is a matter of INTERPRETATION, it will not increase litigation and will not upset the state-federal power balance There will be arising under jurisdiction when: (1) Creation Test: federal law creates c.o.a and (2) A Substantial question of federal law appears in the complaint The key question in determining whether a state law claim involving a federal issue qualifies for SMJ requires a finding of these things: 1. Necessarily raises the federal issue 2. (a) Should be Actually disputed (b) Should be a Substantial INterest 3. Balance between federal and state judicial responsibilities A. Questions of application will alter the balance between federal and state litigation/Questions of interpretation of law limits litigation and is more of an interest to federal forums.

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III.

SUPPLEMENTAL JURISDICTION (1367) a. Generally i. Supplemental jurisdiction is the assertion of jurisdiction over non-qualifying claims, which are brought in conjunction with a separate claim that falls within the original jurisdiction of the federal courts. Piggyback claims 1. must assert the non-qualifying claim along with a qualifying claim to potentially assert supplemental jurisdiction. ii. Can only be done if separate claims arise out of a common nucleus of operative fact (CNOF) 1. If they are so related that they form a single case or controversy iii. This statute started as judicially created doctrines of pendent and ancillary jurisdiction b. The Constitutional Standard i. United Mine Workers of America v. Gibbs (1966) 1. Determined that in order for a court to apply pendent jurisdiction, the jurisdictionally insufficient claim must be substantially similar to the jurisdictionally sufficient claim to have supplemental jurisdiction. 2. It must come from a common nucleus of operative fact c. Modern Supplemental jurisdiction i. Exxon Mobil Corp. v. Allapattah Services, Inc. (2005) 1. 1 may aggregate multiple claims against 1 (but this case was about 2 claims from 2 s where one claim was over $75,000 and the additional one was not) the exception is where there is one common interest (like a dispute over divided land) 2. HOLDING: The court (led by Kennedy) held 1367 gives district courts the authority in diversity class actions to exercise supplemental jurisdiction over the claims of class members who do not meet the minimum amount-in controversy as long as the district court has original jurisdiction over the claims of at least one of the class representatives. d. 28 U.S.C. 1367 i. (a) In any civil action where the original claim has original jurisdiction, they shall have supplemental over all other claims that are so related to the claims in the action with such original jurisdiction that they form part of the same case or controversy under Article III of the Constitution (Gibbs Standard Common Nucleus of Operative Fact) 1. Considerations to determine if there is a CNOF: A. Whether such claims would commonly be heard together B. Whether the claims are against the same C. When each claim depends on the same facts: i. Evidence, witnesses, Theories of liability, and where/when claim arose ii. (b) If (a) is satisfied, at least one of these questions must be answered no to still have supplemental jurisdiction: 1. Is the action in federal court solely on diversity jurisdiction (1332)? 2. Is the additional claim brought by a ? A. (Claims brought by still require (a) but dont fall under this subsection at all) 3. Is the claim against a party joined under Rule 14, 19, 20, or 24? OR Is it by a who is brought into the litigation under Rule 19 or 24? iii. (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.

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IV.

REMOVAL JURISDICTION a. The process for how a claim is procedurally taken from state court to federal court b. Statute: 28 U.S.C. 1441 i. (a) Any civil action brought in state court of which the district courts of the U.S. have original jurisdiction, may be removed by the (s), to the district court of the U.S. for the district and division embracing the place where such action is pending. 1. Only the may remove the case 2. When it is removed, it is removed to the federal district court where original case was filed (so s choice of the forum state still kind of holds) ii. **Go through the SM jurisdiction analysis to make sure of Original (or supp.) jurisdiction ** 1. Because in order to be removable, the case must be one where the could have originally initiated the action in federal court based on the matters found within the complaint. c. Hays v. Bryan Cave, LLP (2006, U.S. Court of Appeals for the 7th circuit) i. Facts: sued for legal malpractice under IL common law. removed the case to federal court since the case that defended in was a federal criminal case. challenged removal. ii. In order for the case to be removable, an action must be one that would fall within the original jurisdiction of the federal courts, consistent with the requirements of the well pleaded complaint rule and the artful pleading doctrine 1. Here, the attempt of removal is a violation of the well-pleaded complaint rule iii. Holding: Removal was inappropriate because the issue regarding federal law was part of the defense, not an element of the original cause of action. d. Manipulation to affect removability i. If amends her claim, after it has been removed to federal court, to eliminate the basis for federal jurisdiction, it does not deprive the federal court of jurisdiction. ii. Fraudulent joinder: when a names a non-diverse party (a sham ) to defeat the removability of the case. The case may still be removed and that ignored only if there is no possibility that could recover from that party, making the joinder fraudulent. e. Limits on Removal (Under 1441 (b)) i. Subsection (b) qualifies when a claim is removable in non-federal question cases 1. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the U.S. shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as s is a citizen of the state in which such action is brought. ii. Creates the Forum-State Defendant Rule: 1. An action is not removable if any is a citizen of the state in which the initiated the action, unless there exists a claim that would qualify for federal question jurisdiction. 2. Basically, when there is a federal question involved, the case can be removed regardless of where the s are from. allowing this would eliminate the rationale behind removal (avoiding state court bias) f. There is no removal from federal to state court: The only ways to get a case from federal to state court before any trial proceedings happen would be through the district court declining the case on the grounds of forum non conveniens or through various abstention doctrines g. Removal of additional claims 1441(c) i. (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by 1331 is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law predominates. 1. Allows additional non-removal claims to be removed if the are asserted along with a claim that qualifies under 1331 (Fed. Question Jx) 2. Separate and Independent claims can be removed but since theyre not within the CNOF, the federal court wont have original jurisdiction and they will likely be remanded to state court. (Why some courts have found this section UNCONSTITUTIONAL) h. Removal and Remand Procedures i. All s must agree to removal

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i.

ii. Statutes governing the removal process: 1441, 1446, 1447 iii. Forum Shopping: or seeking to get the case into court which will be more advantageous to their position. But, the rules of jurisdiction should not be manipulated well-pleaded and artful pleading policies try to prevent this conduct iv. Notice of Removal: needs to file a notice of removal to have a case moved to federal court 1. Filing this automatically removes the case and it will be assessed in federal court whether or not the removal was proper and the case can continue 2. Filing a removal notice does not imply that PJ is waived. v. has 30 days after the receipt of service of the complaint to remove the case 1. may waive his right to remove by proceeding to defend the action in state court 2. can also remove the case within 30 days of receipt if receives new facts from the that would suddenly make the case removable. 3. There is a 1 year limitation to remove the case based on diversity (even if there is later a change in parties) A. Equitable exception: A court may ignore the 1 year filing rule if they believe that the intentionally waited to amend its complaint to prevent removal B. *This is the rule that would have prevented Audi from removing the case in WWV vi. can contest removal by filing a Motion to Remand w/in 30 days of notice of removal: 1. If the court remands the case based on a defect in removal procedure or lack of subject matter jurisdiction, may not appeal. 2. If the court denies a motion for remand, it is reviewable on appeal of the final judgment of the case 3. The Class Action Fairness Act (2005) has special provisions for removal: A. CAFA actions are removable without regard to whether any is a citizen of the state in which the action is brought B. CAFA authorizes removal by any without the consent of all the s C. Class actions removed under CAFA are not subject to the 1 year time limit on removability that ordinarily applies to diversity cases D. Class actions removed under CAFA are not subject to the ordinary bar against appellate review of remand orders. Special Removal Statutes: i. Under 1442, Federal officers may 1. Remove both civil and criminal cases ( 1441 only allows removal of civil cases) 2. Remove a case even if the could not have filed the case in federal court in the 1st place 3. Remove a case regardless of the well-pleaded complaint rule 4. Unilaterally remove a case (without consent of other s)

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V.

VENUE
i. Venue is concerned with the most geographically sensible and convenient court(s) within a system to litigate a case. ii. To have proper venue, the court must first have proper personal jurisdiction over the parties and SMJ over the claims raised in dispute. iii. All of the standards for venue are evaluated at the time the action is commenced iv. There may be multiple proper venues and when there are multiple, can choose. v. A motion to dismiss for improper venue must be raised in the initial response or it is waived. vi. Forum selection clauses are a significant factor in deciding venue, but they DO NOT determine proper venue on their own. b. Original Venue i. STATUTE: Ordinary cases are governed under 28 U.S.C. 1391 1. If a special venue statute applies, 1391 is either inapplicable or supplementary 2. (a) Applies when the case is only in federal court on an issue of diversity and 3. (b) Applies when there is anything other than diversity A. They both outline 3 situations where venue is proper: B. (1) Where any resides, if all s reside in the same state. C. (2) In a judicial district 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. D. (a)(3) In any district where any is subject to PJ at the time the action is commenced, if there is no district in which the action may be otherwise brought. E. (b)(3) In a judicial district in which any may be found, if there is no district in which the action may otherwise be brought. i. *(3) is a fallback provision that can only be considered if 1&2 fail 4. (c) Says: A. Corporations may reside in any judicial district in which it is subject to PJ at the time the action is commenced. B. It treats districts as states in regards to corporations and they must be subject to PJ in that district. C. If there is no district where the corporation resides, then venue is proper where it has the most significant contacts. 5. (d) Says an alien may be sued in any district ii. Power Paragon, Inc. v. Precision Technology USA, Inc. (Venue proper) (K doesnt like this case) 1. Facts: sold a motor controller for a ship located in VA. sued for lack of full payment in the district where the ship is located. challenged venue. 2. Held that a substantial part of the events did not occur there, but because the property was located there and there was personal jurisdiction over , so venue was proper 3. *Note: This case causes issues because they defined the goods as property (but it was a ship), meaning that real property could be considered moveable. A. Venue does not have to be in the district where the most substantial events occur, just some substantial events. B. There is no at time of filing requirement for venue 4. Courts have been split over whether the court should look at a district within the state as separate if the company is a resident/incorporated in the state in question. iii. Residency and Venue: 1. Individuals = domicile 2. Corporations = any district where they are subject to personal jurisdiction 3. Voluntary Associations = residence of the association itself iv. Venue cant be challenged when the case has been removed, b/c the removal statute sets it. v. Local Action Doctrine: The proper venue for real property disputes is usually the state where the property is located (if property is in several districts, then all districts have proper venue) vi. Pendent Venue: Issue where there are multiple s, some of which have proper venue and some of which do not only applicable if all claims under 1391 1. Venue must be proper for each claim (PKWare v. Meade: 1400 patent infring. claim)

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c. Change of Venue i. Must be in the interest of justice or better for the convenience of parties and witnesses 1. Typically, the seeks a change of venue, but the can also 2. Cannot transfer outside of the federal circuit under these statutes 3. Transfer is left to the discretion of the district courts. ii. 28 U.S.C. 1404(a): (Change of Venue) For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

1. Relevant when the venue the case is in is proper, but another venue would also be proper and the wants it to go there. 2. Proper Proper iii. 28 U.S.C. 1406(a): (Curing Defective Venue) The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

iv.

v.

vi.

vii.

1. This is applicable when the case was initially brought improperly because of venue (but this is a questionable statute because the court that is making the judgment has no real power over parties this is only okay because its a statute and not a constitutional element) 2. Improper Proper/Dismiss Hoffman v. Blaski (1960) Case that jumped between Illinois and Texas Transferee Courts 1. Facts: brought patent infringement suit in TX, requested transfer to IL and consented to jurisdiction there. challenged transfer. 2. Holding: case may only be transferred where it might have been initially brought by . A. Says the statute, on its face, is clear about venue only being proper where the case could have been brought at the initial time of filing the suit and wanting it broadly interpreted would allow s to waive jx and pick venue all the time. Kent Cases (Standards of Transfer) 1. Smith v. Colonial Penn Ins. Co. (1996) A. Having to drive to Galveston is not that inconvenient the convenience of both district court houses is equally convenient. B. Minor inconvenience is not enough to warrant transfer C. Factors to consider in determining whether to transfer: i. *Most Important: The s choice of forum ii. Availability and convenience of witnesses and parties iii. The location of counsel iv. Location of books and records v. Cost of obtaining attendance of witnesses and other trial expenses vi. The place of the alleged wrong vii. The possibility of delay and prejudice if transfer is granted 2. Bolivia v. Phillip Morris Companies, Inc. (1999) A. Facts: sues in Brazoria County, TX for medical costs of treating disease caused by its products. Transferred to Galveston, Kent wants it to go to DC. B. Court transfers venue Sua Sponde (on its own) C. Added the factor of the courts ability to handle the case to the list above. What Law Applies after a Transfer? 1. When diversity actions are litigated in federal court, the court follows the choice-of-law rules for the state in which it sits to determine which states law to apply. 2. Diversity claims transferred under 1404(a) are to be governed by the same law that would have been applicable in the transferor courts 3. Federal question claims are governed under the same federal law 4. *State law application: State courts cant transfer a case to another state *A court without personal jurisdiction over the can still transfer to a proper venue!

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d. Forum Non Conveniens i. Doctrine allowing discretion for courts to decline jurisdiction if they find that the action could be more appropriately tried in some other jurisdiction (outside the federal system) Common law ii. First, the court must determine whether or not an adequate alternate forum exists: 1. Unfavorable law? If the original forum was chosen in order to be oppressive and vexatious to the out of all proportion with the s convenience, then transfer may granted. (Piper Aircraft Co. v. Reyno 1981 SCOTUS/Marshall) A. The Piper case was the aircraft flight in Scotland where the attorney had his secretary appointed as the administor of the decedents estates. B. Rule: A FNC request will not be defeated simply because the transferee courts laws will be less favorable to the , especially if the public & private interests suggest a transfer to a separate judicial system would be better. 2. Bar to relief? If the cannot bring the suit in an alternate venue, then that venue will not qualify as an adequate alternative. A. Also, if the remedy provided by the alternate forum is so inadequate or unsatisfactory that it really is no remedy at all, transfer will likely be Improper. iii. If there is an adequate alternative, then apply the Gilbert Test, weighing Public Interests and Private interests to determine whether or not a more convenient forum exists . 1. Private Interests of the litigants: A. Relative ease of access to sources of proof B. Availability & cost of compulsory process for the attendance of the unwilling. C. Possibility of view of premises (if appropriate for action) D. And all other problems that make trial of a case easy, expeditious and inexpensive 2. Public Interests: A. Administrative difficulties from court congestion B. The local interest in having local controversies decided at home C. The interest of having the trial of a diversity case in a forum that is at home with the law that must govern the action D. The avoidance of unnecessary problems in conflict of laws, or in the application of foreign law E. The unfairness of burdening citizens in an unrelated forum with jury duty. iv. FNC Dismissals prior to jurisdictional determinations: 1. Courts do not need to go through the whole jurisdictional analysis just to transfer it. v. The may file in an alternate forum after a FNC transfer, but they may run into some issues, so sometimes courts will only allow a FNC transfer if the agrees to waive any objections to jurisdiction in the new forum.

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VI.

THE ERIE DOCTRINE


a. The doctrine that federal courts use to determine whether federal or state law must be applied to various matters under consideration within a federal court. Only applies to diversity jx cases! b. Generally: 28 USC 1652 (State Laws and Rules of Decisions): The laws of several states, 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. The Rules of Decision Act (RDA) c. Pre-Erie and Erie: i. Swift v. Tyson (1842): Sale of land where the bill of sale was used to pay off a pre-existing debt 1. Asserts federal common law ii. Rules Enabling Act: Created the rules of federal procedure (went into effect in 1938): 1. 28 U.S.C. 2072 Rules of procedure and evidence; power to prescribe
A. The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

B. C.

iii. Erie RR Co. v. Tompkins (1938): 1. injured while walking along train tracks. He was a trespasser under PA law, argued it was common law and did not apply, and instead general common law should apply. 2. Issue: Where there is general federal common law and whether state or federal law should apply in deciding issues in federal court on diversity jurisdiction. 3. Rule: Held that state substantive law (including common law) should be applied in federal courts on issues of diversity jurisdiction. A. No gen. federal common lawwould lead to forum shopping & unconstitutional B. Federal courts can still interpret and decide federal questions, but cant create their own laws in cases based on diversity or supplemental jx. C. Apply state substantive law and federal procedural law. d. Guaranty Trust Co. of New York v. York (1945): i. Breach of trust case where statute of limitations had run out in state court. ii. Issue: Do state rules regarding statutes of limitations count as procedural or substantive based on the Erie analysis? iii. Rule: Used the Outcome Determinative Test to say that if using federal rules would change the outcome of the case, then state law should be applied. 1. Manner and means = Procedural Law 2. Affects the persons rights = Substantive Law (outcome determinative) iv. According to K: Under this rule, there is no real difference between substantive and procedural because everything will affect the outcome of the litigation. e. Byrd v. Blue Ridge Electric Cooperative, Inc. (1958) ~~~~GOOD LAW STARTS NOW~~~~~ i. Facts: Negligence case in federal court. At state level, the judge would decide on the facts of the case under the states workmans comp act, but there was a federal preference for jury-tried cases. ii. Issue: Whether it is okay for the state rule for a judge answering issues of fact should defer to a federal preference for jurys to answer those questions. iii. Holding: There are considerations other than the outcome determinative test that may override it & allow application of federal law. iv. Rule: They applied federal rules because of the balancing of policy issues sometimes federal law is more appropriate v. BYRD BALANCING TEST: Is there a strong state or federal interest in the outcome? 1. Is state substantive policy furthered? Does the state have a strong interest? A. Yes Determine if there is a countervailing federal policy thats stronger? (Like the Constitution, Bill of Rights, etc.) B. No Apply the federal rule 2. Is there a more important federal rule? A. Yes If federal substantive policy interests are greater then apply federal rule

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f.

B. No If there is only slight federal substantive policy at stake, then apply the state rule. Rules Enabling Act (REA): 26 USC 2072:
i. (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the U.S. District courts (including proceedings before magistrate judges thereof) and courts of appeals. ii. (b) Such rules shall no abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

iii. Is the REA Constitutional? Yes, because Congress has the power to create the courts and they have delegated their power of ruling over the courts to the courts themselves, so the courts have the power to provide procedural rules for themselves. 1. As long as REA is valid, the rules created under it are valid (and preempt state law) and as long as the rules are within the power of the court, they are valid 2. The rules within the power of the court are those that are arguably procedural g. Hanna v. Plumer (1965): i. Facts: filed complaint for personal injury. left service for at his house with his wife, which is enough under FRCP 4(d)(1), but insufficient under MA law, which requires personal service. ii. Rule: If there is a valid procedural federal law created under the REA and/or the Constitution, it must be followed, even if it differs from the states laws iii. TWIN AIMS OF ERIE: 1. Discouraging Forum Shopping 2. Avoiding inequitable administration of the laws h. Gasperini v. Center for Humanities, Inc. (1996) i. sues for lost photos. was awarded a lot of $. challenged on the grounds of excessive damages. NY law v. Federal law. 1. NY law appellate courts can review the size of jury verdicts, modify awards, and/or order new trials if the award deviates materially from what would be reasonable 2. Federal Law 7th amendment says no fact determined by the jury may be re-examined unless it shocks the conscience or is seriously erroneous, resulting in a miscarriage of justice ii. Ginsburg, Kennedy, Breyer, Souter, OConnor Majority Faction: 1. They interpreted the federal law narrowly by viewing it in the totality of the circumstances of policy say that the federal rule only codifies when courts can grant a new trial based on excessive damages, not the standards for doing so. 2. Because they held there was no applicable federal law, they went into the twin aims of Erie analysis and then to the Byrd balancing test. A. Held that it was substantive based on the twin aims because it would encourage forum shopping. iii. Scalia, Rehnquist, Thomas Minority Faction: 1. They interpreted the federal law broadly (they just looked at the plain faced meaning) to determine that there was applicable procedural federal law and it was valid federal law, so that is what should have been applied. iv. (Stevens had a separate dissent not discussed) i. Shady Grove Orthopedic Assocs v. Allstate Ins. Co. (2010) i. sued for unpaid interest fees. wanted to make it a class action suit. ii. Initial issue was whether state law and federal law were in conflict. 1. NY law precludes class actions for penalties/ FRCP 23 provides criteria for bringing class actions. Would lead to forum shopping and substantially different result iii. Scalia, Roberts, Thomas, Sotomayor, Stevens Majority Faction: 1. Interpreted the federal law broadly say that it is arguably procedural, so its valid under the REA in that it has to do with the manner and means by which your substantive rights are protected. 2. Uses the plain meaning of the statute its substantive and the rules are in conflict. 3. Focuses on the power between the court and the legislature. He looks at predictability and uniformity and seeks to uphold the legislatures power over the court. He is, in a way, attempting to restrain the role of judges within the government.

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

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iv. Ginsburg, Kennedy, Breyer, Alito Faction: 1. Interpreted the federal law narrowly by looking at the reasons the state enacted the statutes said the rules were NOT in conflict 2. Uses the interpretive meaning of the statute 3. Her focus is power between state and federal governments. She looks at federalism, forum shopping, and equal protection to guide her interpretation of statutes. 4. Relies heavily on direct rulings of precedent cases 5. *K thinks this is the correct interpretation! j. First look at the rule/standard to determine the nature of the rule then look at the purpose behind the text (unless youre Scalia Todays court would rule the same as the sitting court in Shady Grove) k. When in federal court dealing with a matter of substantive law, courts are supposed to apply the state law and the state courts interpretation of those laws (should apply the state law in a way they think the state court would) i. If theres an issue of state law that hasnt been resolved in state court, then the federal court (in most states, including GA) can certify the question for the state supreme court to answer.

Civ Pro Outline (Kinkopf)

Fall 2013 - Griffin

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ERIE ANALYSIS:

Is there applicable positive federal law on the issue?

Yes

No (DO BOTH)

Is it valid? (From Hanna Holding) Valid if within powers of REA (Arguably Procedural)

Byrd Balancing Test (Is state rule bound up with (implementing of) state created rights & Obligations? Does it regulate primary behavior?)

Yes

No

Yes

No

Yes
Either

Twin Aims of Erie 1. Forum Shopping? 2. Inequitable Admin. of Laws/ Substantially Diff. Outcome?

No

Both

Is it Applicable?

Go through Byrd Balancing Test and Twin Aims of Erie

State Law

Rule of form and mode BALANCE:

State Law

Federal Law

Gasperini & Shady Grove interpretations based on SCOTUS Justices (Kagan would interpret w/ Ginsburg)

Strong Federal Interests - If Federal interests outweigh state's policy interests Federal Law Applies

Outcome determinative Test if outcome would be so different with the application of federal law that it would be an injustice State law applies

NOT APPLICABLE - Byrd Balancing Test and Twin Aims

APPLICABLE - Apply Federal Law