CivPro I Outline

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					Civil Procedure An Overview: 1) Personal Jurisdiction a) Three Prong Test: i) Minimum Contacts & Purposeful Availment ii) Notions of Fair Play and Substantial Justice b) Traditional Bases For Personal Jurisdiction i) Transient Jurisdiction - “The Gotcha Rule” ii) Residence iii) Consent (1) Express Consent (2) Implied Consent – “a legal fiction” (3) Consent by Waiver/Default (not showing up to court, waiving your objection) (4) Forum Selection Clauses iv) Corporate Presence v) Agency c) Long Arm Statutes i) Stream Of Commerce cases d) Jurisdiction over property (In Rem & Quasi In Rem actions) 2) Subject Matter Jurisdiction a) Federal Question b) Diversity i) Exceptions to the “Total Diversity” Requirement c) Alienage i) An explanation of Domicile d) Supplemental Jurisdiction (Pendant, Pendant Party, Ancillary) e) Removal Jurisdiction 3) Notice and Service of Process a) A review of the applicable F.R.C.P. 4) Challenges to Jurisdiction a) Challenges to Personal Jurisdiction b) Challenges to Subject Matter Jurisdiction 5) Venue a) Venue, Generally b) Forum Non Conveniens c) Transfer of Venue 6) The Erie Doctrine – An introduction to Choice of Law

1) Personal Jurisdiction The 5th & 14th Amendments cover Due Process, respective to Federal and State courts. The test for personal jurisdiction is the test for Due Process; if it fails, it is unconstitutional, and as such the court cannot hear the case.  Two Prong Test:  Minimum Contacts & Purposeful Availment Minimum Contacts  The plaintiff has the burden of proving that the case meets these standards.  International Shoe – To sue a nonresident defendant, you must demonstrate that 1) D had substantial contacts within the Forum State, 2) The nature and quality of the defendant’s contacts should subject him to suit in the Forum state because he availed himself of the Forum’s benefits and protection, and 3) The cause of action arises directly from D’s contacts.
INTERNATIONAL SHOE “Specific Jurisdiction” MCGEE v. INT'L LIFE “Specific Jurisdiction” PERKINS v. BENGUET "General Jurisdiction" Systematic and Continuous Unrelated Cause of Action Maybe! Single Contact Un-Related NO NO No Contact

Systematic and Continuous Single Contact Contact Related Cause of Action YES - Jurisdiction! Related Almost Always

 

Specific Jurisdiction: when the cause of action relates either to a single incident, or even to “systematic and continuous activity” General Jurisdiction: when the D’s actions in the Forum State are so voluminous and of such nature that it would never be unfair or inconvenient to sue D in the Forum State, no matter the relation (or lack thereof) to the cause of action. o Example: Perkins v. Benguet (for General Jurisdiction), Helicol (against General Jurisdiction). o Note: Probably best to avoid citing Helicol, since Cannon hinted that he did not agree with the decision that there was not General Jurisdiction over Helicol.

Purposeful Availment  D’s actions cannot be random or accidental. The non-resident defendant must purposefully avail himself of the Forum State’s benefits and protections.  This adds to the Foreseeability Test: By purposefully availing himself of the Forum, was it reasonably foreseeable to the defendant that he could be sued there? Or did this lawsuit appear out of thin air?  Hansen v. Denckla: A DE company engaged in business with a PA resident, who subsequently moved to FL. When she died, her heirs sued the Trust Company in FL for the trust’s assets. o HOLDING: FL lacked jurisdiction because the DE trust company had not purposefully done business in FL. Since the lady in FL contacts the company in DE (and not vice-versa), the DE company was not responsible to the FL courts.  Worldwide Volkswagen v. Woodsen: NY Car dealership sold a car to a NY resident, who then got into an accident in OK. Car exploded; P tried to sue D in OK for damages. o HOLDING: No Jurisdiction, because WWVW did not purposefully avail themselves of the OK market (they did not intentionally place their goods into Oklahoma)  Tests for Purposeful Availment: o Did D intend to sell products in the Forum State? o Did D design products specifically for the Forum? o Did D advertise in the Forum? a) Cases Involving the “Stream of Commerce” o Simply making a good and putting it out into the world may not be enough to “purposefully avail” yourself of the market it enters. – See Worldwide Volkswagen (rationale above) o Asahi Metal – plurality decision, most districts refer to WWVW  J. O’Connor: Simply putting goods into the stream of commerce is never enough. You must intend for the goods to end up there.  J. Brennan: You get the profits from the sale of goods. You enjoy the benfits and protections of the Forum state. That is enough.  The Stream stops wherever the good is bought by the consumer; he cannot take it into another forum and sue you there. See Worldwide Volkswagen.

 Notions of Fair Play and Substantial Justice Note: Do not consider if the first prong is not met.  The defendant can argue that notions of “Fair Play and Substantial Justice” require that the Forum lacks Jurisdiction (Burger King) Considerations include: o Burden on D to litigate in the Forum; Burden on D’s witnesses to travel to the Forum; Burden of moving evidence to Forum o Forum state’s interest in adjudicating o Shared interests of Forums to further social policy, and obtaining an efficient solution o If these factors weigh heavily, the court may be willing to allow another Forum to adjudicate – but the argument must be extremely compelling o Asahi Metal: In a plurality decision, the lead opinion of the court mentions that there is a strong disfavor toward adjudicating a case in CA between a Taiwanese corporation and a Japanese corporation, when CA had no special interest in hearing the case.  Traditional Bases For Personal Jurisdiction  Transient Jurisdiction - “The Gotcha Rule”  Burnham v. Superior Court: Tradition is the deciding factor.  Residence  If D lives in the Forum, D is subject to lawsuit in the Forum.  Consent a) Express Consent o D can choose to submit to jurisdiction of Forum b) Implied Consent – Brennan calls it a “a legal fiction” o Hess v. Pulawski: States started to enact laws to capture nonresident defendants for acts committed within the Forum. Here, Pulawski got into a car accident in MA. Any nonresident that drove in MA automatically appointed the head of the DMV as his agent for notice and service of process. o Implied Consent is used today for foreign corporations wishing to do business in the U.S. They must appoint an agent, or one is automatically appointed (generally a gov’t official)  That agent may be served with any suit, regardless of its relation to the company’s actions with the forum.

c) Consent by Waiver/Default (not showing up to court) o Failure to appear before the court will result in a default action against D. (Pennoyer v. Neff) d) Forum Selection Clauses o Used by corporations to protect their interest; essentially forces P to consent in advance to litigation in the Forum State. o Examples:  Burger King v. Rudziwicz  M/S Bremen  Carnvial Cruise Lines  Corporate Presence  If a corporation is a citizen of the forum state (generally, if they are incorporated in the forum state) they will be subject to suit there.  Agency  D may appoint an agent in the Forum to handle all notice and service of process. This is essentially “Express Consent” (see above).  Long Arm Statutes  Long-Arm Statutes allow States to serve process on non-resident defendants.  A long arm statute must fit within the confines of Due Process! o CA’s L.A.S.: Anything within the confines of Due Process o IL’s L.A.S.: More specific, notes appropriate situations
L.A.S., in accordance with Due Process

Constitutional Scope of Jurisdiction

Elements of the L.A.S. that go beyond Due Process - not constitutional, will not be honored by the court.



Gray v. American Radiator: The IL long-arm statute allowed for service of process on a non-resident defendant when an act by the defendant caused injury within Illinois. Worldwide Volkswagen: The OK long-arm statute allowed for service of process on the non-resident NY car dealership, but SCOTUS ruled that the long-arm statute went beyond the limits of Due Process.


Jurisdiction over property (In Rem & Quasi In Rem actions)  In Rem  Shaffer v. Heitner: In Rem Jurisdiction is a specialized form of In Personam Jurisdiction – it adjudicates D’s interest in a property  These cases are subject to the Int’l Shoe minimum contacts test  If you sue for $1,000,000 in NY where D has only $500,000 in property, can cannot ask for Full Faith & Credit elsewhere. You are only entitled to the specific property within the state that you attached at the commencement of your lawsuit. o That being said, today you would treat it as an in personam action, take the property in NY, and ask for Full Faith and Credit wherever else D had assets.  When does the presence of property, by itself, warrant jurisdiction? o A: When the cause of action is directly related to the property. 1) If there was injury on the land. 2) Where the litigation is over interest in that property (IE, quiet title or ejection). The common link: the cause of action is directly related to the property.  Quasi in Rem  A quasi in rem action is commonly used when jurisdiction over the defendant is
unobtainable due to her absence from the state. Any judgment will affect only the property seized.


Of note, in a quasi in rem case the court may lack personal jurisdiction, but has jurisdiction over the defendant's property. The property could be seized to obtain a claim against the defendant. A judgment based on quasi in rem jurisdiction generally affects rights to the property only between the persons involved and does not "bind the entire world" as does a judgment based on "jurisdiction in rem".

2) Subject Matter Jurisdiction – For Federal Courts, comes from Article III of the Constitution  Federal Question – 28 USC 1331  P may bring suit in federal court whenever it concerns federal law - “the constitution, treaties, or laws of the United States.” No minimum $$. o A Well Pleaded Complaint – Lousiville & Nashville RR v. Motley. You can’t make a case a Federal Question case by anticipating a defense. o NOTE: When SCOTUS determined that it lacked Subject Matter Jurisdiction (and all the lower courts lacked it as well) it remanded the case to State Court. A court can & must immediately dismiss a case for lack of subject matter jurisdiction. F.R.C.P. 12(h)(3)


Diversity – 28 USC 1332  Diversity Jurisdiction exists when P is from one state and D is from another state.  If there are multiple Plaintiffs and/or multiple defendants, there must be TOTAL DIVERSITY. If any one P is from the same state as any one D, it defeats Diversity Jurisdiction and the case must be tried in the state court system.  No te: The Amount in controversy must exceed $75,000. This means that the absolute minimum one can sue for is $75,000.01.  Diversity Jurisdiction was meant to protect D from bias in another state’s courts.  Modern Arguments against Diversity Jurisdiction: o ~ 25% of all Federal cases are diversity cases o Requires Federal judges to interpret state law and ‘guess’ what a state judge would do with the same case. o As such, takes power and autonomy away from the state courts o Effectively retards the development of state law  Exceptions to “Total Diversity” (a.k.a. “Minimal Diversity”) - Both are intended to keep down the costs of litigation and promote uniformity across decisions: a) Multi-Forum / Multi-Party Trial Jurisdiction Act of 2002  Designed to handle large scale, catastrophic accident cases b) Class Action Fairness Act of 2006  Designed to handle cases with many litigants  “The McSparran Cases” – If an agent is appointed for either party, the Court considers the agent’s citizenship to be that of the party she represents. Stella McSparran was a PA paralegal who lived in NJ, so her boss would appoint her as an agent to create Diversity Jurisdiction where it wouldn’t otherwise exist. o 28 USC 1359 - “Parties Collusively Joined Or Made”: It is illegal to create diversity jurisdiction where it wouldn’t naturally exist.  Determining Citizenship for Diversity Purposes: o People are citizens in whatever state they are domiciled Milliken v. Myers o Corporations have dual citizenship: 1. The state where they are incorporated 2. The state where their HQ is (“Nerve Center Test”), or The state where the bulk of activity is carried out (“The Corporate Activities Test”) o Unincorporated associations (fraternities, unions) are citizens of every state where one of their members lives.


Alienage Jurisdiction – 28 USC 1332 (granted by Article III, Section 2)  Under § 1332, an alien living in the U.S. is considered a citizen of whatever state he is domiciled in. See: Perry v. Mas, where the Perry (a Frenchman) and his wife (a citizen of AR) sued their landlord [LA] in Federal Court. While Mr. and Mrs. Mas were living in LA while they went to school, his domicile was undetermined; her domicile was still in AR, her home state. a) “Home is where the heart is.” b) Domicile is where you intend to return after a trip… c) Domicile is where you intend to stay for an indefinite period d) Domicile is not where you live temporarily (ie, college). e) US citizens domiciled abroad cannot be sued (essentially) Supplemental Jurisdiction – 28 USC 1367  § 1367 codified Owens and Kroger while reversing Finley.  While § 1367 now wraps everything up under the heading of Supplemental Jurisdiction, it’s good to recognize the different kids:  Pendant Jurisdiction (Gibbs v. United Mine Workers)  Gibbs sued the UMW in Federal Court under Federal Question Jurisdiction, raising both federal and state claims.  The Court allowed it, because the claims arose “from a common nucleus of operative fact.” Allowing both claims to be heard as one case promoted judicial economy.  Note: While § 1367 gives Federal Courts the power to hear the case, there are situations where they might dismiss. o P brings a case with a federal claim and a state claim. Court dismisses the federal claim, which leaves only the state claim. They dismiss the state claim, feeling that by itself it is best left to the State Courts to handle.  Ancillary Jurisdiction (OPPD impleads against Owen, in Kroger)  When P legitimately sues D in a Federal Court – for whatever reason – P is not responsible for any 3rd Party claims brought by D. These may include, but are likely not limited to: o Counterclaim against P (P’s claim if Fed Q, D’s CC may not be) o D impleads against a 3rd Party Defendant (lacks Diversity)  Under § 1367, P is not held liable for claims that D chooses to bring.  The court allows these “Ancillary Claims” because it promotes fairness and judicial economy.


 Pendant Party Jurisdiction (Finley v. US & CA)  Finley properly brought a case against the U.S. in Federal court; she tried to tie her state claim against CA to the same case.  Plaintiff cannot file a claim against a 3rd Party defendant who she would normally not be able to sue under Diversity (28 1367(b)).  Removal Jurisdiction – 28 USC 1446  Justification: Protects D from bias (that’s why a resident defendant can’t remove a case on the basis of Diversity – see below, 1441(b).  All Ds must agree to remove unanimously! Otherwise, no-go.  If in any state case the Federal Courts would have had “original jurisdiction”, the Defendant can remove the case from state court to district court that rules over the area where it was originally filed. 28 USC 1441(a). Thus, while defendants can to some degree control where their case is heard, they cannot choose the Federal Court that hears the case. o Exception – 28 USC 1441(b): A defendant, sued in his home state, cannot remove a case on the basis of Diversity Jurisdiction; it must stay in the State court. UNLESS it is a Civil Rights action, in which case it’s ok. o 28 USC 1441(c): Allows defendants to remove cases under Federal Question Jurisdiction, even if they are tied to a non-removable case. o Exception – 28 USC 1445: You can’t remove actions against RR under Federal Employee’s Liability Act  1446(b): If D wishes to have the case removed to a Federal court, she must file her removal action within 30 days of receipt of the Plaintiff’s pleading or the receipt of a summons (whichever is shorter). o Foreign states may remove any civil action - upon removal it is tried without a jury - time limitations of 1446(b) can be waived for cause (§1441(d)). o Once Defendant files the notice of removal, the state court loses all control of the case.  1446(b): If the original action was not removable, but becomes so after it has been amended, D can still file an action to remove the case. She must do so by filing an action for removal within 30 days of receipt of the amended pleading. o Exception – 1446(b): If an action is made removable by Diversity Jurisdiction, it cannot be removed if it is more than 1 year from the commencement of the action (usually, the original date it was filed).




28 USC 1447(c): After the case has been removed, the Plaintiff can move to have it remanded to the State court. The Plaintiff must do so within 30 days from when he received notice of removal. Otherwise, he forfeits his right to have it remanded. Foster v. Chesapeake Inc. Co. Ltd. o 28 USC 1447(d): an order for remand is not reviewable unless it falls under 28 USC 1443 (Civil Rights / Equal Rights cases) o 28 USC 1447(c): a judge may, at any time, remand a removed case if there is a lack of subject matter jurisdiction. A plaintiff who wants to ensure that an action is not removed based on Diversity may join a defendant who shares state citizenship, but may not do so improperly. Rose v. Giamatti – Pete Rose sued MLB Commissioner Paul Giamatti and the Cincinnati Reds in an OH court. Giamatti removed the action, and the Federal Court held that the ballclub was a “nominal or formal” party which was added only to defeat diversity. o Generally speaking: very heavy burden of proof on D to demonstrate that 2nd party was added solely to defeat removal jurisdiction. Thermatron – Case was removed to Federal Court. Judge remanded the case to the State Court because his docket was too full. Is this allowable today, after several revisions to 1447(c)? o 1447(c) must be read in conjunction with 1447(d). Only remand orders covered under 1447(c) are immune from review.  THUS: If you follow Thermatron and apply the new language literally (“subject matter jurisdiction” & “any defect other than subject matter jurisdiction”), every possibly remand order is covered. Thus, no remand order is reviewable.  Everything is a “defect”  BUT: If you read “defect” to imply some type of limitation (something other than the judge’s impulse), some remand orders might be reviewable.  “Defects” are things within the party’s control (lack of subject matter jurisdiction, etc) o Time will tell. No case has come before SCOTUS yet to decide.

3) Notice and Service of Process “No matter how many "contacts" the defendant may have with the forum, and no matter how amenable she may be to the court's jurisdiction, that jurisdiction is only potential until service of process is made upon her.” – E&E The best form of service, in all cases, in personal service. The next best substitute is whatever means is most reasonably likely to reach the defendant. Pennoyer v. Neff – Publication is not a reasonable means of service. Because it is difficult to reach non-resident defendants, states may require that non-residents must appoint an agent for service within the state if they wish to do business or own land. Pennoyer v. Neff – Generally, seizing someone’s real property is notice of action (if it is properly seized, at the commencement of the suit. Mulane v. Central Hanover Bank – The bank controlled a trust in which many hundreds of people had an interest. Personal service was best. For those people who the bank had a last known address for, mailing something to their last known address was the next best form. Publication was a service of last resort. F.R.C.P. 4

4) Challenges to Jurisdiction  Challenges to Personal Jurisdiction Either make a “Special Appearance” or file a F.R.C.P. 12(b) motion Can also be made for improper venue, insufficiency of or improper service
Defendant's Response to the Original Lawsuit D appears, defends on the merits, and loses Action in the Rendering Court Enters judgment for P Action in the Enforcing Court Must enforce the rendering court's judgment, even if D challenges the rendering court's jurisdiction; D has waived his objection to jurisdiction There's no action for D's Home Court to enforce. However, P may file a new suit in a court that has jurisdiction over the defendant. Must enforce jurisdiction, because D already had his "bite at the apple" and lost. If jurisdiction is upheld, they must enforce the judgment (Full Faith and Credit).

D makes a special appearance, or D makes a FRCP 12(b) motion Court agrees that it lacks jurisdiction

Court dismisses the action

D makes a special appearance of Enters judgment for P 12(b) motion, but the court upholds jurisdiction. D defaults. D loses on objection to the jurisdiction; argues the merits; loses; appeals D defaults, contests jurisdiction in enforcing court Appellate court will review the jurisdictional question.

Enters default judgment for P Enforcing court may decide if the Rendering Court has jurisdiction; if it finds that it did not, it refuses enforcement; if it finds that it did; it must enforce the judgment.

D defaults, denies liability on merits Enters default judgment for P Enforces the judgment; full faith and in the enforcing court credit clause precludes reexamination of merits, which are settled by the original default judgment.


Challenges to Subject Matter Jurisdiction  A lack of subject matter jurisdiction can be asserted in a Federal case at any time, by either party.

5) Venue - Venue is always statutory. - Questions of venue are not decided until questions of jurisdiction are resolved.  Venue, Generally– 28 USC 1391 – Transitory Venue  Remember: Don’t look at venue unless jurisdiction is appropriate.  28 USC 1391(a) deals with Diversity Jurisdiction Cases: 1) Residence (if all defendants are from the same state) 2) Transactional (where a substantial part of the events took place) 3) Fallback Venue (any district where a D is subject to personal jurisdiction, if venue is not appropriate in either a) or b)).  28 USC 1391(b) deals with cases not founded solely on Diversity: 1) Residence (if all defendants are from the same state) 2) Transactional (where a substantial part of the events took place) 3) Fallback Venue (any district where a D “can be found”, if venue is not appropriate in either a) or b)).  28 USC 1391(c): - applies onto to corp. Defendants, under 1391(a)(1) & (b)(1) o A corporation resides in any district in which it is subject to personal jurisdiction at the time the suit is commenced. o Thus D resides in the state it is incorporated in, and at least one other state (Nerve Center Test, Operating Assets Test, Total Activities Test). o If a state has multiple districts, venue would be appropriate in a district where D has minimum contacts (if the districts were treated as separate states).  28 USC 1391(d): An alien may be sued in any district.  Forum Non Conveniens  The defendant may declare forum non conveniens, when: a) The Plaintiff had multiple venue options available, and b) Where it is more convenient for all parties.  Unless the current venue is grossly unfair to the defendant, it is unlikely that the court will allow a change for forum non conveniens. o A change in substantive law should not influence the court’s decision, unless the alternate forum would provide no relief or inadequate relief to the plaintiff’s claim.  Piper Aircraft v. Reyno: The decedents of the dead Scots sued the airplane maker and the propeller maker in a CA court. It was transferred to PA, where the D’s filed a motion for forum non conveniens. The motion was proper because there was another suit already going on in Scotland; all events took place in Scotland; Scottish law applied.

The “Local Action Rule” – the exception to transitory venue Applies to cases involving an interest in land (Quiet Title). An interest in land must be adjudicated in the venue where the land is. If a parcel of land crosses into multiple venues, it can be adjudicated in any of those venues.  Why local? The land is there; the deed recording office; witnesses; etc.  The Local Action Rule is generally viewed as outdated and will be cast aside when necessary and in the interests of justice. Reasor-Hill Corp v. Harrison, where a Missouri land owner sued an Arkansas-based crop-dusting company in Arkansas. They were not subject to the Missouri courts (long-arm did not allow for it) so his only option was to sue in AR… AR courts allowed it in the interests of justice, finding that trespass was a “transitory action”.  Actions which are not local are transitory actions.  Transfer of Venue (Federal Courts)  28 USC 1404(a): Change of Venue  28 USC 1406(a): Cure of Waiver of Defects  28 USC 1631: Transfer to Cure Want of Jurisdiction o If transferred: it shall proceed as if it had been filed . . . on the date upon which it was actually filed in . . . the court from which it was transferred. o So says Cannon: “In any case where the court finds that there is a want of jurisdiction, the court shall transfer such action into any court where the action could originally have been filed.” 6) The Erie Doctrine – An introduction to Choice of Law  The Erie doctrine comes from Erie RR v. Tompkins, which overturned Swift.  The main point of the doctrine: to discourage forum shopping.  There is no federal common law!  Federal courts must either interpret federal law (cases arising under 1331), or must interpret state law (cases arising under 1332)


Erie Doctrine

The F.R.C.P. / Federal Statute does not conflict with the state rule

The Federal Rule conflicts with the state rule (Hannah)

The state rule applies.

Is the FRCP/Statute "arguably procedural", or does it exist at all?

Yes - Apply the Federal Rule (OK'd by the Supremacy Act)

NO - then look at Federal case law & general practices. Does it encourage forum shopping?

YES - State Law applies

NO - Federal Law applies

A Summary of Relevant Federal Rules of Civil Procedure 3– 6– A civil action is commenced by filing a complaint with the court. Time Computations: When determining time limits (ie, Statutes of Limitations, time between pleading and answer):  The day that the action is commenced does not count  The last day is not counted if it is a Saturday, Sunday, or federal holiday. Generally: Summons, Service of Process, Notice, Waiver Who can serve the process and complaint?  Ultimately, the plaintiff is responsible for service  See: FRCP 4(m)  If not done within 120 days from filing, court may dismiss the action  Service may be affected by anyone 18+ who is not a party to the suit  Best options? A US Marshall or sheriff Waiver (Encourages Service By Mail)  If D gets a waiver and does not return it, D is responsible for cost of service.  If D returns it, D gets 60 days to file her answer (60 days from when request was sent)  A request for waiver must be sent by “first class mail or other reliable means”  No UPS or FedEx! See Magnuson v. Video Yesteryear How to Serve an Individual  Pursuant to the laws of the state where the District Court sits, or where D is served. (Remember: Personal Service is always best, and the best substitute is the form most likely to reach D. See Mulane v. Central Hanover Bank)  Personal Service  Service to an authorized agent  Service to a “suitable” person at D’s residence (of age) How to serve notice on a foreign Defendant  In accordance with recognized treaty standards (the Hague)  If there is no treaty: By custom, in that country

4– 4c–




A Summary of Relevant Federal Rules of Civil Procedure (Continued) 4h– Service Upon Corporations  The FRCP calls for service on an officer. . . but we discussed in class that this isn’t realistic. Service must be given to an employee that knows what to do with it.  Therefore:  Executive’s Assistant?  probably  Legal Department?  probably  Night Watchman?  probably not The Territorial Limits of Effective Service  States can serve anyone within their borders (residents, transients)  States can serve in accordance with a constitutionally valid long-arm statute  District Courts are bound by the rules of the state where they sit. Allows service on a foreigner who is not subject to the jurisdiction of any state, if allowed by “the laws of the United States.” - see Omni: service not allowed by statute (this rule was written in response to Omni).



12b– Defenses which can be made by motion:  Lack of personal jurisdiction  Lack of subject matter jurisdiction  Improper venue  Insufficiency of process  Insufficiency of service of process  Failure to state a claim upon which relief can be granted  Failure to join a party under FRCP 19 12g– You can file a motion with multiple headings (see 12b, above)

12h1– D waives objections to the following if she files a motion as described in 12g and omits:  Lack of personal jurisdiction  Improper Venue  Insufficiency of process, or Insufficiency of service of process 12h3– The court can dismiss a case for lack of subject matter jurisdiction at any time, either by the urging of the parties or its own volition. 14– 15– Joining 3rd Parties Amended and Supplemental Pleadings

A Reference Guide to Relevant Federal Statutory Rules
28 USC 1331 Federal Question Jurisdiction

28 USC 1332 1332(a) 1332(a) 1332(c) 1332(c)

Diversity Jurisdiction The amount in controversy must exceed $75,000.00 Alienage Jurisdiction – aliens can sue or be sued in Diversity. Corporations are citizens in both their state of incorporation and the state which is its principle place of business A legal representative for a child / decedent / incompetent takes on the residence of the party they represent.

28 USC 1359

A District Court will find want of jurisdiction if parties try to manufacture citizenship or diversity.

28 USC 1367


Supplemental Jurisdiction (“claims that form part of the same case or controversy”); goes along with the Gibbs test (common nucleus of operative fact) Diversity actions do not allow the plaintiff to file a claim against a 3 rd Party if that claim would independently lack diversity.

28 USC 1446 1446(b) 1441 1443 1445 1447 1447(c) 1447(d)

Procedure For Removal D must file a motion for removal in the Fed. Court within 30 days Removable Actions (any action that could originally have been heard in Federal court) Upon remand, non-reviewable actions (Civil Rights) Non-removable actions (RR, carrier, worker’s comp, Violence Against Women Act) After removal, Plaintiff has 30 days to seek remand Judge may remand (at any time) for lack of subject matter jurisdiction Must be read in conjunction with 1447(c). Any defects other than Subject Matter Jurisdiction are non-reviewable… but what are defects? Some people say: Anything! Others: More restrictive.

A Reference Guide to Relevant Federal Statutory Rules (continued)
28 USC 1391 28 USC 1391(a) 28 USC 1391(b) Venue Venue, as applied to Diversity actions (see general outline) Venue, as applied to Federal Question actions (see general outline)

28 USC 1404(a) 28 USC 1406(a) 28 USC 1631

Change of Venue Cure for Defect Transfer for want of Jurisdiction  Cannon’s Interpretation: “In any case where the court finds that there is a want of jurisdiction, the court shall transfer such action into any court where the action could originally have been filed.”  For purposes of tolling any statutes, the date it was originally filed will be used.

28 USC 1652

State Laws As Rules of Decision Where the constitution and/or rules of Congress do not interfere, the laws of the states shall be upheld by the Federal Courts in civil actions.

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Description: This is part 1 of my outline for John Cannon's civil procedure class at Villanova.