Civil Procedure I Fall 2011 Professor Royal Trey Bolling

Introduction to Civil Procedure

Civil procedure attempts to address two main goals o Fairness This is a policy concern that, in addition to reaching the right result, should also appear fair to the litigants Even if a partys claim or defense is weak, fairness dictates that he should have a chance to be heard before a court o Efficiency An efficient system should minimize the times that courts, parties, and attorneys must spend in litigation and therefore reducing the costs of litigation o Fairness vs. Efficiency Procedural rules that hurry the litigation process can result in mistakes that undermines the goal of fairness. There are also limits to the notion that a party is always entitled to court If claim is completely groundless, it wastes time and money Multiple Court Systems o State courts Trial courts where claims are first brought Courts of Appeals These courts review cases brought in trial courts Includes Supreme Court Specialized courts hear certain types of cases (probate, family, claims, courts, etc.) o Federal courts Courts of limited jurisdiction can only hear certain categories of cases Three levels District courts like trial courts o Every state has at least 1 district and often multiple Courts of appeal review district courts o 13 circuits 11 + DC circuits 13th circuit is the federal circuit and its jurisdiction is defined by subject matter Supreme court highest federal court that reviews decisions of appeals cases and rarely district courts o Also reviews decisions of state supreme courts

o Usually a case can be heard in more than one court Both state and federal courts can hear claims arising under the US constitution and federal law Federal court can hear claims arising under state law if the parties are from different states and the amount in controversy is sufficient State court is not limited to hearing cases arising under the law of that state (think transfer) Stages in a civil suit 1. First the P decide what claims to bring 2. Next you determine where to bring suit a. A P may want to bring suit in their home state, if the court lacks personal jurisdiction they cant i. PJ a court cant exercise power over someone in the state unless the state court has some connection with him or the incident that gave rise to the claim 1. Focuses on the D ii. Court must have authority over every defendant iii. Constitutional and service rules 1. Constitution allows a court to exercise PJ only if the D resides in the state or has established other purposeful connections with the state 2. Every D must have notice of the suit b. Regardless of which state the case ends up in, a P must make a choice between federal and state courts, and this focuses on subject matter jurisdiction i. A court can only hear a case if it has SMH ii. Federal courts can hear only 3 main types 1. Cases arising under federal law (federal question) 2. State law cases between citizens of different states and AIC is more than $75,000 (diversity) 3. State law claims that arise out of the same basic facts (supplemental jurisdiction) c. Venue also the narrows the courts available to hear a case i. Venue is not a constitutional issue but rather one of convenience 3. Stating the case (pleading) a. P commences the case by filing a complaint with the court and serving it to the D i. Complaint contains the statement of Ps claims Rule 8 b. D must respond to the complaint i. Motion is a request for a ruling on a specific subject 1. Rule 12 deals with dismissal options a. Improper jurisdiction 12(b)(1)-(5) b. Motion to dismiss 12(b)(6) i. Demurrer in CL c. Motion for definite statement 12(e) i. Bill of Particulars in CL 2

d. Denial of Allegation ii. Answer Ds response to all of the assertions in the complaint 1. Can admit some matters, deny others, and offer affirmative defenses to shield from liability 2. Pre-answer motions my preclude D from certain defenses 3. If D has claims against P counter-claim c. Amending the pleadings i. Can change pleadings to cure any defects ii. FRCP reject the view that a case is set in stone once the pleading is complete 1. Discovery rules would mean very little if new info could not be reflected in the amended pleadings 4. Determining who will sue and be sued a. Once claims and court are established, then determine litigants b. Plaintiffs and defendants i. Often determined by substantive law ii. Can have multiple P and multiple D c. Impleader when D adds a third person to the suit by claiming that the person must reimburse D for all or part of any judgment against D d. D can also bring cross-claim against another D 5. Discovery Rule 11(b)(3), (26)-(27) and (45) a. Preparing for trial by amassing information concerning the claims and defenses b. Mandatory disclosure in federal courts parties are required to turn over certain information to the other party after commencement of case i. Names of witnesses, documents, bases for damage calculations, etc. c. Information can be obtained through interrogatories (written questions) or depositions (oral questions) d. Privilege, work product, and expert information rules limit the amount of info that can be discovered i. Butler v. Rigsby held that a health providers list of patients was protected by doctor-patient privilege and could not be discovered even though it was relevant to the case ii. Or if the info sought to be discovered could be embarrassing, annoying, oppressing, or put an undue burden in procuring it 6. Resolving before trial a. Voluntary dismissal if parties settle, P typically dismisses the action b. Involuntary dismissal dismissed involuntary if party des not comply with the rules (court lacks jurisdiction or Ps complaint is not well pleaded) c. Summary judgment it might turn out that the facts are not really in dispute i. If there is no genuine issue of fact, court can enter summary judgment and resolve the case as a matter of law ii. Rule 56 iii. Almost never granted until after discover 56(f)

iv. Example: Houchens v. American Home Assurance guy goes missing in Thailand and there was no direct evidence he died accidental death, so court pulled a summary judgment d. Default judgment when D fails to answer the complaint entirely or fails to defend themselves Rule 55 7. Trial a. Judgment as a matter of law before it goes to a jury/after jury rendered a verdict the judge can direct the verdict b. Same as summary judgment just after the trial 8. Effect of a judgment a. Stare decisis courts refer to the decisions of other courts on the same issue of law b. Preclusion court does not have the option to ignore a prior ruling i. Claim preclusion (res judicata) prevents a party from asserting claims that either were or should have been asserted in a prior case involving the same parties 1. Rush v. City of Maple Heights court ruled that claim preclusion prevented a P from bringing separate suits to recover for personal injury and property damage from same accident ii. Issue preclusion (collateral estoppel) bars individual issues of fact/law not claims 1. Only applies if the issue was actually litigated (unlike claim preclusion) and is possible to determine what the prior court decided 9. Appeals a. Addresses the correctness of court rulings but not for changes in strategic decisions i. Facts of a case are not up for appeal b. Section 1291 and 1292

Jurisdiction
Jurisdiction checklist (Apply in this order for every jurisdiction question): 1. Does the court have subject matter jurisdiction? 2. Does the court have personal jurisdiction? 3. Has the been given notice and the opportunity to be heard? 4. Has the been served with process properly? 5. Does the court have venue? 6. Only applies when in a state court: Can it be removed to a federal court? 7. Have any of the preceding 6 issues been waived? The first 3 are the big three because they are all constitutional issues http://www.youtube.com/watch?v=h3g6y3Qj2_Y&feature=share

I. Subject Matter Jurisdiction

1. CAN NEVER BE WAIVED 2. Laid out in Article III of the Constitution a. Talks about federal question, diversity, alienage, admiralty, disputes between states, and disputes between ambassadors 3. Federal Question Jurisdiction a. More important than diversity 4. Diversity of Jurisdiction a. More likely to be tested Federal Question Jurisdiction 28 USC 1331 28 USC 1331 (p. 345) Federal Question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 1. For FQJ the s cause of action/claim must arise under the constitution, treaties, or laws of the US a. Make sure you use the words arise under 2. What arising under means: a. Federal courts are courts of limited jurisdiction and s claim must arise under the constitution, treaties, or laws of US i. SMJ has been interpreted very restrictively ii. Because Under 10th amendment, all powers not expressly delegated to federal government are reserved for state courts b. Example: i. P comes into federal court and alleges I am the copyright owner of a movie issued under Title 17 of the US code Mission Impossible. (a federal statute). P has agreed with Widget Theater that Widget can shows the film for 2 weeks if they pay 20% of the revenue. Widget has not paid anything to P. P seeks damages. ii. Is there FQJ in a US District Jurisdiction? 1. No. All the P has alleged is a breach of contract. 2. Widget isnt infringing the copyright (a US law) so there is no federal question 3. Cause of action must arise under the federal statute c. Example: i. Same P comes into federal court and says I own the federal copyright on MI, theyre showing my movie, theyve agreed to pay, they havent done so, and the only reason they give for not giving me 20% of revenue is they claim that the copyright is invalid. 1. What is a valid and what is an invalid copyright raises a federal question

ii. Ps cause of action is still a breach of contract, but has said there may be a federal defense (defense that the copyright is invalid) 1. Not a cause of action that is a federal question 2. All P has done is anticipate a valid federal defense 3. Court doesnt take SMJ based on speculation a federal question will arise 3. Party who wants the case in federal court bears the burden of showing federal court jurisdiction FRCP 8(A) 4. Sua Sponte on its own court can dismiss a case if it decides it lacks SMH a. Even after the case has been tried 5. Well-pleaded complaint rule- you determine whether the action arises under solely on the basis of what is in a well pleaded complaint a. Complaint doesnt contain defensive material i. In the Widget theatre example, the state court could adjudicate the invalidity of the copyright claim to a federal court. This adjudication would be subject to review by the USSC Lousiville Nashville v. Motley (1908): husband and wife settled for lifetime passes on the RR; Congress passes a statute that says RR cannot give lifetime passes (federal law); they said the fed rule the RR will assert does not apply to them; are the Motleys enforcing a federal right? Notheir claim is simply breach of contract, the federal issue is an anticipated defense; Alleging that a defense will be based on federal law is not sufficient to raise a federal question well pleaded complaint rule 6. There is no amount in controversy requirement for a FQJ case (unlike diversity cases) 7. 2 Forms of Federal Question Jurisdiction (in addition to exclusive state jurisdiction) a. Exclusive federal question jurisdiction: Some claims must go to a federal court (copyright, patent, etc.) i. Congress wants national uniformity through federal courts b. Concurrent FQJ some claims can be brought to either a federal court or a state court i. Eg certain civil rights cases Diversity Jurisdiction 28 USC 1332 Provides a neutral federal forum for which people from different states can litigate without fear of local biases a. Judges have lifetime tenure 2. Authorized by Article II and USC 1332 3. Parties: a. Pure diversity citizen of US and domiciliary of a state b. Alienage jurisdiction citizens of a state and citizen/subject of a foreign state (country)

c. Citizens of different sates (true diversity) AND in which citizens of other countries are additional parties 4. 1332 requires complete diversity no P is a citizen of the same state as any D a. Constitution requires minimal diversity i. At least 1 D is diverse from at least 1 P 28 USC 1332 (p. 345) Diversity of citizenship; amount in controversy; costs a. The district courts shall have original jurisdiction of all actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between 1. Citizens of different States; [true diversity] 2. Citizens of a State and citizens or subjects of a foreign state; [alienage] 3. Citizens of different States and in which citizens or subjects of a foreign state are additional parties; and 4. A foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of Different states. For the purposes of this section, section 1335, and section 1441, an alien admitted to the US for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. [limits diversity] b. Except when express provision therefor is otherwise made in a statute of the US, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000 computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. c. For the purposes of this section and section 1441 of this title 1. A corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and 2. The legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. [continued on page 346] Rules of diversity (bright-line, arbitrary rules) 1. There must be complete diversity of citizenship Strawbridge v. Curtis a. Everyone on the left of the v. must come from a different state than everybody from the right of the v.

b. No jurisdiction if claim lacks complete diversity 2. Determine diversity of citizenship (not residence) on the day of the institution of the action a. Not on day you go to trial, not on accrual of claim 3. Must determine the partys domicile to establish their citizenship a. Domicile = physical presence + intention to remain indefinitely b. Royal said good test question c. Diversity is determined at the moment the suit is filed i. So a person can move to establish diversity d. Intent to remain is objective i. Drivers liscense, voting records, etc e. People i. People have domicile ii. An individuals domicile is where they are born, presumed to continue throughout life unless 1. The individual physically changes his state, and 2. The individual does that with the intention of remaining in the state for the indefinite future iii. Example: 1. Person from NY went to college in PA. Despite going to college in PA for 4 years, you remain a citizen of NY because he did not intend to stay in PA. He then goes to law school in MA for the next 3 years. Physically in MA but no intention of remaining there still a NY citizen. Began practicing law in NY and then starts teaching in Minnesota. The day he left NY and crossed the boarder of Minnesota, he became a citizen of Minnesota. Physically present there with intention of remaining for indefinite future. f. Migratory Party i. Example: 1. Residence in NY, summer home in Florida, spends winters in Arizona or a Person who lives in one state and works in another state. a. Where is the persons center of gravity? Where is his citizenship as determined by center of gravity of his life? b. Must make a judgment call on where the center of gravity is to determine domicile and citizenship Hawkins v. Masters Farms (2003): is KS, lived in MO, driver's license, title, license, and insurance for car, pay checks sent, lives in KS with wife and possible plan to move to MO - is KS g. Foreign Citizens - 1332(a) i. Provides that an alien admitted to the US for permanent residence is deemed a citizen of the state in which he is domiciled

Saddeh v. Farouki (1997): the 1988 amendment does not extend diversity jurisdiction over an alien and another alien who has permanent residence status in the US; amendment to 1332(a)(5) was meant to exclude diversity between alien resident and citizen in same state, not create jurisdiction for two non-citizen parties. ii. US citizens who reside in foreign countries may not claim diversity jurisdictions Redner v. Sanders (2000): US citizen may not claim diversity jurisdiction as a citizen of a foreign state; ? is a US citizen residing in France, ?s NY - US citizen with foreign residence cannot claim diversity jurisdiction as a citizen of a foreign state (needed to allege facts to support CA domicile) -(a)(2 h. Corporations - 1332(c)(1) i. Corporations have 2 citizenships 1. The state the corporation is incorporated in 2. Is also a citizen of the state in which it has principal place of business a. Example: i. Ford is incorporated in Delaware and has its principal place of business in Michigan. It is a citizen of both states 1. If a claim is filed by a P from any state other than DE or MI, there is diversity 2. If a claim is filed by a P from either state, there is no diversity 3. Determining the principal place of business a. Nerve center test i. Principal place of business is where a corporation makes its executive decisions b. Example: i. Dingbat Corp. is incorporated in DE, headquarter in NY, and manufacturing plant in NJ 1. DE and NY citizenship i. Unincorporated associations (labor unions and partnerships) i. Cumulate the states of all of the members of the unincorporated assoc. ii. If labor union, you add up all the states in which there are members iii. For a law firm as a partnership, the citizenship is the state of all the partners so if a claim is filed from a person in AL against a firm that has a partner in AL, no diversity exists j. Representatives (eg deceaseds estate, rep of a child, rep of an incompetent person, share-holder derivative claims, class-actions) i. Historical rule: when an action is brought by or against a rep., diversity is based on the citizenship of the representative, not the represented

ii. In the 80s congress passed a law that in actions involving (only these) children, incompetents, and estates that diversity of citizenship is based on the citizenship of the party represented 1. For class-actions and share-holder claims still the state of the representative 4. Amount in Controversy (not required for FQJ, but is required for diversity) a. The matter in controversy must be more than $75,000 (exclusive of interest and cost) so $75,000.01 i. Example: 1. Plaintiff sues defendant in federal court for $70,000, plus $3,000 of accrued interest and $3,000 of costs. These amounts total to $76,000. However, there is no diversity because the amount in controversy must be more than $75,000, exclusive of interest and costs. ii. You can include punitive damages in determining AIC iii. Statutory attorney fees can be too b. Aggregation - 1332(a)(1) i. P may combine all claims against D to reach AIC ii. Multiple Ps may not aggregate to reach $75,000 iii. If one P satisfies AIC, other Ps can aggregate if supplemental jurisdiction is satisfied 1. Couldnt add all the Ps together to reach the &75,000, but if the first P got to the AIC, other Ps could then add their claims to the first P iv. For counter claims: 1. Compulsory, may aggregate 2. Permissive, may not aggregate 3. Review note 2 page 203-204 v. P sues D for multiple claims vi. Example: 1. P sues D for punching in the nose for $40,000, for $50,000 for defamation, and another $20,000 for trampling on rose bush 2. If you add them up they exceed $75,000 , but individually none do vii. Rule is that if there is a single P and a single D, you can aggregate the claims even if the claims have nothing to do with each other viii. With multiple Ps you cannot aggregate the claims unless the claims are joint claims c. The court is supposed to accept the Ps allegation of amount, unless the court is convinced to a legal certainty that the P cannot recover that amount Supplemental Jurisdiction 28 USC 1367 28 USC 1367 (p. 357) Supplemental Jurisdiction a. Except as provided in subsection (b) and (c) or as expressly provided otherwise by federal statute, in any civil action of which the district courts have original

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jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the Constitution. Such supplemental jurisdiction shall include claims that involve the joined or intervention of additional parties. b. In any civil action of which the district courts have original jurisdiction founded solely on section 1332 [diversity], the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the FRCP, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirement of section 1332. c. The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if1. the claim raises a novel or complex issue of State law 2. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 3. The district court has dismissed all claims over which it has original jurisdiction, or 4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction. d. The period of limitations for any claim asserted under subsection (a) and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

1. Although federal courts are courts of limited jurisdiction, they have used supplemental jurisdiction to expand their reach. 2. SJ arose from pendant and ancillary jurisdiction a. Ancillary jurisdiction allows P to bring a case, allows D to assert jurisdictionally compulsory counter-claims/cross claims/third party claims In Re Ameriquest Mortgage Co.
1. Steps for supplemental jurisdiction apply methodically (write what you know dont assume she knows what you know eg. Step 1- do I have an anchor claim that fits under 1331 or 1332, step 2- can I use 1367a to establish SJ (then analyze via a) Step 3- if yes does 1367b take it away? Step 4- if 1367b doesnt take it away, would the court use its discretion to not hear it anyway. Royal wants you to write out all these steps, dont just assume she knows) a. You first ask does the state and federal claim form part of the same case or controversy (a sufficient factual relationship) as the claim with original federal jurisdiction a. Even if this relationship exists, SJ may still be precluded if it falls into one of the exceptions in 1367b or c

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Does the additional claim share a common nucleus of operative fact (CNOF) a. Same transaction or occurrence b. What are the facts? What is the underlying situation? ii. Does the additional claim(s) arise from the same transaction or occurrence? iii. Same witnesses or other evidence? b. If you cant get 2nd claim in under supplemental i. You can have 2 different trials or ii. Bring both claims in state Ct (unless one of the claims, Fed Cts have exclusive jurisdiction over) 2. 1367 a. Does 1367(a) grant jurisdiction over these supplemental claims? i. Already have a claim that satisfies 1331 or 1332 ii. Additional claim that does not satisfy ^ can be connected to the original claim a. Subsection (a) when SJ is granted (always do first) i. Any action where the federal ct already has jurisdiction, that ct can have supplemental jurisdiction if the claims are so related they form part of the same controversy ii. These are the rules if you can get your supplemental claim in iii. This means that 1367a maximizes authority granted under article 3 of constitution a. Joinder or intervention of additional parties allows you to bring in outside parties if you can attach it to original claim iv. (A) grants SJ over supplemental claim b. Subsection (b) if diversity in (a) must move on to (b) will be removed when claim is brought in by a P and completely eliminates diversity i. Only used if anchor claim (additional claim) falls under diversity jurisdiction ii. More strict than (a) iii. You only need 1 person in a claim to meet the $75k rule, not everyone iv. Prevents use of SJ over claims brought by Ps against parties joined under certain listed rules v. Only claims by plaintiffs vi. 3 Major rules: a. Violates something under 1332 b. Plaintiffs only c. Falls under diversity d. If it passes all of these, it can be granted but still may be denied because of (c) vii. Destroys SJ if (a) grants it viii. Know the rules listed at face value a. On exam it could be like: this person fell under rule 14 so you should know that 1367(b) applies c. Subjection (b) says NO i. claims by plaintiffs against persons made parties under Rule 14 (third-party practice), 19 (joinder of persons needed for just adjudication), 20 (permissive joinder of parties), or 24 (intervention) of the Federal rules ii. claims by persons proposed to be joined as plaintiffs under Rule 19 (joinder of persons needed for just adjudication) iii. claims by persons seeking to intervene as plaintiffs under Rule 24 (intervention) d. Subsection c i. Gives Cts a way to decline to exercise supplemental jurisdiction ii. Court uses its discretion to refuse to exercise jurisdiction when additional claim falls under (a): a. Novel or complex issue of state law b. Claim substantially predominates over the claims which the district court has original jurisdiction c. District court has dismissed all claims over which it has original jurisdiction, or

i.

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e.

In exceptional circumstances, there are compelling reasons for declining jurisdiction 4 ways to invoke subjection c i. Claim raises a novel or complex issue of state law ii. When the state claims are way bigger in scope/number/importance than the federal claim iii. District Ct has dismissed all claims over which it has original Jurs. iv. In Exceptional circumstances, there are other compelling reasons to decline Jurs.

d.

United Mine Workers v. Gibbs ( ): is a citizen of TN; (labor union) is a citizen of TN; has two claims against the same one is FQ the second is a state law claim Claim #1 is a federal question (qualifies for federal court) Claim #2 does not invoke federal question because its based on state law and no diversity Supreme Court said federal court can hear Claim #2 because it has supplemental jurisdiction (pendant) over that claim because it shares a common nucleus of operative fact with Claim #1 (similar to same transaction or occurrence)

II. Personal Jurisdiction

1. Most testable subject in Civ Pro 2. CAN BE WAIVED 3. Definition: Jurisdiction to decide a case between the particular parties or concerning the property before it 4. Three types of jurisdiction a. In personam: jurisdiction over s person, gives court the power to issue a judgment against personally b. In rem: jurisdiction over a thing, gives the court the power to issue a judgment concerning a piece of property c. Quasi in rem: jurisdiction obtained by seizing property or debt owed to within forum state action is not related to property seized and is limited to the value of the seized item 5. http://www.youtube.com/watch?v=e6L90oN4ppY&feature=related 6. Analytical Framework for analyzing these questions a. Recognizable because fact pattern indicates not much has happened because its all pre-trial info b. 3 questions to ask: i. Is there a traditional base of PJ? 1. If there is youre not looking at a true PJ problem, all you do is spot it, write about it, and move on ii. If no traditional base, does long-arm statue apply? iii. If the long-arm statute does apply, is the application of it constitutional?

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Coastal Video Communications v. Starwell (1999): copyright infringement; based in CA but sold videos and advertised in VA; copyright violation did not arise out of contact with VA is there specific or general jurisdiction in VA? Court says it needs more information about the extent of the s contact with the forum state in order to determine whether they are subject to general or specific jurisdiction. Specific Jurisdiction Jurisdiction that arises out of particular connection between the out of state defendant and the forum (tort/breach of contract/etc.) o Claim arises out of an related to the contact with the forum Traditional Bases for Jurisdiction Pennoyer v. Neff (1877): the state has power over people and property inside its boundaries; very physical determination; gives us the traditional basis of in personam jurisdiction Pennoyer tells you 2 things: a. State is all powerful within its borders. b. Conversely, state is helpless outside its borders Traditional Basis for PJ Was D served with process in state? Has the D voluntarily appeared? Exception to Traditional Bases of In personam Jurisdiction (if no traditional basis is present, do any of these apply to find that there is PJ?): 2. State can assert territorial jurisdiction even when the defendant is only passing through on a transitory basis Presence (or Territoriality) 3. In Personam jurisdiction is personally binding to the individual a. If a state claims this kind, they must personally serve the person in the physical boundaries of the state 4. Domiciliary owe their state a duty. Regardless of where the person physically is, the state has power over those domiciled in their state Milliken v. Meyer a. You cant leave home without your domicile 5. States can assert jurisdiction based on agency. a. Agents acting on behalf of corporations/persons/etc. can have court assert jurisdiction over them and who they represent 6. Jurisdiction can be based on consent a. Carnival Cruise Lines forum selection clause b. Express consent: i. When you sign a contract ii. This is expressing consent to a states jurisdiction iii. Boiler-plate provision c. Implied consent: i. Example: driving on the roads of a state gives implied personal jurisdiction to that state 1. Extended to embrace airplanes, boats, bikes, stock fraud d. Another type arises when a party does not challenge jurisdiction

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7. Corporate Presence a. If a corporation is doing business in the state, the it is within the states territorial jurisdiction Carnival Cruise Lines, Inc. v. Shute (1991): adhesion contract term requiring passengers to consent to suit in FL; court held that you can waive your constitutional protections and that minimum contacts are not necessary when there is consent; efficiency argument to prevent cruise line from defending in whatever state passengers are from (cost passed on to consumer) POLICY ISSUES: i. In terms of fairness the cruise line is better able to afford distant defense ii. Purposeful availmentdid the cruise line advertise in the s home state? iii. Unconscionabilityunequal bargaining power in adhesion contracts Traditional Bases: Territoriality Domicile Agency Express Consent Implied Consent Waiver Producing Consent Doing-business presence If no traditional base, does the long-arm statute apply? 1. Is the long arm statute applicable? 2. Professor Royal will tell us if there is a long arm statute and how it applies a. Mention how we werent given a LA statute b. Some states have a more narrow LA statute and I would apply it.. then go on to constitutional analysis Specific jurisdiction 3. If a cause of action arises out of the commission of a tortious act in the state, doing business in the state, insuring of a risk in the state, contracting to supply goods and services in the state, breaking-down of a marriage in the state, etc., then the forum state can extend jurisdiction over a non-citizen based on the commission of that act in the state. If long arm statute applies, is the application of it Constitutional? (Constitutional Analysis) International Shoe Co. v. Washington (1945): company based in St. Louis had salesmen in Washington and Washington wanted a contribution from corporation to state unemployment

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fund; company claimed no personal jurisdiction; SC found personal jurisdiction over nonresident corporate where the has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Factors in assessing minimum contacts: 1. presence in the state 2. systematic and continuous activities within the state 3. enjoys the benefits and protections of state laws 4. whether it is reasonable to expect the to defend itself in that state 1. International Shoe is the beginning of the modern jurisdiction philosophy minimum contact a. Opinion says A state can assert jurisdiction over a non-resident if the nonresident has minimum contacts with the forum, so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice 2. Factors: a. Minimum Contacts b. Fair Play c. Substantial Justice 3. If you commit any tort it in a state, it is a minimum contact 4. Cause of action (the minimum contact) MUST be related to the forum Specific Jurisdiction Analysis 2 Prongs
Minimum Contacts between D and forum state o Purposeful availment Has D purposefully availed itself of privileges of forum states (Hanson) If Yes, MC satisfied Wolrd-Wide Volkswagen allows D to reasonably anticipate where its conduct will subject it to PJ o Intentional Torts if one has been alleged, had D intentionally targeted its tortious conduct at a forum resident and caused harm to that resident in the forum If yes PJ appropriate under Calder Effects Test (Calder v. Jones) o Contractual Contact does D have a contractual relationship with a forum resident? If yes, contracts PLUS analysis (consideration of the place of of negotiation, execution, and performance) to consider whether contract solicitation, negotiation, and course of conduct support finding of purposeful availment (Burger King) o Stream of Commerce case product of D has caused harm to the P only after traveling through SoC Must satisfy OConnor or Brennan in Asahi OConnor standard D must have intended for its product would be marketed in the forum state in order to have purposefully availed itself of the forum Brennan standard Defendant merely must have been aware that its product would be marketed in forum state o Quasi-in rem cases is PJ being asserted on property located within the state? If so analyze in state property same as other contacts o Internet cases Website alone is not enough to support jurisdiction. Depends on if the site is passive (no pj)/active(yes pj)/interactive(maybe) Reasonableness

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o o

If MC is satisfied, would the exercise of jurisdiction be (un)reasonable? Use the five factors from Asahi, balancing test of the first 3 factors are determinative Burden on Defendant State Interest Plaintiff Interest Systemic Efficiency Furtherance of Social Policies

McGee v. International Life (1957): TX insurance company sued in CA; only had one contract in CA but the court said that was enough because (1) solicited that business (2) court noticed that the s claim arose from the s contact with the forum, call relatedness (3) states interest in protecting its citizens from out of state companies RELATEDNESS Hanson v. Denckla (1958): PA woman has a trust fund with a DE bank before she moves to FL; she dies and the question is, does FL have jurisdiction over that DE bank? NObecause that bank had no relevant contact with FL; contact must result from s purposeful availment of that forum and not based on unilateral action of a party 1. Defines fair play and substantial justice purposeful availment a. You must voluntarily do business (voluntarily create minimum contacts) in the forum state for the long-arm statute to apply b. Ps contact with the forum must be purposefully availed of the benefits of the forum Worldwide Volkswagen v. Woodson (1980): Plaintiffs buy Audi in New York from Seaway Motors. They drive through Oklahoma on their way to Arizona. They are in an accident in Oklahoma and the cars gas tank explodes. They sue Volkswagen A.G.the German manufacturer, Volkswagen of North Americathe importer of the car, World-Wide Volkswagenthe distributor (only sold in New Jersey, New York, and Connecticut), and Seaway Motorsthe retailer. They sue in an Oklahoma state court and invoke the Oklahoma long-arm statute because the act occurred in Oklahoma. World-Wide and Seaway moved to dismiss for lack of personal jurisdiction. The case eventually went to the Supreme Court. In a surprise decision, the court ruled that Oklahoma did not have personal jurisdiction over the parties. 2. A D has purposefully availed himself of a forum when it is foreseeable that he could have been hauled into court there as a result of the contact a. The Ds could not reasonably expect to be brought to court in Oklahoma b. The Ds did not purposefully avail themselves to the benefits and protection of the forum 3. Reasoning: World-Wide sold the Audi to Seaway in New York. Seaway sold the Audi to the Robinsons in New York. It was the Robinsons that brought the car to Oklahoma. a. Neither Seaway nor World-Wide had any control over the product (i.e. a third party moved the product).

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4. Fairness Factors Used to analyze when there are minimum contacts a. Burden on the defendant b. Plaintiffs interest in obtaining convenient and effective relief c. Forum states interest in adjudicating the dispute d. Shared interest of the several states e. Efficiency Burger King Corp. v. Rudzewicz (1985): two franchisees of a BK store in MI are sued for breaching the franchise agreement in FL; s claim it is too burdensome to defend in FL and it violates due process; court says there is jurisdiction in FL because the s should have anticipated when they entered into the franchise agreement that they would have to defend in FL. Factors: (1) convenience to (2) effective relief for (3) forum state interest (4) sister state interest (5) efficiency 1. Reasons why USSC said FL had jurisdiction: a. It was a contractual arrangement b. Contract was for 20 years c. MI folks agreed to be bound by rules established by BK d. Contract itself had a choice of law provision Asahi Metal Industry v. Superior Court (1987): victim of motorcycle accident brought suit in CA court against Taiwanese tire-tube maker. Victim settles and drops out of suit, Taiwanese company cross-claimed against a Japanese manufacturer of the tube valve assembly. When a company puts a product into the stream of commerce with the expectation that it will reach the forum state are minimum contacts satisfied? no majority opinion so two theories emerge OConnor approach (decision): We need more than just a reasonable anticipation that a product will reach the forum state; we need that plus the intent to serve the forum state (advertise, customer phone line, distributors) Brennan approach: It is a contact if you put the product in the stream and could reasonably anticipate that it would get to a state MUST KNOW BOTH OCONNOR AND BRENNANS APPROACH Fairness facts can outweigh MC test Consumer does not have to be part of the stream of commerce Neither OConnor or Brennan is arguing that a person can take it into a stream of commerce the stream ends when the good is bought Pavlovich v. Superior Court (2002): P, from TX, owned a software company who posted source code on a website for DeCSS to decrypt DVDs. Company who owned the CSS system was based in CA and had CA court assert PJ. Court ruled that posting info to a passive website was not sufficient to assert PJ. Court said that PJ can only be asserted when: D has purposefully availed to forum benefits, controversy arises out of Ds contacts with forum, and assertion of PJ is fair and substantial. Exercise of jurisdiction is determined by examining level of interactivity with the website For internet cases, you must examine the activity 1. 2. 3. 4.

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NOTE: PAVLOVICH IS NOT A USSC CASE SO NOT LAW OF LAND, BUT IS COMMONLY REFERENCED Activity levels Sliding Scale Test o Passive simply posting things to a site no PJ o Active entering into contracts, making money, etc. PJ o Interactive there is interaction and you exchange information, but not PJ until you start doing business

Example of something that might show up on exam: 2 New Yorkers are on vacation in CA. They rent a car in SF and drive north along the interstate highway heading to Mendocino. While driving they see a sign that says Maw and Paws Jelly and Jam Shop. They pull into the store, buy 2 jars, put it in their car and go on with their vacation. Back in NY a week later at home, fixing a bagel and put the jam they had bought in CA on the bagel. Eat the bagel and die from Botulism. Can they sue Maw and Paw in NY under NY long arm statute? o No. Injury producing event occurred in NY. Tortious act occurred in NY. o There were no traditional bases of PJ over the Ds Ds are not domiciliaries, not territorially in NY, no agent in NY, no consent in NY o Long arm? Would it be constitutional for NY to assert jurisdiction over Maw and Paw based on the sale of the jelly IN CA, transported by the Ps? NO. No Min contacts. No fair play. No sub. Justice. No voluntary affiliation. No foreseeability of being hailed before courts in NY Remember Volks Wagon Facts could be changed to provide a different outcome: o Maybe there was a lot of inter-state traffic on the highway and maw and paw were catering to an inter-state clientele o Suppose maw and paw knew they were in NY and knew they were taking the jelly back to NY o Suppose it was a mail-order business and maw and paw have customers in NY who order by mail o These are more contacts than initially o Suppose maw and paw have a monthly ad in the NYT All of these new facts could possibly lend it to being under NY jurisdiction General Jurisdiction much harder to meet than specific/long arm jurisdiction Jurisdiction that is based on the fact that the D has a continuous and systematic association with the forum o An ongoing, intense relationship o Not unfair to bring that D into the forum even if the disputes that nothing to do with the forum Continuous and systematic activity in a forum state, even if no actual business is being conducted there, allows for the state to exercise jurisdiction

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D can be sued in that forum on a claim that arose anywhere in the world o If the D has continuous and systematic or substantial ties with the forum, the D is subject to general jurisdiction

Perkins v. Benguet Consolidated Mining Co. : D was a Phillipines corporation and during WWII, the president of D came to Ohio to do business. President conducted business there (bills, paid stuff, carried on business, etc.) P sued D for a non-Ohio event, but court said that was OK because D carried on continuous and systematic activities in Ohio Helicopteros Nacionales de Colombia v. Hall : Helicopter crashed in South America. D had decedents on helicopter and wanted to sue in Texas. The helicopter company was a South American company. Helicopters were purchased in Texas, negotiations took place in Texas, pilots were trained in Texas, and some financing came through Texas. Because the crash occurred in South America, the Texas long-arm statute would not apply. Question was, were the contacts between the South American helicopter company and Texas systematic and continuous enough to give Texas general jurisdiction? The court said no. Court held that the claims did not arise out of or relate to Ps contacts with Texas. Purchasing and training was not enough In Rem Jurisdiction (Based on Property) Because a state is all powerful within its boundaries, it can assert jurisdiction over any property in the state, regardless of where the claimants are. Attachment statute requires attachment at the outset of the litigation Seizing property before the action AND posting ntoice Quasi In Rem Jurisdiction State has power over property (bank account, machinery, land, anything), Enables the state to seize the property and hook the owner into appearing in the state even if the underlying dispute has nothing to do with the property State is asserting jurisdiction based on the fact that the state has the property Jurisdictional power over the property is exhausted when the property itself is exhausted Shaffer v. Heitner : The plaintiff, from New York, owned one share of Greyhound Bus Lines, which is incorporated in Delaware. It brought a share holder derivative suit in a Delaware state court against all the officers of the Greyhound Company. None of them lived in Delaware. The liability/tort was in Oregon. The plaintiff asserted that the officers and directors had mismanaged Greyhound and allowed it to violate anti-trust legislation. The anti-trust violation had been prosecuted and delivered a large judgment against Greyhound. The plaintiff, owning one share, claimed the officers and directors had damaged the corporation and should reimburse it. The P attached all the stock that the officers held in Greyhound, giving DE control

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over the D DE followed practice that if D comes in to protect their property, they would be subject to PJ SCOUS said: All assertions of state court jurisdiction must be evaluated according to standards set forth in [International, Denckla, Worldwide] Where there is property in the state that serves as a basis for jurisdiction but is unrelated to the cause of action, there must be sufficient minimum contacts, fair play and substantial justice to support jurisdiction over the D Essentially got rid of quasi in rem and turned it into personal jurisdiction o Quasi still has some power, but not much function any longer Long arm statutes do not go to the constitutional limits

Territoriality Many people thought Shaffer got rid of Pennoyer (territorial jurisdiction, transitory jurisdiction)

Example: o Want to fly from Boston to Honolulu, but have to change planes in LA. Fly American airlines to LA, start walking to United terminal in LA. A process server sees him. Hands him the summons. Guy says I know Im here in CA, but its transitory, I dont have minimum contacts, its not fair play and substantial justice, and the cause of action has nothing to do with CA. In 1990 Pennoyer was re-affirmed by Burnham Burnham v. Superior Court (1990): NJ sued in CA while on a business trip/visiting kids on a claim that arose in NJ (general jurisdiction); served while in the state of CA briefly; does CA have general jurisdiction? Questions whether presence when served is still enough or do we need minimum contacts? All agreed CA had general jurisdiction but no majority reasoning. Scalia approach (decision): presence when youre served is enough by itself based on historical pedigree of Pennoyer Scalia says Pennoyer (Territorial approach) is not dead. Physical presence in forum state ALWAYS sufficient to establish jurisdiction Minimum contacts is used only when D is NOT in the state Brennan approach: we need minimum contactsfinds minimum contacts because he was in CA and while he was there he purposefully availed himself of the services of the state --dangerously broad!! What if I mail you a letter, have I availed myself of the postal system? Better to keep to strict physical presence standard than lower the standard for minimum contacts. Shaffer only applies to quasi in rem

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Federal Court Jurisdiction Federal courts typically use the long arm statute of the forum state in which they are sitting o Diversity cases always o Federal question cases when federal statute that is at issue does not have a jurisdiction provision in it Fed R. Civ. Pro 4(k)(2): o For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction of any states court or general jurisdiction; and (B) exercising jurisdiction is consistent with the U.S. Constitution and laws. What standard does a federal court use in a FQJ case when there is no federal longarm statute? o Not sure, but usually Constitutional Standard International shoe, Denckla, Volks Wagon These are 14th amendments cases about state court jurisdiction There is no due process standard for federal court jurisdiction so must use International shoe et al and apply Minimum contacts What does MC mean for FQJ? o MC with the United States (very broad) o This is where fair play and substantial justice come into play
Claims related to Contact? Contacts are Single/Limited/Irregular/Casual Yes- PJ Specific Jurisdiction analysis c. Claims Unrelated to Contact? No d.

Contacts are Multiple/Continuous/Systematic

Keeton v. Hustler Yes- PJ Apply Min Contacts test a.

Perkins v. Benguet Helicopteros v. Hall If contacts are substantial, yes General Jurisdiction b.

a. Continuous & Systematic contacts and Related to claimthen you DO have PJ b. Continuous & Systematic contacts and Unrelated to claimyou maybe have PJ. This will depend on how substantial the contacts are. If they are substantial, then you have General Jurisdiction b/c they have jurisdiction over you for anything. c. Single & Isolated and Related to claim.you maybe have PJ depending on how related it is. If it is related enough to give you PJ, then this is specific jurisdiction b/c the state only has PJ for this 1 event (like a car crash). d. Single & Isolated and UnrelatedNo PJ.

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Personal Jurisdiction Overview (1) Consent (2) Minimum Contacts (3) Physical Presence Personal Jurisdiction = Minimum contacts (continuous and systematic contacts and/or contacts related to the litigation) PLUS fair play and substantial justice. Minimum Contacts: Continuous and Systematic and Related-Yes (Shoe) NOT Continuous and Systematic, and not related-No (Hanson) Continuous and Systematic, but not related-Maybe (Keeton) NOT Continuous and Systematic, but related-Maybe (VW, McGee) Examples of Minimum Contact: 1) Advertising (Keeton) 2) Agents (Shoe) 3) Bank Accounts 4) Real Property (could also be in rem jurisdiction) 5) Contracting (Burger King) 6) Providing Services 7) Travel to State (Kulko, Burger King) 8) Stream of Commerce ( VW, Gray) Examples of Fair Play and Substantial Justice: 1) Convenience to D (Perkins, Shoe) 2) Residence of P 3) Availability of Alternative Forum (Bryant) 4) State Interest (Gray, VW) 5) Who initiated Contacts (Hanson) 6) Choice of Law (BK) 7) Choice of Forum (Carnival Cruise) 8) Witnesses (VW) 9) Foreseeability (Gray, VW) General vs. Specific Jurisdiction 1) General A. Presence (Pennoyer, Burnham) B. Domicile (Milliken) C. Minimum Contacts 2) Specific-specific to one particular case/instance A. Consent 1) Contract (Szukhent)-known/reasonably should have known 2) Statute (Hess)-particular type of activity conducted in state. B. State-directed acts 1) Torts (Gray) 2) Business Activity (Burger King, McGee) 3) Ownership of real estate (in rem)-could also argue general 4) Litigaiton (Hanson, Kulko)

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III. Notice and Opportunity to be Heard

CAN BE WAIVED D must be given notice that he is being sued and must be given an opportunity to defend himself Most forms of process provide notice (in hand delivery, deliver by mail, etc.)

Notice by Publication (is a bitch on a test) Mullane v. Central Hanover Bank (1950): pooled trust funds and notice of terminated right to suit for mismanagement published in newspaper. Held, due process requires notice must be reasonably calculated under the circumstances to apprise the of the suit and provide an opportunity to be heard; it would not have burdened the trust to mail individual notices because they knew of the location of the beneficiaries. Mullane sets a very high threshold Constitutional standard for notice: o Due process requires that notice be provided prior to the deprivation of life, liberty or property by adjudication. Notice in newspaper is not reasonably calculated because no one reads them Notice requires you to spot the publication form and is reasonably calculated under the circumstances Example (real case): o In NYC there are very strict sanitation requirements. Lots of sanitation officers to enforce these laws. At the time of this case, if the officer saw a violation, he would write a summons and slap it on the offending premises (publication). When the officer went back to HQ, he would mail a second copy of the summons and send it to the offending premise (mail) nail and mail o Did this meet the Mullane test? (reasonably calculated under the circumstances to give actual notice?) Premises in NYC are usually apartment buildings. Owner probably never visits the building and doesnt live there. Nail and mail is not very effective. However, in NYC all apartments are licensed and registered and all owners must provide an official business mailing address not on the premises. Constructive notice (publication notice): giving notice to people in the newspaper o Usually not good practice because it doesnt satisfy Mullane, but o Mullane permits it where people cant be identified/located Opportunity to be Heard Usual exam question for this is a debtor-creditor relationship

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o When a guy borrows money and does not pay it back. Creditor will seek a remedy like Garnish wages Attach property Repossession SCOUS said that opportunity to be heard requires due process protection: o The decision to issue the write of attachment/garnishment/replevin/repossession must be made a judge, not a sheriff o Judge must make decision based on a full presentation by the creditor of why the creditor believes it has the right of immediate possession This means a fact based statement of right to the debt/property under oath o Creditor must post bond to protect the debtor in case of wrongful attachment o Debtor must be given an immediate right to a hearing on the merits The creditor can seize the property, but cant dispose of it until the debtor has had a hearing

IV. Service of Process

CAN BE WAIVED Question of whether or not service of process was effectuated in the manner prescribed in rule 4 It is in Ps interest to try and have D waive service of process o D has less opportunities to challenge P has 120 days from filing complaint to obtain a waiver OR effected service of process o If P mails waiver D has 30 days to respond o If P waits 90 days they dont want to send waiver because then the D will have 30 days Rule 4 is just for initial notice afterwards you go to Rule 5 o Rule 4: 4(e)(2)(a) in hand service 4(d) service by mail 4(e)(1) P can choose rules of service in state where court is 4(e)(2)(b) service upon a person at Ds home 4(e)(2) service upon an authorized agent 4(h) service upon corporations and govt 4(m) statute of limitations Fed. R. Civ Pro. Rule 4 o Waiver of Service Rule 4(d) Allows the person to give notice by first class mail P requests the D waiver their personal service of process

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Beneficial to D because if the P has to personally serve them, D must pay for service costs Waiver of service cant be used on US govt, infants, or incompetents D has 30 days to respond if in the us or 60 days if outside the US If you waive within the 30 days, you have 60 days to answer or 90 if outside the US If mailed 4(D)(1)(F) D time to waive start when request to waive is sent If D fails to return has to pay for formal serivce o Serving Individuals: Rule 4(e)(1) incorporates state law; federal court incorporates methods for serving process allowed by the state in which the federal court sits or the state in which service is actually effected Rule 4(e)(2) Personal service hand the process to the D anywhere in the state Substituted service at the Ds usual abode and you must serve someone of suitable age and discretion who resides there Agent you can serve the Ds agent o Serving corporation- Rule 4(h) Serve an officer or a managing or general agent (someone with enough responsibility) A lot of times corporations have designated agents o Territorial limits Rule 4(k)(1) Federal courts sitting in a state have the same reach as the state courts Can serve out of state only if a state court in this state could do so (long arm statute) Exceptions: Federal statutes allows for nationwide service of process for federal courts o Rule 4(K)(1)(c) and (d) Bulge Rule Rule 4(k)(1)(b) a federal court can serve outside the state in which it sits within 100 miles of where it sits o ONLY applies to parties being joined later under Rule 14 or Rule 19 o Does not apply to original D

V. Venue
CAN BE WAIVED Venue is a rule of administration

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Set of principles that allocate cases among different courts in a certain judicial system Three types of venue questions likely to appear on an exam o Application of the rules of venue for a particular system o The Transfer of venue o The doctrine of forum non conveniens

Rules of Venue Different for every state in the country Federal venue principals must be read USC 1391 (p. 359): Venue Generally
a. A civil action wherein jurisdiction is founded only on diversity of citizenship, except as otherwise provided by law, may be brought only in (1) a judicial district where the D resides, if all Ds reside in the same state, (2) a judicial district in which a substantial part of the events of omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any D is subject to PJ at the time the action is commenced, if there is no district in which the action may otherwise be brought a. Diversity - Do 1 or 2 first, then 3 if those two arent applicable A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any D resides, if all Ds reside in the same State (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any D may be found, if there is no district in which the action may otherwise be brought a. Everything but diversity (incl. FQ) Do 1 or 2 first, then 3 if they arent applicable For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced. In a state which has more than one judicial district and which a D that is a corporation is subject to PJ at the time the action is commenced, such corporation shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. An alien may be sued in any district. A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district which: (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim has occurred, or a substantial part of the property that is subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the FRCP and with other such venue requirements as would be applicable if the US or one of its officers, employees, or agencies were not a party. Summons and complaint in such an action shall be served as provided by FRCP except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought. A civil action against a foreign state as defined in section 1603(a) may be brought1. in any judicial district in which a substantial part of the events or omissisons giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated; 2. in any judicial district in which the vessel or carge of a foreign state is situated, if the claim is asserted under section 1605(b); 3. in any judicial district in which the agency or instrumentality is licensed to

b.

c.

d. e.

f.

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4.

do business or is doing business, if brought under 1603(b) In the US district court for DC if the action is brought against a foreign state or political subdivision thereof.

28 USC 1391 In a federal question case, venue is based on the residence of the Defendant (not citizenship) o Residence of a corporation may be every state if it is doing business in every state 1391(B) federal question cases or federal questions cases mixed with diversity 1. Residential venue - venue is proper where any of the Ds reside, but all the Ds must reside in a single state a. But all of the Ds must reside in a single state i. Eg all 4 judicial districts of NY, but not All 4 of those and a guy from CT 2. Claim Venue - Venue is proper in a judicial district in which a substantial part of the events giving rise to the claim is situated a. Where the tort occurred/contract formed/contract breached b. Alternative place of venue 3. Judicial District in which the D may be found a. Can only be used when the other 2 are not available b. Where the D can be found in jurisdictional terms 1391(A) only diversity cases 1. Venue is based on the residence of the defendants 2. Venue can be based on substantial part of the claim 3. Venue based on a place where the D is subject to personal jurisdiction at the time the action is commenced a. Default principle only usable when the other 2 arent Gibbons v. Brown (1998): Mr. Brown was driving a car in Canada which P and D were passengers. After collision, Gibbons ( TX resident) sued Mr. Brown in Florida. 2 years later Mrs. Brown filed suit against Gibbons for allegedly causing accident by giving bad directions. Trial court dismissed over lack of PJ. Issue was if a prior decision to file a lawsuit in a state qualify as sufficient activity for PJ. Court held that it was not. Didnt satisfy the LA statute so no reason to go into MC test Dee-K Enterprises v. Heveafil Sdn Bhd (1997): purchaser of rubber thread in US sued international distributors () for conspiracy to restrain trade in rubber thread; moved to dismiss for lack of PJ and improper venue; ordered to amend complaint to allege with specificity the venue in the district in which the complaint was filed; Held, PJ is proper where minimum contacts are satisfied; under federal statute 28 USC 1391(d) an alien corporation is subject to suit in any judicial district; general venue statute overrides specific antitrust venue statute requiring suit where company transacts business; venue for American s controlled by 1391(b)(3) because its a FQ, s reside in different states and events took place outside of US; additional facts are necessary to establish contacts or business in the Eastern District. 28

Transfer of Venue Every judicial system has a transfer of venue Transfer is from one court to another within the federal system 1404 is for the right venue 1406 is for the wrong venue o Major difference between the 2: when you transfer under 1404, the law where the case is brought follows Right venue D transfers for convenience so the law follows o Under 1406 the law of the new court applies You transfer in the interest of justice o Where events occurred, parties are, witnesses are, records are, etc. Curveball in federal transfer provision (1404a)

28 USC 1404 The action can only be transferred to a place where it could have been commenced o USSC said they must apply the words literally o A court that would have had original SMJ, original PJ, and original venue In other words, not the perfect court, just the court it could have been brought To determine if there is somewhere more convenient to have the case, apply the public and private factors o Private Factors Relative ease if access to proof/evidence Cost and ease of participants/witnesses getting to that forum o Public factors Local interest in having controversy decided at home Avoidance of having 2 sets of laws applying Having a forum apply foreign law they dont understand as well Unfairness to jury having to figure out other law New court must be proper venue (1391) and have PJ The law of the original forum follows the case because the case is being transferred due to the new forum being more convenient but the same laws must still apply 28 USC 1404 (p. 362): Change of Venue a. 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; b. Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United State may be transferred under this section without the consent of the United States where all other parties request transfer; 29

c. A district court may order any civil action to be tried at any place within the division in which it is pending; d. As used in this section, the term district court includes the District Court of Guam, DC for the Northern Mariana Islands, and the DC of the Virgin Islands, and the term district includes the territorial jurisdiction of each such court.

Look for this on the exam o If asked if you can transfer from one federal court to another federal court, then you are really being tested on is SMJ, PJ, and venue If there is SMJ in the transferor court, there will be diversity of FQJ in the transferee court If there is PJ in the court in which the action was initiated, doesnt mean there is PJ in the transferee court Do your traditional bases of PJ, long arm, and constitutional analysis Finally decide if 1391 allows venue in the new court 1404(a) the transferor court (original) is a proper venue o Transfer in the interest of convenience of the parties and witnesses o Or in the interest of justice o The transferee court follows the law of the transferor court

USC 1406 the transferor court is an improper venue Court has 2 options o Transfer to somewhere it could be brought initially o Or dismiss for improper venue and let be brought elsewhere The law that applies under a 1406 transfer is the law of the new forum 1406(b) failure to raise the matter of venue does not invalidate a district courts New forum must be a proper venue (1391) and have PJ 28 USC 1406 (p. 36): Cure of Waiver of Defects a. 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. b. Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue. c. As used in this section, same as (C) in 1404 1631 if the suit is filed in a court without jurisdiction the court shall in the interest of justice transfer the action to any other court in which the action could have been brought

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Forum Non Conveniens Latin for this aint a convenient place Only available to D o But P can potentially transfer Used for situations where you cant transfer o Eg. NY state court cant transfer to NJ state court o No such thing as state to state transfer o Federal court cant transfer to a state court o An American Court cant transfer to a foreign court Forum non conveniens is a back up for when transfer is not available Because we respect the Ps forum choice, there is a presumption in favor of the Ps choice o To transfer or utilize forum non conveniens, you must overcome this presumption Only applies where first venue is proper but a better venue exists Piper Aircraft v. Reyno (1981): plane crashed in Scotland and all the people killed were Scottish; plane was manufactured in the US so suit was brought in CA state court and removed to fed court and then transferred to PA; s would much rather recover in the US because you get much more money (strict liability in tort, pain and suffering, punitive damages, etc.); Circuit Court overruled dismissal for forum non conveniens on the grounds that Scottish law would disadvantage s. Held: in ruling on forum non conveniens motion the court should not give dispositive weight to the fact that the alternative forum is less favorable to s unless the alternative is clearly inadequate such that it would provide no remedy; Reasons Scotland is better: No presumption in favor of s choice of forum when is foreign (this would encourage onslaught of foreign cases in US Courts) Witnesses and relevant evidence are more easily located in Scotland Claim should be resolved in one trial (difficult impleading third party s in US) PA courts are unfamiliar with Scottish law (applies to one and not the other) USSC said look at convenience to the parties Look at witnesses, documents, who has interest in adjudicated dispute? USSC upheld the application of forum non conveniens and allowed the case to be moved to Scotland, even though the defendants were Americans Forum non conveniens acts as a check against the excessive use of long arm statutes The effect of forum non conveniens is often harsh on the P Transfer moves the action from one court to another Forum NC causes an actual dismissal of the action so that the P must initiate again This can be difficult because a statute of limitations may have run out May also be hard for the P to gain PJ over the D in the second forum For these reasons, the court will not grant FNC unless It knows there is an alternative forum 31

The D waives any statute of limitations defense that may have accrued in the time since the institution of the first action The D agrees to stand and defend in the alternative forum 1. In other words, consent to jurisdiction there Factors for Dismissal for FNC know these Private Factors Relative ease if access to proof/evidence Cost and ease of participants/witnesses getting to that forum Public factors Local interest in having controversy decided at home Avoidance of having 2 sets of laws applying Having a forum apply foreign law they dont understand as well Unfairness to jury having to figure out other law

VI. Removal
You can only remove from a state court to a federal court If removal is improper, the action will be remanded There is no way to remove a case from a federal court to a state court

Rules of Removal See attached Rules and Really good class notes 1441 (p. 365) Actions removable generally
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. (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 United States 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 defendants is a citizen of the State in which such action is brought.

Rules laid out in 28 USC 1441 1. You can only remove an action that could have been brought in a federal court originally. a. You can only remove an action when there is a federal question, diversity of citizenship, and amount in controversy (SMJ) i. Good thing to test 32

2.

3.

4.

5.

ii. Seems like a removal problem, but also a SMJ and the well-pleaded complaint rule iii. Example: 1. Common law action in a state court and the D throws in a federal defense and seeks to remove. 2. Cant be done. 3. Can only remove that which would originate in a federal court 4. Federal court would not have SMJ Only a D can remove a. Removal is kind of way to balance things out b. P has initial choice in forum i. Congress was looking out for Ds interests and wanted to ensure the right to use a federal forum to keep out bias ii. If P starts in a state forum the D can remove c. When saying Defendant we mean the original defendant i. Counter claim defendants (ie. The original plaintiff) cant remove d. All Ds must agree to removal e. Must remove within 30 days In a case based on federal question, the action is removable by the D without regard to the citizenship of the parties a. An in-state D can remove a federal question case and an out of state D can remove a federal question case b. However, when the action is based on diversity of citizenship, the only D who can remove is the D who is not a citizen of the state in which the action was brought i. An in-state D can not remove ii. If multiple D, none of the Ds can be in-state defendants iii. If one defendant is an in-state defendant, the case cannot be removed You remove a case from a state court to the federal court covering the geographic area embraced by the state court a. Dont have to get state court permission simply file with federal court you want to remove too b. To remove you file a notice of removal and then you provide written notice to adverse parties and state court c. Example i. You have an action in the county of Manhattan of NY state and want to remove it to a federal court, you would remove it to the southern district of NY which embraces Manhattan d. Remember, once you remove an action from a state to a federal court, under 1441 you can then seek to transfer the federal action to another federal court under 1404(a) 1441(c) When there is a completely separate federal question joined to a state claim (that could not be removed), in order to prevent Ps from defeating removal right by otherwise joining something removable with something that isnt removable, the separate and independent federal question claim you can remove that question on its on 33

a. This enables the removing defendant to remove not only the federal question, but also the otherwise un-removable state matter (kind of like supplemental jurisdiction) b. The D can remove them both up, and it is within the discretion of the district court to remove the entire case or keep the state-based claim 6. 1446 a. To satisfy the procedure: i. Must file notice of removal in federal court and state why ii. Given notice to the parties and to state court iii. Then the case is assumed to be in federal court iv. If it is argued the removal was improper, it is examined in federal court and then can be remanded to state court if so b. Must have SMJ i. Check if SMJ exists at time of removal c. Only D can remove never P (even in counter claim) d. If case was removed at time of initial filing, you have to remove within 30 days of filing. If you dont you waive your right to remove. If it lacked SMJ at filing, but P amends the complaint to make it a federal case, D has 30 days from filing of amended pleading i. Exception: case may not be removed on basis of diversity jurisdiction more than one year after the case has been filed e. Great way to test because it tests SMJ analysis to apply removal 7. 1447 - Challenging removal a. Addresses after remove.. if P believes removal was improper, then they have 30 days to make a motion to remand b. Unless they want to remand for lack of SMJ which can get remanded whenever c. If P believes it should not be removed, they have 30 days from filing of removal. If P believes the case should not be removed due to lack of SMJ, at any time P can move to remand. i. At any time the court can sua sponte move to state court d. Cant appeal remanding of case back to state court e. If P wants to add other Ps that would destroy diversity that gave rise to removal, the court can decide to either allow the Ps (destroying diversity and remanding to state court) or can disallow the additional Ps 8. If a court makes ruling on a case and it turns out that they didnt have SMJ, they wont retry the case because of efficiency concerns Caterpillar v. Lewis (1996): If the Dist Court fails to remand a case where removal was improper, the judgment will be upheld if the federal jurisdiction requirements are met at the time judgment is entered; considerations of finality, efficiency and judicial economy

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VII. Waiver
When are any of the first 6 issues waived? Unless you look for waiver you will miss it Subject Matter Jurisdiction & Waiver NEVER waived SMJ is not a personal matter o It is an issue of the system the power of the court o Courts are constitutionally based o Courts are free to raise it at any time Personal Jurisdiction, Notice, Service of Process, and Venue These are ALL waivable Any attempt to waive must be brought at the beginning of the case o Threshold defenses These 4 matters (PJ, Notice, Process, Venue) must be raised by a pre-answer motion or asserted in the answer or they cant be used If the D does not raise these issues before trial, any objections to them are waived Exam: o Long fact pattern and then at the very end it says at the conclusion of the trial, the D realizes may not be subject to jurisdiction and moves to dismiss on the grounds of lack of personal jurisdiction o Personal Jurisdiction defenses are threshold defenses and must be asserted by preanswer motion or in the answer, D failed to do either, now at trial the D cant raise the issue at trial because the D has waived it In a federal system (and states that follow) there is a principle known as consolidation of defenses (Fed R. Civ. Pro 12 G &H) o These say that if you want to object to any issues of PJ, notice, process, and/or venue, you must do so in one consolidated motion o Anything you do not raise in the first motion cannot be raised in a subsequent motion o Cant make a motion based on an omitted threshold defense, if you have omitted a threshold defense, you cant even put it in your answer If you have made a motion to dismiss due to lack of PJ and the motion is denied, if you proceeded to defend the case on the merits, you have waived the jurisdictional defense you cant assert it on appeal o The only way you can use the jurisdictional defense was by allowing judgment to be taken against you at the point your motion was denied, and then taking an immediate appeal on the jurisdictional point

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I. Challenging Forum Selection See Attached Sheets A. Rule 12: when you get sued within 20 days after service of process you must respond in one of two ways (motion or answer) B. Best is 12(b)(1) i. If you move under this, the issue can be brought back up in state court ii. Says the case lacks federal SMH iii. Doesnt affect state courts iv. You can only bring diversity motions for dismissal under this C. Alternative is 12(b)(6) i. If you didnt state a federal claim, we wouldnt be in federal court ii. If you fail to state a claim, the case cant be brought up again iii. State courts would have to honor this iv. Attacks the substantive claim no federal claim therefore no jurisdiction v. Or it attacks the jurisdiction no jurisdiction because there is no federal claim D. Rule 12(b)seven defenses can be raised either in your answer or by motion 1. SMJ 2. PJ 3. Venue 4. insufficient process (summons and complaint) 5. insufficient service of process 6. failure to state a claim 7. failure to join an indispensable party ii. Rule 12(g) and (h) 1. defenses under 12(b)(2), (3), (4), and (5) must be put in your first Rule 12 response (answer or motion) or else they are waived 2. defenses under 12(b)(6) and (7) can be raised for the first time any time through trial 3. 12(b)(1) can be raised any timeyou cannot waive lack of SMJ and court can bring it up on its own iii. Rule 12(g) Joining motions 1. Right to join. A motion under this rule may be joined with any other motion allowed by this rule. 2. Limitation on Further motions. Except as provided in Rule 12(h)(2) or 3, a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion iv. E. Motion to Dismiss for lack of jurisdictionRule 12(b)(1) & (2) i. Making a 12(b)(2) motion does not subject to the personal jurisdiction he is protesting (special appearance rulenot used in fed court) ii. Waiver of Jurisdiction Defenses: 1. PJ: right to object is waived if makes a motion raising any of the defenses listed in Rule 12 and personal jurisdiction defense is not included (2) files answer but makes no Rule 12 motion nor raises the personal jurisdiction defense 2. SMJ: Cannot waive lack of subject matter jurisdiction F. Collateral Attack

36

1. Art IV 1: Full Faith and Credit Clause requires one state to recognize and enforce judgments of another state (s property or wages in State 2 may be seized to satisfy a judgment in State 1) 2. Default: if defaults in an action in State 1 he may collaterally attack default judgment when it is sued upon in State 2 on the ground that State 1 lacked personal jurisdiction or subject matter jurisdiction. a. If the court finds jurisdiction in State 1 was proper, has waived right to defend on the merits.

Erie Doctrine
Only applies in diversity actions Form of choice of law Does a federal court sitting in diversity apply state law or does it apply federal law? Master these cases

Erie RR v. Tompkins (1938): Tompkins is walking along a train track and gets hit by an open door. Loses his arm in the process and sues. Wanted to bring the suit in NY federal court where only had to prove ordinary negligence but Erie wanted it in PA court where Tompkins had to show willful and wanton. Rule: In a diversity action, a federal court applies the substantive law of the forum state o Reason for overruling Swift is because the constitution does not give the federal courts the power to create substantive common law that governs state actions Erie was constitutional decision about the lack of any federal judicial power to create substantive rules What is substantive law? o Torts, property principles, contracts, etc. o The system of rules, rights, duties, etc. that exist between people and institutions in society Erie addresses the vertical choice of law question o When a case is in diversity, which law applies? State or Federal? Why is state law relevant? o In diversity there is no federal question, so the issue of what states laws to apply arises o In diversity you are in federal court but you still use the states laws Crux of diversity is state law Crux of federal question is federal law Twin aims of Erie were to remedy o Non-uniform application of law You could get a different result in state court sometimes literally next door to the federal court in the same state o Forum shopping

37

How it applies to Transfer o Klaxon If filed in a federal court and moves for transfer under 1404 (convenience of the party but is better tried elsewhere), the choice of law of the forum state follows Eg. In Federal court in GA, file for 1404 transfer to federal court in FL, the FL federal court applies GA choice of law rules o Van Dusen If moves for a transfer under 1406 (improper venue), the choice of law that applies is the new states choice of law rules

28 USC 1652 (p. 372): The laws of the 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. Basically says that state law applies unless there is already a federal law about the specific topic Guarantee Trust v. York (1945): York sued GT in a diversity action. NY substantive law governed. GT said statute of limitations barred the claim, but York said it did not because it was on the equity side of federal court. Question was whether the state SOL (which would bar the claim in state court) also bar the same action brought in federal court in diversity? Court said yes. Ruled that the intent of Erie was to insure that in all cases where a federal court is exercising jurisdiction solely because of diversity, the outcome in the federal court should be substantially the same as it would in the state court. Made a lot of people mad because it made federal courts carbon copies of state courts o By doing this you were reducing the significance and statute of the federal courts Regan had a wrongful death in Kansas, diversity action commenced within the Statute of Limitations. This is done by filing complaint under FRCP 3 with the clerk. But under Kansas law an action is commenced by actually serving the defendant. Complaint was filed on time but not served on time. o USSC said, under the York principle, a federal court in diversity was obliged to follow the Kansas rule on commencement and since the action was not commenced within the statutory period, it was barred by the statute of limitations Byrd v. Blue Ridge Rural Electronic Coop : Byrd files a tort claim in diversity against Blue Ridge. Blue Ridge argued that federal court should follow South Carolina law and let a judge hear the case instead of following federal law of allowing the jury to hear the case (Amendment 7). The court ruled that some constitutional doctrines are so important as to be controlling over state law, regardless of whether application of such constitutional doctrines would result in an outcome different that which would result under the law of the state in which the federal court sits. Balancing Interest under state law the judge and not the jury was to decide the matter, USSC said it was not substantive because we have to balance the relative interests. We will follow state law unless the federal court has a strong interest in doing it its own way o Leaving fact determinations to a jury is a legitimate federal interest Balancing Test ask these 3 questions when dealing with Erie questions o Is the state rule bound up with rights and obligations? (matters closely tied to when a P can recover? This is the substantive question If the answer is yes, the state law applies If the answer is no, go to next question

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o o

Will applying the state rule dictate the result of the case? This is from York If the state rule is outcome determinative, go on to third question Are there countervailing considerations? For example, what is the interest in the federal forum as opposed to the state forum? Compare this to the issues of personal jurisdiction and the balancing tests you find there

Hanna v. Plumer : Wrongful death action in MA federal court in diversity. Action against executor of deceased. MA had provision that said In actions against an estate, you must make in hand personally delivery service to the executor within 1 year of the death. However, FRCP 4 says the you could do substituted service (leaving the process with the spouse). His service was valid under FRCP 4 but invalid under MA statute. USSC said FRCP represent federal policy. Not statutes but almost statutes (Byrd). Under supremacy clause of constitution, federal law trumps state law. Held that where state law conflicts with FRCP, the latter prevails regardless of the effect on the outcome of the litigation. Federal rule will trump even if it is outcome determinative Example: o Diversity case in a state that does not have class action practice. Case is brought as a class action. According to Hanna, you have FRCP 23 and it would apply because it is a rule of procedure, it is constitutional, and it is applicable. o As a result you can have a federal action even though there is no state governing issue.

Semtek Intl Inc v. Lockheed Martin Corp. (2001): CA federal court dismissed for statute of limitations, re-file in MD state court with longer statute of limitations full faith and credit clause and 1738 are inapplicable because 1st decision was federal not state supremacy clause requires state court to respect federal court decision so must give same res judicata effect that the issuing court would (federal CA court in diversity) state law means no claim preclusion because CA rule allows re-filing in a different jurisdiction with longer statute of limitations federal rule seems to preclude because same claim, parties and valid final judgment on the merits R41b literally says that dismissal for statute of limitations is on the merits Scalia says on the merits there means with prejudice (cannot re-file in the same court) If really on the merits, might violate REA because modified right to sue So Rule 41b is inapplicable Federal preclusion law is whatever the Supreme Court says it is - and it mirrors state preclusion law (no collision) unless there is a countervailing federal interest Apply federal law here (and state - no conflict)

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Questions of governing law In Hanna, the court made it clear that before a federal rule would trump state law, the federal law must be applicable to the particular issue before the court. Klaxon v. Stentor The Supreme Court applied Erie principles to conflict rules: Under Erie a federal court sitting in diversity must apply the conflicts principles of the forum state A federal court in diversity cannot make-up its own conflicts rule. Ex: If a Mississippi court would apply its own law in a case, then a federal court sitting in diversity must also apply Mississippi law Van Dusen v. Barrack Even when a case is transferred to a federal court in another state, it takes with it the substantive law and choice of law rules of the state where it was originally filed. Inverse Erie When you have a federal substantive right that is being adjudicated in a state court, the state court is obliged to apply federal law. A. ERIE TEST: ii. Is there a clear collision between federal and state law? 1. Federal law on point a. Constitution provision vs. state lawConst. law always wins b. US Statute v. state law (direct conflict) i. Is the statute constitutional? If yes then federal supremacy (when law is directly on point) c. FRCP v. state law(direct conflict) i. Is this rule enacted by the Rule Enabling Act? (allows courts to create enabling rules but not disturb substance) ii. Is the Rule Enabling Act constitutional? Yes then supremacy (Hanna case) 2. No federal law on point a. Federal practice (fed common law) v. state law i. Guaranty Trust Testis this substantive/ outcome determinative? ii. Byrd Testis there a strong federal interest in using federal practice? iii. Hanna Testtwin aims of Erie

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Quick Review
I.

Personal Jurisdiction a. Federal Court i. Waiver under Rule 12? ii. Rule 4(k)(1)(A) Apply? 1. 100-Mile Bulge a. Party served within judicial district not more than 100 miles from place where summons was issued. 4(k)(1)(B) 2. Federal Statutory Provision? a. Is there a federal statute that requires special service, when, if followed, would establish p-j? Jurisdiction established under 4(k)(1)(C) if complied with. 3. Alien Provision a. Claim against person not subject to p-j in any state. Service will render defendant subject to p-j if minimum contact with US [4(k)(2)]. 4. 4(k)(1)(A)? a. Could defendant be subject to jurisdiction of a court of general jurisdiction in state where district court is located? b. Long-Arm Statutes i. Types 1. Rhode Island Model a. Courts exercise jurisdiction up to constitutional limits. 2. Enumerated Act Model a. Specifically authorizes factual scenarios when courts can exercise p-j. ii. Statutory Analysis 1. Do facts fall into one of two types of statutes? a. Yes Constitutional Analysis. b. No P-J cannot be exercised in this case. c. Constitutional Analysis i. Traditional Basis for P-J 1. In-state service a. Was defendant an individual served with process within the state? i. If yes, p-j proper under Burnham v Superior Court (1990). 1. If presence within state procured by fraud, jurisdiction may not be proper. Wyaman v Newhouse (1937). 2. Voluntary Appearance a. Has defendant voluntarily appeared and proceeded to defend itself on the action without challenging p-j? IF yes, court has p-j over defendant. ii. Exceptions to Jurisdictional Analysis (If no traditional basis for p-j present, does an exception to traditional jurisdictional analysis apply?) 1. Consent Did defendant consent to jurisdiction in the state? a. Forum Selection Clause Carnival Cruise Lines, Inc. v Shute (1991)

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State Domestication Statute Is there a state statute exacting consent from the defendant (through business registration, nonresident motorist, etc.) i. Such consent usually disfavored. Look for actual consent, and whether fictitious consent is appropriate. 1. If defendant knew that certain actions led to consent to jurisdiction, more likely to be accepted. 2. Where defendant didnt know, minimum contacts analysis should be applied because consent is less favorable here. 2. State Citizens a. Is party challenging jurisdiction a citizen of the forum? P-J allowed over citizens of the state in which court is located. Milliken v Meyer (1940). 3. Non-Resident Plaintiffs a. Is party challenging p-j the original plaintiff in the action? If so, party consented to jurisdiction by choosing to bring action in the forum. Adam v Saenger (1938) 4. Estoppel a. Is defendant estopped from challenging p-j for some reason? iii. International Shoe Test 1. In Rem action? (Court trying to decide rights in a piece of property) a. Shaffer indicates that such actions will generally meet minimum contacts standard i. Isolated, but directly related contacts that warrant jurisdiction. 2. Four-Position Matrix (systematic and continuous vs. single and isolated; related or unrelated to cause of action) a. Continuous and Systematic, Related i. P-J appropriate. Keeton v Hustler Magazine (1984) b. Continuous and Systematic, Unrelated i. P-J might be appropriate. 1. Are contacts substantial? a. Perkins v Benguet (1952) b. Helicopteros v Hall (1984) c. Singled and Isolated, Unrelated i. No p-j d. Single and Isolated, Related i. Specific Jurisdiction Analysis iv. Specific Jurisdiction Analysis Two prong analysis 1. Minimum Contacts between defendant and forum state a. Purposeful Availment i. Has defendant purposefully availed itself of the privilege of acting within the forum state such that is has received benefits and protections of that state? Hanson v. Denckla (1958) 1. If yes, minimum contacts satisfied. a. Allows defendant to reasonably anticipate where its conduct will subject
b.

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it to p-j. World-Wide Volkswagen Corp. v Woodson (1980) b. Purposeful availment cannot exist on the basis of unilateral actions of parties other than defendant. Intentional Torts i. If intentional tort has been alleged, has defendant intentionally targeted its tortious conduct at a forum resident and caused harm to that resident in the forum? 1. If yes, p-j appropriate under Calder effects test. Calder v Jones (1984) c. Contractual Contact i. Does defendant have a contractual relationship with a forum resident? 1. If yes, contracts-plus analysis (consideration of the place of negotiation, execution, and performance of the contract) to consider whether contract solicitation, negotiation, and course of conduct support finding of purposeful availment. Burger King v Rudzewicz (1985); McGee v Intl Life Ins. Co. (1957). d. Stream-of-Commerce Cases i. Stream of commerce product of defendant has caused harm to the plaintiff only after traveling through the stream of commerce, must satisfy OConnor or Brennan Standard of Asahi Metal v Superior Court (1987) 1. OConnor Standard: a. Defendant must have intended for its product to be marketed in the forum state in order to have purposefully availed itself of the forum. 2. Brennan Standard: a. Defendant merely must have been aware that its product would be marketed in forum state in order to satisfy the purposeful availment requirement. 3. Reasonableness Analysis: a. If purposeful availment found, or even if not, proceed with reasonableness analysis. e. Quasi in Rem Cases (determine rights of a person in a thing) i. Is p-j being asserted based on property located within the state? If so, analyze in-state property the same as any other contacts. 1. Property ownership considered an isolated contact for jurisdictional purposes. Shaffer v Heitner (1977) f. Internet Cases i. Analyze whether Internet contacts show purposeful availment. If yes, use reasonableness analysis. 1. Inset Systems v Instruction Set, Inc. (1996)
b.

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Presence of website advertising ones product is sufficient to establish purposeful availment in every state where website is available. Generally repudiated by courts. (Connecticut) 2. Zippo Mfg v Zippo Dot Com (1997) a. Website alone is not enough to support jurisdiction. Jurisdiction depends on the location of the site on the active/interactive/passive spectrum. i. Passive No p-j under Zippo. ii. Active P-J appropriate under Zippo. iii. Interactive - p-j will depend on degree of interactivity and commercial nature of website. Highly interactive commercial website will generally support p-j. ii. Express Aiming of Internet Activity 1. Most jurisdictions look at whether Internet activity was specifically aimed at forum state. If yes, then contact may be sufficient to establish purposeful availment. If no, look for forum contacts that can be evaluated under one of the other purposeful availment rubrics. 2. Reasonableness a. If minimum contacts satisfied, then ask Would the exercise of jurisdiction be (un)reasonable? Use five factors from Asahi, balancing test of first three factors determinative. i. Burden on the Defendant 1. Would the inconvenience to defendant be unconstitutionally burdensome, meaning it would impact defendants ability to mount a defense? a. Yes answer weighs against reasonableness. ii. State Interest 1. Does State have strong interest in resolving the dispute? States interest greater where laws or policies at stake, or where state citizens or corporations are involved. a. Yes weighs in favor of reasonableness. iii. Plaintiff Interest 1. Does plaintiff have strong interest in obtaining relief in the forum? a. Yes weighs in favor of reasonableness. iv. Systemic Efficiency 1. Would jurisdiction promote interstate judicial systems interest in efficient resolution of controversies?
a.

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v. Furtherance of Social Policies 1. Would jurisdiction promote the shared interest

of the States in further fundamental substantive social policies?

II.

Notice and Opportunity to be Heard a. Notice i. Reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v Central Hanover Bank & Trust Co. (1950) 1. Adequate Information: a. Does notice convey sufficient information to notify the party of how and by when it should respond? i. If no, notice inadequate. 2. Timeliness a. Does notice allow reasonable time to appear? i. If no, notice inadequate. 3. Method a. Is method of giving notice a method that one desirous of actually informing the party might reasonably adopt to achieve actual notice? Was most reasonable means available employed? i. No If there is a better means available and reasonably practical, then it should be employed. Includes follow-up attempts to provide notice after discovering that notice has failed. Jones v Flowers (2006) ii. Yes Where superior method exists but is too expensive, time consuming, or burdensome, then it need not be employed over more practical methods under Mullane. Notice was adequate. b. Opportunity to be Heard i. Does pre-deprivation hearing comport with constitutional requirements of due process? Three pronged test of Connecticut v Doehr 1. Property Interest at Stake: a. What is the nature of the private interest that will be affected by the deprivation? i. Focuses on kind of property at stake (house, car, vacant land, etc.). So long as interest is not so minor as to be insignificant, it will be a protectable interest under Due Process Clause. Property interests that are of vital importance to defendant will warrant greater predeprivation protections given their connection with defendants basic needs. 2. Risk of Erroneous Deprivation: a. What is the risk that the defendant will be wrongfully deprived of its property? Weigh these factors? i. Showing: 1. Why type of showing does the plaintiff have to make? The more that a plaintiff has to show to support his or her claim, the lower the risk of erroneous deprivation. ii. Bond:

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1.

Bond requirement will tend to ensure that only plaintiffs with plausible claims will seek the property. The higher the bond requirement, the more likely the plaintiffs claim is to be nonfrivolous, thus reducing the risk of erroneous deprivation.

iii. Judge: 1. Is the decision made by a judge or a non-judicial

court official such as a clerk? If judge is involved, less chance of erroneous deprivation. Plaintiffs Interest a. What is the interest of the party seeking the prejudgment remedy, and any ancillary interest of the government? Does party have pre-existing interest in the property or speculative interest? Less speculative interest = less chance of erroneous deprivation. Subject Matter Jurisdiction a. Diversity Jurisdiction i. Does Action satisfy requirements of 28 USC 1332? 1. Citizenship of Parties what is the citizenship of each of the parties in the action? a. Individuals: i. Based on domicile physically present in a place and have the intention to remain there indefinitely. b. Corporations: i. Based on place of incorporation and place where its principle place of business is 28 USC 1332(c)(1). c. Partnerships and Unincorporated Associations: i. Citizens of every state and country of which its partners or members are citizens. d. Legal Representatives i. Only citizens of the state of the party whom they represent. 28 USC 1332(c)(2). 2. Diverse Parties Enumerated diversity under 28 USC 1332 a. Are the adverse parties citizens of different states? (DC, Puerto Rico and US Territories count as states) i. If yes, parties are diverse. b. Does the case involve a state citizen versus an alien? i. If yes, parties are diverse. c. Does the case involve citizens of different states with aliens as additional parties on either side or both sides (permanent resident aliens are treated as state citizens for purposes of destroying diversity). i. If yes, parties are diverse. d. Does the case involve a foreign state as a plaintiff versus a state citizen? i. If yes, parties are diverse. e. Not Permissible: i. Alien v. Alien; State citizen + alien v. Alien; Alien v. Alien + state citizen; state citizen v. permanent resident alien from same state
3.

III.

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Complete Diversity a. Are all of the parties on side of the action diverse from all of the parties on the other side of the action? (Aliens can be from the same country) Strawbridge v. Curtiss (1806) i. If yes, then complete diversity as required exists. ii. If no, no complete diversity, and no jurisdiction over the claim. 4. Collusive Joinder a. Is there evidence that a party has been improperly of collusively named simply for the purpose of creating a basis for diversity jurisdiction? If so, their citizenship may be ignored for diversity purposes. 28 USC 1359 5. Amount in Controversy a. 28 USC 1332(a) requires the claim to be for more than $75,000 (plus diversity to be met) for jurisdiction to be proper. i. Punitive Damages Included ii. Costs and Prejudgment Interest Excluded 1. Contract interest may be included. iii. Aggregation 1. Can the plaintiffs separate claims be aggregated to satisfy the amount in controversy? Only in following circumstances: a. There are multiple claims by one plaintiff against one defendant. b. There are multiple plaintiffs asserting an undivided interest. c. Claims alleging joint and several liability against multiple defendants are valued based on the entire amount claimed. b. Federal Question Jurisdiction i. Does the action satisfy 28 USC 1331, or one of the other statutes conferring federal question jurisdiction? ii. Essential Federal Element: 1. Does claim contain an essential federal element such that is arises under federal law? 2. Creation Test Is the claim created by or brought pursuant to federal law? a. Yes Arises under federal law. 3. Substantial Federal Interest Test a. If claim is a state law claim, does the plaintiffs right to relief depend upon application or interpretation of federal law? If so, is federal interest implicated substantial? i. Yes Claim contains essential federal element provided the exercise of federal jurisdiction would not disturb any congressionally approved balance of federal and state responsibilities. Grable & Sons Metal Prods. Inc. v Darue Engg & Mfg.(2005). ii. No Claim lacks essential federal element and federal question jurisdiction does not exist. iii. Well-Pleaded Complaint Rule
3.

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c.

Does the essential federal element appear on the face of the plaintiffs well-pleaded complaint? Louisville & Nashville R.R. v Mottley (1908) a. Federal Responses Ignored i. Are there anticipated or actual federal defenses or counterclaims presented that must be ignored for purposes of assessing federal question jurisdiction. b. Artful Pleading Doctrine i. Is the presence (or absence) of a federal element genuine or artfully pleaded? Supplemental Jurisdiction i. If claim does not qualify under diversity or federal question, does claim qualify for supplemental jurisdiction under 28 USC 1367? ii. Section 1367(a) 1. Freestanding Claim: a. Is there a claim over which the court has original jurisdiction? 2. Common Nucleus of Operative Fact a. Is the supplemental claim at issue based on the same common nucleus of operative fact as the freestanding claim? United Mine Workers of America v Gibbs (1966) iii. Section 1367(b) If 1367(a) is satisfied, does 1367(b) nonetheless bar supplemental jurisdiction? 1. Diversity Claim Is the courts jurisdiction based solely on diversity? a. No 1367(b) will not prevent supplemental jurisdiction. b. Yes Supplemental Claim by Plaintiff? 2. Supplemental Claim by Plaintiff? a. Does supplemental claim at issue consist of a claim by the plaintiff or by plaintiffs joining the case under Rule 19 or 24? i. No If claim is not made by plaintiff or by a Rule 19/24 plaintiff, then 1367(b) will not prevent supplemental jurisdiction. 1. Claims by Rule 20/23 plaintiffs may enjoy supplemental jurisdiction, provided complete diversity rule is not violated. ii. Claim by Rule 19/24 Plaintiff 1. Claim will not qualify for supplemental jurisdiction if such jurisdiction would be inconsistent with the requirements of the diversity jurisdiction statute. iii. Claim by a Plaintiff 1. If claim by original plaintiff, is it against certain joined parties? 3. Against Certain Joined Parties? a. Is claim against persons made parties under Rules 14, 19, 20, or 24? i. No 1367(b) will not prevent supplemental jurisdiction. ii. Yes Supplemental jurisdiction not permissible. iv. Discretionary basis for Denial of Jurisdiction? 1. If 1367(b) is not an obstacle, are one of the circumstances of 1367(c) present such that supplemental jurisdiction should not be exercised? a. Novel State Issue
1.

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i. Does supplemental claim involve a novel or complex

IV.

state issue? State Claim Predominates i. Does state claim substantially predominate over the federal claim (bulk of evidence will relate to state claim; federal claim minor compared with state claims). c. Federal Claims Dismissed d. Other Circumstances i. Exceptional Circumstances that would suggest the supplemental claims should not be heard in federal court (jury confusion, for example)? d. Removal Jurisdiction i. If the case has already been filed in state court, can defendant remove the case to federal court? ii. Original Jurisdiction 1. Would the federal district courts have original jurisdictions over the plaintiffs claims if they were filed in federal court? 28 USC 1446(a) a. Yes Case may be removable, provided other requirements are met. If diversity, look to time limit. If federal question, look to federal question basis. b. No Case not removable. iii. Time Limit 1. Have 30 days passed since defendant received service of the initial pleading setting forth the removable claim or notice of a change in the removability of the case? 28 USC 1446(b) a. Yes Defendant has waived right to remove case. iv. Diversity Basis 1. If the claim could have been brought in federal court based only on diversity, is the defendant who is seeking removal a citizen of the state where the case has been brought? 28 USC 1441(b). a. Yes Removal improper. b. No Removal may be proper, proceed to next point. v. Defendant Unanimity 1. Have all of the defendants agreed to removal? Chicago, Rock Island & Pac. Ry. Co v Martin (1900) a. No Court will remand after removal. b. Yes Removal proper. vi. Federal Question Basis 1. If the claim could have been brought in federal court based on federal question, then claim is removable, provided there is defendant unanimity and 30-day time limit for removal has not expired. vii. Motion to Remand 1. If action has been removed can a party seek to remand the case to state court? Done only if a motion to remand is filed within 30 days of the filing of the notice of removal. Venue 28 USC 1391 a. Wavier i. Has the party challenging venue waived the challenge? If yes, venue is proper. ii. Forum Selection Clause 1. Is there a forum selection clause that covers the situation and binds the parties involved?
b.

49

iii. Failure to Object 1. Has the party challenging venue already made a response to the

complaint without challenging venue, such that the challenge is waived under Rule 12(h). b. Special Venue Statute i. Title 28 1. United States as Defendant - 1402 2. Federal Interpleader - 1397 3. Copyright and Patent Actions - 1400 4. Shareholder Derivative Suit - 1401 5. Alien Defendant - 1391(d) a. Alien person or foreign corporation covered here. ii. Other Federal Statute 1. Use provisions of that federal statute to evaluate venue. c. General Venue Statute i. Do all defendants reside within the same state? 1. Identify residency of each defendant: a. Individuals Residency = Domicile b. Corporations i. Resident in districts where they are subject to personal jurisdiction. In multi-district states, resident only in those districts where they would be subject to p-j were the district a separate state. 2. If all defendants reside in the same state, venue is proper in a district where any of the defendants reside. ii. Is there a district where a substantial part of the events or omissions giving rise to the claim took place or where property that is subject of the action is located? 1. Yes Venue is proper in any such districts. 2. No If not, and venue could not be determined based on the first test, look to fallback provisions. iii. Fallback Provision: 1. If no proper venue can be identified based on the first two tests, then determine venue with reference to the fallback provision of 28 USC 1391. a. Diversity Cases i. If diversity-only case, is there a district where any defendant is subject to personal jurisdiction? Venue proper in any of those districts. b. Non-diversity Cases i. Is there a district where any defendant can be found? If yes, venue proper in any of those districts. d. Transfer of Venue 28 USC 1404, 1406 i. Jurisdiction and Venue in Transferee Court 1. Is the transfer being made to a district, within the same judicial system, where the action could have been brought initially? a. No Case may not be transferred. b. Yes Next Point. ii. Convenience and Justice? 1. Would a transfer be for the convenience of the parties and witnesses and in the interest of justice? a. If yes, transfer possible.

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V.

Forum Non Conveniens i. Have the two prerequisites for a dismissal on forum non conveniens grounds been met? ii. Adequate Alternate Forum 1. Is there a forum outside of the federal system that is available for the prosecution of plaintiffs claim? If no adequate alternative forum exists, a dismissal for forum non conveniens is not proper. Gulf Oil Corp v Gilbert (1947) a. Unfavorable law i. Will the plaintiff face less favorable law in the alternate forum? If so, no impediment to recognition of the forum as a viable alternative. Piper Aircraft Co. v Reyno (1981) b. Bar to Relief i. Are the doors to courts virtually closed to the plaintiff for some reason, preventing the ability to seek relief in the alternate venue? If so, then alternate venue may not qualify as adequate available alternative. iii. Public and Private Interests 1. Do private and public interests weigh in favor of having the case heard in the alternate forum? a. Private Interests Factors determining viability and desirability of hearing case in alternative forum i. Location of the events giving rise to the case; ii. Availability of compulsory process for attendance of the unwilling; iii. Ability to implead other parties in the court; iv. Ability to take a view of premises involved in the dispute; v. East and cost of access to sources of proof, which depends on the location of relevant witnesses and documentary evidence; vi. Enforceability of a judgment if one is obtained. b. Public Interest Factors Interests of government and local community of the proposed alternate forum that should be considered in determining desirability to hear case in that forum: i. Whether the dispute involves local people or events; and ii. Whether the dispute is likely to be decided under the local law of the forum. The Erie Doctrine a. Diversity Action i. Is this a federal question case or diversity case? No Erie or Hanna analysis for federal question cases. b. Presence of a Federal Rule or Statute i. Hanna instructs that the initial question should be whether the issue before the court is potentially covered by a FRCP or federal statute as opposed to an uncodified federal practice. ii. Federal Practice Not Embodied in Statute or Rule 1. If no federal rule or statute is at stake, federal practice will have to be evaluated with reference to the Erie analysis. iii. Federal Practice Embodied in Statute or Rule 1. Hanna Analysis applies.
e.

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Controlling Federal Rule or Statute i. Is the federal rule or statute sufficiently broad to control the issue before the court? Walker v. Armco Steel Corp. (1980). 1. Is the federal rule or statute intended or designed to govern the issue at hand such that the rules purposes would be served by applying it? 2. Not Controlling a. Determination of whether to apply state law under Erie analysis. 3. Controlling a. Hanna Analysis d. Hanna Analysis i. Direct Conflict 1. Is the applicable federal rule or statue in direct collision with the law of the relevant statute? Hanna v Plumer (1965) a. No Direct Conflict i. If no direct conflict between federal and state law, then federal law should be applied. No further analysis. 2. Constitutionality of the Federal Rule or Statute a. Does the rule regulate matters that are procedural or capable of being classified as either substantive or procedural? Does rule regulate the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them?Sibbach v Wilson & Co. (1941) i. Federal Rule/Statute Regulates Substance 1. If federal law clearly substantive, it may not be enforced over conflicting state law in diversity cases. ii. Federal Rule/Statute Regulates Procedure 1. If federal law procedural, or both procedural and substantive, constitutional standard satisfied. a. Federal Statute: i. Federal statute applied if procedural and at issue. No Rules Enabling Act compliance analysis necessary. Stewart Org. Inc. v Ricoh Corp. (1988) 3. Compliance with Rules Enabling Act a. Rules Defining Legal Rights i. Defines legal Rights 1. If it defines legal rights, qualified as substantive, and not applicable. ii. Defines Enforcement of Rights 1. If law defines enforcement, then it is procedural and can be enforced if following steps occur. b. Abridgment of State Substantive Rights i. Does federal law abridge, enlarge, or modify any substantive right? 1. No Complies with Rules Enabling Act and is valid. Apply federal law. 2. Yes Next step. c. Procedural Interests Advanced?
c.

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i. If substantive rights appear to be modified, does the Rule

advance clear procedural interests and only incidentally affects litigants substantive rights? Burlington N. Ry. V Woods (1987) 1. Yes Complies with Rules Enabling Act, federal law applied. 2. No Violates Rules Enabling Act, state law applied.
e.

Erie Analysis i. Question Should the federal practice in question or the conflicting state practice be applied? (Where no federal rule or statute covers the issue). ii. Substantive vs. Procedural Test: 1. Can issue be readily labeled as substantive, and thus beyond the scope of federal courts to regulate within the states? a. Substantive Rules of Common Law i. Do conflicting rules prescribe substantive duties and obligations, such as those embodied in the law of torts, contracts and property, as opposed to the mere form and mode of enforcing those duties and obligations? 1. Yes Federal rule may not be applied and state law controls, regardless of whether state law is embodied in statutes or decisions of state courts. 2. No Next questions. iii. Modified Outcome-Determinative Test: 1. If competing state and federal legal rules are not readily susceptible to classification as either substantive or procedural, then outcomedeterminative test as modified by Hanna should be applied. 2. Forum Shopping Encouraged? a. Would application of the federal standard impact a plaintiffs decision regarding whether to file suit in federal or state court? i. Yes Erie policy of discouraging forum shopping is disserved. Use Byrd balancing approach if there are any countervailing federal policies that warrant application of the federal legal rule notwithstanding its promotion of forum shopping. ii. No Proceed to next question. 3. Inequitable Administration of Laws Likely? a. Would application of federal legal rule result in substantial variations between outcomes in state and federal courts? i. Yes Use Byrd balancing approach to determine if there are any countervailing federal policies that warrant application of the federal legal rule notwithstanding its promotion of forum shopping. ii. No Neither of the twin aims of Erie are implicated, and federal practice should be followed. 4. Byrd Balancing Approach a. Outcome determinativeness must be evaluated against the substantive policy interest furthered by the respective state and federal practices. Ask following Questions: i. State Substantive Policy Furthered?

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Is the state practice bound up with the definition of the rights and obligations of the parties, such that the practice furthers some substantive state policy? a. Yes Must be determined whether there is a countervailing federal policy that would warrant application of the federal practice (federal interest analysis below). b. No Presence of a federal policy that will be furthered by application of federal rule will allow the court to ignore the state practice. ii. Countervailing Federal Interest? 1. Does federal legal rule promote an important federal substantive policy interest that outweighs the significance of the policy underlying the state legal rule? a. Yes Federal rule should be followed. b. No If only slight federal substantive policy interests at stake as compared with substantive policies furthered by state practice, state legal rule should be followed.
1.

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Federal Rules Attachment

RULE 12. DEFENSES AND OBJECTIONS: WHEN AND HOW PRESENTED; MOTION FOR JUDGMENT ON THE PLEADINGS; CONSOLIDATING MOTIONS; WAIVING DEFENSES; PRETRIAL HEARING (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney. (3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later. (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the courts action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but early enough not to delay trial a party may move for judgment on the pleadings. (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) Motion For a More Definite Statement.

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A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) Motion To Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) Joining Motions. (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule. (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. (h) Waiving and Preserving Certain Defenses. (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial. (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. (i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7) whether made in a pleading or by motion and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

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