PERSONAL JURISDICTION Can forum state assert PJ over (s)? Traditionally: (1) Presence (property) (2) Consent (3) Status (marriage) (4) Domicile 1. Does State long-arm statute permit PJ? a. Tort in-state? (act or omission out of state?) (Gray v. American Radiator) b. Business in-state (revenue, foreseeability) c. Tag jurisdiction? 2. Does US Constitution permit PJ? a. Minimum Contacts Analysis: (1) Purposeful Availment (2) Reasonableness *If General, then: Substantial, Continuous & Systematic? (Heli; Perkins v. Benguet Mining Co.: offices, HDQ, etc.) *If Specific, then: 1. Purposeful Availment: a. Advertising/Marketing (Solicitation of biz.) b. Sales/Income c. Offices d. Contract (BK: FL K avails of FL) e. PRESENCE – Tag jurisd. Burnham: *Brennan: o.k. but need min. contacts too *Scalia: plain in-state service enough (“if he be not present…”) f. Foreseeability of contact? (insuff. for PJ: WWV; unilat. activity; Hanson) *Asahi -Stream of Commerce: a. Pure SOC (Brennan) b. SOC Plus (O’Connor: need greater intent or purpose; ads, distro system, advice to consumers) c. Qualitative SOC (Stevens: volume & value of sales; hazdous. product) g. Predictability (could get insurance; organize business;) h. Reciprocity (enjoyed benefits, protections, consumers) (Shoe; Burnham) 2. Reasonableness (subordinate concerns, except BK: Brennan): a. burden on (far-away ct.; inconvenience; local lwyr.) (Heli, Asahi) b. forum state’s interest (protect rights of constituents/safe highways) c. π’s interest (travel far away, in hospital) (McGee; judgment-proof) d. interstate judicial efficiency (witness & evidence availability) e. substantive social policies (foreign corporation, forum-shopping) Hanson: need PA; unilateral activity of π insufficient for PJ McGee: forum’s interest; π’s interest BK: maybe allow less contact, if more reasonableness Keeton & Calder: injury/libelous material in forum state o.k. for PA Rosenberg: mere purchases & occasional trips to NYC not enough for PA (like Heli) WWV: foreseability not enough Asahi: stream of commerce maybe not enough for PA (O’Connor v. Brennan v. Stevens) Shaffer: property maybe not enough (intangible securities); still need min. contacts Burnham: divorce visit; tag o.k. – presence (Scalia v. Brennan) Kulko: divorce; children in CA aren’t min contacts w/CA for in NJ Cybersell: must be PA; passive cyber-presence not enough WHY PJ? Convenience, bias v. non-residents (limit long-arms), choice of law, consent to sovereignty (individual & state) DOMICILE a. Presence b. Intent to remain indefinitely NOTICE FRCP – Rule 4(e)(1): o.k. according to Law of forum state or Law of service state 4(e)(2): -personal service of process (tag o.k.) or -dwelling service or usual place of abode (w/someone of suitable age & discretion who lives there) or -authorized agent for s.o.p. Constitutional standard: N.D. Co. v. Triad Holding Corp.: usual place of abode – there at time & has indicia of permanance Mullane: mere publication insufficient; must be “reasonably calculated” to reach (reasonable notice & time to explain) OPPORTUNITY TO BE HEARD CT v. Doerr: Supreme Court (Matthews) test (for pre-hearing attachment) 1. ’s interest (burden -hurts credit rating; effect sale of house, is poor, etc.) 2. risk of erroneous deprivation (easier to judge in K than tort situation) 3. gov’t interest (or π’s interest (the attacher)) – expense, safeguards *Must have bond (always) plus either hearing or exigent circumstances FEDERAL SUBJECT MATTER JURISDICTION 28 USC §1332 or §1331 §1332 – FEDERAL DIVERSITY JURISDICTION (local bias) §1332(a): amt. exceeds $75K (o.k. if in good faith, unless legal certainty, i.e. some statutes cap damages) §1332(a) & Strawbridge: complete diversity at time claim is filed §1332(a): alien admitted for perm. residence is citizen where domiciled §1332(a)(4): alienage jurisdiction (must have alien v. citizen of a US State) §1332(b): may deny costs or impose costs on if amt. judged less than $75K §1332(c): corporate citizenship for diversity purposes = PPB & State of Incorp. PPB = Total activity test (Olson v. Wiwona): -Far-flung, scattered operation: sole nerve center (O&D’s direct; radiates out to parts) -Sole op. in 1 state, HDQ in another: muscle center (place of most activity) -Passive activity: brain center (i.e. REIT, site of decisionmaking – co.’s brain) *Citizenship of unincorp. partnerships/associations: citizen of every state member domiciled (labor unions, LLP’s, etc., sometimes could never sue under §1332) Mas: must be citizens of diff. states, not just U.S. citizen v. French citizen Randazzo: well-pleaded complaint must establish PPB & State of Incorp. §1331 – FEDERAL QUESTION JURISDICTION: when π suing to vindicate a federal right under Const., laws, or treaties of U.S. Mottley: must be fed. issue, not anticipated defense – well-pleaded complaint rule §1441 – REMOVAL (local bias) §1441(a): can remove to fed. court if would have originally had SMJ §1441(b): cannot remove if a §1332 case & any (s) is a citizen of the forum state (not really any local bias) §1446(b): must file within 30 days from when becomes removable *can become removable later, based on re-alignment, joining of parties/claims *all s must agree to remove (Noble v. Bradford Marine) *if a §1332 claim, have max. 1 yr. to remove from time action is commenced §1391 – VENUE (convenience) *Diversity cases: (a)(1) where s reside, if all in same state (or district in which any resides) (a)(2) where substantial events or omissions giving rise to claim occurred (a)(3) fallback provision – where any subject to PJ when action commenced *Hybrid cases: (b)(1) Same as above (b)(2) Same as above (b)(3) fallback provision -where any may be found *Corporate s: (c) any district in which co. is subject to PJ at time action is commenced *Co. usually subject to PJ in state of incorp, HDQ, and wherever has min. contacts *Aliens: (d) can be sued in any district *individuals: resides = domicile (presence & intent to remain) *venue also proper wherever it has been removed to (§1441(a)) Bates v. C&S Adjusters: harm occurred in NY, even though hadn’t availed self, still s/t venue there (PA doesn’t matter for venue). §1404/§1406 -TRANSFER OF VENUE (convenience) State – any district within state Federal – any district within federal system Improper venue (choice of law of transferee court applies – NO shopping): (1) §1406 transfer (to where it could have been brought) (2) Dismissal Proper venue, but inconvenient (choice of law of transferor court applies) (1) §1404 transfer (to any other district where it might have been brought) (2) FNC Dismissal (if transfer impossible & must be an alternative forum) *where proper forum, but too inconvenient -transfer impossible (US-Scotland) Basis for FNC (court’s discretionary power to decline to adjudicate case) (1) Change of law (who’s choice of law? Scotland applying PA law?) (2) Presumption in favor of π’s choice (less so if foreign π) (3) Gilbert Factors: a. Private interest -convenience of litigants: 1. access to witnesses & evidence (expense, ease, willing & unwilling witnesses; where harm occurred; site of wreck v. site of mfg?) 2. other practical problems… 3. inability to implead others (respondeat superior issues; easier if all under 1 proceeding) b. Public interest – interests of justice: 1. Administrative burden on court (esp. if foreign πs are shopping) 2. Local interest in adjudicating the dispute (more in Scot. than US; burdening disinterested people w/jury duty) 3. Complexity of choice of law rules or foreign law (apply Scot. law in PA? Avoidance of conflict of laws) COMPLAINT Requires: 1. short, plain statement of jurisdiction 2. statement of the claim 3. demand (relief sought) “SPECIAL PLEADING” RULES 9(b): FRAUD – heightened specificity required b/c exposing to greater damages (taken very seriously by courts; π will argue needs discovery process for greater specificity) 9(g) – SPECIAL DAMAGES -π must allege lost profits w/greater specificity Municipalities – No special rules (Leatherman v. Tarrant County) INCONSISTENT FACTS Inconsistency in pleadings o.k. – same applies to defenses (McKormick v. Kopmann) -Must have a reasonable factual investigation (RULE 11: good faith basis for assertion) -Must withdraw assertion if receive new, contrary info (RULE 11) Rationale: jury can figure it out (better than having two trials) MOTION TO DISMISS – RULE 12(b)(6) (challenge legal sufficiency of complaint) can only that facts (even if true) fail to state a claim π usually given leave to amend complaint, unless clearly cannot win 12(b)(6) Test: (1) factual sufficiency of complaint (2) legal sufficiency of complaint Conley v. Gibson: must give fair notice of what π’s claim is (what being sued for) Dioguardi: benefit of doubt to π, esp. if pro se π -very forgiving standard for all (*almost anything goes, unless can prove beyong reasonable doubt that no set of facts entitles π to relief) CAUTION: in practice judges will still dismiss despite these precedents VOLUNTARY DISMISSAL – RULE 41(a) -unilaterally by π (if has not yet filed answer or MSJ) -w/prejudice if previously dismissed (cannot re-file anywhere b/c FFCC) -by stipulation of parties -by order of court *Default rule: w/out prejudice *To prevent π from unilaterally dismissing in a forum favorable to , file answer immediately per 41(a). Texaco v. Pennzoil INVOLUNTARY DISMISSAL – RULE 41(b) *Default rule: w/prejudice EXCEPTIONS: -dismissals on basis of lack of jurisdiction -dismissals on basis of improper venue -dismissals on basis of failure to join indispensable party(s) PLEADING: sets forth factual & legal contentions MOTION: request for order (for court to do something) DEFENSE: grounds for non-liability (i.e. failure to state claim, no jurisdiction) 1. can be asserted via pleadings or motions 2. advantages to motion: -delays ’s obligation to file answer to complaint -requires immediate response by π -cannot use as stall tactic (RULE 11)