Intro to American Courts p2 19

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Structure of the American Court System State Courts o Trial Court: Circuit Courts Original Jurisdiction o Court of Appeals: District Courts of Appeal o Supreme Court Federal Courts o Trial Courts: District Courts Original Jurisdiction o Court of Appeals: Circuit Courts of Appeal o US Supreme Court Subject Matter Jurisdiction Refers to the power of a court to hear disputes Does the court have jurisdiction? It must Constitutional component and a Statute component State Courts have broad subject matter jurisdiction Federal Courts have limited subject matter jurisdiction

Article III Section 1 and 2 Section 1 o US constitution creates supreme court and gives the power for congress to create lower courts Section 2 o It explains the jurisdiction for the Federal Courts o What matters that it can hear o THIS does not declare that only a federal court can hear these matters, state courts can too. FRCP 12(b)1 Motion to Dismiss for lack of subject matter jurisdiction o Motion may be made before, during, or after trial o Subject matter jurisdiction can be invoked at any time o Jurisdiction over the nature and relief sought o The court can raise the issue even one of the parties doesnt FRCP 12(b)2 Motion to dismiss for lack of personal jurisdiction

o Motion made be made pre trial o A courts power to bring a person into its adjudicative process Concurrent Jurisdiction Jurisdiction that falls in Federal and State Courts o The plaintiff may choose at this point Federal matters can be heard in either State or Federal courts State matters are heard in state courts

Litigation Process p19 37

LITIGATION PROCESS

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Litigation procedure Pleading Phase o Complaint: a pleading in which the plaintiff states a claim against the defendant Cause of action Relief Factual allegations Must State the Elements that were infringed upon in a law Service of process: the delivery of the summons to the defendant Summons: a court notice requiring defendant to appear and answer the complaint Answer: is a response to the plaintiff's complaint Motion: a formal request to the court o FRCP 12(b) Motion to Dismiss Discovery-FRCP 26: methods by which one party obtains information from the other party about the litigation before trial o Interrogatories: a method of discovery through raising questions submitted by one party to another. o Disposition: a method of discovery through a question and answer session, usually conducted in the office of one of the attorneys. Parties and prospective witnesses are questioned by the attorneys without a judge being present. Their testimony is recorded or transcribed for possible later use. Motion for Summary Judgment o After discovery before trial o Doesnt have enough evidence to establish a fact that is essential to recovry Settlement: a resolution of the dispute, making trial unnecessary. OR Voir dire: selection of the jury, but not all cases are tried by jury. o Bench trial is a trial by judge Trial

Post Trial Motions Appeal o Review claims that an error was made in the lower court o Dont review facts, just that the law was correctly applied

28 U.S.C. 1291 The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the US, the US D.C., for the Dristict of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the US Court of Appeals for Federal Circuit shall be limited to the jurisdiction described in sections 1292 c.d. and 1295 of this title FRCP 12(b)6 failure to state a claim upon which relief can be granted, before or during trial, the motion should assert that on the facts as indicated in the complaint, no recovery is possible under any theory. It the 12 b6 motion is granted, the plaintiff may o Amended complaint under rule 15a and proceed with action or o Appeal the grant of the motion since it is a final judgment If the 12 B6 motion is denied, the defendant may o Answer the complaint and raise the motion later in the form of a motion for summary judgment before trial, or as a motion directed verdict at the close of the evidence, or as a judgment notwithstanding of verdict after an adverse verdict or o Allow a default judgment to be entered against him or her and then appeal the judge. Defendant may not appeal without taking a default judgment, because the denial of a 12 B6 motion and not a final judgment. FRCP 26 (b): Discovery Scope and Limits

Any matter not private, that is relevant to claim or defense Court may order discovery of any matter relevant to the subject matter involved in the action. Relevant info need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

FRCP 26(b) 2,3,4,5,6 Limitations: limited by the court Trial Prep: Materials Trial Prep: Experts Claims of Privilege or protection of trial prep materials. Protective Orders FRCP 30 Depositions/Oral A party may take testimony without leave of court except as provided by paragraph 2. Attendance of witness may be compelled by subpoena under R45 FRCP 30(b) o Notice of examinations FRCP 30(c) o Examinations/Cross FRCP(d) o Schedule and Duration FRCP 33 Interrogatories Written Questions 33A - No more than 25 allowed 33B - Answers and Objections o B1 Each interrogatory should be answered separately o B2 Signed by the person making them o B3 Serve a copy of answers and objections within 30 days o B4 All grounds for an objection shall be stated with specificity o B5 party submitting may move for R37a Sanctions

FRCP 34 Request for Productions FRCP 35 Physical and mental examinations FRCP 36 Requests for Admissions Claim Preclusion-Res judicata Bars a party that has already sued on a claim to sue again on the same claim Issue preclusion-Collateral Estoppel Prevents parties from relitigating issues that were already litigated and decided on.

Diversity Jurisdiction in Fed. Ct. p39 89

DIVERSITY JURISDICTION

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28 U.S.C. 1331 Federal Question the district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the US Subject matter jurisdiction is not waivable 28 U.S.C. 1332(a) Diversity or citizenship The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 75,000 and is between o Citizens of different states or o Citizens of a state and citizens or subjects of a foreign state (C1) A corporation shall be deemed to be a citizen of any state by which it was been incorporated and of the state where it has its principal place of business (nerve center) Diversity Jurisdiction Constitution says that the case must be between citizens of different states Statute added that the sum must be met of 75,000 or more

State Citizenship of Individuals

Domicile Test Physical presence in the state and the intent to remain there for an indefinite period of time must be present to indicate domicile. Gordon v. Steele o In determining where a person is domiciled a major factor is intent. But mere intent does not make one domiciled in that particular state. In this case, the court found that she was in fact domiciled in Idaho.

o The P is required to show by convincing evidence that diversity jurisdiction exists. She must show intent to stay INDIFINITELY. Intent to leave state and proof of being in that state The courts will look at: o Her declarations o Payment History Work, taxes o House of Residence o Place of business where she works Parties must be diverse on the day that the complaint is filed The courts will look at the evidence Residence, PLUS intent to stay indefinitely If there is not time limit of being in that state, she may possibly stay there indefinitely or not, domicile is in the state in which she resides. If she was only going to stay for a specified time limit, her domicile is the state in which she came from

Complete Diversity
Complete Diversity rule: Mas v. Perry o Complete Diversity can only occur if both parties of a multiparty suit are from a different domicile. o In this case, Mr. Mas has his citizenship in France, so he is entitled to diversity jurisdiction o Mrs. Mas was found to have her permanent domicile in Mississippi because she did not claim a new domicile in a different state. Even if the amount in question does not meet requirement at the time of verdict, as long as it is in good faith that they filed for an amount exceeding the requirement. All of the plaintiffs or defendants must be citizens of states completely different from the other party No plaintiff can be a citizen of the same state as any defendant Minimal diversity

someone on the defendants side is diverse from the plaintiff, but not the complete diversity that Strawbridge requires. o Ex One of the plaintiffs in a multi party suit is from the same state as one of the defendants.

Subject matter jurisdiction can be invoked at any time Test for Determining Citizenship A person remains a citizen of a state until he takes up residence in a different state and intends to remain there indefinitely. Gordon It is at the time the complaint is filed

State Citizenship of Corporations and Other Entities

A corporation is an intangible entity created under state incorporation laws. Investors are generally protected from personal liability beyond the amount they have invested in the company A corporation is also a self-perpetuating entity; the officers and directors conduct the affairs of the corp. with substantial independence from the investors and can be replaced under the bylaws to ensure continuity of corp. operations. 28 U.S.C. 1332(c)1 Citizenship of Corporations A corporation shall be deemed a citizen of any state by which it has been incorporated in and the state in which it conducts the majority of its business; the nerve center Congress enacted this to cut down on the cases coming in to Federal Courts

Hertz v. Friend Facts Hertz is saying that its principle place of business is NJ and its corporation is in NJ

 Rule

The defendants are saying that they are from Cali because most of their revenue comes from there.

The Supreme Court held that a corporations primary place of business refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Courts have often metaphorically called that place the corporation's "nerve center." The burden of persuasion for establishing diversity jurisdiction, remains on the party asserting it. When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof. Non-Corporations and Limited partnerships Anything that is not incorporated in a state LLC In Carden v. Arkoma the court held that the citizenship of each of the limited partners had to be considered. Perfecting diversity At any point in time of the litigation phase and before judgment, a party of a suit that is not diverse to begin with, can be dropped and perfect diversity.

Amount in Controversy Requirement

Congress enacted the amount in controversy to cut down on cases going to federal courts Determined at the time the complaint is filed

28 USC 1332(b) Except when express provision therefor is otherwise made in a statute of the US, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of 75,000, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. St. Paul v. Mercury

Defined amount in controversy Established that if the claim was made in good faith it will be accepted unless it appears to a legal certainty that the claim is really for less than the jurisdictional amount The St. Paul Mercury Test Gives the plaintiff the benefit of the doubt. If P will probably recover more than 75,000, but might not, the amount has been met. If P will probably NOT recover that much, but COULD, the amount has been met. Only where the judge looks at the facts and evidence and is convinced that the claim is certainly not worth more than 75,000 will she dismiss the claim. Diefenthal v. C.A.B. Facts The P booked a flight for first class smoking. All of the seats were filed and the flight attendant informed them that they must sit in non-smoking if they wish to stay in first class. P filed suit in federal court and claimed 50,000 for a breach of contract and humiliation. The Court found that they could not find with a reasonable certainty that their damages do not amount to the jurisdictional value of 10,000. Dismissed and Affirmed Rule If a complaint has been made and the amount is above the jurisdictional requirement and it was made in good faith, the court can still dismiss a claim if o the judge looks at the facts and evidence and is convinced that the claim is certainly not worth more than the jurisdictional requirement

Aggregating Claims to Meet the Amount

A single plaintiff may aggregate claims she has against a single defendant.

But, co-plaintiffs cannot add their claims together to reach the amount requirement, or add different amounts demanded from different defendants. EXCEPTION o One CO-Plaintiff that meets the required amount can have the other co-plaintiff to tag along even if his amount hasnt met the required amount.

The Constitutional Scope of Diversity Jurisdiction compared to the Statutory Grant of Diversity
Constitutional Diversity jurisdiction is broad Congress enacted 28 USC 1332 in order to limit federal jurisdiction o Amount in Controversy o Complete Diversity

Subject matter Jurisdiction Not waivable Diversity o Citizenship Person Domicile: intent to remain indefinitely Reside and intent to remain indefinitely Entity Non-Corporations Corporations Place of incorporation Nerve center test: principal place of business o Amount in Controversy 75,000

Federal Question Jurisdiction

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Demurrer Is a procedural device the defendant may use to assert that the plaintiffs complaint is legally insufficient because the law does not provide a remedy for the conduct alleged in the plaintiffs complaint Sua sponte on its own. The federal court can raise the question of SMJ on its own. 28 USC 1331 Federal question jurisdiction District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US. Federal Question Federal Courts shall have subject matter jurisdiction over any cases arising under to the US Con., Federal Statutes, Laws and Treaties of the US. Arising under means the cause of action must be a federal question controversy. It does not matter if the case will ultimately turn on a federal question; the federal question must be part of the cause of action for pleading purposes. Louisville & Nashville RR Co. v. Mottley Facts LNRR Co., entered into a contract with Mottley, to give them travel passes every year. When a new federal law prohibited railroads from issuing free passes, LNRR Co. declined to renew the passes. Mottley sued in federal court for specific performance of the contract, and the circuit court granted an injunction. The Supreme Court of the United States, finding it improper to plead that a defense under federal law was anticipated, reversed the judgment and remanded to the circuit court with instructions to dismiss the action for lack of federal question jurisdiction. Issue Can a Plaintiff anticipate federal defenses and it be sufficient to bring a state law claim to federal courts? No.

Rule For a plaintiff to sue in federal court under the statutory test, she must assert a claim that arises under federal law; must be determined in the plaintiffs statement of his own claim, not from any anticipated defenses the complaint alleges the defendant will assert. well pleaded complaint rule o The mottleys did not, they sued for a breach of contract, a state law cause of action.

Holmess Creation Test A suit arises under the law that creates the cause of action. o In mottley, the law that created the plaintiffs cause of action was contract law, a state law matter. Must be in the claim and not in a counterclaim. Declaratory Judgment Allows a party, before an alleged violation of rights has actually taken place, to bring suit and ask the court to declare the rights of the parties. Federal SMJ 2 requirements o Constitution o Statutory 2 ways to get into federal court Federal question or Diversity 28 USC 1257: State Courts; certiorari final judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the supreme court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the 28 USC 1983:

The smith exception Held a state law claim could give rise to federal-question jurisdiction so long as it appears from the complaint that the right to relief depends upon the construction or application of federal law. Smith v. Kansas City Facts Smiths action was a state law equity proceeding to enjoin a corporation from acting beyond the limits of its charter. But the underlying ground for the relief sought was the invalidity of the bonds under the federal constitution. Merrell Dow Pharmaceuticals v. Thompson Thompson alleged that Merrells negligent marketing of the drug Bendectin had caused birth defects for which they claimed damages. Thompson did not sue under FDCA; the parties agreed that the statute did not create a private right to sue for violation of the labeling requirements o Instead, they argued that Merrells conduct constituted negligence because a reasonable drug manufacturer would not violate the FDCA labeling standards The court held that thompsons claim did not arise under federal law. The FDCA is a regulation for companies, it doesnt give right for individuals to sue under FDCA. Federal question questions What law is being disputed What is the Plaintiffs cause of action? What relief does the plaintiff want?

Garble & Sons Metal v. Darue Facts Petitioner, former owner, sued respondent quitclaim deed holder, alleging that the record title was invalid because the Internal

Revenue Service failed to notify him of the seizure by person. IRS sent the notice by mail and by statute, they must deliver it in person. Issue Whether want of a federal cause of action to try claims of title to land obtained at a federal tax sale precludes removal to federal court of a state action with non-diverse parties raising a disputed issue of federal title law. A claim that doesn't follow the "creation test" can be tried in federal court if the court decides that the state law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.

Rule

Federal question: 2 ways Holmes Test o American well works case If P asserts a claim under a federal statute, then you have arising under the statute. Grable: o State law claim necessarily raised a federal issue o Federal law is actually disputed and is substantial o Federal interest in having federal forum o Congressional judgment about division between federal and state

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Removal of Cases from State to Federal

If the plaintiff files in federal court, the Defendant may not remove it to state court. Only the defendant can remove if filed in state court If the plaintiff files in state court, the defendant may choose to remove it to federal under the Removal Statute. Remove means to send to Federal court from state. Only DEF can do this Remand means to send the case back to the state court. 28 USC 1441a Except as otherwise provided by Act of Congress, any civil action brought in a state court of which the district courts of the US have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the US for the district division embracing the place where such action is pending. Avitts v. Amoco Production Facts Avitts sought recovery of money for damages sustained by Amocos Oil production. Avitts filed in state court and Amoco went to remove it to federal court. District court found for Avitts in the amount of 650,000. Amoco appealed and the circuit court found there to be no federal jurisdiction. Amoco remanded and Avitts is appealing the remand Issue Whether a suit can be removed to federal court if no federal question has been stated. No. There was no diversity and no federal question being presented. Rule If the plaintiff could have filed in Federal court, the defendant may remove it from state court. If the Plaintiff could not have filed in

federal court, because no question or diversity, then defendant may not remove to federal court Here, the right to remove turned on whether Avitts sought relief under federal law. Per Curiam anonymous decision by judges 28 USC 1446b The notice of removal of a civil action shall be filed within 30 days after receiving the complaint. Allows to be removed after later revisions But only if the case was not initially removable. 28 USC 1292 a1 It allows interlocutory appeals An immediate appeal even though the case is still pending in the trial court of the grant of a preliminary injunction. The logic for this is that a preliminary injunction requires the party enjoined to do something now, while the case is being litigated. Piper Jaffray v. Severini Facts Jaffray is seeking injunctive relief against Severini. Jaffray files in Federal court first and they set a hearing a month later. Jaffray then voluntarily dismisses the injunction and files in state court. State judge issues injunction and a hearing for the next day. But on the same day Jaffray filed in state court, Severini removed it to federal court before the injunction was enforced. Issue Did the plaintiff waive his right of objection to removal by subjecting itself to the Federal Court? o No. Plaintiff filed within the 30 day limit to remand District court found that he did not waive objection to removal by undertaking affirmative action. Did Plaintiff Forum Shop o No.

Plaintiff is the master of its complaint. As such, it was allowed to dismiss its June 23 complaint at any time before defendants filed either their answer or a motion for summary judgment.

Rule If a suit is diversity suit is brought in the state court of the defendant, the defendant cannot remove it to federal court 28 USC 1441(b) forum defendant rule acquiescence DEF claims that Jaffray subjected itself in the Waiver of Forum defendant rule: if you do not file within 30 days Forum shopping to look for a favorable substantive law FRCP 11(b)(1-2) REPRESENTATIONS TO THE COURT: the attorney or unrepresented party certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: o 1. It is not being presented for any improper purpose o 2. The claims, defenses, and other legal contentions are warranted by existing law FRCP 41(a) Voluntary dismissal o By plaintiff Without a court order Must be done before opposing party submits an answer or motion for summary judgment or A stipulation signed by all parties Effect The dismissal is without prejudice. By Court order o Effect

An action may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper

28 USC 1441(b) any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the US shall be removable regardless of citizenship or residence of the parties. Prevents removal of diversity case if any defendant is a citizen of the state in which such action is brought. 28 USC 1441(f) The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim. Such an action may be removed to federal court even though the state court where it was filed lacked jurisdiction. 28 USC 1446(d) State court shall proceed no further unless and until the case is remanded o So if the case is removed to federal court, the state loses all powers until it gets remanded. 28 USC 1447(c) Removal of case without justification. Meant to deter defendants from removing cases that are not removable. o May require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal. 28 USC 1450 All injunctions, orders and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.

The only way to remand within 30 days, it must be for nonjurisdictional/procedural defects: Timing of removal Defendants dont agree Forum defendant rule Remand for jurisdictional defects can be filed Until final judgment Defendant Forum rule Applies to only Diversity

Personal Jurisdiction

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Personal Jurisdiction Waivable Authority to require defendant to personally appear in the forum and defend there In Rem Jurisdiction A courts assertion of control over a defendants specific property (real estate and bank accounts) that is located within the state where the defendant is sued. Pennoyer v. Neff: A lot has changed, old standard Facts Mitchell brought suit against Neff to recover unpaid legal fees. Mitchell published notice of the lawsuit in an Oregon newspaper but did not serve Neff personally. Neff failed to appear and a default judgment was entered against him. To satisfy the judgment Mitchell seized land owned by Neff so that it could be sold at a Sheriffs auction. When the auction was held Mitchell purchased it and later assigned it to Pennoyer. Neff sued Pennoyer in federal district court in Oregon to recover possession of the property, claiming that the original judgment against him was invalid for lack of personal jurisdiction over both him and the land. The court found that the judgment in the lawsuit between Mitchell and Pennoyer was invalid and that Neff still owned the land. Pennoyer lost on appeal and the Supreme Court granted certiorari. Issue Can a state court exercise personal jurisdiction over a non-resident who has not been personally served while within the state and whose property within the state was not attached before the onset of litigation? No. Rule A court may enter a judgment against a non-resident only if the party o 1) is personally served with process while within the state, or

o 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction). You can be served any but you must be served within that state where the suit is occurring. Hess v. Pawloski changed pennoyer but not overruled It ruled that by driving in that state, he consented to be liable for suit in that state

Modern Era Begins

Minimum Contacts test a state may exercise personal jurisdiction over a defendant if she has such minimum contacts with the state. In some cases, the Court indicated, even a single contact will do, but not contacts that are casual or isolated. International Shoe v. Washington Facts International Shoe Co. (D, appellant) was a Delaware corporation with its principle place of business in St. Louis, Missouri. It had no offices in the state of Washington and made no contracts for sale there. International Shoe did not keep merchandise in Washington and did not make deliveries of goods in intrastate commerce originating from the state. International Shoe employed 11-13 salesmen for three years who resided in Washington. The state of Washington brought suit against International Shoe in Washington State court to recover unpaid contributions to the unemployment compensation fund. Notice was served personally on an agent of the defendant within the state and by registered mail to corporate headquarters. The Supreme Court of Washington held that the state had jurisdiction to hear the case and International Shoe appealed. Issue

Did International Shoes activities in Washington make it subject to personal jurisdiction in Washington courts? Yes. Minimum contacts with the forum state can enable a court in that state to exert personal jurisdiction over a party consistent with the Due Process clause. A corporation that chooses to conduct activities within a state accepts (implicitly) a reciprocal duty to answer for its in-state activities in the local courts. A DEF should understand that her activities within the state will have an impact there, that those activities may lead to controversies and lawsuits there, and that the state has a right to enforce the orderly conduct of affairs within its borders by adjudicating disputes that arise from such in-state activities. Minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Rule

presence in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has be given. Personam Jurisdiction is waivable Specific Jurisdiction Jurisdiction that stems from the DEFs having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those minimum contacts General jurisdiction A courts authority to hear all claims against a DEF, at the place of the DEFs domicile or the place of service, without any showing that a connection exists between the claims and the forum state. Continuous and systematic contact Special Appearance

To make an appearance in the court where the original lawsuit was filed. Now you can file during the answer instead of showing up in the court

Collateral Attacks Doesnt challenge in the court where the lawsuit was filed, instead they challenge in the enforcing court and contends the original courts judgment was invalid for lack of personal jurisdiction. Interlocutory appeals Appealing an issue in the middle of a case Some states allow a defendant to immediately appeal a trial courts ruling. Long Arm Statutes Specifies contacts with the state that allow their courts to assert jurisdiction over the defedant

Specific Personam Jurisdiction

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Deals with the 14th amendment, Due process clause Both a Constitutional Requirement and a Statutory requirement are required to be met. Due Process 14th Amendment: Can be met if: Service of process in State or Consent or Minimum contacts and Reasonableness McGee v. International Life Insurance Facts Franklin, a resident of California purchased life insurance from Empire Mutual, an Arizona corporation. Franklin entered into contract and paid premiums until his death. Franklins mother was the beneficiary and the insurance company refused to pay claiming that Franklin committed suicide. She filed suit in California but did not serve process there. But, a California statute was the basis of granting recovery by the California court. The statute stated that a foreign company can be sued by a resident of California without service of process within its borders. The mother went to Texas hoping to recover and the courts denied claiming that it was void under the 14th amendment. Supreme Court overruled and stated that the Texas court erred in refusing to give its judgment full faith and credit o Texas was arguing the validity of CA ruling The Supreme Court held that where insurance contract o was delivered in California, o premiums were mailed from there, o and insured was resident of California at time of death, due process did not preclude entry of judgment against Texas insurance company by California court, which based its jurisdiction on statute subjecting foreign corporations to suit on insurance contracts with residents of that state, even though such companies could not be served with process within its borders, although Texas company had no offices or agents in California and had apparently

never solicited or done any insurance business in California apart from policy involved. Purposefully Avails itself Hanson v. Denckla It is essential in each case that there be some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The defendant has to have initiated a contact in the forum state. Absent such contact, specific jurisdiction does not exist. Purposefully Avails itself World-Wide Volkswagen v. Woodson Facts The Robinsons bought an Audi in NY and then decided to move to Arizona. As they were passing through Oklahoma, they were rearended and the car caught fire and the Robinsons were severely burned. VW/Audi did no business in OK and were inc. and has its business in NY US Supreme CT. held that where corporate defendants, automobile wholesaler and retailer, carried on no activity whatsoever in Oklahoma and availed themselves of no privileges or benefits of Oklahoma law, mere fortuitous circumstance that a single automobile sold in New York to New York residents happened to suffer an accident while passing through Oklahoma did not constitute minimum contacts with Oklahoma so as to permit Oklahoma courts to exercise jurisdiction consistently with due process under state long-arm statute interpreted by Oklahoma courts as conferring jurisdiction to limits permitted by United States Constitution. o No minimum contacts in OK and did not purposefully availed itself in OK

Foreseeability is not sufficient benchmark to establish personal jurisdiction. Foreseeability means that you can foresee that you will have to answer in that state where you contact is. Even if personal jurisdiction would nevertheless be fair and reasonable in that forum, contacts with that forum state are an essential requirement. Reasonableness/fairness Burden to the DEF PL convenience PL burden Evidence, Witnesses, where PL resides Interest of the state to provide a forum Efficiency of the resolution Public policy Specific Jurisdiction is constitutional only when DEF has had contacts with the forum state PLs claim arose out of those contacts, and Personal Jurisdiction is reasonable Keeton v. hustler Keeton sued Hustler for libel. Hustler is published nationally but choose to sue in NH. Hustler sold magazines in NH and thus availed itself in that forum. Burger King v. Rudzewicz Facts DEF was in a contract with PL to run a franchise in Michigan. PL had a district office in Michigan but is Inc. and has Principle place of business in Miami, FL. DEF failed to make payments and PL brought suit against DEF in FL Fed. Court. PL relied on a FL statute that states that whomever, whether citizen or not, breaches a contract in this state by failing to perform required by the contract to be performed in this state so long as the cause of action arises from the alleged breach. Issue

Whether this exercise of long-arm jurisdiction offended traditional conceptions of fair play and substantial justice embodied in the Due Process clause of the 14th amendment. The factors the court must balance in addressing reasonableness in an analysis of personal jurisdiction are: o (1) the extent of a defendants purposeful interjection in the forum state; o (2) the burden on the defendant in defending in the forum; o (3) the extent of conflict with the sovereignty of the defendants state; o (4) the forum states interest in adjudicating the dispute; o (5) the most efficient judicial resolution of the controversy; o (6) the importance of the forum to the plaintiffs interest in convenient and effective relief; and o (7) the existence of an alternative forum. DEF had substantial and continuing relationship with the headquarters, and DEF received fair notice from the contract documents and the course of dealing that he might be subject to suit in FL., and DEF has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair

Rule

Choice of Law Clause Chooses a particular body of state contract law to govern the interpretation of the contract Usually binding but does not necessarily give personal jurisdiction Forum Selection Clause Require that any dispute arising out of the contract be litigated in a particular state Courts generally enforce these provisions, as long as they select a forum with a reasonable relation to the parties or the transaction Personal Jurisdiction in Federal Court FRCP 4k1a

Permits a federal court to exercise personal jurisdiction only if the DEF is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. A federal court can exercise personal jurisdiction over a DEF only if the courts of the state in which the federal court sits could do so under the states long arm statute and the 14th amendment due process clause.

Stream of Commerce Gray v. American Radiator Titan Valve was an OH company that manufactured safety valves for water heaters and sold them to American Radiation to be used in their water heaters which were sold throughout the country. Mrs. Gray, an Illinois citizen, was injured after the water heater exploded; she sued both American and Titan The question was whether the courts had personal jurisdiction over Titan. Presents the stream of commerce o A manufacturer makes a component that is used in a larger product that is sold throughout the country. The Illinois Supreme Court ruled that a component manufacturer is subject to personal jurisdiction in a state where its component is ultimately sold, even though the component part manufacturer did not sell the component directly into that state. Ashai Metal Industry v. Superior Ct. of California Facts A guy was riding a motorcycle when the tire exploded because of the defective tire, tube, and valve. The case was settled outside of court. Petitioner manufactures tire valve assemblies in Japan and sells them to several tire manufacturers, including Cheng Shin Rubber Industrial Co. (Cheng Shin). The sales to Cheng Shin, which amounted to at least 100,000 assemblies annually from 1978 to 1982, took place in Taiwan, to which the assemblies were shipped from Japan. Cheng Shin incorporates the assemblies into its

finished tires, which it sells throughout the world, including the United States, where 20 percent of its sales take place in California. Affidavits indicated that petitioner was aware that tires incorporating its assemblies would end up in California, but, on the other hand, that it never contemplated that its sales to Cheng Shin in Taiwan would subject it to lawsuits in California. Nevertheless, in 1979, a product liability suit was brought in California Superior Court arising from a motorcycle accident allegedly caused by defects in a tire manufactured by Cheng Shin, which in turn filed a crosscomplaint seeking indemnification from petitioner. Although the main suit was eventually settled and dismissed, the Superior Court denied petitioner's motion to quash the summons issued against it. The State Court of Appeal then ordered that the summons be quashed, but the State Supreme Court reversed, finding that petitioner's intentional act of placing its assemblies into the stream of commerce by delivering them to Cheng Shin in Taiwan, coupled with its awareness that some of them would eventually reach California, were sufficient to support state court jurisdiction under the Due Process Clause. Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court over Asahi in this instance would be unreasonable and unfair Held: The judgment is reversed, and the case is remanded. Issue Whether the mere awareness on the part of a foreign DEF that the components it manufactured, sold, and delivered outside the US would reach the forum state in the stream of commerce constitutes minimum contacts between the DEF and the forum state such that exercise jurisdiction does not offend traditional notions of fair play and substantial justice. The Supreme court found that it was unreasonable because the company: o does not do business in the forum state, o has no offices, agents, employees, or property in the forum state,

o does not advertise or otherwise solicit business in the forum state, o did not create, control, or employ the distribution system in the forum state, and o there is no evidence that the company designed its product in anticipation of sales in the forum state The strictures of the Due Process Clause forbid a state court to exercise personal jurisdiction over Asahi under circumstances that would offend traditional notions of fair play and substantial justice.

Justice O'CONNOR, delivered the opinion of the Court as to Parts I and II-B, concluding that the state court's exercise of personal jurisdiction over petitioner would be unreasonable and unfair in violation of the Due Process Clause. The burden imposed on petitioner by the exercise of state court jurisdiction would be severe, since petitioner would be required not only to traverse the distance between Japan and California, but also to submit its dispute with Cheng Shin to a foreign judicial system. Such unique burdens should have significant weight in assessing the reasonableness of extending personal jurisdiction over national borders The interests of Cheng Shin and the forum State in the exercise of jurisdiction over petitioner would be slight, and would be insufficient to justify the heavy burdens placed on petitioner. The facts do not demonstrate that it would be more convenient for Cheng Shin to litigate its claim in California rather than in Taiwan or Japan, while California's interests are diminished by Cheng Shin's lack of a California residence and by the fact that the dispute is primarily about indemnity rather than the safety of consumers. The procedural and substantive policies of other nations whose interests are affected by the forum State's assertion of jurisdiction over an alien defendant must be taken into account, and great care must be exercised when considering personal jurisdiction in the international context. Although other nations' interests will differ from case to case, those interests, as well as the Federal

Government's interest in its foreign relations policies, will always be best served by a careful inquiry into the reasonableness of the particular assertion of jurisdiction, and an unwillingness to find an alien defendant's serious burdens outweighed where, as here, the interests of the plaintiff and the forum State are minimal. Justice BRENNAN, with whom Justice WHITE, Justice MARSHALL, and Justice BLACKMUN join, concurring in part and concurring in the judgment. I do not agree with the interpretation in Part II-A of the stream-ofcommerce theory, nor with the conclusion that Asahi did not purposely avail itself of the California market. Ante, at 1034. I do agree, however, with the Court's conclusion in Part II-B that the exercise of personal jurisdiction over Asahi in this case would not comport with fair play and substantial justice. Part II-A states that a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State's laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Accordingly, most courts and commentators have found that jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and have not required a showing of additional conduct Indemnify compensate (someone) for harm or loss The Arises Out of Element Personal Jurisdiction Specific jurisdiction

o minimum contacts (international Shoe) + stream of commerce(asahi and nicastro) purposeful availment o reasonableness + o arising out of evidence test or but for test OR General Jurisdiction

The evidence test a claim arises out of the defendants in-state contacts only if the defendants forum contact provides evidence of one or more elements of the underlying claim. The But for test arises out of a contact if the claim would not have arisen but for the defendants contact with the state Jackson v. The California newspapers partnership Facts PL sues for damages suffered as a result of the alleged defamation. PL claims that a California based website published material that ruined his reputation. PL sued in Illinois court and claims that the court has general and specific jurisdiction. Plaintiff states that [b]y utilizing technology, the internet has now achieved the ultimate in continuous and systematic commerce, arguing that uninterrupted availability to Illinois web surfers is enough to grant this court general jurisdiction over defendants. We do not agree. Plaintiff also argues that we have specific jurisdiction over each defendant. Such jurisdiction arises if the defendants have purposefully directed their activities at Illinois residents and the litigation results from injuries arising as a result of those activities. Issue

Rule

Does the forum state have personal jurisdiction over a DEF who simply maintains a website and doesnt specifically target that forum? No. The mere maintenance of an Internet website is generally not sufficient to exercise general jurisdiction

In Calder, the Supreme Court held that a California court had personal jurisdiction over Florida defendants because of the effects a libelous article had on plaintiff, a professional entertainer living and working in California. The court explained, In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation. Thus, it is clear that while the website may be interactive for California residents, it does not aim its services at Illinois residents. There was no reason for defendants to foresee that Illinois residents would access their local California website Zippo First, interactive websites whereby defendants conduct business and elicit sales are enough to grant personal jurisdiction. Second, passive websites that afford internet users no interactivity are not enough to grant personal jurisdiction. Third, interactive websites, whereby a user can exchange information with the host computer, may be sufficient to find personal jurisdiction. Specific Jurisdiction Summary of Basic Principles A DEF is subject to specific jurisdiction if the DEF has contacts with the forum state the claim arises out of those contacts and the exercise of personal jurisdiction would be fair and reasonable

All 3 requirements must be satisfied. Even if personal jurisdiction would be fair and reasonable in a particular forum, specific jurisdiction does not exist

unless the claim arises from the DEFs contacts in the forum. Similarly, contacts with the forum by themselves are not sufficient to confer specific jurisdiction unless the claim arose out of those contacts and jurisdiction is reasonable under the circumstances Reasonableness/fairness Burden to the DEF PL convenience o PL burden o Evidence, Witnesses, where PL resides Interest of the state to provide a forum Efficiency of the resolution Public policy

Other Bases For Personal Jurisdiction

Distinguishing Specific and General Jurisdiction Goodyear Dunlap Tires v. Brown Facts Respondents, North Carolina residents whose sons died in a bus accident outside Paris, France, filed a suit for wrongful-death damages in North Carolina state court. Alleging that the accident was caused by tire failure, they named as defendants Goodyear USA, an Ohio corporation, and petitioners, three Goodyear USA subsidiaries, organized and operating, respectively, in Luxembourg, Turkey, and France. Petitioners' tires are manufactured primarily for European and Asian markets and differ in size and construction from tires ordinarily sold in the United States. Petitioners are not registered to do business in North Carolina; have no place of business, employees, or bank accounts in the State; do not design, manufacture, or advertise their products in the State; and do not solicit business in the State or sell or ship tires to North Carolina customers. Even so, a small percentage of their tires were distributed in North Carolina by other Goodyear USA affiliates. The trial court denied petitioners' motion to dismiss the claims against them for want of personal jurisdiction. The North Carolina Court of Appeals affirmed, concluding that the North Carolina courts had general jurisdiction over petitioners, whose tires had reached the State through the stream of commerce. The Supreme Court, Justice Ginsburg, held that: o North Carolina courts lacked specific jurisdiction to adjudicate action, and o subsidiaries were not subject to general jurisdiction in North Carolina. Issue Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State? No. Rule

The court has General Jurisdiction over a Company if they have continuous and systematic contacts in the forum, o place of incorporation o principle place of business and o presence General jurisdiction over an individual is based on that individuals domicile

Measured against Helicopteros and Perkins, North Carolina is not a forum in which it would be permissible to subject petitioners to general jurisdiction. In the 1952 Perkins case, general jurisdiction was appropriately exercised over a Philippine corporation sued in Ohio, where the company's affairs were overseen during World War II. In Helicopteros, however, the survivors of U.S. citizens killed when a helicopter owned by a Colombian corporation crashed in Peru could not maintain wrongful-death actions against that corporation in Texas, where the company's contacts consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas enterprise]; and sending personnel to [Texas] for training. These links to Texas did not constitute the kind of continuous and systematic general business contacts ... found to exist in Perkins, and were insufficient to support the exercise of jurisdiction over a claim that neither ar[o]se out of ... no[r] related to the defendant's activities in Texas.

Subject Matter Jurisdiction + Personal Jurisdiction (Due Process-fair play/Substantial Justice) Specific jurisdiction o minimum contacts (international shoe) + stream of commerce (asahi and nicastro) Insufficient purposeful availment

Benefit by protection of law, advertising, o reasonableness + DEFs Burden PLs burden Interest in the State to hear the case o arising out of evidence test or but for test o OR General Jurisdiction o Continuous and Systematic o DEF needs to be at home in the forum state o Companies place of incorporation principle place of business and presence o Partnerships Domicile of Each Partner o Person Domicile Minimum Contacts Personally Served in Forum State o OR In rem/quasi in Rem Jurisdiction o Shaffer Minimum Contacts

In Rem and Quasi In Rem Jurisdiction A court with Personam Jurisdiction has the power to require a DEF to pay a money judgment. A court with In Rem and Quasi in Rem jurisdiction has much narrower authority the power to control and determine the ownership of specific property.

In Rem Can declare true owner of specific property relative to everyone in the world Quasi In Rem Can declare which of the LITIGANTS has the better claim to the property without determining whether the winner is the true owner relative to everyone else in the world Post-judgment Attachment garnishment Is used to collect on a judgment that the defendant refuses to pay After a judgment and DEF decides not to pay, the court can attach any assets that DEF owns in that state, bank accounts or real estate, etc. Can also garnish wages; take a portion of his paycheck PL can take judgment from that state to another state in which DEF has assets to ask that states court to enforce judgment o Any court where it has personal jurisdiction over the DEF Prejudgment attachment for Security Permits a court to attach a DEFs assets when there is a concern that DEF might dissipate those assets to prevent satisfaction of future judgment. It is done while case is pending and before judgment to prevent DEF from transferring assets to another country or third party to prevent PL from recovering Shaffer Facts v. Heitner Shaffer Director/Officer of Greyhound Heitner Shareholder A nonresident shareholder of a Delaware corporation brought a shareholder's derivative suit against present and former officers and directors of the corporation and a subsidiary, alleging that defendants had violated their duties to the corporation by causing it and its subsidiary to engage in actions that resulted in the

Issue

corporations' being held liable for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously, plaintiff (Heitner) filed a motion for sequestration of the Delaware property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants, and various corporate rights of the defendants. o The only way to contest the sequestration is to make a general jurisdiction. When you enter general jurisdiction, you waived personal jurisdiction. After the sequestration order was issued, defendants entered a special appearance to quash service of process and vacate the sequestration order, contending that the ex parte sequestration procedures did not accord them due process. The Court of Chancery, New Castle County, rejected such arguments, and the Supreme Court of Delaware, affirmed that judgment. On appeal, the Supreme Court, Mr. Justice Marshall, held that Delaware's assertion of jurisdiction over defendants, based solely on the statutory presence of their property in Delaware, violated the due process clause of the United States Constitution. Reversed. NO JURISDICTION In order for the forum state to exercise in rem jurisdiction on a nonresident, must the nonresident have minimum contacts with the forum state such that the defendant has purposefully availed itself of the benefits of that states laws? If so, must the cause of action be sufficiently related to the contacts the nonresident has with the forum state?

Rule Having property in a state does not give the state jurisdiction over causes of action unrelated to the property unless the person also passes the minimum contacts test articulated in the International Shoe decision. When property interest is being affected, the courts require due process Min. contacts with DEF in the forum state They were served by certified mail and publication Personal Jurisdiction o Personally served o Minimum contacts o Reside Transient Presence Jurisdiction Burnham v. Superior Court: Process of Service in state is still good against an individual Facts During a trip to California to conduct business and visit his children, petitioner Burnham, a New Jersey resident, was served with a California court summons and his estranged wife's divorce petition. The California Superior Court denied his motion to quash the service of process, and the State Court of Appeal denied mandamus relief, rejecting his contention that the Due Process Clause of the Fourteenth Amendment prohibited California courts from asserting jurisdiction over him because he lacked minimum contacts with the State. The latter court held it to be a valid predicate for in personam jurisdiction that he was personally served while present in the forum State. Held: The judgment is affirmed. Can a state gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, if his purpose for being in the state is unrelated to the matter before the court?

Issue

 Rule

Yes. A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court.

Justice SCALIA, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY, concluded in Parts II-A, II-B, and II-C that the Due Process Clause does not deny a State's courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State. (a) To determine whether the assertion of personal jurisdiction is consistent with due process, this Court has long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. The classic expression of that criterion appeared in International Shoe which held that a state court's assertion of personal jurisdiction must not violate traditional notions of fair play and substantial justice. (b) A formidable body of precedent, stretching from common-law antecedents through decisions at or near the crucial time of the Fourteenth Amendment's adoption to many recent cases, reflects the near-unanimous view that service of process confers state-court jurisdiction over a physically present nonresident, regardless of whether he was only briefly in the State or whether the cause of action is related to his activities there. Justice SCALIA, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded in Parts II-D and III that: 1. Shaffer which applied the jurisdictional rules developed under International Shoe to invalidate a Delaware court's assertion of quasi in rem jurisdiction over absent defendants whose sole contact with the State (ownership of property) was unrelated to the suit-does not support Burnham's position. When read in context, Shaffer's statement that all assertions of state-court

jurisdiction must be evaluated according to the International Shoe standards, means only that quasi in rem jurisdiction, like other forms of in personam jurisdiction over absent defendants, must satisfy the litigation-relatedness requirement. Nothing in Shaffer compels the conclusion that physically present defendants must be treated identically to absent ones or expands the minimum-contacts requirement beyond situations involving the latter persons. 2. The proposal of Justice BRENNAN's concurrence to apply contemporary notions of due process to the constitutional analysis constitutes an outright break with the International Shoe standard and, without authority, seeks to measure state-court jurisdiction not only against traditional doctrines and current practice, but also against each Justice's subjective assessment of what is fair and just. In effect, the proposed standard amounts to a totality of the circumstances test, guaranteeing uncertainty and unnecessary litigation over the preliminary issue of the forum's competence. Pp. 2117-2119.

Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR, although agreeing that the traditional transient jurisdiction rule is generally valid, concluded that historical pedigree, although important, is not the only factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-state service rule must be undertaken. (a) Reliance solely on historical precedent is foreclosed by International Shoe and Shaffer, which demonstrate that all rules of state-court jurisdiction, even ancient ones such as transient jurisdiction, must satisfy contemporary notions of due process. Minimum-contacts analysis represents a far more sensible construct for the exercise of state-court jurisdiction. (b) The transient jurisdiction rule will generally satisfy due process requirements. Tradition, although alone not dispositive, is relevant because the fact that American courts have announced the rule since the latter part of the 19th century provides a defendant

voluntarily present in a particular State today with clear notice that he is subject to suit in that forum. Thus, the rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process. Moreover, by visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State: police, fire, and emergency services, the freedom to travel its roads and waterways, the enjoyment of the fruits of its economy, the protection of its laws, and the right of access to its courts. Without transient jurisdiction, the latter right would create an asymmetry, since a transient would have the full benefit of the power of the State's courts as a plaintiff while retaining immunity from their authority as a defendant. Furthermore, the potential burdens on a transient defendant are slight in light of modern transportation and communications methods, and any burdens that do arise can be ameliorated by a variety of procedural devices. Justice STEVENS concluded that the historical evidence, a persisting consensus, considerations of fairness, and common sense all indicate that the judgment should be affirmed. What about a corporation? James Dickinson v. Harry o Held that jurisdiction over a corporation of one state cannot be acquired in another state or district in which it has no place of business and is not found, merely by serving process upon an executive officer temporarily therein, even if he is there on business of the company. Partnerships? First American v. Price Waterhouse o Held that it is constitutionally permissible for a court to have personal jurisdiction over a partnership if one of the partners is served within the forum state Cases consistently reject transient presence jurisdiction when the DEF is coaxed into a state by fraud or duress

Consent Consent to Personal Jurisdiction DEF can affirmatively not raise the issue By their conduct o If PL files, he is consenting to any counterclaims that DEF might allege Consent prior to litigation o Ex. Forum selection clause in a contract Waiver

Similar to consent, but usually involves a partys failure to raise an issue within a specified time or in a proper manner o FRCP 12 g-h states the procedures DEF must follow to avoid waiving a personal jurisdiction defense

Summary Alternatives to specific jurisdiction General jurisdiction o Allows a PL to sue the DEF generally for any claims that the PL might have, no matter where they arose, but ONLY if the DEF had continuous and systematic contacts with the state A company usually has continuous and systematic contacts in states where it has principal place of business and place of incorporation. It may also have continuous and systematic contacts in other states, such as where it has an office with employees o An individual is subject to a form of general in the state where she is domiciled Domicile In rem/quasi in rem jurisdiction Transient presence Consent Waiver

In Rem and Quasi in rem jurisdiction are now analyzed usuing minimum contacts formula of International Shoe An individual is usually subject to personal jurisdiction in any state where she is served personally while physically present in that forum, assuming she is in the forum voluntarily

Subject Matter Jurisdiction + due process

Personal Jurisdiction: Long Arm Statutes

The Due Process Clause in only a LIMIT on a courts power, NOT and Authorization to exerciser that power A courts authority to exercise personal jurisdiction is usually granted in Long Arm Statutes o Controlled by the Constitution Bensusan Restaurant v. King Facts o DEF owned a restaurant in Missouri with the same name as a restaurant in NY(PL). The PL, had the trademark to the name and asked the DEF to cease from using the name. o The DEF created a website that stated not to confuse it with the PLs restaurant in NY. PL saw the site and sued in NY fed court alleging trademark infringements. o Trial Court found that the NY statute did not authorize jurisdiction for the NY courts and found for the DEF. o PL appealed and the Circuit court affirmed.

The statute limited the courts power over DEFs to only when a tortious act is committed within the state. In this case, the DEF was not physically in NY and thus not subject to jurisdiction in NY courts. In this case, the NY statute limited the courts power to exercise jurisdiction over a non resident. The Federal District Court applied a NY State long arm statute Long Arm Provisions in Federal Courts The federal courts are controlled by the 5th Amendment Due Process Clause For a state court, a DEF must have the requisite contacts within the state. A FEDERAL court, in contrast, can probably exercise personal jurisdiction if a DEF has the requisite contact anywhere in the entire US.

o For example, according to this reasoning, it would be constitutional for an Oregon court to have personal jurisdiction over a Florida DEF in a federal question case, even if the DEF never had any contacts in Oregon The reasoning they FEDERAL courts do not exercise this power is that the 5th amendment, like the 14th, does not automatically confer on a court the power to exercise personal jurisdiction. Typically, a long arm provision must confer that authority. FRCP 4(k) o (1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a DEF: (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; (B) who is a party joined under rule 14 (third party claim) or 19 (for necessary and indispensable parties) and is served within a judicial district of the US and not more than 100 miles from where the summons was issued (C) when authorized by a federal statute o (2) Federal Claim Outside the State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a DEF if: (A) the DEF is not subject to jurisdiction in any states courts of general jurisdiction (B) exercising jurisdiction is consistent with the US constitution and laws US Constitution Amendment V o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; o nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;

o nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; o nor shall private property be taken for public use, without just compensation. US Constitution Amendment XIV, Section 1 o All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. o No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; o nor shall any State deprive any person of life, liberty, or property, without due process of law; o nor deny to any person within its jurisdiction the equal protection of the laws. A court can usually exercise personal only if: o A long arm provision authorizes it and o Personal jurisdiction is constitutional o One possible exception is the tag jurisdiction

The Constitutional Requirement of Notice and Methods of Service of Process

Service of Process fulfills 2 functions o It formally asserts the courts authority over the DEF and o It informs her of the case so she can prepare to defend it.

Mullane v. Central Hanover Bank Facts o Appellee, Central Hanover Bank & Trust, set up common fund pursuant to a New York statute allowing the creation of common funds for distribution of judicial settlement trusts. There were 113 participating trusts. Appellee petitioned for settlement of its first account as common trustee. Some of the beneficiaries were not residents of New York. o Notice was by publication for four weeks in a local newspaper. o Appellee had notified those people by mail that were of full age and sound mind who would be entitled to share in the principal if the interest they held became distributable. o Appellant was appointed as special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund. Appellee was appointed to represent those interested in the principal. Appellant appeared specially, objecting that notice by publication, permitted under the applicable statute was inadequate to afford the beneficiaries due process under the Fourteenth Amendment and that therefore jurisdiction was lacking. o Bank argued that because trust assets themselves were before the court, the action was in rem rather than in personam Issue o Is notice given to out of state parties by publication in a newspaper, when the parties addresses were known, constitutional in light of the Due Process Clause of the Fourteenth Amendment? o No. Rule o We hold the notice of judicial settlement of accounts required by the New York Banking Law s 100-c(12) is incompatible with the requirements of the Fourteenth Amendment as a basis for

adjudication depriving known persons whose whereabouts are also known of substantial property rights. Reasoning o This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. o Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. o We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the name of due process.

o Accordingly we overrule appellant's constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. Notice must be Reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections Must reasonably convey the required information, and It must afford a reasonable time for those interested to make their appearance FRCP 4e2b

Allows service by leaving the summons and complaint (if the DEF is a person) at the dwelling house with a person of suitable age and discretion residing therein. o However, some states allow service of process by leaving copies of the summons and complaint at the DEFs last and usual place of adobe without the additional requirement of leaving them with a person residing there.

Review Subject matter Jurisdiction (Type of case) + Statute + o Section 1331 Constitutional o Article 3 section 2 Personal Jurisdiction (Authority over DEF) + Statute + o Long Arm o Tag Constitutional (Due Process) o Specific o Tag o General Notice Statute + Constitutional (Due Process)

Notice
Personal jurisdiction (waivable) Specific Jurisdiction & General Jurisdiction & Notice o When 120 days within filing the complaint o How Person

Look at state Hand delivery Leaving it at the dwelling with someone of suitable age (look at case law for age) Partnership Corporation

How much time do you have to serve someone? 120 days after filing your complaint. o Once you file, the statute of limitation begins If you miss the 120 days, then you can: o File a new complaint The statute of limitation might run on the case o File for an extension Must have a good cause Is discretionary If the court denies the extension then you must re file Hukill v. Oklahoma The relevant facts are not in dispute. Ms. Hukill worked for Spirits of Hope as a grant writer and staff attorney until her employment was terminated in December 2004. Following her termination, she filed a lawsuit in Oklahoma state court against Spirits of Hope, Ms. Musgrove, and other defendants. Ms. Hukill voluntarily dismissed her state-law action in October 2006 and filed this federal-court action against the same defendants two months later. Before attempting to serve Spirits of Hope and Ms. Musgrove with the federal summons and complaint, Ms. Hukill's counsel contacted the lawyer who represented them in the state-court action to inquire whether he would accept service on behalf of his clients. Their lawyer responded that his clients would not authorize him to do so. Ms. Hukill elected to serve Spirits of Hope and Ms. Musgrove by following state law, see Fed.R.Civ.P. 4(e)(1) and 4(h)(1)(A), pursuant to an Oklahoma statute which provides that [s]ervice by mail shall be accomplished by mailing a copy of the summons and

petition by certified mail, return receipt requested and delivery restricted to the addressee. Okla. Stat. tit. 12, 2004(C)(2)(b). o Ms. Hukill mailed both summonses to the Spirits of Hope business address. One summons was addressed to Pauline Musgrove c/o Spirits of Hope Coalition and was marked for restricted delivery. Aplt.App. at 76. The other summons was addressed to Spirits of Hope Coalition c/o Pauline Musgrove and was not marked for restricted delivery. Id.at 74. At the time of these mailings, Ms. Musgrove was the executive director of Spirits of Hope and its registered agent for service of process, but she did not sign for either delivery. o The same person, L. Vollintine, signed both return receipts.See id. at 74, 76. At that time, L. Vollintine was not an employee, officer, board member, or director of, or an agent authorized to receive service of process on behalf of, Spirits of Hope. None of the other defendants who were served by plaintiff were employees, officers, or directors of, or agents authorized to accept service of process for, Spirits of Hope at the time Ms. Hukill filed her complaint or effected service upon them. See id. at 71. After the defendants failed to respond to the complaint, Ms. Hukill moved for default judgment, indicating that Spirits of Hope and Ms. Musgrove had each been served by certified mail. The district court granted the motion and entered judgment against Spirits of Hope, Ms. Musgrove, and the other defaulting defendants, jointly and severally, for more than $100,000. Less than a month later, Spirits of Hope and Ms. Musgrove filed a motion to set aside the default judgment against them under Fed.R.Civ.P. 55(c) and 60(b), contending that the judgment was void because they were never properly served. They did not allege in their motion that they had not ultimately received the summons and complaint or that they were unaware of the lawsuit. They argued that, under Oklahoma law, statutes prescribing the manner of service must be strictly

complied with. Ms. Hukill opposed the motion, asserting that only substantial compliance with the Oklahoma statute was required. The district court denied defendants' motion to vacate the default judgment, holding that substantial compliance is the proper standard under Oklahoma law. The court focused on the mailing addressed to Ms. Musgrove, which was marked for restricted delivery, as required by the statute. Acknowledging that the post office did not enforce the delivery restriction when it permitted L. Vollintine to accept the mailing and sign the return receipt, the court reasoned that Ms. Hukill substantially complied with the statute. o It emphasized defendants' failure to assert that they did not receive the summons and complaint, as well as the evidence that they were aware of the pendency of the lawsuit based on their refusal to allow their counsel to accept service. The district court concluded that service upon Ms. Musgrove individually, and as an officer and service agent for Spirits of Hope, was valid under Oklahoma law because [m]ore than a reasonable probability exists that defendants had actual notice of the civil action. Aplt.App. at 104. Ms. Musgrove and Spirits of Hope filed a timely appeal of the district court's ruling. Because the service in this case, attempted under Oklahoma law, did not substantially comply with the law of that state, the district court did not have personal jurisdiction over Ms. Musgrove and Spirits of Hope. Therefore, the district court erred in denying defendants' motion to set aside the default judgment under Fed.R.Civ.P. 60(b)(4). We REVERSE the district court's judgment and REMAND with directions to vacate the default judgment entered against these defendants.

Rule 4. Summons

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by: o (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or o (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Rule 4. Summons (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: o (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

60 (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void;

VENUE
Venue Requirements is to ensure conveniently located o convenience for everyone. and some connection to the lawsuit

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Distinguishing Venue, SMJ, and PJ Constitution doesnt restrict a PLs choice of venue Venue is about convenience o Courts Examine PLs, witnesses, and the Courts connection to the case Venue asks whether a particular court within a state is a convenient location for the suit There is no constitutional component with venue. Only a statutory requirement.

Federal Venue Statute

28 USC 1391 o (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. (fallback provisions) o (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. TAG (fallback provisions)

The meaning of Resident Under Subsection (1) o A person is a resident in the same way as the courts interpret citizen A person resides in the last district where she moved with the intent to remain indefinitely o A corporation resides In every federal district where it would be subject to personal jurisdiction (general or specific jurisdiction) if that district were its own state o Non Corporate entities Just like a corporation The meaning of Substantial Part Under Subsection (2) Uffner v. La Reunion Francaise Facts o DEF1 has its principal place of business in Paris, France. DEF2 (T.L. Dallas) is based in Bradford, England. DEF3 (Schaffer) is located in the State of Georgia. o Uffner was one mile off the coast of Puerto Rico, when a fire broke out in the engine room, forcing Uffner to abandon the vessel. The yacht subsequently sank in the same location. Shortly thereafter, Uffner contacted his insurance broker, International Marine Insurance Services (IMIS) to file a claim for the loss of the boat. After a series of written communications and telephone calls between IMIS and appellees, the claim was denied due to the alleged absence of a current out-of-water survey.

o Uffner filed this suit on June 12, 1998, claiming damages for a badfaith denial of an insurance claim. DEFs filed motions to dismiss based on lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and improper venue. Uffner timely opposed all motions. o The district court dismissed Uffner's complaint without prejudice, concluding that the court lacked personal jurisdiction over appellees and that venue did not lie in Puerto Rico. o The district court dismissed appellant's complaint on two grounds. the court concluded that pursuant to the provisions of the Puerto Rico Long-Arm statute, appellees lacked sufficient minimum contacts with the forum to be subject to personal jurisdiction therein. In addition, the court determined that the suit involved a contract claim unrelated to the District of Puerto Rico, making it an improper forum for litigation. Personal Jurisdiction Once a party has waived its defense of lack of personal jurisdiction, the court may not, sua sponte, raise the issue in its ruling on a motion to dismiss. Since the court was not at liberty to nullify appellees' consent, we conclude that the district court erred in dismissing the complaint for lack of personal jurisdiction. Venue

We conclude that, in a suit against an insurance company to recover for losses resulting from a vessel casualty, the jurisdiction where that loss occurred is substantial for venue purposes. First, appellees have not alleged-either below or on appeal-that continuing the suit in the district of Puerto Rico would confer a tactical advantage to appellant or prejudice their own case in any way.

Finally, appellees conceded at oral argument that they would not object to litigating in the Virgin Islands, suggesting that traveling to the Caribbean would not be unduly burdensome. We therefore hold that venue properly lies in the district of Puerto Rico.

28 USC 1402 Any civil action on a tort claim against the United States may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. 28 USC 1400 (a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found. (b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 42 USC 2000 o Governing employment discrimination cases o Specialized venue statute, exclusive meaning that it replaces the general venue provisions of 1391.

Subject matter + Personal Jurisdiction + Venue o SMJ (Not waivable) o PJ (Waivable) Spec. J General J TAG + Notice

4/19/13 12:15 PM Review Subject matter (non-waivable, cannot consent) Court can raise the issue sua sponte Personal Jurisdiction (waivable, can consent) Court cannot raise sua sponte Venue (waivable, can consent) Court cannot raise sua sponte 1391 how to determine venue 1404 Proper Venue Transfer to more convenient 1406 Improper Venue Transfer or Dismiss FRCP 12(b)(3) Allows the court to grant motion to dismiss if filed in wrong venue 28 USC 1406 (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 28 USC 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Forum Non Conveniens a common law doctrine Even though in proper venue, the court retains power to dismiss a case because of inconvenience *A state court judge only has authority to transfer cases within the same court system* Cant transfer to another state or federal court Transfer can only occur where it could have be brought originally

*A federal district judge can transfer a case to another district, even in another state* But has no authority to transfer it to a state court Transfer can only occur where it could have be brought originally Only if the court could have exercised personal and subject matter without the need of a waiver MacMunn v. Eli Lilly Co.: Example of 1404 Proper venue but favors transfer to a different federal district court in another state The defendant, Eli Lilly & Co., argues that both private and public interests favor transfer primarily because the case has little if any ties to this District. The plaintiffs, Judith MacMunn and her husband Michael MacMunn, oppose transfer citing numerous cases involving the same defendant and subject matter that have been resolved in this District. Because the contacts relevant to this dispute are overwhelmingly focused in Massachusetts and because this case is still in its nascent stages, the court grants the defendant's motion to transfer. Plaintiff Judith MacMunn alleges that her mother ingested Diethylstilbestrol (DES) while pregnant with her in 1962. The exposure to DES in utero purportedly resulted in uterine and cervical malformations, infertility, physical and mental pain and medical expenses and treatment. On September 14, 2007, the plaintiff and her husband, Michael MacMunn filed a 7-count complaint in D.C. Superior Court, claiming negligence, strict liability, breach of warranty, misrepresentation and loss of consortium. Collectively, the plaintiffs seek 3 million dollars in compensatory damages and 3 million dollars in punitive damages. On November 2, 2007, the defendant removed the case to this court based on diversity of citizenship. On January 8, 2008, the parties appeared before Magistrate Judge Kay for an initial status hearing, at which time the court set dates to govern discovery, which closes on September 22, 2008. Four months after the initial status conference, the defendant filed a motion to transfer this case to the District of Massachusetts. The plaintiffs have filed a response and the defendant a reply. The court now turns to this motion.

Reasoning Accordingly, the defendant must make two showings to justify transfer. First, the defendant must establish that the plaintiff originally could have brought the action in the proposed transferee district. Second, the defendant must demonstrate that considerations of convenience and the interest of justice weigh in favor of transfer to that district. 1404 The private-interest considerations include: (1) the plaintiff's choice of forum, unless the balance of convenience is strongly in favor of the defendants; (2) the defendant's choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof. The public-interest considerations include: (1) the transferee's familiarity with the governing laws; (2) the relative congestion of the calendars of the potential transferee and transferor courts; and (3) the local interest in deciding local controversies at home. Forum Non Conveniens Piper Aircraft Company v. Reyno Section I A. In July 1976, a small commercial aircraft crashed in Scotland. The pilot and 5 passengers (all Scottish) were killed instantly. There were no eyewitnesses to the accident. At the time of the crash the plane was subject to Scottish air traffic control. The British Department of Trade investigated the accident. A preliminary suggested that mechanical failure in the plane or the propeller was responsible. Hartzells Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his pilot's license only three months

earlier, was flying over high ground at an altitude considerably lower than the minimum height. Section I B. In May 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October 1979. The court reasoned that Private Interests was pointing to Scotland as the better forum: the decedents are from there, the evidence is there; the only reason why REYNO wants to be in US is for tactical considerations. Public Interests also pointed towards Scotland because US court would apply Scottish law, jury would be confused, Cts. will have to rely on experts, COSTLY, Time consuming, and a Burden to citizens of PA. Section I C. Ct. of App. reversed saying that the Dist. Ct. abused is discretion and that the alternative forum is LESS favorable to PL. The Ct. of App. rejected both private and public reasoning by the Dist. Ct. Section II The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. If the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. In these cases, however, the remedies that would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly. Section III Agreed with Dist. Cts. reasoning on both Private and Public interest

Section IV The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground offorum non conveniens. It also erred in rejecting the District Court's Gilbert analysis.

Determine if case is diversity if diverse, 1391(a) if other than diversity, 1391(b) Apply 1391(a)(1)(2) or fallback (3) Apply 1391(b)(1)(2) or fallback (3) If venue is NOT PROPER then apply 1406 (transfer or dismiss) If any possible proper venue is in the same system, Then transfer If alternative forum is outside the system, Then dismiss (Rule 12(b)(3)) If venue is PROPER then apply 1404 (transfer) & Forum Non Conveniens (dismissal) Consider private and public interests