CIVIL PROCEDURE OUTLINE HORNSTEIN SPRING 2010 Personal Jurisdiction Definition the power of the court to enter judgment

gment against a specific D or item of property Two Distinct Requirements Substantive Due Process the court must have power to act, either upon given property, or on a given person so as to subject her to personal liability 14th Amend. Due Process Clause imposes this requirement of power to act as a matter of substantive due process Procedural Due Process the court must have given the D adequate notice of the action against him, and an opportunity to be heard these taken together are requirements of procedural due process also per 14th Amend. Due Process Clause Pennoyer v. Neff, pg 71 No longer good law, but where it all started Facts: Neff served by publication in a newspaper in Oregon where he was not present or a resident Holding: A judgment rendered by a court w/o personal JD violates Substantive Due Process The person must have domicile Territorial/power theory of personal JD Presence, Domicile and Consent are basis to execute JD Limits exercise of JD beyond territory of state Recognizes availability of quasi-in-rem JD based on presence of property in forum Illustrates ability to collaterally attack judgment that is void Void judgment not entitled to full faith and credit Three Types of JD one of the three must be present for the case to go forward In Personam JD exists when the forum has power over the person of a particular D Can result in the entry of a court judgment that imposes a personal liability or obligation on the D this is the most common type of JD exercised by courts over a D In a tort suit, the P seeks a monetary judgment against the tortfeasor-D that is, he seeks to impose a personal monetary liability on the tortfeasor In Rem JD A judgment that affects the interests of all persons in a designated thing or res (property) literally and theoretically the suit is against the res. The suit does not result in any personal liability/obligation Ex) forfeiture actions and probate proceedings Judgment doesnt bind anyone personally, it follows the land Quasi In Rem JD Judgment that affects the interests of particular persons in designated property Proceeding is brought against named Ds and only their interests in the property are at stake Due Process Procedural Due Process: Procedural fairness Substantive Due Process: there are certain types of rights that are fundamental that a person cant be deprived w/o a very compelling reason (process may be fair, but the underlying action is unfair) Full Faith and Credit Clause (Article IV) FF&C shall be given in each State to the public Acts, Records, & Judicial Proceedings of every other State Congress may, by general laws, prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the effect thereof

The citizens of each State shall be entitled to all privileges and immunities of the citizens in the several States Hess v. Pawloski (not in book - Hornstein talked about it) 1st case that deviates from the territoriality concept of Pennoyer Express v. Implied Consent: by driving on MA public highways, D impliedly consents to MA statutes appointment of the registrar as his agent upon whom all processes may be served relating to accidents or collisions that occur in MA. The registrar must then inform the D by registered mail Consent Issue: Benchmark Case Here there is a balancing of MAs police power & the due process allowed to non-residents This moves us away from the hard boundaries est. in Pennoyer Many States have a statute like the one applied in this case Service of Process: Summons and Complaint Function = notice The procedural act that starts personal JD Intl Shoe Co. v. Washington, pg. 85 Facts: Court held that Washington could collect $$ due based on the idea that the company had minimum contacts that were systematic & continuous w/ the State sufficient to make it fair & just to require the company to defend itself in the State Intl Shoe also benefitted from the protection of the laws in Washington, by virtue of the large volume of interstate business it conducted The court also held that the courts of any state may exercise personal JD over D if they have such min. contacts w/ the State that it would be fair & just to require them to return & defend in the State The court suggested that whether JD is permissible depends on the quality and nature of the contacts w/in the State Personal JD over non-residents was expanded by this case instead of presence & doing business, JD can be based on due process, which requires that D have certain minimum contacts w/ the State such that the maintenance of the suit doesnt offend the notions of fair play & substantial justice. New Benchmark Rule: Due Process only requires that in order to subject D to a judgment in personam, if he be not present w/in the forum, he have certain minimum contacts w/in the forum state such that the maintenance of the suit does not offend the traditional notions of fair play & substantial justice Whether Due Process is satisfied must depend upon the quality & nature of the activity in relation to the fair & orderly administration of the laws which it was the purpose of the due process clause to insure Minimum Contacts Test (Intl Shoe): When a D is not from the forum state, this is the only basis for exercising personal JD Applies to individuals & corporations Limited to claims arising from (or related to the Ds contacts w/ the forum state) The limitations on personal JD found in long-arm statutes are distinct from the constitutional limit imposed by the minimum contacts test It is clear that a D may have sufficient contacts w/ a state to support minimum contacts JD there even though she did not act w/in the state Minimum contacts analysis focuses on the time when the D acted, not the time of the lawsuit Intl Shoe: physical presence in the State or citizenship in the State is no longer the basis for personal JD (Pennoyer) instead, personal JD is based on due process (minimum contacts) Minimum contacts being sufficient is decided on a case-by-case basis If JD in the case of in personam or quasi in rem, the court may not exercise that JD unless D has minimum contacts w/ the state that the

court sits the requirement of min. contacts means that D has to have taken actions purposefully directed towards the forum state Specific & General JD: Two Sub Categories of Personal JD Specific JD: Single acts, b/c of their quality & nature OR continuous but limited activity will subject D to specific JD (ie: a car crash in FL while D driving thru GA) A state can exercise JD when the Ds activities in the forum state give rise to the cause of action General JD: A state can exercise JD irrespective of the nature of the claim; higher min. contacts threshold When the lawsuit is unrelated to Ds contact in the forum state Appropriate when Ds activities in the state are so substantial & continuous that he would expect to be subject to suit there on any claim & would suffer no inconvenience from defending there General JD was created by Harvard Profs, not courts Allows P to go to multiple forums

Specific JD and State Long-Arm Statutes Long-Arm Statutes Long-Arm Statutes are those that extend a states power to exercise personal JD over a nonresident D Does the state want the case? Enumerated long-arm statutes: Enumerates the specific conduct that will subject a nonresident to JD in the state Non-Enumerated: Will reach as long as due process clause permits If a State has a long-arm statute, the Fed. Courts that sit in that State must apply it long-arm statutes not needed for personal JD, but most states have them Two-Step Analysis for Personal JD Essay Question Does Ds conduct fall w/in an applicable long-arm statute? Is the long-arm statute w/in the limits of due process? Minimum contacts? Gray v. American Radiator & Standard Sanitary Corp., pg. 93 Specific JD long-arm case Gray indicates that there are other considerations in addition to minimum contacts Introduces concept of long-arm statutes, where JD over a nonresident D is conferred on a court by a statute Rule: If a corp. elects to sell its product for ultimate use in another state, it is not unfair to hold it liable for defects in that State This is the Stream of Commerce theory This decision extends the boundaries of Due Process further Gray teaches that personal JD requires us to have a two step analysis (see above #2) McGee v. Intl Life Insurance Corp. pg. 100 McGee represents the outer bounds (most liberal extension) of personal JD Facts: State interest is a very important factor in this case, D had very limited contact w/ forum, but K served as substantial connections TX court refused to accord FF&C to Cali judgment; the S. Ct. reversed and found valid exercise of JD by Cali court over absent nonresident insurance co. that had no offices, agents, or any other contacts w/ the forum other than P Bottom Line: It is sufficient that the suit was based on a K that had substantial connection w/ that State McGee Court looked at three things: D reached out to the forum,

Forum States interest, Relatedness Ps claims arose from Ds contact w/ forum McGee had very little contact w/ CA but the K had substantial connection The States interest explains the allowance of JD CA has an interest in protecting its citizens from out of state insurers Hanson v. Denckla, pg. 101 Donner of Penn. set up trust in DE & then moved to FL when she died the daughters brought action in FL claiming the appointment of their sisters children as beneficiaries was ineffective D argued FL had no JD FL court said they had JD over the trustee, & ruled in favor of P DE court ruled in favor of D S. Ct. held the trustees contact in FL was less than the minimal requirements & that state couldnt assert personal JD over it DE was justified in refusing FF&C to FL decree There must be some act which D purposefully avails itself (there was none here) DE bank didnt reach out to FL, P moved there D had no purposeful availment Minimum contacts must be result of purposeful availment by D World-Wide Volkswagen Corp. v. Woodson, pg. 105 Facts: Ps bought an Audi from D in NY the next year they went to AZ & on the way they were rear ended in OK the accident caused a fire that severely burned Ps Ps brought suit in OK D has never operated business there Ps claimed that there was personal JD based on the States long-arm statute The court said there wasnt enough minimum contacts to est. JD no purposeful availment & no foreseeablility that they would be sued there The mere foreseeability that one of their cars would drive into that state doesnt cut the mustard the foreseeability is relevant when it relates to Ds contacts & conduct in the forum are foreseeable; such that he can be haled into court in that forum There must be purposeful availment regardless of the fairness or convenience Put checks & limitations on use of stream of commerce theory; put brakes on wide net thrown by Intl Shoe Stream of Commerce is not alone sufficient Synthesizes rules developed in Hanson and McGee: Unilateral contact of someone other than D not sufficient Sometimes state has an interest that weighs heavily in the factors test Defines two concrete functions of minimum contacts D can avoid the burden of distant or inconvenient locations (forums) Acts to ensure that the states, through their courts, dont reach out beyond the limits imposed on them by their statutes as coequal sovereigns Two Elements in this case: Inquiry into whether there are contacts sufficient to enter Due Process Fairness and Reasonableness Two-Part Analysis: Would exercising personal JD offend traditional notions of fair play & substantial justice? (Intl Shoe) Purposeful Availment: Requires that D intentionally avail himself to the privilege of conducting activities w/in the forum state, invoking the protections of its laws must be a unilateral, deliberate choice

Reasonableness: Is the exercise of JD reasonable? JD may not be employed as to make litigation so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage

Burden on the D

Interest of the Forum State

Ps Interest in Obtaining Relief Interstate Interest in Efficiency Interest in Public Policy (Interstate)

Factors to determine Reasonableness after you have est. minimum contacts: Burden on D States interest in adjudicating the dispute Ps interest in convenient in effective relief Interstate judicial systems interest in an effective resolution Shared interest in public policy Reasonableness: Factors to Consider Burden depends on the ability of the D to litigate the case: Distance Proving evidence/witnesses Familiarity with legal system Cost (effect on small corporation) Must be a compelling or tremendous to defeat jurisdiction Answers why does the state want to keep the case: Compensate residents Application of the forum states law Potential for other defective goods/services within the state Make sure state isnt incurring costs for medical bills Answers the question as to why the P wants the case in the forum state: Availability of witnesses/evidence Convenience Ability to travel with litigation Shared interest of several states in efficiency; obtaining the most efficient resolution of controversies- consolidation vs. split No efficiency argument with a foreign D. Shared interest of the several states in furthering fundamental substantive policies; Other states have the same interest in holding the D accountable for a tortuous act; they may have the same defective goods/services in their state

Keeton v. Hustler Magazine, Inc., pg. 115 Facts: P brought suit against D, an OH corp. in NH b/c NH was the only state where the action wasnt time-barred when it was filed P was a resident of NY & had very limited contacts w/ NH (a magazine she helped to produce was circulated there) Hustler sold 10,000 15,000 magazines per month in NH Court: Regular monthly sales of thousands of magazines is sufficient minimum contacts also, NH had an interest b/c its citizens who purchased the mags were damaged by reading a false story, and P suffered damage in NH The Single Publication Rule (defamation/libel actions): P can sue in one state, & can recover in that one action all the damages sustained wherever the publication was circulated This case rejected nonresident Ds argument that Ps lack of contacts w/ the forum should be basis to decline exercise of jurisdiction D purposefully availed itself of benefits by distributing publication in forum Ps dont have to have minimum contacts, Ds do

The relationship b/w D, the forum state, and the litigation = how the court decides JD Ps contacts w/ forum state are irrelevant for defeating personal JD, but may be relevant to the determination of Ds contacts w/ the forum state Kulko v. Superior Court, pg. 117 Facts: P filed suit in CA against D for child support modification agreement children lived w/ their father (D) in NY 1 child moved to CA to live w/ mom (P) and later the 2nd also wanted to go to CA, & w/o Ds knowledge, P bought 2nd child plane ticket to CA Why is Superior Court a party to this case? This action proceeded by a writ to the S. Ct. of CA; Mr. Kulko wanted S. Ct. to restrain lower court from exercising JD over him CA has a broad long-arm statute: On any basis not inconsistent w/ the Constitution S. Ct. said there was no purposeful availment and no consent Ct. said his act of buying the plane ticket was volitional but not purposeful b/c there was no showing of any benefit he received Ct. looked at the 5th factor of reasonableness (see above) it was unreasonable to assert JD b/c he yielded to domestic tranquility Calder v. Jones, note 1, pg. 118 Establishes the Effects Test in context of tort committed by nonresident D The effects test, under which purposeful availment may be present if the D is alleged to have Committed an intentional act; Expressly aimed at the forum state; Causing harm, the brunt of which is suffered & which D knows is likely to be suffered in the forum state. Do not have to step in the forum state just cause harm there The court said that the only source of protection in JD actions is the Due Process Clause Burger King Corp. v. Rudzewicz, pg. 119 Facts: D contracted w/ P (BK), a FL corp. to operate a BK franchise in Detroit, MI K said that all disputes would be governed by FL law The mere existence of a K in a forum doesnt give it JD in that forum This K had a choice of law provision that FL law is controlling Choice of Law study of what laws apply another area to forum shop This case is about JD arising out of Ks from Ks The court said that contracts alone arent sufficient contacts The court said that the JD should be in FL b/c Ds reached out to them, they purposefully availed themselves to FL law This is a Specific JD case An individuals K w/ an out of state party ALONE cannot automatically est. sufficient minimum contacts in the other partys home forum The burden is on the D to show that the forum is unconstitutional they must show that it is so gravely difficult and inconvenient that you are at a severe disadvantage

General Jurisdiction and State Long-Arm Laws Asahi Metal Industries v. Superior Court, pg. 129 Facts: Zurcher lost control of his crotch rocket when it collided with a truck he was injured & his wife killed - he filed suit alleging that a sudden lost of air pressure in the rear tire caused the accident - he alleged the tire, seal & tube were defective & filed a complaint against Cheng Shin (the maker of the tube).

Cheng Shin brought a cross-claim under Rule 13 against Asahi (wanted Asahi to indemnify Chen Shin) Asahi filed a motion to quash summons This is a plurality decision; 4-4 split, Stevens didnt side no one opinion was accepted by a majority of the justices this decision does not have the precedential value of a majority opinion (not all courts follow Asahi) Two-Prong Analysis: Minimum contacts w/ purposeful availment or direction: not the product of purposeful direction 1st Prong Not Met Reasonableness inquiry (Five Factors Test): it would be unreasonable under any circumstances for Asahi to be haled into CA court 2nd Prong Not Met Brennan (Concurring): Placing a product in the stream of commerce is enough to satisfy minimum contacts test. However, considering the reasonableness factors, in this case jurisdiction would be unreasonable and unfair OConner (Concurring): You need to place the product in the stream of commerce but it must also be purposefully directed must have purpose to serve the states you are in Mere product placement alone isnt enough This case shows that you need more than mere awareness, & purposeful direction is required some indication of intent to serve the forum actions must be directed Perkins v. Benguet Consolidated Mining Co., pg. 138 Court approved exercise of general JD by OH court over Philippine corporation Suit by Perkins (nonresident P) didnt arise from Philippine corps mining activities in state, but activities in OH est. continuing & substantial relationship w/ forum sufficient to permit exercise of JD over D for unrelated claims Only the S. Ct. has authorized exercise of General JD Helicopteros Nacionales De Colombia, S.A. (HNC) v. Hall, pg. 142 Facts: HNC (D) provided helicopter transportation for WSH, a pipeline building co. in South America one of the helicopters flying men into jobsite crashed and killed all on board the families sued WSH, HMC and Bell Helicopters in a District Ct. in TX Contacts: HMC CEO flew to Houston, TX to negotiate K HMC bought helicopters, parts, etc. from Bell Helicopters in Fort Worth, TX HMC sent pilots & servicemen to be trained in Fort Worth HMC was paid w/ checks drawn from Houston bank HMC began performing before agreement was formally signed Specific JD was not tried in this case b/c the other side didnt dispute it Court refused to find General JD under the facts the court treated cause of action as unrelated to HMCs activities in the forum the parties stipulated that there was no basis for Specific JD HMCs CEO flying to TX, the purchase of its fleet, parts & training of its pilots & mechanics & the presence of a banking contact did not est. continuing & systematic activities that were substantial The court refused to aggregate contacts (J. Brennan) Dissent says there is specific and general jurisdiction

Internet and Other Technological Contacts

Zippo Manufacturing Co. v. Zippo Dot Com, Inc., pg. 155 The Zippo test is NOT a dispositive test or the standard now used by courts to determine personal JD It is a reference only many courts replace w/ the Calder Effects Test This is a tool NOT a rule of law, however, we need to know this Zippo Sliding Scale: Passive Websites ------- Interactive Websites ------- Active Websites

Passive Is the website passive? If so, JD is not appropriate based on the website per Zippo Active Is the website active? If so, JD is appropriate under Zippo Interactive Is the website interactive? If so, then JD will depend on the degree of interactivity & the commercial nature of the website a highly interactive commercial website will generally support personal JD Sliding Scale is not a substitute for the minimum contacts test Facts: Dot Com posted info on a website that is accessible to PA residents who are connected to the internet Dot Com did more than create an interactive website through which it exchanges info w/ PA residents in hopes of using that info for commercial gain later This is a doing business over the internet case Court found that Dot Coms electronic commerce w/ PA residents constitutes purposeful availment of doing business in PA the intended object of these transactions has been the downloading of the electronic messages that form the basis of this suit in PA Pebble Beach Co. v. Caddy, pg. 150 How to apply purposeful availment in regards to technological contacts The traditional rule of personal JD applies to Internet activity question is, how? Facts: Pebble Beach Golf Club sues Caddy, the owner of a bed & breakfast in Southern England for infringement Caddys website is www.pebblebeachuk.com & Pebble Beach Co. website is www.pebblebeach.com Rule: 3-Part minimum contacts test is satisfied when: D has performed some act or consummated some transaction w/in the forum or otherwise purposely availed himself of the privileges of conducting activities w/in the forum The claim arises out of or results from Ds forum-related activities, AND The exercise of jurisdiction is reasonable If any 3 fails then JD in that forum would be a violation of Due Process Purposeful Availment & Purposeful Direction are two different concepts: Availment action taking place in the forum that invokes the benefits and protections of the laws of the forum Direction a foreign act that is both aimed at & has effect in the forum Rule: When a website advertisement does nothing other than register a domain name & posts an essentially passive website, & nothing else is done to encourage residents of the forum state, there is no personal JD Court held that Ds actions were not aimed at CA a passive website doesnt constitute express aiming A Refrain: Jurisdiction Based Upon Physical Presence Burnham v. Superior Court, pg. 175

 Facts: P and his wife lived in NJ In 1978, they decided to separate & agreed the wife would take their two children when she moved to CA shortly thereafter they agreed to file for divorce on the grounds of irreconcilable differences. In 1987, P filed for divorce in NJ state court on grounds of desertion He didnt serve his wife Mrs. Burnham, after unsuccessfully demanding a divorce under irreconcilable differences, brought suit in the CA state court in January 1988 & when visiting his kids and doing business in CA, P was served The court said that if you are w/in the borders of that state & you are serviced w/ process there, then you are subject to that service & that JD Validates transient/tag JD (if D is found w/in the borders of the state & he is served, the state acquires personal JD) J. Scalia (Opinion): Burnham qualifies the Shaffer decision by retaining the traditional rule that physical presence = jurisdiction in this case, tradition = due process. Doesnt use any type of test. This case limits the scope of Shaffer to quasi-in-rem & to absent Ds Another Basis of Jurisdiction: Consent Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, Pg. 186 Recognized that the due process right implicated by personal JD concerns a substantive liberty interest Est. power of court to deem JD facts admitted under Rule 37 as discovery sanction Thus, this case illustrates that a party can by conduct, consent to JD Choice of Law = Part of K that designates which law is to be applied (see Burger King) Has nothing to do w/ JD Forum Selection Clause = Part of K that designates which forum will hear any disputed Function: To acquire consent to personal JD in a particular forum Historically, such clauses were disfavored & there was a presumption against enforcement Two cases: M/S Bremen v. Zapata Off-Shore Co. & Carnival Cruise Lines Inc. v. Shute M/S Bremen v. Zapata Off-Shore Co., pg. 188 Forum selection clause in K required disputes to be resolved in London Can avoid enforcement of forum selection clause if unjust, can show overreaching, or if product of fraud/undue influence Carnival Cruise Lines Inc. v. Shute, pg. 189 Facts: Ps were from Washington State & Ds HQ was in FL forum selection clause required disputes to be litigated in FL P was injured in Mexico, & filed suit in WA Court found that even if forum selection clause is in an adhesion K, it is still enforceable b/c: Cruise line has a special interest in limiting the place where it potentially could be subject to suit Eliminates any confusion/doubt on both sides regarding where litigation would be held more effective/cost productive Passengers who purchase tickets reap the benefit of cost savings in the forum of reduced fares Consideration: fundamental fairness; reasonably communicated Challenges to Personal JD

 Special Appearance Motion to Dismiss Rule 12(b)(2) If you challenge personal JD & lose, collateral cannot be attacked Providing Notice and An Opportunity To Be Heard Mullane v. Central Hanover Bank & Trust Co., pg. 199 This is a case of procedural due process, as opposed to substantive due process Notice + Opportunity to be heard = Procedural Due Process (in this case, notice is at issue) The Due Process Clause requires at a minimum that deprivation of life, liberty or property by adjudication be preceded by notice & opportunity for hearing At issue in this case = property (money) The court held that notice in the newspaper was sufficient for unknown beneficiaries for which D did not have an address. However, notice in the newspaper was not sufficient for known beneficiaries, for which D had known places of residence Rule: The Constitutional Standard for Adequate Notice = notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action & afford them an opportunity to present their objections Anderson v. School Board of Seminole County, (in additional reading index) R/L If you dont raise a claim of error at trial level, you cannot raise it at the appellant level You waive your right to appeal that issue Greene v. Lindsey, pg 208 The S. Ct. held that posting notice of eviction on a tenants door does not satisfy due process Key to Due Process: Is the notice reasonably calculated under all the circumstances to apprise interested parties of the action & provide them an opportunity to object? Due Process turns on the circumstances of the particular case Problems w/ posting notice & mailing is that the posting could be torn down & letter could be destroyed

Service of Process Service must have: Summons; and A copy of the complaint Can be served by any non-party, over the age of 18 Function of Service of Process Serve notice; and Triggers personal JD Maryland State Firemens Association v. Chaves, pg. 215 Here, process was sent to D by certified mail D claimed that he never received it P recovered a default judgment against him Service of Process must be effective under the Fed. R. Civ. P. before a default judgment can be entered against the D Rule 4: Summons Proscribes the manner of service of process (focus is at the initiation of the lawsuit) Rule 4 permits different service depending on the JD Rule 4(d) Waiving Service

(1) Request for Waiver must: be in writing & be addressed: to the individual D; or to an officer/managing agent/general agent name the court where the complaint was filed; be accompanied by a copy of the complaint, two copies of a waiver form, & a prepaid means for returning the form; inform D using text in Form 5, of the consequences of waiving & not waiving service; state the date in which the request was sent; give at least 30 days to return the waiver (60 days if D is outside of U.S.); and be sent by first class mail or other reliable means Extended time to answer if waiver is sent before D is served: 60 days for domestic D & 90 days for Intl D If a D in the U.S. fails to sign and return a waiver request, w/o good cause, the court must impose on the D: The expenses later incurred in making service; and The reasonable expenses, including attorneys fees, of any motion required to collect those service expenses Rule 4(d)(4) Results of Filing a Waiver When a P files a waiver, proof of service is not required & these rules apply as if summons & complaint had been served at the time of filing the waiver Waiver of service = D waives right to have P formally serve him (this is not a waiver Ds right to object to personal jurisdiction or venue, however) Allows P to use the mail to effect service of process, and gives D extra time to file his answer. Penalty attaches if D chooses NOT to waive formal service of process (cost of service and attorneys fees that occur after notice of rejection of waiver) Court will relieve D of this penalty if D can show good cause for not waiving (blind, hospitalized, cannot speak English, etc.) National Equipment Rental, LTD v. Szukhent, Pg. 221 A DE corp. with its principal place of business in NY. Lease dispute with farmers in Michigan over a lease of equipment. Appointed an agent who never met with the Ds and was a relative to someone working for P. The purpose of an agent is that jurisdiction would be in NY. (Without confrontation).

Ct. said due process was not an issue. J. Brennan (Dissent) Federal rather than state law should apply. Rule 4(a): Summons Contents A summons must: Name the court and the parties; Be directed to the D;

State the name and address of the Ps attorney State the time within which the D must appear and defend; Notify the D that a failure to appear and defend will result in a default judgement against the D for the relief demanded in the complaint; Be signed by the clerk; and Bear the courts seal.

Substituted Service: can service the husband at the home even if the wife (the party in the suit) isnt home. Must be done at Ds dwelling or usual abode must be someone of suitable age and discretion that resides there. Rule 4(e): Serving an Individual within the United States Can serve by 4(e)(2), or by state law where district court sits or where service is made. Service can be achieved by doing any of the following: Delivering a copy of the summons and the complaint to the individual personally; Leaving a copy of each at the individuals swelling or usual place abode with someone of suitable age and discretion who resides there; or Delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Rule 4(f): Serving an Individual in a Foreign Country (3) Can use E-mail in some countries.

Rule 4(h): Service on a Corporation Can serve an officer, managing agent, general agent or other agent authorized by appointment to receive process. Fact Question: Is the person so integrated into the organization that he/she would know what to do with the papers?

Rule 4(m): Time limit on service 120 days to file service after the complaint has been filed.

Rule 4(k)(1): Service provides personal jurisdiction over D: Rule 4(k)(1)(A): Piggybacks the long-arm statute of the state in which the district court sits. (If you are subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located). Rule 4(k)(1)(B): Bulge Rule: Permits the court to exercise jurisdiction over parties brought in (under Rule 14 or 19) that are found within 100 miles of the courthouse.

Rule 4(k)(1)(C): when authorized by a federal statute.

Rule 4(k)(2): a claim under federal law, service or waiver of service established personal jurisdiction over a D if (A) D is not subject to states courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the constitution. Essentially a long arm statute. Only applies to suits under federal law. Focus on when a federal court uses a states long arm statute.

Return of Service- After the process server has delivered the papers, she must file a return, which should disclose enough facts to demonstrate that D actually has been served and given notice that he is required to appear in court.

Opportunity to Be Heard Fuentes v. Shevin, Pg. 240 Case where they rented-to-own the stove, service policy and stereo. They got a pre-judgment replevin. The D could only get them back on a hearing on the merits of the case.

Sup. Ct. held that D didnt have an opportunity to be heard. Letting them be heard protects them from erroneous deprivation.

Any significant property interest triggers the due process clause. R/L In order to comply with procedural due process, notice and an opportunity to be heard must be provided prior to seizure of any protected property interest. The govt can proceed ex parte in some cases. Ex. Mad cow, salmonella, kanker.

Ex parte replevin action. (Ex parte = only one side and without notice) Mitchell v. W.T. Grant Co., Pg. 249 R/L Statutes allowing for attachment or sequestration without a prior adversarial hearing do not violate procedural due process, if procedural safeguards exist. Sequestration- The process of attaching property pending the outcome of litigation. Five ways Mitchell is different from Fuentes. (DUE PROCESS IS A FLUID, ELASTIC CONCEPT!!)

Required creditor to establish specific allegations by verified petition. Facts involved a vendors lien that would be extinguished if the property was transferred. A more extensive bond was required by the creditor. Judge had to pass on the issuance of a writ, not a clerk. Debtor can regain possession by posting bond at an immediate postseizure proceeding.

Connecticut v. Doehr, Pg.254 Dealing with an assault and battery, however the state superior court granted the attachment of property. The Sup. Ct. held that real estate may not be attached without prior notice of hearing, without extraordinary circumstances, and without a bondposting requirement. Matthews v. Eldridge: no right to a pre-termination hearing; 3 factor test (modified) Consideration of the private interest that will be affected by the prejudgment measure. An examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards. Principal attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. The court here found that: There was significant property interest. Risk of erroneous deprivation was sky high. Interest of creditor is small. Government is minimal.

Rule 5: Service and Filing of Pleadings and Other Papers Governs the filing and service of a civil lawsuit, other than the filing of the complaint. Does not apply to service of complaint Does not apply to filing of an ex parte complaint

Does not apply if the court orders it not to be sent to everyone.

Rule 5(d)(3) allows courts to accept filing that is sent and signed electronically. Rule 5.1 Allows for different means of filing. Ex. By person, mail, electronic filing. Generally to receive it by fax, the other side has to be in agreement to receive it that way first. Service is complete by mail when it is posted in the mail. If FEDEX is used, this rule doesnt apply.

Every document filed must have a certificate of service. The certificate of service explains how and where it was sent.

Rule 5.2- authorizes parties to redact certain confidential information. Ex. Account numbers, minors name, S.S. numbers, etc.

Goldberg v. Kelly, (additional reading index) Welfare benefits were being taken away from beneficiaries in NY. There was no requirement of prior notice before the termination of the financial aid. These programs operated by the state and city. Holding: Recipient of welfare benefits should have a pre-judgment hearing, since termination of benefits w/out notice effectively cuts of sustenance to these recipients. Opportunity to present oral evidence, right to appear with counsel. Exemplifies the principle that: Process varies depending on the nature and kind of interest at stake.

Subject Matter Jurisdiction FEDERAL COURTS MUST HAVE SUBJECT MATTER JURISDICTION OVER EVERY CASE THEY HEAR. Involves the institutional authority of the court hear and adjudicate a particular KIND/CLASS of case. Subject Matter Jurisdiction in state courts is determined by state constitutions, state statutes, and judicial decisions. Subject Matter Jurisdiction in federal courts is determined by Article III of the Constitution, federal statutes, and judicial decisions. The only court authorized by Article III is the Sup. Ct. Gives congress the power to decide the bounds and limits of federal question jurisdiction. Subject Matter Jurisdiction cannot be waived. Removal Jurisdiction = allows D to a limited right to transfer a case from state to federal court.

Forum Shopping = parties use the choice of forum made available through the grant of diversity jurisdiction for tactical purposes in order to gain an advantage from one forum or another in a particular case. Two principal areas of subject matter jurisdiction: Diversity Jurisdiction (28 U.S.C. 1332) Federal Question (28 U.S.C. 1331) P must affirmatively invoke subject matter jurisdiction in the complaint he/she files. There is no requirement to invoke personal jurisdiction, although it is a good idea. Subject Matter Jurisdiction is measured at the time the lawsuit is filed.

Diversity Jurisdiction 1332 History / Background of Diversity Jurisdiction Judiciary Act of 1789: many original members of the Constitutional Convention had a hand in this; no federal question jurisdiction granted. Created District Courts and Circuit Courts District Courts now hear diversity and federal question (Circuit is the Appellate).

What is purpose of Diversity Jurisdiction? J. Friendly: Protects creditors from state-to-state bias. Strengthening the federal government (more control over who composed juries in fed. cases)

US Constitution, Article III, Section 2 = extends judicial power of the US to controversies between citizens of different states and between a state, or the citizens thereof, and foreign states, citizens, or subjects. (initial source of federal jurisdiction) Only court mandated by the Constitution is the Supreme Court.

Dred Scott (J. Tawneyswore in Lincoln): Supreme Court held that descendents of African slaves could not be citizens of the United States, and therefore could not invoke diversity jurisdiction. This case was also used to prohibit Congress from interfering with slavery in the NW territories. Probably one of the most important Sup. Ct. Cases. Overruled by the 14th Amendment. Anyone born or naturalized in the US is a citizen.

Elements of Diversity Jurisdiction Diversity Jurisdiction 28 U.S.C. 1332 limits forum shopping 1332(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

citizens of different states citizens of a US state and citizens or subjects of foreign countries citizens of different states and citizens or subjects of foreign countries who are additional parties.

For purposes of Diversity Jurisdiction: Domicile = Citizenship Domicile Two Elements: Physical residence in state Mental intent to stay there

Common Elements to consider in determining Domicile Current residence, voting registration, auto registration, where is the property you own, employment, where is business you own located, where are your bank accounts, what is your address for tax purposes, drivers license state, where receive mail, where go to church, etc. Married man considered to be domiciled where wife, children live. Voting registration can give rise to presumption of domicile. Minor considered to be domiciled where parents located. Military deemed domiciled at place before they entered service.

1332(c)(2) A nominal party, their citizenship will generally not be considered. Legal representative of an estate deemed to have the domicile of the decedent. Legal representative of a minor (infant) deemed to be domiciled where infant is domiciled

Territories (ie: Puerto Rico) are considered states for purposes of diversity jurisdiction. To invoke, must be a citizen of a state (domiciled in a state) and a citizen of the United States. In order for there to be alien jurisdiction there needs to be someone in the case that is a U.S. Citizen. One of the principal parties must be a U.S. Citizen.

*A permanent resident Alien cannot sue in diversity because they are deemed citizens for diversity reasons. Permanent residence alien v. permanent resident alien cannot sue under diversity.

1332(c)(1) A corporation is a citizen of (1) the state in which it is incorporated (can be multiple states) and (2) the state in which it has its principal place of business (PPB). There is only one PPB. Three tests to locate a corporations principal place of business: Nerve Center test. (prevailing method) Where corporate decisions are made. (Headquarters).

Corporate Activities or Operating Assets test. Where most stuff is done. (i.e., factories, etc.).

Total Activity test. (A hybrid of tests 1 & 2) If where stuff is done is in many different places, generally use nerve center test. If where stuff is done in one place generally use operating assets test.

For alien companies, look to their country.

For un-incorporated businesses citizenship is judge made (must consider

citizenship of every member of the company.) Jurisdictional Amount Article III does not mention jurisdictional amount but says congress can dictate the requirements of jurisdictional amount. Must exceed $75,000 exclusive of interest and costs. Attorneys fees can count toward the $75,000 if that is allowed by a K or statute. American Rule: Each party bears its own costs, regardless of who wins. Exceptions: Express term in a K that states otherwise. A statute that provides party who prevails is entitled to recover fees. Fee shifting statute 42 USC 1988 Interest: can be included if part of initial claim and interest accrues. Aggregate Rules If a single P has multiple claims against a single D, he can add them together to exceed $75,000. If there are two Ps with claims against a single D, they cannot add claims as long as complaints are separate & distinct. If there was a common or undivided interest, they could add them. Where there are multiple Ps and only one has a claim in excess of $75,000, they can proceed to sue in Fed. Ct. under supplemental jurisdiction (all are covered) the other Ps can have lesser claims (P1 = $75k; P2 = $50k; P3 =$40k; all v. D) if P1 is eliminated P1 & P2 must have a common or undivided claim 1359 - Parties Collusively Joined or Made (a.k.a. Collusive Joinder)

 A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. Prevents litigants from artificially creating jurisdiction Courts Consider: Are there good business reasons for the transaction? Did the party receiving assignment have a prior interest or was it contrived? Was the assignment partial or complete? Was there consideration? Mas v. Perry, Pg. 278 Two Ps, one was a citizen of France, then from Miss. The Ps were married and re of LA. D was a citizen of LA. The D argued that Mrs. Mas was a citizen of LA and there wasnt complete diversely. However she was a student there and had formally lived in Miss. The Ct. decided she was still domiciled in Miss. The party invoking diversity jurisdiction has the burden of proving this (the P, the party triggering jurisdiction). What might you do to prove diversity? Jurisdictional Discovery a Ct. has the discretion to grant this.

A persons Domicile has two elements: Mental element = intent to make residence for an indefinite period Physical element = presence / actual residence

How to change domicile? Must (1) intend to change domicile, and (2) be present in some other place

This case shows domicile well, Mrs. Mass did not have the intent to stay in La., that is why her Domicile was not in La. But in Miss. Normally a wife has the same domicile as her husband, but here, Mr. Mas was a citizen of France, so Mrs. Mas would lose her U.S. citizenship, and this does not make much sense. Domicile is key to determining diversity jurisdiction. This case teaches us that: Complete diversity is required and; Diversity Jurisdiction is settled at the time the lawsuit is filed.

The complete diversity rule says that there is no diversity jurisdiction if any P is the citizen of the same state as any D, no matter how many parties are involved in the litigation. Why? To avoid discrimination against out-of-state residents. Domicile Standard Residence + Intent to remain Citizenship for Diversity Jurisdiction Citizenship = Domicile = Residence + Intent to Remain

Notes: An individual can only have 1 domicile For seasonal residents look at drivers license, taxes, address on checks You do not lose your old domicile until you take up residence in a new state with the intent to remain Date for determining diversity is the date the suit was filed According to the 1332, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which the alien is domiciled To establish subject matter jurisdiction on the basis of diversity jurisdiction you must have: Diversity of citizenship and; Satisfy the jurisdictional amount.

SUBJECT MATTER JURISDICTION CANNOT BE CONSENTED TO OR WAIVED. Personal Jurisdiction can be consented to or waived. Fed. Cts. have responsibility to make sure they have jurisdiction.

A.F.A. Tours, Inc. v. Whitchurch, Pg. 285 D had worked for P conducting tours. D went out on his own and used info he obtained from P to try to find people willing to travel. Claim dismissed b/c found the value of Ps claims did not exceed $50K (the jurisdictional amount at that time). P appealed, claimed that court failed to give P an opportunity to show it satisfied the jurisdictional amount and failed to apply the proper standard for damages and injunctive relief. Appeals court reversed.

R/L The amount in controversy requirement for federal diversity jurisdiction is satisfied if the P makes a good-faith estimate that the value of injunctive relief, meets the required amount.

 Take Away: You dont have to demonstrate beyond a reasonable doubt at the pleading stage, but it has to be shown that you can recover that much (to a legal certainly). IMPORTANT NOTE: Just because the jury does not return a verdict of over $50,000, you cant raise lack of subject matter jurisdiction on appeal (or motion to dismiss) you dont have to prove recovery of over the amount, just that it is possible that you could recover this amount at the outset. Exceptions to Diversity Jurisdiction: Domestic Relation Exception Divorce, Alimony, Child Support, Visitation, Paternity actions. Cannot go to Fed. Ct. goes to State courts b/c of greater local expertise, Fed Ct. less expertise to these matters

Probate Exception A will cannot be probated in federal court; actions to interfere with a probate hearing, etc. also cannot be heard in federal court. Federal Question Jurisdiction 1331 History & Background Congress granted authority to create federal question jurisdiction by Article III, 2. Congress has the ability to confer exclusive jurisdiction for federal questions and have done so. Ex.) bankruptcy and patent cases, federal anti-trust cases Greater state interests; judges have greater local expertise

Citizenship is irrelevant and there is no jurisdiction amount to exclusive jurisdiction. No jurisdictional amount required for a federal question case

Reasons why this exists: To give litigants a judge that is specialized in federal law To provide litigants with a forum friendly to federal questions It promotes Uniformity If state courts interpreted it would be chaos

Federal Question Jurisdiction turns on whether the action may be said to be one arising under the Constitution, laws, or treaties of the United States. (i.e., Federal Law) Concurrent Jurisdiction

 You can bring a federal question in state court, not only to a federal court. (CONCURRENT JURISDICTION over Const. and federal questions). On most matters under federal law you can bring your case to a state court.

28 U.S.C. 1331 Federal Question Statute (Know by heart) also 15 USC 1692k(d) The district courts shall have original jurisdiction of all civil actions arising under the Constitution, Laws, or treaties of the United States. (All cases arising under federal law).

15 USC 1692k(d) an action to enforce any liability created by this subchapter may be brought in any appropriate U.S. Court w/o regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs. Osborn v. Bank of the United States, Pg. 297 Facts: Suit brought by Bank of US to enjoin state auditor of Ohio from collecting from the bank a tax alleged to be unconstitutional. Federal Court granted temporary injunction. However, auditor forcibly entered the bank and took the money owed. Court ordered the auditor return the money taken. Officials appealed stating the court lacked subject-matter jurisdiction. (J. Marshall): expansive, broad interpretation. B/c bank created by laws of the US, even if issue arises under state law there is a link to federal question. (Art. 6) Ingredient Test: If a federal law is even an ingredient of a lawsuit, federal question jurisdiction is triggered. only a reference in modern times This test sets the outer limits of for federal question jurisdiction. Throws the net very wide. (Most generous, expansive view, the outrebounds of FQJ.)

First major interpretation of Article III arising under language. A federal ct. can est. JD if there is any imbedded federal interest American Well Works Co. v. Layne & Bowler (Holmes), Not assigned but important P manufactured and marketed a water pump. D held a patent on the pump; claimed Ps pump infringed his patent. P filed suit in State Court, saying his pump did not violate Ds patent and that D was driving away his customers and trying to intimidate them w/threat of suit. D exercised removal jurisdiction; moved from state to federal court b/c a patent case (exclusive jurisdiction of federal courts). Can remove on 2 grounds: diversity & fed. question

 Holmes Creation Test: A lawsuit arises under the law that creates the cause of action. Court said that Ps real claim was for libel, which is a state action. (D was not the P, claiming patent infringement.) Under creation test, this is a trade libel state cause of action. No federal jurisdiction.

Holmes intended his test as one for inclusion (what will invoke federal question jurisdiction) as well as for exclusion (what will not invoke federal question jurisdiction). More useful test for inclusion than exclusion. Not a useful test when there is a state claim with an imbedded federal question.

Federal questions must appear on the face of the complaint and you cant utilize a defense made by the D to show there is a federal question. Complaint must allege a federal issue. Note: you also dont look at counterclaims made by the D even if the counterclaim alleges a federal question the complaint is the source to look at for determining federal jurisdiction. Artful Pleading Doctrine: a P who sues the D, cannot through artful pleading, mask what is a federal complaint. (Cant keep the case in state court by artful pleading often seen in ERISA claims that are exclusive to federal jurisdiction). Reasons for Federal Question Jurisdiction Provide a Friendly Forum; remove from state hostility/bias Federal Judges are experts in federal questions Prevents 50+ different interpretations of federal law

Louisville & Nashville R.R. Co. v. Mottley, Pg. 299 Ps were involved in a RR accident. As part of their settlement, they were given free lifetime RR passes. In 1906 Congress outlawed these types of lifetime RR passes so RR stopped honoring Ps passes in 1907. P sued D in federal court for specific performance. Is there federal question jurisdiction? In the complaint, P stated Ds anticipated defense regarding the Federal law enacted by Congress. P claimed statute unconstitutional, and even if it isnt, it doesnt apply to P Problem: Ps original lawsuit in tort was settled. In this new lawsuit, P sought specific performance by D and alleged Ds breach of K (K = settlement agreement). Apply the Creation Test: K action arises under state law.

Well-Pleaded Complaint Rule = Reason for federal jurisdiction must be clearly set forth within the four corners of Ps well-pleaded complaint. (Applies to ALL Fed. Ques. Cases).

RULE: To qualify for federal question jurisdiction, the presence of a federal question must appear w/in the four corners of the Ps complaint. Federal questions that arise as a defense (or counter-claims) do not invoke fed jurisdiction. limits 1331 Prohibits P from anticipating a defense the D may raise in order that that defense will created federal question jurisdiction. Exception: Complete Pre-emption (displacement of U.S. state law by U.S. Federal law).

Court found that this was not a well-pleaded complaint, and that Ps use of Ds defense in the complaint was not sufficient to created federal question jurisdiction. (Federal law D relying on was not an element of Ps cause of action.) **Neither party contested federal jurisdiction. Supreme Court raised the issue sua sponte.** T.B. Harms v. Eliscu (Friendly), Pg. 303 Case regarding copyrighted music. This was essentially a K dispute, not an infringement of a copyright. No interpretation of federal law required so no federal question jurisdiction. Action would only arise under if (1) complaint seeks a remedy expressly granted under Copyright Act (2) complaint states a cause of action that requires interpretation/application of Copyright Act, or (3) there are certain federal concerns/principles that should control the disposition of the lawsuit. Shoshone Mining Co. v. Rutter, Pg. 308 Congress created a right for miners, prospectors right to sue to determine mining rights when there are competing claims. This statute provided that courts should make such determinations by applying local customs or rules. A cause of action arising under federal question but court used local rules to decided the case.

Satisfy Creation Test? Created by federal law, so federal jurisdiction should apply.

There was not a compelling federal interest sufficient to warrant hearing the suits in federal forum. Public Policy: Another reason for this outcome is that allowing such suits in federal court would place a burden on the federal courts.

Still good law Best seen as an exception of American Well Works

Smith v. Kansas City Title & Trust Co., Pg. 308 P (MO citizen) owns stock in a MO corporation. Corp. plans to invest $ in federal bonds. MO state law provided that any corp. chartered in state of MO (satisfied here) could not invest corp. $ in unlawful securities. P sought to enjoin D from the investment, arguing that the federal law authorizing the issuance of the bonds was unconstitutional. P argued such investment violated state law. Satisfy Creation Test? Cause of action created by state law, so no federal question jurisdiction. Here, there is an embedded federal question, which renders the Creation Test of little utility.

RULE: If there is a state-created cause of action that includes an essential elements that is federal issue/question that requires an interpretation/application of a federal statute or constitutional provision (and it is a substantial question) then federal question jurisdiction is triggered. R/L for this to be in Fed. Ct. the Fed. Issue must be essential to Ps claim or disposition of Ps claim Fed. Question Jurisdiction will be found. Must be substantial Fed. Question.

Private Right of Action a lawsuit brought by a private party against another private party who is alleged to have violated a statute. Legislatures can create an express right of action through judiciary acts. If there is no express right of action, Courts must determine if Congress intended to create one by implication.

Merrell Dow Pharmaceuticals Inc. v. Thompson, Pg. 309 (This is where to start when no private right of action!!!) Ps filed a multi-count lawsuit against D, who manufactured a drug ingested by Ps that caused birth defects to Ps children. Count IV was negligence per se claim for misbranding in violation of the FDCA. (FDCA does not give P a private right of action to sue for misbranding) Presence of a federal issue in a state-created cause of action. Negligence Per Se Fed. Statute/State Law.

No diversity b/c Ps were aliens and D corporation was citizen of OH. Lawsuit filed in OH, so lawsuit cannot be removed to federal court (b/c of removal jurisdiction rules). Is Creation Test helpful? No, cause of action is created by state law. Parties agree on this.

 ISSUE: Whether Congress, in enacting this statute, intended to permit federal courts to hear such lawsuits, which otherwise would be a state cause of action. RULE: Congressional determination that there should be no federal remedy for the violation of this federal statute is equivalent to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently substantial to confer federal question jurisdiction. Dissent (Brennan): The statutory question is one that discloses a need for determining the meaning or application of the FDCA. The claim raised is one arising under federal law within the meaning of 1331. Smith should control. In the absence of an express private right of action, where a P has brought a state cause of action that relies on a federal standard, there is no federal question jurisdictionBUT subject to Grable. (Chart) Merrill Dow raised the question whether incorporation of a federal standard in a state law suit when Congress intended not to create a private right of action, makes the action one arising under the Constitution, laws and treaties of U.S. 28 U.S.C. 1331. Court concludes: lack of private action and the absence of a federal remedy under the statute is tantamount to a finding by Congress that the presence of federal issue in a state cause of action is not substantial enough to confer jurisdiction. Court finds that permitting federal question jurisdiction over a state-law claim in such circumstances would flout congressional intent.

Merrell Dow generated a split in the circuits as to whether 1331 requires a federal private right of action for the exercise of federal question jurisdiction or whether the presence of a substantial federal issue, embedded in the state cause of action, suffices. Know These: Exclusive Jurisdiction: Bankruptcy, patent, copyright matters (can only be heard in federal court) Concurrent Jurisdiction: Article III allows federal question cases to be heard either in federal or state court. Original Jurisdiction: Federal District Courts trial-level courts. Where cases are originally heard and decided. Article III 2 gives original jurisdiction in diversity and federal question cases. Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, Pg. 317 IRS seized and sold property belonging to Grable. Grable received actual notice by certified mail. IRS sold the property to Darue, who received a quitclaim deed. Five years later Grable brought a quiet title action in state court, claiming

Darues title was invalid b/c IRS failed to notify Grable of its seizure in the exact manner required by federal statute (personal service). P believed he had to be served personally and not by mail.

Holding: The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal. Court (Souter): Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the sensitive judgments about congressional intent that 1331 requires. 4 Part Test: Courts should consider: Does a state law claim (1) necessarily raise a stated federal issue, (2) is the federal issue actually disputed, (3) is the federal claim/issue substantial, and (4) can the federal forum entertain the lawsuit w/o disturbing any congressionally-approved balance of federal and state judicial responsibility. (use when the fed. Sta. does not allow a private cause of action).

Here, because the meaning of the federal statute is actually in dispute, federal question jurisdiction is triggered. (Chart) Grable, like Merrill, involved a statute that did not create a private right of action. It involved a state quiet title action. Grable limited scope of Merrell did not set fixed rule and did not involve a substantial federal question. Established the 4 part test above. Empire Healthchoice Assurance, Inc. v. McVeigh, Pg. 322 JM, a federal employee, was injured and eventually died as a result of the acts of a third party. P, JMs private insurance carrier, paid for JMs medical care. After JM died, the administrator of his estate sued the third party and received a monetary settlement. P sued JMs estate in federal court to recoup the amount P had paid for JMs medical expenses. Ps contract w/ govt required P to take reasonable steps to recoup third-party medical payments. District Court dismissed the case for lack of federal question jurisdiction. Court of Appeals affirmed. Court (Ginsberg): Congress had not created a federal right of action allowing insurance carriers to seek reimbursement from beneficiaries in federal court. Despite federal interests (b/c JM a federal employee), countervailing considerations control. Congress did not extend federal jurisdiction to suits involving reimbursement claims, though it DID extend jurisdiction to suits involving benefit claims against the US.

 No federal forum b/c: (1) Ps reimbursement claim was triggered by the settlement of a personal-injury action in state court; and (2) Ps claim is fact-bound and situation-specific. (Chart)- Empire Health illustrates facts closer to Merrill than Grable and how the facts will drive the resolution of whether there exists federal question jurisdiction. Here the federal statute did not create a private right of action, but the insurer was required to take steps to recoup paid medical benefits. There was a federal contract and federal interests. But, unlike Grable, this only involved a pure question of law the lawfulness of federal agencys actions under a federal statute. Grable involved a substantial federal question that required a federal forum. Supplemental Jurisdiction 28 U.S.C. 1367- Supplemental Jurisdiction When a claim does not qualify for original federal jurisdiction, supplemental jurisdiction is an alternative. It is a way to get claims into federal court by piggybacking state law claims onto federal claims in order to bring the state law claims into federal court. Passed in response to Finley. Replaced concepts of pendent and ancillary jurisdiction with supplemental jurisdiction. Statute goes to the limit that Article III 2 case or controversy clause permits. Only applies to additional non-federal claims. Never applies if additional claims have independent basis for federal jurisdiction. For supplemental jurisdiction there must be one federal claim within the courts original jurisdiction. Supplemental Jurisdiction = Ancillary and Pendant Jurisdiction Very frequently do Federal Courts hear cases with federal law and state law claims. This happens under the theory of supplemental jurisdiction. This is how a Fed. Ct. can hear a state claim.

Know the difference between original jurisdiction and supplemental jurisdiction. Original is Federal Question and Diversity. Supplemental is a claim that is not in the courts original jurisdiction. To bring a supplemental jurisdiction claim, must have one claim with it that meets a original jurisdiction claim.

Pendent Jurisdiction A court's jurisdiction to hear and determine a claim over which it would not otherwise have jurisdiction, because the claim arises from the same transaction or occurrence as another claim that is properly before the court. It arose from a common nucleus of operative fact...

 Most commonly used when a P had a Fed. Claim and one or more non-Fed. Claims. If the P could show that the non-Fed claims were substantially related to the Fed claim, the court would use pendent jurisdiction over them. Pendent Party JD allows addition of parties over whom there is no independent claim Pendent Claim JD United Mine Workers of America v. Gibbs, Pg. 325 Pendant Claim JD Illustration Cornerstone of pendent JD Gibbs sued UMW on both state and federal claims. Jurisdiction was premised on allegations of secondary boycotts under 303. Jurisdiction for the state law claim was based upon the doctrine of pendant jurisdiction. RULE: Pendant Jurisdiction exists whenever there is a claim arising under Federal Law, and the relationship between that claim and the state claims made in the complaint permits that THE ENTIRE ACTION before the court comprises but one constitutional case. Gibbs Factors: (1) Were the federal claims dismissed before trial? If so, then court should dismiss the state claims. (2) If state-claim issues predominate (in evidence, remedy, scope) then court should exercise its discretion and dismiss. (3) Other reasons, such as confusion of the jury, may warrant dismissal of the state claims.

Ct. determined that because they came from the same nucleolus of operative fact it can piggy back on to the Federal claim and be heard in federal court. (Chart) Established that a federal court has subject matter jurisdiction over state claims that derive from a common nucleolus of operative facts. Both state and federal claims comprise but one constitutional case or controversy under Art. III. Pointed out the doctrine of pendent jurisdiction is discretionary. Ancillary Jurisdiction This concept refers to claims that defending parties (parties other than original plaintiffs) would raise in response to the complaint. (related claim) Congress Response to Finley 28 U.S.C. 1367 Supplemental Jurisdiction Act (overruled Aldinger and Finley) Replaced concepts of pendent and ancillary jurisdiction with supplemental jurisdiction.

Remember this for the exam

Only applies to additional nonfederal claims. Never applies if additional claims have independent basis for federal jurisdiction. For supplemental jurisdiction there must be one federal claim within the courts original jurisdiction. Questions to ask when analyzing a Supplement Jurisdiction question Does 1367(a) give supplemental jurisdiction? Must meet Gibbs

Does 1367(b) take it away? 1367(a): Except as provided in (b) and (c) or as otherwise expressly provided by statute, in any civil action of which the districts courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. overrules Finley and Aldinger (last sentence) This casts the net of supplemental jurisdiction very far. 1367(b): In any civil action of which the district courts have original jurisdiction founded solely on section 1332 (diversity) of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by Ps against persons made parties under Rule 14, 19, 20, or 24 of the Fed. R. Civ. P., or over claims by persons proposed to be joined as Ps under Rule 19 of such rules, or seeking to intervene as Ps under Rule 24 of such rules, when exercising supplementing jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (ONLY Ds CAN BRING THESE CLAIMS) (Chart) This section only applies when jurisdiction is based solely on diversity. It excludes certain claims by plaintiffs from supplemental jurisdiction: Rule 14 claims by Ps against 3rd parties; claims by Ps against parties joined under Rule 19; claims by Ps against parties intervening under Rule 20; claims against parties intervening under Rule 24. Claims by persons proposed to be joined as Ps under Rule 19 that do not meet the jurisdictional requirements of 1332 and claims by plaintiffs who seek to intervene under Rule 24 that do not satisfy the jurisdictional requirements of 1332 are excluded. 1367(c): The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) The claim raises a novel or complex issue of State law,

 (2) Whether the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) Whether the district court has dismissed all claims over which it has original jurisdiction, or (4) In other exceptional circumstances there are other compelling reasons for declining jurisdiction. Executive Software v. United States District Court for the Central District of California, Pg. 343 Employee sued for state and federal violations (discrimination, etc.) District Court declined to hear the employees three state-law claims. Dist. Ct. viewed 1367(c) as allowing a very broad discretion.

Ninth Circuit: Held that 1367 retains the basic divisions reflected in Gibbs. A federal court has the power to hear pendant state claims under Article III. It also has the discretion to decline to hear the pendant state claims. Congress intended 1367(c) to provide the only means for a district court to decline supplemental jurisdiction. Declining supplemental jurisdiction outside of (c)(1-3) is the exception, not the rule. Here, the district court did not give the basis for declining supplemental jurisdiction, but it appeared that the court relied on Gibbs, not section 1367. Most courts agree with the Dist. Ct. that they have discretion. 1367(d): Allows for tolling of SoL for 30 days for dismissal. 30 day period can be longer if state law allows it Exxon Mobile Corp. v. Allapattah Services, Inc.

Subject Matter Jurisdiction: Removal 28 U.S.C. 1441, 1446, 1447 28 U.S.C. 1441 (p. 260 in Supp.): Actions Removable Generally General Rule for Removal In certain circumstances D can compel the P to litigate in forum not of their choosing. Allows D to move a case to a Fed. Ct. from a State Ct. Suit goes along as if it was originally filed there (in Fed. Ct.)

Removal is purely statutory process not constitutionally grounded. 1st included in Judiciary Act of 1789

Purpose: to protect non-residents from local prejudice. Generally, removal statutes are strictly construed. D has the burden to show that there is jurisdiction and that the removal statute has been complied with. There must be diversity jurisdiction or fed. question jurisdiction for removal to exist.

Limitations on Removal D cannot remove a state case to the federal court if they are citizens of the state in which the district court resides. (P can choose to sue in that forum, however.) Theory: Local D would not be prejudiced by a state court proceeding. One-year limitation on removal in diversity cases for D. ( 1446(b)) If a D doesnt comply with all the statutory requirements the removal can be set aside or remanded. Only a state civil action can be removed. Only Ds can remove. Cases can only be removed to the Fed. Ct. Dist. where the state claim was filed. Presence of a local resident D precludes Removal in Diversity cases cannot remove

1441(a): In order to remove their has to be at least one claim that falls w/in the courts original JD All requirements must be met (Fed. Question, etc.) P cannot defeat federal diversity jurisdiction by (1) fraudulent joinder of a party against whom P has no cause of action, (2) artful pleading (trying to disguise a federal cause of action that would make the case removable), or (3) complete preemption (certain causes of action are so exclusively federal in character that EVEN IF P DOES NOT PLEAD THEM, they will completely preempt any state cause of actionERISA, for example lawsuit filed under a disability benefit policy). No fraudulent joinder if P can show reasonable basis for District Ct. predicting that the state law MIGHT impose liability on that D under the facts involved case remains in state court

1441(b):

Federal Question Cases citizenship is irrelevant Cannot remove solely on grounds of supplemental claim. But if you have an original claim you can have additional claims.

Original Jurisdiction Needed for Removal Removal Jurisdiction cannot be based solely on supplemental jurisdiction because supplemental jurisdiction is not within the courts original jurisdiction. However, if there is a claim that falls under the courts original jurisdiction, P can bring up supplemental claims.

1441(c): provides removal for cases w/ no original JD Whenever a separate or independent claim or cause of action within the jurisdiction conferred by 1331 (federal question) of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. Theory: efficiency; presents a constitutional problem, however, and is of little utility. Creates conflict between Article III and supplemental jurisdiction. Was intended to be a general backstop for when P joins completely unrelated claims together. Morales v. Meat Cutters Local, 778 Fed. Supp. 368 The employee brought an action against defendants in state circuit court alleging breach of a collective bargaining agreement (CBA) against the union; breach of the CBA and intentional infliction of emotional distress against the employer; and various state law claims against named individuals. The employer filed a notice of removal to the court under 28 U.S.C.S. 1441. Although the court found that the case could properly be removed under 1441(c) where the employee's federal claims regarding his termination under the CBA involved facts unrelated to his state law claims, and the claims sought separate relief for distinct wrongs, the court remanded the entire case back to the circuit court. The court noted that pursuant to a 1990 amendment to 1441, 1441(c) conferred considerable discretion on the court to remand the case back to the circuit court where the state law claims predominated. The court noted that the employee had seven state law claims that would require more judicial resources to adjudicate than his two federal claims.

 1446: Procedure of Removal 30 day time limit for removal after service (formal service is triggering event OR within 30 days after D has notice in a jurisdiction where the complaint is not required to be served on D) Actual notice (not formal notice) cannot trigger the 30 day period. (Four Scenarios) 1. If complaint & summons served together, this service triggers 30 day period. 2. If complaint not provided to D at time of summons (afterwards), 30 days runs from Ds receipt of the actual complaint. 3. If local process does not require service of the complaint, 30 days runs from the filing of the complaint (when it is available for D to get). 4. If complaint is filed in court before service of summons, 30 days runs from when D is served the summons.

30 day period runs from when 1st D is served Modern trend is that each individual D gets 30 day period (allows later served Ds 30 days later Ds may be able to persuade other Ds) If case is initially not removable, but later becomes removable, D has 1 year in which to remove (starting from the time the lawsuit was commenced). (APPLIES ONLY TO DIVERSITY ACTIONS not in state courts*) Notice of Removal Short plain statements for grounds of removal Can be amended within 30 days After 30 days can change but only errors not jurisdictional grounds. Immediately upon the filing of removal the state court loses authority over the case. The P has 30 days to ask to remand under procedural defects only. Right to removal can be waived by D. Venue Rule: The proper venue for a State Ct. removal to a Fed. Ct. is the proper Dist. and Division.

1447: Procedure after Removal

30 days after filing of the notice of removal is strictly construed Doesnt permit a base for motion to remand subject to a defect to be looked at under appellant review.

Borough of West Mifflin v. Lancaster, Pg. 356 District Judge found that State law predominated and remanded the entire case. ISSUE: Under 28 U.S.C. 1441(c), can the federal judge send back both the federal and the state claims? Majority View: No. Judge can only remand state claims. 1441(c) provides for removal or remand only where the federal question claims are separate and independent from the state law claims with which they are joined in the complaint. Writ of Mandamus Holding: B/c district court judge did not rely on any of the factors in 1367(c), all claims should remain in federal court. Blackletter: A district courts discretion to remand under 1441(c) can pertain only to those state law claims which the district court could decline to hear under 1367.

CHALLENGING THE SUBJECT MATTER JURISDICTION OF THE COURT Subject Matter Jurisdiction cannot be waived Rule 12. Rule 12(b)(1) Defense Lack of subject matter jurisdiction. A lack of subject matter jurisdiction may be asserted at any time by any interested party, either in the answer, or in the form of a suggestion to the court prior to final judgment, or on appeal, and also may be raised by the court sua sponte (without prompting or suggestion). Direct Challenge challenge in the same case going vertically up the appellate chain of cts. Of review Collateral attacks are lessoned on Subject Matter Jurisdiction because of Res Judicata. General Rule: Collateral challenges are not frequent not subject to collateral attack

Doctrine of Res Judicata- only get one bite of the apple. You are locked into the finality of 1st judgment cannot file a 2nd suit to bring up new arguments. Collateral Challenge- Challenge to judgment through a second suit.

VENUE, TRANSFER, AND FORUM NON-CONVENIENS VENUE 1391 Tells us which Federal Court (i.e., which Dist.) Venue is tied to districts, not to states Ex.) Middle Dist. FL, Southern Dist. FL, etc.

Venue can only be considered after personal and subject matter jurisdiction have been established. Subject matter jurisdiction is the only one of these that cannot be waived, the others may. Venue vs. Jurisdiction Venue does not implicate a courts power to decide a case or render a binding verdict. Venue is concerned with convenience of D and the proper allocation of cases between courts. Venues paramount concern is protecting the D from Ps forum shopping (distant, difficult place). Venue can be waived. Venue is NOT a constitutional concern. doesnt bind or limit a courts authority Purpose and Function of Venue (From Decisional Chart) Venue is a distinct question from personal jurisdiction or subject matter jurisdiction. Venue does not involve the courts power to bind a litigant or to hear a class of cases. Venue does not involve any constitutional concerns. Venue in a specific sense refers to locality (where the lawsuit should be heard). Venue statutes channel lawsuits to an appropriately convenient court given the claims raised and parties involved. The key to venue is convenience. It focuses on convenience of witnesses and litigants. Venue statutes do not affect or alter the need to acquire personal jurisdiction. Venue needs to be proper as to each defendant and each claim. Improper Venue is a defense and basis I for dismissal. Rule 12(b)(3)

Plaintiff is not required to select the most convenient venue if there is more than one venue available.

 General Venue Statute is 28 U.S.C. 1391. It governs transitory action unless another law or special venue statute applies. Special venue statutes control over the general venue statute.

Reasor-Hill Corp. v. Harrison, Pg. 374 Farmer in MO, cotton crop was damaged by aerial insecticide spraying. The spraying service sued the farmer to collect what he owed. Farmer crosscomplained against manufacturer of pesticide, an AK corporation. Facts show that manufacturer could not have been sued in MO because of lack of personal jurisdiction. Local Action Rule = any lawsuit that involves a piece of real property can only be brought where the real property is located. Court: reasons for local action rule are no longer valid. These outdated reasons were (1) courts not in a position to pass upon the title to land outside the jurisdiction; (2) P should pursue his remedy before D leaves the jurisdiction; and (3) reluctance to subject citizens to suits by aliens. 2 types of actions: Local action involving real property, obligates suit to happen in locale were property is located. (in rem). (The rule most states use today). Transitory a tort action or k action can be brought in multiple jurisdictions. The Reasor case is a minority position getting rid of the locality rule; it is not the majority position. The Federal Venue Statutes dont have a local action rule provision, it is judge made. Livingston v. Jefferson Not found in venue statutes but it is continued to this day in Fed. Ct. Livingston v. Jefferson President Jefferson ordered U.S. Marshals to seize property belonging to Livingston. Jefferson believed that the land belonged to the United States. Livingston brought suit in VA, where Jefferson lived, because LA had no personal jurisdiction over Jefferson. Justice Marshall, though he hated Jefferson, found that the local action rule precluded Jefferson from being sued in VA over LA land. 1391(a): Actions based solely on diversity In a diversity suit, venue is proper in:

A judicial district where any D resides, if all Ds reside in same state; 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 A judicial district in which any of the Ds are subject to personal jurisdiction at the time of suit, if there is no district in which the action may be brought. (foreign D)

1391(b): In a Federal Question suit venue lies in a: (Same 1-3 above). Residence=Domicile=Citizenship for Venue Cases. Federal law controls venue in federal question and diversity actions. 1391(c): Corporations Venue for Corporations. Defined by personal jurisdiction Corporation is deemed to reside in any district in which it is subject to personal jurisdiction at the time the action commenced. In a state which has more than one judicial district and in which a D that is a corporation is subject to PJ at the time an 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 PJ 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.

1391(c) requires you to treat each judicial district separately to see if venue lies as to corporate-defendant. Time for determining corporate residence is at time suit is filed. If corporate defendant is subject to personal jurisdiction in multi-district state but does not have sufficient contacts to be subject in a specific single district, then its deemed to reside in the district in which it has the most significant contacts. 1391(d): Aliens Aliens can be sued in any district. Residence is not a factor (Aliens are not domiciled or citizens) Bates v. C & S Adjusters, Inc., Pg. 378 P incurred debt while a resident of the Western District of PA. The creditor, a corporation with its principal place of business in that District, referred the account to D, a local collection agency which transacts no regular business in

NY. P moved to the Western District of NY. D mailed a collection notice to P, which was forwarded to his new address in NY by the U.S. Postal Service. The Ct. looks to the purpose of the fair debt collection practices, and says the injury in which the stat. Protects, occurs upon receipt of the letter, and because of this, the stat requirement under 1391(b)(2) is met. The content of the letter and receipt of the letter was sufficient to place the cause of action with NY. NOTE: This is a pretty liberal application. This case shows jurisdiction is distinct from venue, the collector here had NOTHING to do with NY here, but venue was proper. The question of intent is a question for jurisdiction, but not relative to venue. TRANSFER 1404 / 1406 Transfer of Venue in Federal Courts (28 U.S.C. 1404(a) and 28 U.S.C. 1406(a) From one Federal District Court to another Federal District Court. Dont confuse with removal, which is from a State Court to a Federal District Court. Know the difference in operation and significance of 1404(a) and 1406(a) 1404(a) is the Convenience Transfer Statute. Lawsuit was filed in the proper venue, but for other reasons there is another more convenient place for the suit to be heard. Three factors: Will it enhance convenience of parties Will it enhance the convenience of the witnesses Is there an interest in justice

Only can change venue/courts and not change of substantive law 1406(a) is used when the lawsuit has been filed in the wrong venue. 1404(a): Change of Venue For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Two Requirements: 1. Transfer has to enhance the convenience of the parties, witnesses, and the interest of justice.

2. Transferee court must be one in which action could have been filed.

Transferor Court: Must have subject matter jurisdiction. Transferee Court: Must have proper venue, personal jurisdiction and subject matter jurisdiction over the Defendant. Must be true without waiver. Lack of personal jurisdiction in transferor court may or may not render venue improper. Split among circuits. But lack of personal jurisdiction does not preclude original forum from transferring case. It affects whether transfer will occur under 1404(a) or 1406(a). Once transferred, transferor court loses all jurisdiction over the case. In diversity action in 1404(a), the court to which case has been transferred (i.e. the transferee court) generally must apply the same state law. Including choice of law rules, that the transferor court would have applied under the conflicts of laws rules of the state from which the action was transferred. Rationale is change of venue shall only change courtrooms not the law to be applied. If venue was improper or the transferor court lacks personal jurisdiction, the transferee court will apply the law its own law and not the law of the transferor court. 13 Factors Courts look at in Transfer Ps choice of forum Ct. will look at where events occurred Convenience of partys Witness convenience Comparative ability of compulsive process Location of physical evidence How transfer effects enforceability of judgment Efficiency which venue will be most efficient Cts will consider congestion of both courts dockets Public interest in transferor district The relative familiarity of applicable law Would transfer be in interest of justice

 How would judicial economy be served Comity- Respect between sister courts. 1406(a): Cure or waiver of defects When venue is laid in wrong district, 1406(a) permits dismissal or if in interest of justice, transfer can be to any district in which suit could have been filed. Purpose is to allow court to transfer Instead of dismissing when venue is improper in the initial district in which suit has been filed. To invoke 1406(a) venue must have been improper. If venue was originally proper, then 1404(a) transfer is still possible. To transfer, transferor court must have subject matter jurisdiction but personal jurisdiction is not required. Transferee court must have subject matter jurisdiction and personal jurisdiction and venue. If court denies transfer under 1406(a), it must dismiss. Under 1404(a) it must retain the case. Dismissal under 1406(a) must be without prejudice. Upon transfer, transferee court will not apply law of transferor court because venue was not proper where suit initially filed. FORUM NON-CONVENIENS (Doctrine of Dismissal) Where transfer is impossible because proper venue is in another judicial district Common law doctrine that permits a defendant to seek dismissal of a suit when venue is proper where the suit has been filed and Jurisdiction over parties, but another judicial system or foreign nation offers a more convenient forum. Applies only when the more convenient forum is outside of the judicial system in which the suit was filed. Forum Non Conveniens Is a doctrine of discretion. Courts use a set of public and private factors that center around inconvenience to the parties and the public interest in having the suit proceed in a different forum. Application of the doctrine requires dismissal. Court can condition dismissal on defendants waiver of a defense that would bar refilling. The doctrine requires an alternative forum and presumes the plaintiff will re-file the suit upon dismissal.

 Domestic Plaintiffs interest is given great weight. Foreign plaintiffs forum choice receives less deference. Based on assumption that a U.S. forum is not the most convenient forum when there is a foreign plaintiff. Court can assume the choice is based on motive to benefit from more favorable laws. Possibility of unfavorable foreign law generally will not suffice to avoid doctrine. Must equate to no remedy at all. Piper Aircraft Co. v. Reyno, Pg. 392 Factors of Forum Non Conveniens When there is a foreign P, his choice of forum is given less deference than if he were a citizen. (Based on an assumption that when there is a foreign P, the U.S. forum is not the most convenient.) This case is seen as hostile towards forum-shopping. P here was the executrix of Scottish citizens estates, accident and everything took place in Scotland and all that Died were Scottish. The US Sup. Ct. said that a foreign P is allowed less deference than a native U.S. citizen, and this was a case of pure forum shopping. If the law of Scotland did not allow a complete remedy this might be a problem, but the fact that the law of the alternative forum is just less favorable has no place in a forum non convenience evaluation. But if the remedy is so inadequate that it really raises a question of fairness, then this would be able to be brought up.

No one factor under the factor inquiry are entitled to greater deference than another, it is truly a discretionary process. R/L The mere fact that the alternative forums laws are less beneficial is not grounds to convert an alternative forum to an inaccurate forum.