PERSONAL JURISDICTION I. State Long Arm Statute II. U.S. Constitution A. Minimum Contacts 1. Specific Jurisdiction – contacts related to claim, “but for” a. Pennoyer: (1) voluntary appearance (2) consent (3) deemed consent – by doing business in state, you appoint agent for service of process (4) status (Pennington, Burnham) (5) domicile/resident b. Hess: implied consent for motor vehicle operators c. Int’l Shoe: (1) employed 11-13 salesman in forum (2) solicited orders from forum (3) salesman residents of forum (4) orders accepted & invoiced not in forum; salesman not enter contracts or collect money d. Magee: (1) D sent one renewal of insurance notice to forum (2) D received payments from forum (3) solicitation from outside forum seeking business within forum e. Hanson: (bank trust) – no PJ (1) P moved to new forum (2) D received payments from forum (3) D had no connection to forum when trust was created (4) D must purposefully avail himself of the privileges of conducting activities in forum, thus invoking the benefits and protection of its laws (5) PJ not created by unilateral acts of third parties f. Keeton: (Hustler magazine libel case) (1) D distributed/sold magazines in forum (2) P injured in forum by publication g. Calder: (Nat’l Enquirer defamation suit) (1) article published in forum (2) article not written in forum (3) ed. & writer never been to forum (4) effects test – D expressly aims conduct at forum, it has effects there, and claim arises from those effects (5) stream of commerce (Gray) – intentional acts aimed at forum h. Burger King: (1) pre-contract negotiations w/people in forum (2) contract required payments to forum (3) equipment purchased in forum (4) notices sent to forum (5) choice of law in forum (not required) (6) forming contract with person from forum not sufficient by itself (7) extensive communication with forum (8) franchise, customers, everyday concerns not in forum
(9) application process not in forum (10) D never been to forum (11) Forum selection clauses are enforceable, but not against third parties i. WWV: (stream of commerce) (1) foreseeable purchase sufficient (Gray-water heater) (2) foreseeable use not sufficient (3) PJ lies anywhere D can anticipate being haled to ct. (defined in BK as Hanson) j. Asahi: (stream of commerce) (1) O’Conner – foreseeable purchase + specific focus on forum ex. advertising, product designed specifically for forum, providing service to customers in forum (2) Brennan – foreseeable purchase is enough (Gray, WWV) (3) Stevens – foreseeable purchase + volume (quantity or value) or hazardous nature k. Shaffer: (1) intangible property is sufficient (2) real property is sufficient (3) when property causes harm attachment is sufficient l. Burnham – personal service is sufficient m. Grace – personal service in airplane over forum is sufficient n. James-Dickenson Farm Mortgage – jurisdiction cannot be acquired over a corporation in a state where it does not have a place of business merely by serving process upon an executive officer in the forum, even if he is there on business of the company o. D’s sale of products in forum sufficient (Keeton, Shoe, McGee) 2. General Jurisdiction (must be continuous and systematic – Int’l Shoe) – contacts not related to claim a. Situations where GJ does exist: (1) D’s headquarters in forum (Perkins) (2) D incorporated in forum (3) real property in forum probably sufficient (Shaffer concurrence) (4) personal service in forum (Burnham) (5) domicile (Milliken) b. Situations where GJ does not exist: (1) purchases and training in forum (Helicopteros) (2) intangible property in forum (Shaffer) (3) D distributed/sold magazine in form probably not sufficient (Keeton) (4) contract negotiations in forum (Helicopteros) (5) retail stores in forum (Walmart) (6) one sale not sufficient (Helicopteros, Perkins)
B. Fairness (Burger King; Asahi) Burden on D – distance to travel; foreign law Interests of forum state – is P a resident, etc. P’s interests – location of witnesses, evidence Other states’ interests a. efficient resolution (ex. Keeton) b. substantive policy interests 5. Other things 1. 2. 3. 4.
PROCEDURAL DUE PROCESS I. Notice A. Constitutional Minimum (Mullane) - notice must be “reasonably calculated to reach interested parties”; determined by balancing interests of P & D 1. actual notice sufficient 2. personal service sufficient, but not required 3. service by mail required for Ds whose identity and address are known or reasonably obtained 4. notice by publication is sufficient for unknown Ds 5. posting notice on property sufficient for case involving tangible property B. State Statute - if in state court C. Federal Statute – Rule 4 1. Individual – Rule 4(e) a. b. c. c. d. e. waiver, (incentives, p. 20) anyway acceptable in state where suit is filed, anyway acceptable in state where service is effected, personal service, agent for service of process, OR service at dwelling or usual abode (1) with person of suitable age and discretion, (2) then residing therein (3) “Usual abode” when D has more than one dwelling (National Dev. Co.) (a) indicia of permanence i. amount of time D spent there ii. type of home (b) D is at abode at time of service National Dev. Co. – sufficient indicia of permanence: (1) D spent 34 days/yr in NY abode (2) D furnished and remodeled NY abode (3) D listed NY abode as one of residences on bail application (4) D had 12 residences Note: Actual notice not sufficient. 2. Corporation, Partnership, or Association – Rule 4(h) a. b. c. d. e. waiver, (incentives, p. 20) anyway acceptable in state where suit is filed, anyway acceptable in state where service is effected, service of officer, or managing or general agent agent for service of process
3. Rule 4(c)(2) - Service may be effected by any person, not a party and 18 or older – summons + copy of complaint
II. Opportunity to be Heard A. Factors to Consider in determing compliance with U.S. Constitution (Matthews v. Eldridge) 1. D’s interests 2. risk of erroneous deprivation and probably value of additional safeguards 3. P’s interests B. Constitutional Minimums – before attaching property pre-adjudication (Doehr) 1. exigent circumstances, OR 2. pre-attachment hearing 3. bond (good, but not required) C. State Court – look at state statute D. Federal Court – Rule 64 – use local state court rules
Subject Matter Jurisdiction 1. Never waived; can be raised at anytime by either party or court – Rule 12(h)(3); infringing on States’ rights 2. Must plead in complaint – Rule 8(a)(1) I. State Court – general SMJ II. Federal SMJ – limited A. Exclusive – admiralty, patent and copyright infringement, federal antitrust and securities laws, Bankruptcy B. Diversity Jurisdiction (28 U.S.C. § 1332) – fed. ct. applies same law that state in which it sits would have applied 1. Diversity of Citizenship, AND a. must be complete; all Ps diverse from all Ds (Strawbridge) b. determined at time complaint is filed c. Rule 21 – ct. can dismiss non-diverse party if not “indispensable” d. Citizenship of Individuals: (Mas) (1) U.S. Citizen, AND (2) Domicile of state (a) begins as domicile of parents, remains until reach age of majority and change (b) To change domicile: i. reside in new state ii. intent to remain indefinitely (subjective) – voter registration, purchase home, in-state tuition, taxes, bar e. Unincorporated Associations (unions, partnerships, insurance assoc.) – assume citizenship of all individual members in the association f. Corporations (28 U.S.C. § 1332(c)(1)) (1) state of incorporation, AND (2) principle place of business (J.A. Olson Co.) * both must be diverse (a) Nerve Center Test – brain of corp; decision makers (b) Muscle Test – body of corp; most employees, day-to-day operations (c) Total Activity Test – i. if nerve center in one state and muscle in one other state, apply muscle ii. if operations are far flung, apply nerve center g. Alienage Jurisdiction (1332(a)(2)) – btw foreign citizen and U.S. citizen h. Person with green card is deemed to be citizen of state of domicile. i. Legal rep. of estate of decedent, infant, or incompetent is a citizen only of the same State as the person they represent. 1332(c)(2) 2. Amount in controversy exceeds $75,000 (Mas) a. determined by amt. claimed by P in good faith in complaint (Mas) b. Amt. not satisfied only if amt. is less than $75,001 to a legal certainty. c. Incentive: If P recovers less then $75,001, P may not be able to recover costs from D and may have to pay Ds costs (28 U.S.C. 1332(b)) d. Aggregation of Claims (1) one P & one D – P may aggregate even if claims are unrelated (2) multiple parties on either side – no aggregation, even if related (3) joint tortfeasors – consider whole amount e. Injunctive Relief – p. 28; Class Action – p. 28; Assignment of Claims, or P moves – p. 29
C. Federal Question Jurisdiction (28 U.S.C. 1331) – R: greater expertise on federal issues; more sympathetic to policy behind fed. statute; not subject to elections 1. FQ must be part of well-pleaded complaint (minimum allegations P must claim to survive motion to dismiss) (Mottley) a. Declaratory Judgments p. 31 2. Federal Question must be central part of dispute. 3. FQJ is concurrent unless there is a statute making it exclusive. 4. 28 U.S.C. 1257 – Supreme Ct. has appellate jurisdiction over final state ct. judgments in which fed. question is “drawn in question” D. Removal Jurisdiction (28 U.S.C. 1441, 1446, 1447) 1. D can remove if district ct. would have had original jurisdiction; removal must be to the fed. district ct. for the district embracing the place where the action is pending” (1441) 2. If jurisdiction is based solely on diversity and D is a citizen of the state where the suit was filed, D cannot remove. (1441) 3. All Ds must agree to removal. (Noble) a. Except if single D has separate and independent FQ claimed against her 1441(c) b. Effect of voluntarily dismissal of Ds. p. 33 4. Procedure: a. D must file notice of removal within 30 days after receipt of initial pleading. If case stated in initial pleading is not removeable, D must file notice within 30 days after receipt of document from which if may first be ascertained that case is removeable (1446) (1) Case may not be removed on the basis of diversity more than 1 yr. after commencement of action b. P’s motion for remand must be filed within 30 days after filing of notice of removal (1447(c)), unless motion is based on lack of SMJ which can be filed at anytime (1) If removal was improvident, D may have to pay costs of removal, including attorney’s fees – 1447(c)
Venue Local action (dealing with property) – p. 34 I. State Statute – if in state court II. Federal Venue Requirements A. Non-removed Case (i.e. originally filed in federal court) – 28 U.S.C. § 1391 1. If one D, district where D resides. 2. Multiple Ds – A district where any D resides, if all Ds reside in the same State. 1392(a)(1) a. Individual resides: (same as citizenship for diversity purposes) – l place (1) U.S. Citizen, AND (2) domiciled in state (a) reside (b) with intent to remain b. Corporation resides in any district in which it is subject to PJ at the time the action is commenced – 1391(c) – can be more than one place (1) If state has more than one district, see p. 35 3. District in which a substantial part of the events or omissions giving rise to claim occurred, or a substantial part of the property that is the subject of the action is situated. 1391(a)(2) a. no purposeful availment requirement (Bates); interpreted liberally 4. For an alien (individual or corp.), venue exists in any district, as long as there is PJ – 1391(d)
B. Removed Case (i.e. originally filed in state court) - 28 U.S.C. § 1441 – venue is the district that embraces the original state court where the action was filed
Transfer of Venue – can only occur within a particular court system I. State Court state statute II. Federal Court A. Transferor court is a proper venue – 28 U.S.C. § 1404(a) 1. choice of law = transferee court must apply choice of law of transferor court (Van Dusen) Note: choice of law – federal court applies the choice of law rules of the state in which it sits (Klaxon) B. Transferor court is an improper venue (i.e. no PJ or venue) – 28 U.S.C. § 1406(a) 1. choice of law = transferee court’s choice of law 2. D can file motion to dismiss or transfer venue 3. Venue is waived if D does not object – 1406(b) 4. A court that lacks personal jurisdiction can transfer a case (Goldlawr) C. Requirements: 1. case might have originally been brought in transferee court w/o any waivers by D (Hoffman), AND 2. in the interest of justice and convenience Gilbert Factors: (concentrate on 3 & 4) 1. P’s choice of forum rarely disturbed 2. only dismiss case if another forum is available 3. private convenience factors a. access to evidence b. witnesses c. availability of compulsory process for attendance of unwilling participants d. view location of occurrence e. other things 4. public convenience factors a. local interest in local disputes b. familiarity with law c. avoidance of unnecessary problems in conflict of laws or application of foreign law d. unfair burden on local juries D. Multidistrict Litigation – p. 39 Forum Non Conveniens – case is dismissed (may be conditional on D waiving certain defenses, ex. statute of limitations) I. Gilbert Factors: (see above) 1. P’s choice given less deference when P is foreign (Piper) 2. only dismiss case if another forum is available (even if waiver is required)
PLEADINGS I. Complaint A. Federal Requirements: Rule 8(a) 1. assertion of SMJ – “short and plain statement of the grounds upon which the courts’ jurisdiction depends” 2. “short and plain statement of the claim showing that the pleader is entitled to relief” a. puke on paper is sufficient (Dioguardi, Conley) – notice pleading b. Exception: Heightened Specificity Requirements (Rule 9(b)) - exclusive (1) fraud (2) consequential damages (3) denial of condition precedent 3. prayer for relief (“wherefore”) – need not be specific; P can recover more B. Form – Rule 10 & look at local rules C. Pleading Inconsistent Facts and Alternative Theories – Rule 8(2); applies to claims and defenses 1. Rule 11 – No bald-faced lies. If as far as you know, both allegations are true, or you don’t know which alternative is true, you can plead inconsistently and state both as fact. (McCormick) 2. If truth is found at discovery, P does not have to update pleading; however, P cannot defend in court a pleading that P knows to be false II. Voluntary Dismissal – Rule 41(a) A. Methods: 1. P files notice of dismissal – must be before D serves answer or motion for summary judgment to dismiss w/o prejudice 2. Stipulation of dismissal – all parties must agree (can be w/ or w/o prejudice) 3. Order of Court B. R: P does not have to pay Ds costs if dismissal is voluntary (Rule 54); P may be able to re-file C. 2nd time P dismisses a case, if dismissed by notice of dismissal in federal court, it is with prejudice – Rule 41(a)(1) III. Involuntary Dismissal – Rule 41(b) – upon motion by D or at courts discretion (Link); dismissed with prejudice A. Reasons: failure to prosecute, failure to comply with Fed. Rules, violation of ct. order B. Judge usually sends P an Order to Show Cause (OSC) why P’s claim should not be dismissed C. Escape valve – appeal or Rule 60 (Relief from Judgment or Order) 1. clerical mistake 2. mistake, inadvertence, surprise, excusable neglect, new evidence, fraud, etc. – must be filed within one year of judgment
IV. Possible Responses to Complaint A. Answer – Rule 8(b): either admit, deny, or don’t know (denial) 1. General Denial – allowed as long as none of P’s allegations are true 2. If D admits, it become fact. 3. Affirmative Defenses – Rule 8(c) & statute: must be raised in answer, amended answer, or motion for summary judgment or they can’t be raised at trial B. 12(b)(6) Motion (or demurrer) – even if P can prove everything stated in complaint, P would still lose 1. Usu. dismissed once w/o prejudice; if ct. does not specify, case is dismissed with prejudice – Rule 41(b) 2. If D alleges lack of evidence, ct. will treat as summary judgment motion; A.D. allowed only if you can see from the allegations of the complaint that the A.D. will win 3. Can be used to dismiss part of a claim 4. Motion for judgment on the pleadings (12(c)) – filed after answer 5. Last time it can be raised is at trial; cannot raise on appeal C. Appearances 1. Special Appearance – contest PJ without consenting to PJ 2. Limitied Appearance (under in rem jurisdiction) – P could litigate in in rem case and still limit recovery to value of property 3. General Appearance – in some states, if you do anything other then contest PJ in special appearance, you are deemed to have made a general appearance and waive PJ 4. Federal Special Appearance – allowed; P can also assert other objections without making it a general appearance – Rule 12(b)(2) 5. Order in Federal Court – Rule 12(g) & (h) a. waivable defenses must be asserted in the first major thing D does, i.e. either Rule 12 motion or answer, or they are waived b. waivable defenses = PJ, venue, insufficiency of process, insufficiency of service of process