Civil Procedure Outline Fall 2006 1) Subject Matter Jx 2) Personal Jx (Parties or Property) 3) Notice & Opportunity to Be Heard 4) Service

of Process 5) Venue 6) Removal 7) Waiver (where possible, note that smj can NEVER be waived)

I. Territorial Jurisdiction
A. Substantive Due Process:
1. Court has the power to act upon the PERSON or the PROPERTY through:

a) Minimum Contacts with the forum state. b) Long arm statute accepting such jx. B. Subject Matter Jurisdiction: Limits based on CASE TYPE.
1. Involves the courts AUTHORITY TO RULE on a particular type of case. 2. Subject Matter Jx NOT WAIVABLE:

a) may raise at any time. b) Court will raise sua sponte (as its own motion). c) Must be resolved before the merits of the suit.
(1) Without AUTHORITY all possible rulings of the case would be invalid. 3. State Courts are Courts of General Jx:

a) State Courts have CONCURRENT jx w/ Federal Courts EXCEPT for a few types of cases. b) Patents, Copyrights, Trademarks, Antitrust, Securities can only be heard by Fed Court.
4. DIVERSITY JURISDICTION:

a) Constitutional Authorization:
(1) Art III 2: Provides for a forum where persons will be free from local prejudice. ONLY ESTABLISHES MINIMAL DIVERSITY (diversity must exist between ONE and ONE )

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b) Diversity Statute:
(1) Two Prerequisites: 1) Diversity of Citizenship, 2) Minimum amount in Controversy. (2) Complete Diversity Requirement: No can have the same citizenship as ANY . (3) HOW IS CITIZENSHIP DETERMINED?
(a) For NATURAL PERSONS (including permanent resident aliens):

(i) DOMICILE
(b) For CORPORATIONS:

(i) Any state where it is incorporated AND (ii) Principle Place of Business (iii)IF UNINCORPORATED: Every state where there is a member.
(c) Class Actions:

(i) Only NAMED REPRESENTATIVES are considered.

(d) Executors, Guardians and Trustees:

(i) Citizens of the same state as the person represented. (28 USC 1332(c)(2))

(4) Time for Determination: At the COMMENCEMENT of the action. (5) Jurisdictional Amount: MORE than $75,000.00 must be in dispute at the COMMENCEMENT of the action.
(a) LEGAL CERTAINTY TEST: Amount claimed by is determinative UNLESS can show a LEGAL CERTIANTY that the minimum CANNOT be met. (b) Aggregation of Claims:

(i) All claims from a SINGLE against a SINGLE . (ii) SINGLE against SEVERAL ONLY if the s are jointly liable. (iii)MULTIPLE against SINGLE ONLY if s have a common undivided ownership interest in claims.

Civil Procedure Outline Fall 2006 (iv)Counterclaims CANNOT be aggregated.

5. Federal Question Jx:

a) Art III 2 extends Federal judicial power to cases ARISING UNDER: (Broad Interpretation)
(1) The Constitution, (2) The Laws of the U.S. and Treaties, (3) Admiralty, (4) Where the US is a party, (5) Where Ambassadors are involved.

b) Federal Question Statute:

(1) Similar Language but narrower interpretation.
(a) State Courts have CONCURRENT jx over most federal question issues.

(2) Federal Question may be raised when:

(a) Federal Law has created the claim sued upon OR (b) When a right under State Law turns on construction of Fed. Law IF the fed law has SUBSTANTIAL BEARING on the outcome.

(3) Well-Pleaded Complaint Rule

(a) Federal question must appear in the properly pleaded allegations IN THE COMPLAINT. (b) IF fed law did NOT create the claim, then the Fed Issue must be a REQUIRED element of the State law claim.

(i) ANTICIPATION OF DEFENSE INSUFFICIENT: (ii) Well-Pleaded Complaint rule applies to cases sought to be REMOVED from state to Fed. Court by a . (a) can elect NOT TO ASSERT federal claim to avoid Federal Question Jx.

(4) Plausible Assertion of Federal Right Sufficient

(a) Unless the claim of federal law is Frivolous or made solely to bring about jurisdiction the court has jx.

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(5) In most Federal Question cases there is NO REQUIRED MINIMUM amount. 6. Supplemental Jx:

a) When Fed Courts have jx, they have jx over ALL ISSUES in the case. b) Traditionally: Pendent and Ancillary Jx:
(1) ANCILLARY JX: Gave Fed Courts power to hear claims brought by parties OTHER than the but related to the s claim. i.e. counterclaims, crossclaims, interpleader claims and claims by intervenors. (2) PENDENT JX: Gave Fed Courts power to hear nonfederal claims against nondiverse as long as the claims arose from the same event as the fed claim. (3) In 1989 S. Ct. called into question the validity of Ancillary and Pendent Jx because there was no statutory basis for it.

c) Supplemental Jurisdiction Statute:

(1) Fed. Courts that have ORIGINAL Jx over a claim have Supplemental Jx over all other claims that form part of the same CASE or CONTROVERSY under Art. III. (2) Supp Jx is Proper When:
(a) Federal Claim is sufficiently substantial (b) Federal and Nonfederal claims arise from a common nucleus of operative fact. (c) Federal and Nonfederal claims are such that they would ordinarily be tried in ONE JUDICIAL PROCEEDING.

(3) Limitation on Diversity Cases:

(a) No Supp Jx over claims by under Rule 14 (interpleader), Rule 19 (Necessary party jointer), Rule 24 (intervention)

(4) Supp Jx is discretionary: May decline where;

(a) A novel or complex issue of state law is involved. (b) The nonfederal claim predominates

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(c) All original jx claims are dismissed (d) In other extraordinary circumstances.

(5) Limitation for claims asserted under supp jx is tolled while case is pending in Fed Ct and for 30 days after dismissal.

C. Relationship Between State and Federal Law:

1. State Law in the Federal Courts:

a) Rules of Decision Act: The Laws of the States are the rules of decision in Fed Courts, except where the Constitution or Fed Laws or Treaties provide otherwise. b) Traditionally: Swift v. Tyson Under Swift, the Rules of Decision Act did not apply to state common law, so Fed Ct could establish general common law. c) Overruling of Swift by Erie State common law should govern where Congress had not provided otherwise.
(1) Reasoning Swift had led to a lack of uniformity and resulting discrimination at the Fed Level. S. Ct.
(a) FOUND that the Rules and Decision Act had not intended to exclude state common law. (b) HELD that the Constitution did not give Fed Cts power to declare the substantive common law that would apply in a state. (c) Twin Aims:

(i) Discouragement of forum shopping AND (ii) Avoidance of Inequitable administration of the laws.

(2) Part of a Practice Revolution: Erie and Federal Rules of Civil Procedure adopted at the same time.

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(3) Developing Erie Attempted to implement the general guideline that STATE SUBSTANTIVE LAW and FEDERAL PROCEDUAL LAW govern state law actions in the Fed Court.
(a) Guaranty Trust Co. v. York:

(i) HELD: State statute of limitations took precedence over more flexible fed laches approach. (ii) Presented the OUTCOME DETERMINATION test (a) A fed law is substantive if application of the fed law instead of the state law will significantly affect the outcome of the litigation.
(b) Interest Balancing Approach (Byrd)

(i) Relation between state rule and the underlying state right (ii) Interest of the fed judicial system (iii)Outcome determination effect.

(4) Modern Approach Under Erie and Hanna:

(a) Conflict Determination Stage: Is there a direct conflict between the Federal and State Rules? (b) Conflict Resolution Stage: If there is a true conflict, the SOURCE of the Fed Rule should be considered:

(i) FEDERAL CONSTITUTION : Rules that are derived from the Constitution ALWAYS govern state law actions. (ii) ACTS OF CONGRESS: IF the Fed Statute is arguably procedural THEN the Fed Statute will govern.

Civil Procedure Outline Fall 2006 (iii)FEDERAL RULES : Will be applied if they are procedural (in accordance with the Rules Enabling Act) (iv)JUDGE-MADE FEDERAL PROCEDURAL RULES: Decisional rules present unguided Erie choices and are judged according to whether they meet the TWIN AIMS.

d) Which State Law Applies?

(1) In DIVERSITY cases, the court will apply the LAW of the STATE in which it SITS, including that states choice of law rules.

D. Types of Territorial Jurisdiction: Limits based on GEOGRAPHIC LOCATION.

1. Definition: Territorial jurisdiction is a STATES POWER TO HEAR A CASE AND ENFORCE ITS JUDGMENT.

a) IN PERSONAM Jx:
(1) In Personam jx permits a court to enter a judgment that is PERSONALLY BINDING on the defendant. (2) Relates to the s personal liability to be satisfied by the s personal assets.

b) IN REM Jx:
(1) In Rem jx permits a court to adjudicate the rights of ALL POSSIBLE CLAIMANTS IN A SPECIFIC PIECE PROPERTY. (2) Do NOT determine personal liability of the , rather, they involve interests of persons in the PROPERTY.

c) QUASI IN REM Jx:

(1) 2 Types:
(a) Permits a court to determine rights of PARTICULAR PARTIES in property under its control. (b) Permits court to use property to satisfy claims against where the court doesnt have personal jx.

Civil Procedure Outline Fall 2006 (i) Severely limited Due to Shafer now property acts as one of the minimum contacts required under the minimum contacts and fairness requirements.

E. Traditional Test
1. Pennoyer States jurisdiction was limited to persons properly SERVED or PROPERTY seized in the State.

a) Requires:
(1) PRESENCE IN FORUM STATE- Temporary presence in State unrelated to activity in lawsuit falls within providence of this test (2) SERVICE WITHIN THE FORUM STATE Even if is only there for a limited time, he may be served with process.
(a) NOTE: Service while on a plane flying over forum is VALID.

F. Modern Test
1. International Shoe Requires MINIMUM CONTACTS w/the forum State such that jx does not offend TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.

a) Minimum Contacts
(1) Do not offend Traditional Notions of Fair Play and substantial justice. (2) Systematic and Continuous (Helicopterous) (3) Purposely directed towards forum state (Asahi) (4) Purposely avail himself of privileges of the forum State (Hanson) (5) Possibility of Litigation must be FORESEEABLE (World-Wide Volkswagen). (6) Connection between Litigation, and Forum State:
(a) Mere presence of property not enough to establish Jx. Becomes another contact for the Minimum Contacts Test (Shaeffer)

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b) Domicile
(1) Jx over persons domiciled within State even if temporarily out of state.
(a) RESIDENCE Current Dwelling Place (b) INTENT TO INDEFINITELY REMAIN:

(i) 1 Domicile at a Time (ii) Person must intend to make that place his home, for the time at least.

c) Consent
(1) Jx may be established by consent even without minimum contacts. (2) Consent can be established by:
(a) Filing an action By using the court for a counterclaim, give up right to question jx. (b) Advance Consent i.e. In a contract or Designating an agent. (c) Voluntary appearance in Court

G. Proper Notice:
1. Proper notice is required to invoke personal jx. 2. Notice has Statutory AND Constitutional dimensions (Due Process clause) 3. Mullane v. Central Hanover Bank & Trust: Notice MUST be:

a) Reasonably Calculated, under all circumstances b) To apprise interested parties c) Of the pendency of the action AND d) Afford them the Opportunity to be Heard
(1) Constructive notice by publication is INSUFFICIENT where names and addresses of parties are known. (2) Constructive notice by publication is ACCEPTABLE where identities or whereabouts of is unknown AND other parties will protect the interests of the absentees.

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H. Constitutional Grounds for State Court Jx:

1. Contacts with Forum:

a) Minimum Contacts Purposeful Availment: (International Shoe)

(1) Inquiry focuses solely on activities of the . (2) Did the voluntarily establish a BENEFICIAL RELATIONSHIP with the state? (3) Factors:
(a) Foreseeability: Should the reasonably anticipate that he will be haled into court?

(i) Unilateral Act by INSUFFICIENT (ii) Entering into a long term relationship with forum resident may suffice. (iii)Seeking to Serve forum even a single act (McGee v. International Life). (iv)Stream of Commerce - Ends with the Retail Sale of the Product (WWVW). Asahi (OConnor) says that additional conduct might be necessary. (v) Targeting or intending Effects in a forum.
(b) Relationship between contacts to forum and Cause of Action:

(i) If cause of action arises out of the contacts in the forum Specific Jurisdiction will be found.
(c) Commercial vs. Noncommercial

(i) Noncommercial contacts are harder to establish jx over.

(d) Issue with Choice of Law

(i) Not sufficient by itself to grant Jx but considered one of the contacts.
(e) Minimum Contacts trumps TNFPSJ.

b) Traditional Notions of Fair Play and Substantive Justice Reasonableness Standard:

(1) Is the exercise of jx by this state REASONABLE? (2) s interests come into play.

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(3) Factors:
(a) Interest in the state in providing a forum to the . (b) Interest in the state to REGULATE activity involved. (c) Burden on the . (d) Relative burden on the of prosecution elsewhere. (e) Is activity systematic and continuous? (f) Relation of claim to local activites (Specific Jx). (g) Avoid multiple suits and conflicting adjudications.

(4) Internet Activities: Purposeful availment is emphasized and Reasonableness is relaxed. 2. Property in the Forum: Establishes a relevant contact between and Forum.

a) Location of Property:
(1) Tangible Property If physically present then located in the state. (2) Intangible Property If a transaction regarding the Intangible property happened in the state then it is present in the state.
(a) State Law usually governs when Intangible property will be held In-State.

b) Presence of Property SUPPORTS Jx:

(1) True In Rem:
(a) States still have the power to enforce true In Rem jx such as in condemnation.

(2) Claim related to Rights and Duties arising from ownership. (Specific Jx). (3) Absence of other Forum.

c) Presence of Property INSUFFICIENT for Jx:

(1) When cause of action does not relate to the property presence alone will not qualify for jx.

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3. General Jx:

a) Where the claim for relief does NOT arise out of forum contacts. b) More continuous and systematic contacts may support General Jx. (Helicopterous) c) Natural Persons:
(1) General Jx is available in the state of a natural persons domicile.

d) Corporations
(1) Subject to General Jx where:
(a) Corporation was INCORPORATED (usually Delaware) (b) Where the Corp. Headquarters are. (c) Its Principle Place of Business (d) Any state with minimum contacts that would not violate traditional notions of fair play and substantive justice.

e) As Opposed to Specific Jurisdiction: When the cause of action arises out of contacts in the forum.
(1) When the Cause of Action DOES arise out of the contact minimal contacts MAY support Specific Jurisdiction. (McGee v. International Life) 4. Consent

a) can wave issues of personal jurisdiction via:

(1) Express Consent: before or after the suit is filed. (2) Implied Consent: filing a counterclaim. (3) Appearance: Voluntary appearance to resolve issues OTHER than jurisdiction.

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5. Service WITHIN Jx:

a) Traditionally: Service was presumptively sufficient. b) S. Ct. has up-held transient jx (wiggle room is transient jx was not voluntary.) c) If was brought into jx via fraud service is not proper and jx is not established. I. Statutory Authorization for Jx:
1. Long Arm Statutes

a) International Shoe only provided what was CONSTITUTIONALLY possible. States then enacted statutes to enact International Shoe. Most statutes LIMIT jx.
2. Federal Court Jx

a) In general fed ct exercise jx no broader than the state where the ct is located (via the long arm statute.)

II. Venue:
A. A Statutory limitation on the Geographic Location of litigation to prevent a plaintiff from suing where it would be burdensome for the defendant to appear and defend. B. Federal Venue Limitations:
1. Defendants Residence

a) In Fed Court: Venue lies WHERE ANY RESIDES if all s reside in the same state.
(1) A Corp. residence is any district where it is subject to personal jx (i.e. incorporation, principle place of business etc) (2) Unincorporated Business where-ever they are doing business.

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b) Location of A Substantial Part:

(1) Venue is also proper where the EVENTS or OMISSIONS that gave rise to the cause of action occurred OR (2) Where the property subject to litigation is located.

c) Fall Back Venue: Where nowhere else is proper

(1) In diversity cases where any is subject to personal jx. (2) In Fed Question cases where is found.

d) Removed Cases: When a case is removed from state to Fed Ct, venue is in the Fed District encompassing that state ct.
2. Federal Transfer Provisions:

a) Venue or Jx improper in Original Court b) Transfer for Convenience

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