Personal Jurisdiction
1. In Personam Jurisdiction
Exercised over the defendant herself because she has some appropriate connection with
the forum
Valid judgment creates a personal obligation for defendant and is entitled to full faith in
credit in all states
Traditional Approach: Pennoyer v. Neff
Power of a state court to exercise jurisdiction over a defendant is founded upon physical
power of the state as a sovereign of all persons in its territory
Traditional bases of jurisdiction
o consent: Defendant can be subject to in personam jurisdiction if they appear in
court/consent to jurisdiction.
Special Appearance: D can make appearance where appearance limited to
challenge courts jurisdiction, does not have to argue case on merits or
adhere to courts jurisdiction.
Express consent: by contract, by appointment of agent to receive service
of process in state (sometimes required)
Implied consent: by engaging in activity within state, implying consent
Voluntary Appearance: appearing to argue case on the merits, not
contesting personal jurisdiction
o Domicile: State may exercise in personam jurisdiction over a resident thereofsomeone domiciled in the state
o Presence within the state: State has jurisdiction over defendant found within
the state presence can be served with process while in the forum
o Agent: State may require anyone doing business or entering a contract within
state to appoint someone to receive service of process (seen as the defendants
being present in that state through an agent)
Need for notice to the defendant
o Personal service
o Constructive service: less than personal (like publication)
Stretching Pennoyer
Expansion regarding individuals
o specific jurisdiction: jurisdiction created only for a claim that arises from activity
within the forum
o general jurisdiction: defendant can be sued in the forum for a claim that arose
anywhere in the world. Make clear that general jurisdiction appropriate where
defendants contacts with forum continuous and systematic that they are
essentially at home in the forum
personal service
domicile of a person
state of incorporation and principal place of business
cannot be based on purchases or sales
Perkins v. Benguet Consolidated Mining Co.
Helicopteros Nacionales de Colombia, S.A. v. Hall
Goodyear Dunlop Tires Operations, S.A. v. Brown
o Pushed idea of consent to include implied consent (by driving car, you are
implying consent to jurisdiction there)
Minimum Contacts Test: International Shoe
Shift focus to minimum contacts
o If not within forum, defendant must have minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice
Presence within the forum still viable for in personam jurisdiction
Must be foreseeable that the defendants activities make her amenable to suit in the
forum, foreseeable be haled into court there
Can the state exercise in personam jurisdiction?
If appointment for service of process on D is made by statute, statute must require the
notice be communicated to nonresident by mail or otherwise or statute invalid
Must be done correctly by procedure and comply with Due Process.
When service of process improper, court will ordinarily quash service but will not
dismiss complaint, so that the plaintiff can effect proper service.
Service of process serves 2 functions:
o Act by which the court obtains jurisdiction over defendant
o Gives the defendant notice of the lawsuit so that he has the opportunity to appear
and defend interests
3 way to have grant of immunity justified as promoting the administration of justice, common
law rules
Witnesses, parties, and attorneys who come to a state to participate in a lawsuit often are
granted immunity from service of process in other suits
Person confined in jail or imprisoned is subject to civil process, irrespective of question
of residence, if he was voluntarily in jurisdiction at time of arrest and confinement
(Sivinsky v. Duffield)
Fraudulent service: if service done in fraudulent manner, court will not exercise
jurisdiction
o Court lacks jurisdiction (Wyman)
o Court shouldnt exercise jurisdiction in such situations (Tickle)
3. Challenges to Jurisdiction Over Persons and Property
3 ways to challenge jurisdiction
Ignore the Action default judgment will be entered
o Very risky. Cant try case on merits in home state. Cant do if have property in
original forum.
Raise the Jurisdictional Question Directly
o Special appearance: D appears specially for sole purpose to challenge jurisdiction,
limited to jurisdictional issue
o General appearance: if argue on merits, then voluntary submission to the court
o If lose under special appearance, might not be able to appeal. Must be a final
decision of the court
Some states say that question of jurisdiction appealable
Limited Appearance
o Defend the case on the merits based on property at stake. Limit affect of the
judgment to seized property
How to Challenge Jurisdiction in a Federal Court
Rule 12(b): may assert certain defenses in responsive pleading or by motion
Rule 12(g): in motion must assert defenses in 12(b) only
Rule 12(h): waiver of preservation of certain defenses can waive certain defenses if not
asserted at the beginning
Rule 15(a): may amend responsive pleading within 20 days
How to Determine if Notice is Satisfied
Step 1: Determine whether rule or statute prescribes a method for giving notice
Step 2: Assess whether that rule or statute, as applied to our case, comports with the
requirements of due process
Federal courts have limited subject matter jurisdiction, can only hear certain types of
cases
o Constitution: Article III, Section 2: 9 categories of cases or controversies
Federal Question
Diversity
o Statute: Congress can define jurisdiction of courts it creates
Has never conferred full reach of constitutional jurisdiction
State court systems have general subject matter jurisdiction, can hear any claim at all
o Some may have exclusive courts (Probate Court)
At any level, at any point in the proceeding, the courts can raise the issue of federal
question jurisdiction.
o If anytime determined to not have subject matter jurisdiction, must dismiss.
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Alienage Jurisdiction
Dispute between a citizen of a U.S. state and an alien (citizen of foreign country)
Jurisdiction denied when case is between citizen of a state and a citizen of a foreign
country who has been admitted for permanent residence and is domiciled in the same
state
Does not allow two aliens to sue each other must have a citizen on one side
Is there Diversity Jurisdiction?
Step 1: Amount in Controversy exceeds $75,000?
Step 2: Is there diversity of citizenship?
o Is there complete diversity?
3. Supplemental Jurisdiction
Allows a federal court to hear claims that could not get into federal court by themselves
claims that do not invoke diversity, alienage, or subject matter jurisdiction.
Only for additional claims
Isnt needed if there is a standard independent basis of subject matter jurisdiction over the
claim
Fosters efficiency, convenience, and consistency of outcome
Court can exercise jurisdiction over state claim even if federal claim dismissed on the
merits (unless before trial, then should probably be dismissed)
28 US 1367 supplemental jurisdiction statute
o (a) common nucleus of operative fact for all claims
o (b) can take away supplemental jurisdiction when there is diversity, over claims
by P against persons made parties under FRCP when would defeat diversity
codifies Owen v. Kroger (P impleading another D destroyed diversity)
Policy concerns:
P voluntarily chose forum
D has no choice
Allowing the D to assert supplemental jurisdiction does not open
door to a scenario where complete diversity is swallowed
Ds subsequent suit (implead, cross-claim, counter-claim) is
logically related to, dependent upon and derived from
o (c) court may decline to exercise supplemental jurisdiction:
claim raises a novel or complex issue of State law
claim substantially predominates over the claim that invoked federal
jurisdiction
the court has dismissed all claims over which it had original jurisdiction
in exceptional circumstances, there are other compelling reasons
o (d) statute tolled while case is pending and for 30 days after dismissal
o when dismissed, P can assert claim in state court
To determine: 1) is there a common nucleus of operative fact? 2) Does the claim fall under
1367(b)? Yes, no supplemental. No, court has discretion to exercise.
Gibbs Test
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4. Removal Jurisdiction
Removal gives the defendant, sued in state court, right to remove case to federal court
if the federal court would have had original jurisdiction over the action
28 USC 1441
o venue proper in the federal court of the state where the case was pending
How to Remove
28 USC 1446 (procedure for removal), 1447 (after removal)
All defendants must agree to remove a case
o Unanimous involvement in the notice of removal by all Ds who have been served
o Must remove case in 30 days, file notice of removal in federal court, containing
short and plain statement of the grounds for removal
o Last-Served Rule: 30 days runs when the last defendant is served with process,
even if its past 30 days since first defendant served
If removal improper for some reason other than lack of subject matter jurisdiction, P must
move to remand within 30 days
Case must satisfy federal subject matter jurisdiction, burden on defendant
Only federal court to which a case can be removed is the one that embraces
geographically the state court in which the case is pending
Must have diversity at time case removed
How Plaintiff can try to thwart removal
o Join defendant whose citizenship prevents removal
o Sue for exactly or less than $75,000
o Choose not to assert federal question claim
Exceptions
o No removal of a diversity case if any defendant is citizen of the forum local
defendant rule
o No case can be removed on basis of diversity more than one year after case filed
in state court
1447 (c): remands for lack of subject matter jurisdiction and on the basis of any defect
other than subject matter jurisdiction
o There are some remands that are neither forum selection clause (Kamm v. Itex
Corp.)
1447(d): district court order remanding a removed case to state court is not reviewable
unless specified in (c)
o Thermtron: cannot be read literally, must be in conjunction with (c). Remand
orders issued under (c) and invoking grounds specified therein
P files motion to remand
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Venue
Asks where, within the chosen court system, a case can be filed
Special venue statutes are controlling over general venue statutes.
Federal courts statutory inquiry
Improper venue may be waived by the defendant
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Transfer of Venue
transfer can only be affected within a court system
party seeking transfer (usually defendant) has the burden of showing that the case should
proceed in another court
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Is venue proper?
Does court have
personal
jurisdiction?
Does court have
subject matter
jurisdiction?
Notes
28 1631 - Transfer
to cure want of
jurisdiction
Yes or no it does
not matter.
28 1404(a)
Change of Venue
28 1406(a) - Cure
or waiver of defects
Yes
No
Yes
Yes
No
Yes
Yes
Yes
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Statute states federal courts must apply state law as the rules of decision in civil cases,
except where federal law applies
Swift v. Tyson
o laws of the several states only means state statutes and common law of local
concern
o federal courts in diversity cases free to apply their own conception of general
common law
Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.
o Brown & Yellow dissolved its corporation in Kentucky and reincorporated in
Tennessee in order to invoke diversity jurisdiction and get federal court to uphold
general federal law in their favor
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Once a court determines that it has to apply state law, what state law to apply?
Klaxon v. Stentor Electric Manufacturing Co.: must apply the law of the state in which it
sits, including its choice of law rules
Pleadings
What are pleadings?
Documents in which claimants set forth their claims and defending parties respond to the
claims and raise defenses
Inform the other parties of each partys contentions
FRCP 7(a): 3 basic pleadings
o Complaint
o Answer
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o Reply
FRCP 10: general guidance for the form of all pleadings
o (a): form of pleadings clerk assigns file/docket number to case
o (b): numbered paragraphs
o (c): may attach written instrument (ex: contract)
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FRCP 11(a): signature requirement on the attorney of record for a party, court must strike
any document that is unsigned
FRCP 11(b): signature is a certification to the court
o Presumes lawyer has made an inquiry reasonable under the circumstances to
satisfy herself things are true duty of reasonably inquiry
o Recertified every time she presents a document to the court
o 11(b)(1): not to harass, cause delay, or increase cost of litigation
o 11(b)(2): legal contentions are warranted by law, or by non-frivolous manner for
extending law
o 11(b)(3): factual contentions have evidentiary support, will find during discovery
o 11(b)(4): denials of factual allegations warranted on the evidence
FRCP 11(c): violations
o Court can determine a violation sua sponte
o 11(c)(1)(B): require party to show cause why specified behavior didnt violate
o 11(c)(2): party may move for sanctions against other party
party has 21 days to fix violations before sanctions safe harbor
imposed at the discretion of the court
purpose is to deter such behavior in the future
monetary or not
o generally, losing party pays winning partys costs (not attorneys fees)
FRCP 11(d): rule does not apply to discovery documents
Discovery
What is discovery?
Each party has the opportunity to learn relevant information from the other party
Each side should know almost everything the other side knows, prevents gotcha
evidence
Rules are very broad, discovery can be very expensive
Scope of discovery is much broader than what is admissible in court
Required Disclosures Rule 26(a)
disclosures each party must make even though no one asks for them, produced early in
the litigation
26(a)(1)(A):
o (1) name, address, telephone number of each person likely to have discoverable
information
o (2) copies of all of the documents and things that party may use to support claim
or defense (ie only favorable)
o (3) P must provide computation of damages and evidence for that
o (4) D must identify any insurance agreement that may be liable
o made within 14 days after the meeting required by 26(f)
26(a)(1)(B): exempts certain kinds of cases
26(a)(2): required disclosures concerning expert witnesses
o requires disclosure of anyone who might be an expert witness during trial
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o must provide written report of expert statement of opinions and basis, 90 days
before trial
26(a)(3)(A): required pretrial disclosures
o each party must serve the other with detailed info about evidence being presented
at trial
name, address, phone number of each witness to be called
designation of witnesses giving testimony by deposition, not live
Each document or exhibit given at trial
o Served with the party and filed with the court
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o Rule 32: waiver of errors and irregularities in the taking of depositions, use of
depositions at trial or hearing
o To impeach the testimony of the deponent as a witness
o If deponent is dead, 100 miles from trial, unable to testify
o For any purpose if deponent is an adverse party
Interrogatories Rule 33
o Written questions, to which the responding party must respond in writing within
30 days of being served with the questions
o Signed under penalty of perjury
o Mainly used to discover background facts, clarify pleadings
o 33(a)(1): interrogatories may be served on any other party
o 33(d): business records option, if burden on each party would be the same, a
party can open up business records to the other
o 33(a)(1): imposes a limit of 25 interrogatories on each other party
Requests for Production Rule 34
o Allows one party to request other party produce documents, etc, materials must be
in that partys control
o Includes electronic information
o 34(b)(1)(C): can request specific form of electronic info
o 35(b)(2)(D): can object to requested form
o 34(b)(1): draft a request for info, served on all parties, with reasonable
particularity, party has 30 days to respond allow or object
o 34(b)(2)(E): party must keep all records as they are kept in the usual course of
business
o 34(c): allows nonparties to be compelled to produce things under subpoena
Medical Examinations Rule 35, any health care professional
o 35(a)(1): party must show a persons condition is in controversy
o Motion must state place, time, manner, scope of exam, person who will
perform it
o Permits for medical exam only of a party, but permits court to order a
party to produce another person in custody (ex: child)
o 35(a)(2)(A): only available if the court grants a partys motion to subject someone
to physical or mental examination, must show good cause of examination
o 35(b)(1): party must deliver exam to requesting party
o 35(b)(3): once person examined receives report, must produce reports of own
doctors concerning medical condition
o 35(b)(4): person who was examined waives any privilege in reports of other
professionals concerning the same condition
Requests for Admission Rule 36
o 36(a)(1): admissions binding only in the pending case
o 36(a)(1)(A): permits party to force another party to admit or deny any
discoverable matter about facts
o 36(a)(1)(B): permits same regarding genuineness of documents
o 36(b): conclusively established unless the court allows to be withdrawn
o Device to force a party to take a position on specific issues
o Requests can only be served on parties
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o 37(b)(2)(B): party ordered to produce someone under their legal control and
doesnt is subject to sanctions
o 37(b)(2)(A)(vii): contempt not imposed
Sanctions Concerning Requests for Admission
o 37(c)(2): party who objected to request for admission must pay for expenses if
other party shows in trial it was true
o 37(c)(2)(A)-(D): unless one of these
ESI safe harbor provision under 37(e)
Certification Under Rule 26(g)
o 26(g)(1): certification requirement for required disclosures, other requests
o 26(g)(1)(A): signature is certification that disclosure is complete to the best of
partys knowledge
o 26(g)(2): party only must respond to signed document
o 26(g)(2)(B): everything that must be signed is a certification (its true, etc)
o 26(g)(3): sanctions for improper certification
Rule 56(a): party may move for summary judgment, identifying each claim or defense on
which judgment is sought. Grant summary judgment if no genuine dispute as to any
material fact, must give reasons for granting or denying
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Rule 56(b): party may move for summary judgment at any time until 30 days after close
of discovery
Rule 56(c)(1)(A): May use to consider:
o depositions
o documents
o electronically stored information
o admissions
o stipulations
o interrogatory answers
o other materials
Rule 56(c)(4): affidavits can refer to documents (must be attached), must be:
o Based on personal knowledge
o set out facts that would be admissible in evidence
o demonstrate that the affiant is competent to testify on the matters stated
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