1 I. Personal Jurisdiction – a territorial limitation A. Types of Jurisdiction i. In personam – against person a. more relief then in rem ii. In rem – dispute is related to the property. can only get value of the property a. true in rem – dispute is over property against all people b. quasi in rem type 1 – dispute btn 2 people over D’s property 1. likely there will be minimum contacts bc of Ds property ownership c. quasi in rem type 2 -dispute is not over the property, but property is just basis of jurisdiction 1. If you have property, you have the rights and obligation of that state so makes sense to be subject to PJ and P needs some way to recover 2. If Mitchell had done it right the first time, he would have had this jurisdiction 3. general jurisdiction, harder to obtain In personam In rem How to assert Personal service in forum state Attachment of res in forum state Basis Presence of person in forum state Presence of res in forum state Effect of judgment Unlimited personal obligation (problem if person not in state) Limited by value of res B. Long Arm Statutes i. 2 Step Process – answer needs to be yes to both a. Is it w/in State long arm state? b. Is it permitted by Constitution (due process clause of 14th amendment)? 1. does it comport with “fair play and substantial justice” 2. Due Process Clause is the outer limit to permissibility of PJ 3. assertion of PJ can be unconstitutional even if allowed by the long arm statute ii. just bc it is constitutional doesn’t mean that state’s long arm statute allows PJ a. if state doesn’t allow it, then don’t need to look at constitution iii. states tend to interpret long arm to fullest extent up to US Sup. Ct. a. makes the long arm statute self adjusting as the Sup Ct changes C. Pennoyer (1878) – Presence Theory – rule approach i. D needs to be present in the state during personal service to have jurisdiction (formalism) a. If property present, you can get in rem jurisdiction b. If person present in state, you can get in personam jurisdiction c. If no property present, no in rem d. No person present, no in personam e. Here, no in personam, bc Neff not in state, not a resident and did not appear ii. If no PJ, then violates due process clause of 14th Amend. iii. Power theory of jurisdiction 2 a. Exclusive jurisdiction over persons/property w/in the state b. No direct jurisdiction over person and property outside jurisdiction – a corollary to exclusive jurisdiction c. tension btn these 2 principles. Neff’s situation is an example of this. OR has exclusive jurisdiction over Neff’s land, but not over Neff bc lives in CA iv. always general jurisdiction even though that isn’t what they called it then v. Stresses on the Pennoyer System a. As mobility expands, the number of times you couldn’t get jurisdiction became a problem bc no one was around b. Court tried to deal with the underinclusiveness of Pennoyer this by expanding quasi in rem type 2 – intangible res such as debt or other personal property, stocks or bonds 1. Harris v. Balk, 1905 -Third party involved. Third party owed D $ and P attached third party to the judgment to get in rem jurisdiction of D, bc D didn’t have any other property. Third party owes P now D. Other Bases for Jurisdiction than Presence i. Consent/voluntary appearance – N finds out about lawsuit (in personam), so Neff hires OR lawyer, and consents to jurisdiction by going forward with lawsuit a. Interstate biz – service over the agent of a biz – you consent before the law suit is brought, which is different from where you consent AFTER the suit is brought ii. Residence – can assert jurisdiction over resident/citizen of that state a. Can be problematic if resident is vacationing in another state can get served in that state. Pennoyer court would have problem w/that iii. Status/Marriage a. if 2 citizens married, one leaves the state can grant divorce. b. doesn’t fit into Pennoyer system bc don’t have to be present in the state E. Interstate Activities i. Corporations -Originally, corp only existed in state of incorporation so could only sue there. As corp expanded to interstate commerce jurisdiction needed to expand ii. Presence Theory a. court says can’t exclude out of state corps from doing biz if corp doesn’t consent to be sued there so use presence theory b. present if you do biz 1. but what does it mean to do biz? F. Hess, 1927 – persons in interstate activities i. Expands Pennoyer a. under pennoyer P couldn’t recover for car collisions by out of state drivers unless consent ii. now implied consent to PJ is ok iii. Only fair to protect citizens and roads and doesn’t violate due process G. Modern Era – standards approach i. Int’l Shoe, 1945 a. 2 parts 1. Fairness -must not offend “traditional notions of fair play and substantial justice” 2. Minimum contacts -Systematic and continuous contacts i. Not just about presence at service 3 ii. Single act not enough for due process, too great a burden on out of state corp 1. Hess still stands though iii. Claim must arise out of the contact, unless contacts are so substantial b. By doing biz in a state get benefits and protections as well as obligations connected to activities c. Substantial presence is enough even if case is unrelated to activities – general jurisdiction d. Categorization of D’s Contacts Occasional Contacts Systematic & continuous contacts Related to Dispute (Specific Jurisdiction) Jurisdiction Yes – Hess (single act), BK AND No – Jurisdiction always Int’l Shoe Due process met Unrelated to dispute (General Jurisdiction) No jurisdiction no due process jurisdiction Yes -corp hdq, Helicol AND No e. Principles Underlying Shoe – Due Process 1. Fair and reasonable in federal systems, state borders matter 2. Convenience 3. Reciprocity – benefit from state laws, etc 4. Under Pennoyer, it was about state power 5. doesn’t overrule Pennoyer, just explains the system better f. shift is better for P, more opportunity to file suit, but loses clarity, bc there are now places where there might not be jurisdiction g. If Mitchell v. Neff system happened after shoe -specific jurisdiction ii. McGee, 1957 – substantial connection test. Expansive view of jurisdiction. Protected residents and not D focused a. Single act is enough for PJ bc of its quality and nature iii. Purposeful availment -It is about D’s contacts not P’s contact – irrelevant if P has no contacts a. Hanson v. Denckla, 1958 (Del bank, FL issue) 1. Contact must be one that D has availed himself to 2. Unilateral contacts by P are not sufficient contacts. b. Gray, 1961 (State court) – stream of commerce argument is enough for PJ 1. Bc injured in state X, valve co committed a tortuous act in State X so falls under that state’s long arm statute iv. WWV, 1980 a. 2 Part Test Expanded 1. Purposeful Availment – need this before you can go to the 2nd question i. Purposeful acts directed at the state 1. quality and nature 2. Reasonableness/Fairness i. Burden on D 4 1. D’s conduct must be such that it can reasonably anticipate being haled into court 2. D must voluntarily reach into state to make transaction enough 3. Foreseeability – foreseeable that cars travel but could go to any state and not fair for all dealerships to be subject to PJ anywhere the car goes. a. Even if D knows that P is taking the car someplace, not enough to constitute availment ii. Forum state’s interest – evidence, witnesses, etc iii. P’s interest in convenient and effective relief iv. Interstate judicial efficiency v. Shared interest in substantive social policies – reasons for liability in cases b. Holding: No PJ -No purposeful availment, no contacts, unilateral activity of 3rd party doesn’t count c. Policy re Minimum Contact 1. Protects D from inconvenient litigation 2. Limits state power to get jurisdiction (protects interstate federalism) 3. if D does biz in state, then duty to answer to local courts 4. predictability – know where you can be sued 5. more certainty d. Brennan – there was PJ, cars are mobile. Should expect them to be driven in other states v. Effects Cases – D doesn’t enter the state, but causes an effect in the case. Is there PJ? a. Kulko, 1978 – CA doesn’t have jurisdiction over NY dad to determine child support case. Just bc he sent kids to stay w/mom in CA though he had custody doesn’t mean he purposefully availed himself to benefits and protections of CA law b. Keeton, 1984 – PJ ok even if no contact w/state. State has substantial interest in cooperating w/other states to provide forum for efficiently litigating libel issues in a unitary proceeding. Defamation suit filed in NH. Claim for damages to rep suffered in NH and nationwide. c. Calder, 1984 – actions outside the state w/foreseeable tortious acts in another state is ok for PJ vi. Burger King, 1985 a. balances prongs of purposeful availment and reasonableness 1. if lots of reasonableness need less contacts 2. quality and nature of D’s contacts are important b. availment – D had substantial connection w/FL 1. choice of law in the K is FL 2. negotiations happened in FL 3. future contacts in FL bc of K 4. breach caused harm to BK in FL 5. a continuous contact bc of K 6. doesn’t need to physically enter the state to have contacts and availment c. more of a standard then WWV vii. Asahi, 1987 a. Not Reasonable 1. Foreign D, foreign legal system 2. No state interest 3. P’s interest in convenience is not met, since from Taiwan 5 i. Just wants to get more $$ 4. No interstate judicial efficiency, bc applying US law to 2 foreign entities b. Purposeful Availment – Stream of Commerce law is split in this case 1. O’Connor -need more than mere knowledge that stuff might end up in CA, need action, need purposeful directness (advertising, marketing, advice to forum state customers, etc) 2. Brennan – chain of distribution, not a unilateral activity so contacts are enough 3. Stevens – should base contacts on volume, value and dangerousness H. General Jurisdiction i. When there is lots of contact, but contacts are unrelated to dispute ii. Corp HDQ is enough a. Perkins – enough contacts to assert PJ 1. operated business from OH, though a Philippine corporation – distributed salaries, had bank accounts, carried on correspondence, held director’s meetings iii. There are some cases where there should be jurisdiction but if no general jurisdiction, then no jurisdiction iv. Helicopteros, 1984 a. buying stuff from a forum isn’t enough contacts for general jurisdiction b. Helicol’s contacts not related to dispute and contacts were not sufficient for PJ 1. Training, 80% of fleet from TX, negotiated K, accepted checks from TX banks I. In rem and quasi-in-rem jurisdiction – Presence isn’t enough, need minimum contacts i. Shaffer, 1977 a. QIRII b. notions of fair play and substantial justice should govern in rem actions so c. presence of property is not sufficient for PJ d. need minimum contacts when underlying cause of action is unrelated to property ii. “’traditional notions of fair play and substantial justice’ can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedure that are inconsistent w/the basic values of our constitutional heritage.” a. just cuz we’ve done something for a long time doesn’t mean it is constitutional iii. in rem is less significant now, if need contacts go for in personam bc you get more a. in rem – only get value of the property b. Anticybersquatting Consumer Protection Act – can get in rem over owner of domain name owner bc suit is related to the property. J. Transient Presence i. Burnham, 1990 – there is PJ a. general jurisdiction bc claim is unrelated to dad’s contact w/forum b. Scalia – presence worked before so should still work 1. Goes against Shaffer c. Brennan – Pj is fine but need to look at minimum contacts and contemporary notions of fairness 6 1. Usually subject to PJ based on voluntary presence if minimum contacts is satisfied (low threshold for minimum contacts) K. Consent i. Thru litigation conduct a. Waive PJ through general appearance, OR b. waive through waiving objections to PJ ii. Consent by K -forum selection clauses a. Carnival Cruise Lines, 1991 – there is PJ in forum selection clause. 1. K must be reasonable 2. Cruise line has interest in limiting forum, reduces litigation by pre selecting a forum, reduced fare by reducing forum possibilities L. PJ and the internet i. Zippo, 1997 a. Purposeful availment – Spectrum of contacts 1. Active – buying and selling, entering into K 2. Passive – simply posts info 3. Interactive, communicate thru it but not buying/selling b. Reasonableness 1. Burden on D 2. State’s interest 3. P’s interest c. in this case, they made K w/citizens of PA, when they subscribed to the site. didn’t have to do that 1. on passive sites can’t monitor who comes and goes ii. Toys R Us, 2002 a. if active site how easy is it to access the site? 1. Is it limited to a particular state or country? b. look at non internet related contacts M. PJ and international/interstate context i. Brussels Convention – general jurisdiction in D’s domicile or in its principal place of biz a. Can be sue in another country for 1. Contract – if K’s performance of obligation is in forum country 2. Maintenance-if creditor lives in forum country 3. Tort – if harmful event occurred in forum country b. no transient jurisdiction N. PJ in Federal Court – Rule 4(k) i. 4(k)(1)(a) – fed court have PJ where state court could have had jurisdiction – based on whole state not just district ii. Exceptions (2) – if based on federal law and jurisdiction would be consistent w/the constitution, can get PJ over D if D is not subject to PJ in any state a. usually applies to foreigners b. if foreign has contacts w/state that has restrictive long arm statue, this allows case to come into Fed court. iii. Fed court is bound by the long arm statute in state in which it sits as well as the 14th Amend. O. Challenging PJ – see chart i. Can only litigate the jurisdiction issue once. ii. Direct attack/Special Appearance – make a special appearance to challenge PJ before litigating the merits. a. if D loses, then consents to jurisdiction. 7 b. can’t collaterally attack after a direct attack c. States call it either special appearance or use FRCP Rule 12 procedures 1. Rule 12 allows pre-answer motion w/objection to PJ along with other objections to merits of the case 2. Special appearance – PJ only d. if didn’t allow special appearance there would be a lot of default judgments bc if made a general appearance then you were consenting to jurisdiction e. general appearance – consent to jurisdiction iii. Collateral attack -default then attack PJ in enforcing court. a. Can’t attack the merits of the case. iv. Full Faith and Credit protects that judgment in another state P. Why PJ i. Convenience – constitutionally unfair to make D litigate in foreign forum a. even if convenient still could be unconstitutional bc no purposeful contact though b. relevant but not main point ii. bias – protect D from forum where few contacts a. out of state D’s can use fed court in foreign state iii. choice of law a. unfair to subject out of state D to laws of forum state b. courts seem to say they can’t do this very well. iv. purposeful connection to another sovereignty a. political – benefit of citizenship b. economics – cost-shifting – keep benefit and put cost elsewhere 1. control 2. states can only impose a cost on you if you have gotten a benefit from the state v. unclear if PJ does any of these things well. Q. Why Parties Care about PJ i. Convenience a. if too burdensome, then might not be worth litigating ii. local bias a. other courts might not get me b. not so much the case anymore iii. choice of law – main reason – what law? a. different states may apply different law b. what law is most favorable to P 8 II. Notice and Opportunity to be Heard A. Notice i. Purpose a. enhances accuracy of the process b. intrinsic value – even if you aren’t going to show up you should be told ii. Service must comply w/both constitutional minimum and statutory/rule requirements iii. Constitutional Requirement – minimum standard for notice a. reasonably calculated under the circumstances 1. to apprise them of the action and afford them an opportunity to represent their objections 2. not actual notice 3. due process issue that needs to be addressed b. Mullane, 1950 1. Notice by publication was not reasonably calculated under the circumstances 2. Notice reasonably to reach most of the people is sufficient 3. Mail would have been enough. court limits that to just this case. Mail may not always be sufficient. i. It is about sending it not receiving it iv. Statutory Requirement – 4(e) – for fed court a. 4(e)(1) – can serve under state’s law 1. Law of forum state or 2. law of service state, OR b. 4(e)(2) 1. Personal service (all state courts allow this) 2. Home service (some state courts don’t allow this) i. Dwelling 1. you can have more than 1 of these (Nat’l Dev. Co.) ii. Suitable age and discretion iii. Then residing therein 3. Authorized agent – (some state are overly restrictive) c. if not valid under 4(e)(2) it might be valid under 4(e)(1). d. National Dev Co, 1991 – 4(e)(2) issue 1. dwelling issue – can have more than one i. needs to show indicia of permanence to be considered a dwelling ii. also said that bc he was there, actual notice was served. Court did not comment on what would happen if he wasn’t living there at the time of service v. 4(f) – service upon individuals in foreign country a. internationally agreed means reasonably calculated as authorized by Hague Convention OR b. law of foreign country, c. as directed by letter rogatory from foreign authority d. personal service, registered mail if not prohibited by foreign law vi. 4(h) – service upon corporations/associations a. as stated in 4(e)(1) OR b. delivering to officer, agent or other authorized agent to receive process and by mailing a copy B. Opportunity to Be Heard -Once received notice, what ability do you have to argue your case i. Issues a. what kind of deprivations entitle you to opportunity 9 b. Timing (pre-or post-bad thing happening) c. Characteristics of hearing ii. Goldberg, 1970 – welfare pre termination hearing issue a. Pre termination hearing required to meet due process b. If don’t allow, deprives welfare recipients means necessary for survival c. Due process outweighs pre termination hearing burden iii. Matthews v. Eldridge Test – 3 factor balancing act to determine what your opportunity is a. D’s private interest b. D’s risk of erroneous deprivation c. government interest d. Doehr, 1991 1. prejudgment attachment statute falls short of due process bc no notice or opportunity to be heard 2. applied Matthews v. Eldridge test i. Didn’t allow pre judgment attachment, bc property interests were too great, the risk of erroneous deprivation was too great, P’s interest was minimal and no gov’t interest 3. in the absence of exigent circumstances and a bond, you must have a pre attachment hearing i. if you have exigent circumstance, then you don’t need pre-attachment hearing e. Hamdi v. Rumsfeld, 2004 – all 3 are strong 1. entitled to notice on what his enemy combatant status is and a hearing to rebut that claim iv. pre-judgment attachment requirements a. probably cause to sustain the claim b. a hearing c. exigent circumstances – is there a real need for relief now as opposed to later? d. bond – in general, you can have relief but it may be costly, if required to post a bond/a guarantee of payment 10 III. Subject Matter Jurisdiction A. State v. Federal Court i. General Subject Matter Jurisdiction – State courts a. Broad SMJ – most issues arising under state law will be heard in state court b. Any fed claim can be filed in state court 1. exceptions -matters that have exclusive federal subject matter jurisdiction -bankruptcy, admiralty, patent/copyright infringement, fed antitrust/securities ii. Limited Subject Matter Jurisdiction – Fed courts a. Constitution Art. III – specifies maximum power of federal courts 1. Sec. 1 – judges 2. Sec. 2 – judicial power over cases i. arising under fed law ii. affecting ambassadors/public ministers iii. maritime jurisdiction iv. US is a party v. btn 2 or more states vi. btn State and citizen of another State vii. citizens of different states viii. btn citizens of same state dealing w/land in another ix. state or citizen against citizen of another country b. Federal Statutes 1. is there a federal statute that confers jurisdiction? 2. If so, is it constitutional? (this is a given) 3. statute is narrower than constitution c. Can’t confer SMJ by consent d. Lack of SMJ is a defense that is never waived (12(h)(3)) e. P must properly plead that fed jurisdiction exists (8(a)(1)) bc there is a presumption against federal jurisdiction B. Diversity of Citizenship – 1332(a)(1) i. Two Requirements a. Amount in Controversy – exceed $75k 1. aggregation rules i. if single P&D, then can add different claim amounts to reach $75k. 1. in conflict w/attempt to keep federal court from being small claims court bc could have 75 claims for $1k each and could bring in federal court ii. no aggregation w/multiple parties when 1. Two Ps and each have claim against one D for less than $75k each 2. One P has claim against 2 or more Ds for less than $75k each, then can’t aggregate even if they are related to the transaction. iii. Aggregation w/multiple parties is OK when 1. P’s claim against each D is more than $75k each 2. 2 Ps each have claim against each D for more than $75k each iv. If 2 Ds and don’t know who did the damage that exceeds $75k, can still meet the AIC v. Can’t aggregate alternative theories to meet the requirement 2. must have good faith reason for amount 3. even if awarded less than $75k, still can stay in fed court 11 b. Complete Diversity Rule 1. Diversity exists only if all Ps are of diverse citizenship from all Ds 2. Strawbridge, 1806 c. Both amount and citizenship are determined at the time of filing ii. Determining Individual’s Citizenship a. Citizen of a state 1. Citizen of US, AND 2. Domiciled in that state i. Present in the state, AND ii. Intent to remain indefinitely b. Mas v Perry, 1974 1. Mrs Mas was student in LA and not considered domiciled in LA so could bring diversity case bc still domiciled in Miss. 2. Mr. Mas not a US citizen so diversity works. i. If had been permanent legal resident then would have been resident of LA and diversity would have been defeated. c. if US citizen domiciled abroad, not a citizen of any state, can’t sue or be sued on the ground of diversity d. determined when suit is filed e. if not a US citizen, then always diverse bc don’t meet one requirement of the citizenship test. f. If add a party later that destroys citizenship, then can’t stay in federal court under diversity jurisdiction – applies to corporate citizenship too g. Can file one suit against 2 Ds if D1 is re diversity and D2 is re federal question. iii. Determining Corporate Citizenship – 1332(c)(1) a. citizen of both 1. state of incorporation AND 2. principal place of biz b. Determining principal place of biz -Total Activity Test, (JA Olson v. Winona, 1987) 1. Nerve Center i. Where officers direct, control, coordinate all activities w/out regard to local in furtherance of the corporate objective 2. Place of Activity i. Biz by way of activities rather than the occasional meeting of policymaking directors indicate the principal place of biz 3. General Rules of Total Activity Test i. When far flung, sole nerve center is more significant ii. When corp has sole operation in 1 state and executive offices in another, place of activity is more significant iii. Activity of corp is passive and brain of corp is in another state, brain is more significant c. Randazzo, 1987 – need to state corporate citizenship in complaint to ensure court applies diversity, otherwise will get thrown out of court d. Partnership, associations, limited liability – citizens of every state of its member 1. Hard to be sued in fed court on diversity 12 C. Alienage Jurisdiction – 1332(a)(2) i. Gives aliens involved a forum free from local political influence ii. But not if it is between 2 aliens, a. Constitution doesn’t allow it either iii. Demonstrates to foreign countries that US treat litigation involving their citizens as matter of such importance as to justify a place in the national courts D. Federal Question Jurisdiction – 1331 i. Original jurisdiction of all civil actions arising under the constitution, laws or treatise of the US a. claim arising under any federal law can be brought in federal court ii. Purpose a. uniformity b. competence c. lack of hostility to federal law – state courts may not like some federal law and be biased d. origin – 1875 – passed statute to protect newly freed slaves, bc scared that states wouldn’t do it iii. What cases apply? a. Arising under jurisdiction b. well-pleaded complaint rule iv. Well Pleaded complaint rule – federal question must be part of claim, not part of the defense a. Mottley, 1908 – sued for breach of contract, but claimed RR would use defense under federal law so tried to sue in federal court 1. court said no SMJ, federal question must be part of claim, not part of the defense 2. side note – ended up back in supreme court after case was heard in state court because supreme court can hear final state judgment if a federal statute or constitutional provision is raised b. court has independent responsibility to also make sure this is followed E. Removal -1441 i. 1441(a) -if P could have filed in Fed court than D can remove it to fed court (Need to determine subject matter jurisdiction first) a. can only remove to district in which the state court where the case was originally filed sits. (even if venue would have been improper if the case had been originally filed in federal court) ii. Exception – if diversity action in Ds home state. 1441(b) a. p sues in ds home state. D can’t remove. b. doesn’t apply to federal question iii. If removed then venue is proper iv. If remove under Fed Question, don’t worry about diversity issues of removal v. Timing (1446) a. D has 30 days from filing or from becoming removable to remove 1446(b) 1. become removable if someone drops out of suit that had prevented diversity jurisdiction b. 1 year from filing deadline if diversity jurisdiction (1332) 1. if P adds a 2nd D later, that D is subject to 1st Ds removal timeline i. Noble, 1992 – demonstrates this scenario c. if federal claim is added later, there is no 1 year time limit. (protective of federal question) 13 vi. No motion. Just file and if you are wrong fed court will remand it to state court. -1446 vii. if not proper federal question jurisdiction, the will remand to state court viii. if not proper subject matter jurisdiction, dismissed and P has to refile in state court ix. All D’s must agree w/removal otherwise no removal x. If after removal, P adds a non diverse D in good faith, then courts will remand to state court. If it is clearly an attempt to just get it into state court, then they won’t remand. xi. removal is one way. Can’t remove from fed court to state court xii. The whole case travels to federal court even if one claim is a state claim and one is a federal claim xiii. If a counter claim by D asserts federal question claim, P can’t remove to federal court. Courts have interpreted statute to be Ds only xiv. If multiple Ds and one is served after the 30 day removal time is up and other Ds have already removed he can make a motion to have it remanded bc doesn’t want federal court. xv. Removal doesn’t effect right to raise objections or defenses a. Can remove case to federal court and then claim no PJ xvi. Art. III allows removal bc doesn’t say otherwise xvii. Purpose – D could be subject to bias and if removed to federal court it is more neutral.14 IV. Venue A. General Venue Principles i. Purpose a. convenience in protecting D b. statute driven (not constitutional principle) c. waivable under Rule 12(B),(h)(g) 1. if don’t timely object to venue, then you consent to venue d. Limits PJ even further – PJ is about whole state, venue is about district within the state in which PJ is proper ii. local v. transitory action a. local actions – actions relating to land, must be brought in district where the land is b. transitory action iii. State venue provisions – what county a. most states have a general rule, but set out special venue rules for particular types of cases iv. Venue in Federal Court -§1391 a. 1391(a) – when jurisdiction is based on diversity 1. (a)(1) -if all Ds reside in the same state, district in which any D resides i. reside 1. individual: district of domicile(not synonymous w/residence) – where she actually lives 2. corporation: any district in which subject to PJ ii. if D1 resides in A and B, and D2 resides in A, then venue is proper in B too! 2. (a)(2) -any district in which a substantial part of events giving rise to claim occurred b. 1391(b) – when not based solely on diversity 1. (b)(1) -if all Ds reside in the same state, district in which any D resides (see above re: reside) 2. (b)(2) -any district in which a substantial part of events giving rise to claim occurred. i. Bates, 1992 – where harm occurred, where Bates opened the collection notice c. (3) -Fallback: where any D is found-(b)(3) or subject to PJ-(a)(3) 1. Very rare 2. even if one D is subject to PJ under (a)(3), others still need to be subject to PJ in that same jurisdiction 3. Need multiple Ds, no alien D and event happens outside of US d. 1391(c) – determining where corporate D ‘resides’ to then apply (a)(1) or (b)(1) to 1. corporation resides in any judicial district where subject to PJ 2. if state has multiple districts, venue is proper for corporation in the district where contacts are sufficient for PJ if that district were a single state e. Special Provision 1391(d) – aliens, if D has no contact, then ignores interest of D 1. PJ would protect alien from inconvenient litigation B. Change of Venue -Even if venue is proper, D can transfer i. Purpose a. convenience b. interest of justice ii. State Court Transfers a. can transfer w/in a state’s court, but not btn states 15 1. if another state should here, it would be forum non conveniens iii. Federal Court transfers a. transfer across state lines but must stay in federal court b. where – any district where suit might have been brought at time suit is filed 1. Hoffman interpretation -where D is subject to PJ and venue is proper c. 1404 transfer – allows transfer even if venue and pj is proper 1. Convenience issues 2. Interest of justice d. 1406 transfer – if file venue is improper, then court can transfer it 1. Goldlawr Transfers – no proper venue and no PJ, but will transfer in the interest of justice i. Court could dismiss and P could file in right venue 1. this is about SoL, don’t want to dismiss bc SoL may run iv. Choice of Law a. substantive law v. choice of law rules 1. different states will apply different laws, but will always apply their own choice of law rules 2. choice of law – determines which substantive law to apply, may not be transferor courts law b. Fed Ct 1. If 1404 transfer then choice of law rules follow the case (P loses courtroom, but not law) 2. If 1406 transfer, choice of law rules doesn’t follow, bc wrong venue so shouldn’t get the law too C. Forum Non Conveniens – appropriate forum doesn’t have to maintain jurisdiction if it is more convenient for it to happen in another forum (common law doctrine) i. Even if venue, smj, pj are proper, there are circumstances where court will dismiss and tell you to refile in another forum bc other forum is clearly superior ii. It’s a dismissal, not a transfer a. no choice of law rules follow iii. there must be an alternative forum a. if federal court, won’t dismiss under FNC if other forum is in the US bc b. court will all D to waive PJ and venue to make a venue alternative c. if state court btn states iv. Gilbert Factors to Determine FNC a. private factors – convenience of litigants, evidence, witnesses b. public factors – interest of justice 1. what law? i. Unfavorable change of law is not generally a substantive factor 1. But if other law will be so inadequate it would be no remedy at all, this is given more weight and court may not dismiss 2. Burden on court system? 3. Burden on juries who decided issues unrelated to forum 4. Local interest in local issues v. Piper – dismissed based on FNC a. Applied gilbert factors b. Another way PJ can’t do it all. Even if there is PJ, it might be really unfair to make someone go through with the suit. 16 1. accident happened in Scotland, P’s from Scotland, Scottish law would apply, ability to add 3rd parties would be difficult in the US D. Venue v. PJ i. Venue limits PJ’s reach to district within state ii. What if just venue and no PJ? a. If it is about where harm occurred, then no purposeful availment issue or reasonableness issue 1. could be burdensome on D, state interest could be limited 2. could be right court even if D never went there, like in WWV b. If it is about residence of D 1. Protects D convenience iii. What if just PJ and not venue? a. Wouldn’t care about districts, could be inconvenient if lived in a large state and have to travel hours to court b. Too broad 17 V. Pleadings A. History i. Common law writ – P had to choose a writ to have case heard, if chose the wrong writ, you lost. Narrow causes of action under this scheme ii. Code – Plead the facts. Discovery caused full elaboration of the case iii. FRCP – like code system, but used discovery, not pleadings a. Required less specificity than code – could state general what happened to give notice to other side about the case b. Liberal rules c. Makes it easier to bring law suit d. short plain statement (it is about notice) B. Complaint – Rule 8(a) i. Requirements a. 8(a)(1) -short plain statement of grounds for jurisdiction, AND b. 8(a)(2) -short, plain state showing entitled to relief, AND c. 8(a)(3) -demand for judgment ii. Challenging the Complaint a. Legal Sufficiency 1. If on the face of the complaint the allegations could not support a judgment for the P, then case can be dismissed 2. If everything P alleged was proved then complaint is legally sufficient 3. 12(b)(6) – motion to dismiss for failure to state a claim i. a legal ‘so what’ ii. demurrer in state court b. Factual sufficiency – issues of specificity 1. Not enough facts 2. But courts don’t dismiss just bc it is hard to figure out what is said bc it is ‘inartfully pleaded’ 3. D would file a 12(b)(6) to claim factual insufficiency 4. Dioguardi, 1944 – case should be decided on its merits, not on formalities like poor grammar. i. Pro se P, whose 1st language was not english 5. Conley -don’t dismiss unless it appears beyond doubt that P can prove no set of facts i. Complaint needs to give D fair notice of Ps claim and the grounds upon which it rests. 6. courts are liberal with this otherwise it prevents people from filing suit i. on the other hand, it could increase the number of lame suits c. Other Devices for Clarifying, Testing Pleadings 1. 12(e) – motion for more definite statement 2. 12(f) – motion to strike – court can strike out any insufficient defense or redundant, immaterial, impertinent or scandalous matter from a pleading i. Motion must be made before responding to the pleading iii. Special Pleading Rules – when certain cases require more specificity a. 9(b) – fraud w/particularity 1. Nasty to accuse someone of this so don’t want to make it so easy b. 9(g) – special damages c. Leatherman, 1993 – don’t need heightened pleading rule in cases civil rights cases against municipalities 1. court said that since rule 9 doesn’t say anything about this type of case, then don’t need heightened pleading 18 iv. Pleading Inconsistent Facts/Alternative Theories -8(e)(2) a. you can plead 2 or more inconsistent or alternative theories if don’t know the facts. b. McCormick, 1959 -If there is uncertainty bc person who knows isn’t around or if you can’t know then you can plead in the alternative c. theories are considered mutually exclusive. Cannot recover for both. d. need to have a reasonable basis C. Dismissal (41) i. Voluntary dismissal 41(a) a. how 1. notice of dismissal i. unilateral by P, OR ii. w/prejudice if there was a previous unilateral dismissal 2. stipulation by the parties (default is w/out prejudice unless otherwise noted) i. if 2nd dismissal is by stip it is w/out prejudice, don’t care about if dismissal continue to happen by stip, unless it is stip w/prejudice 3. court order (Default is w/out prejudice unless otherwise noted) 4. must be before D’s filed answer or motion for summary judgment b. limited ability to dismiss so people don’t judge shop and reduces cost to D ii. involuntary dismissal 41(b) – D may move to dismiss if thinks P failed to prosecute or comply with rules or orders a. default rule – dismissed w/prejudice 1. exceptions i. lack of jurisdiction (including process) ii. improper venue iii. failure to join indispensable party iii. once dismissed w/prejudice can’t file anywhere (full faith and credit – give credit to judgments) D. D’s Responses i. Pre answer motion a. delays need to file answer b. 12(a)(1) – w/in 20 days after complaint, D has to answer unless filing a motion to dismiss, then don’t have to file an answer until motion is decided. c. 12(b) – special defenses that can be made by motion 1. No SMJ 2. No PJ – FRCP don’t require special appearance re PJ 3. Improper venue 4. Insufficiency of process 5. Insufficiency of service of process 6. Failure to state claim 7. Failure to join d. 12(e) – motion for more definite statement e. 12(g) – you get 1 motion to make 12(b) motions f. 12(h) – waivable defenses – if you don’t bring them all, then you waive the ones you don’t bring up 1. Pj 2. Venue 3. Process 4. Defenses that aren’t waivable i. failure to state claim ii. no smj 19 iii. can assert these at any time later g. if court requires special appearance, CANNOT file a motion asserting anything else except an objection to PJ. If you do, then you consent to jurisdiction and can’t ever assert otherwise down the road ii. Answer a. Respond to Allegations in complaint 1. Admit 2. Deny (negative defense) i. If deny, just deny, do not add words that may have possibility of confusing that ii. Simply deny the allegation, not specific facts, bc if you leave something out it is an admission 3. Lack of sufficient info b. Affirmative Defenses (8(c)) – don’t have to deny this allegation, but there is some other reason why I win and P loses 1. Needs to be stated in the pleading 2. 8(c) – nonexclusive list of defense 3. Too big of a burden on P to determine all D’s possible defenses so up to D to do 4. If P doesn’t agree w/D’s affirmative defenses, can’t do anything bc no responsive pleading to an answer. So affirmative defense is just a denial i. Some courts say you have to ‘reply’ to an affirmative defense c. counterclaim – if answer includes a counterclaim then ‘reply’ is needed E. Amended Pleadings – Rule 15 – a liberal rule i. 15(a) -Amendments a. as of right 1. Amend once, before a responsive pleading is filed 2. If no responsive pleading, then amend w/in 20 days b. Otherwise, must do so by consent of other party or leave of court 1. Leave of court when justice requires ii. 15(b) – Variance a. when evidence at trial conflicts with the pleadings b. if consent expressly or impliedly, then pleading will be deemed amended c. policy – trying to avoid on appeal that one party throws in claim that was not properly in the pleadings but discussed at trial d. can move to amend as late as trial iii. 15(c) – Relation Back – amendment will relate back to date of original pleading when a. 15(c)(1) -amendment relating back is permitted by the law that provides the SoL applicable to the action OR 1. If doesn’t relate back to original complaint then it can be barred by the SoL of the original action 2. if amendment does relate back then it is treated as though it was made when the case was filed so SoL is not violated b. 15(c)(2) – when claim in amendment arose out of conduct, transaction or occurrence set forth in complaint c. 15(c)(3) – when amendment changes the name of the party and (2) above is satisfied if 1. Party has notice and won’t be prejudiced OR 2. Knew or should have know that the action would be brought against them. 3. Ie, misnaming of party d. can relate back if changes legal theory, fleshes out facts or adds another claim arising from same transaction 20 1. nunc pro tunc – now for then e. if want to add later and relate it back, complaint should be broad enough to allow some room for additional claims on same transaction f. policy -after certain time, you should know that you cannot be held liable for stuff iv. 15(d) – Supplemental Pleadings a. new issues that arise after the action is filed b. doesn’t include facts that happened before the complaint was filed c. update the dispute by bringing such new facts to the attention of the court d. no right to do this, must get court permission through motion, but court usually liberally grants if doesn’t prejudice the other party, cause delay or bad faith v. Amendment Policy – liberal amendment policies conflicts with strict waiver policies a. 12(h) – waiver or preservation of Certain Defenses 1. Doesn’t want to let the policy of liberal amendment undermine the rules themselves and getting to the merits of the issue 2. amending the answer -if waivable defenses omitted, then you can amend but only using the time to amend as of right under 15(a), otherwise you’ve waived it i. this doesn’t apply if you made a pre answer motion F. Rule 11 i. 11(b) -Any pleading or argument must a. not be for improper purpose b. be warranted by existing law or non-frivolous arguments for change in law c. have evidentiary support or likely to have after reasonable opportunity to investigate d. denials are warranted ii. 11(c) -Sanctions are not mandatory a. Money is paid to the court b. Rule 11(c)-Safe Harbor – allows one to avoid consequences if didn’t comply with some technical provision 1. if claim challenged, could be withdrawn before sanctions set in iii. Policy – need to balance the following conflicting policy goals a. access/advocacy/innovation – federal rules vision, which is what the new Rule 11 leans towards b. efficiency, expense, deterrence iv. OLD version – 1983 a. mandatory – required to apply sanctions if any violations of the rule b. sanctions were paid to the other party c. no safe harbor d. increase litigation bc so many satellite Rule 11 litigation 1. caused lack of civility, heated discourse 2. chilled advocacy(attorneys would try the hard cases like civil rights and employment for fear of sanctions G. Model Rules of Professional Conduct (p. 360) i. 3.1 – meritorious claims and contentions only in good faith ii. 3.2 – reasonable efforts to expedite litigation iii. 3.3 – candor toward the tribunal a. can’t make false statements b. fail to disclose material fact when it is necessary c. offer evidence that is false iv. 3.4 – fairness to opposing party and counsel a. no obstruction 21 b. no falsification of evidence, etc.