Civil Procedure I – Outline
Subject Matter Jurisdiction
-States: General subj. matter jurisdiction (can hear pretty much everything)
-Fed Ct.: Limited subj. matter jurisdiction (can hear cases limited by law)
Key: Either exists or not. CANNOT be waived. Fed. Ct. w/o subject matter jurisdiction MUST dismiss.
Ways to get into Federal Court
-Citizens of different states (28 U.S.C. 1332(a)).
“States” includes U.S. territories (Puerto Rico, Guam, Virgin Islands, and District of Columbia).
-Amount in controversy EXCEEDS $75k. (EXACTLY $75k NOT enough!) (Good faith is ONLY requirement, less
recovered does not destroy diversity UNLESS no good faith) (Mas v. Perry).
A. The complete diversity rule.
i. Every P must be diverse from every D. (Strawbridge v. Curtiss)
ii. STATUTORY rule under 28 U.S.C. 1332(a)(1): “between citizens of different states.”
B. Minimal diversity
i. U.S. CONST: Complete diversity NOT required by Art. III § 2.
ii. At least one P diverse from one D. 100804651905
iii. Const. only requires MINIMAL diversity, only 1332(a)(1) requires complete diversity.
C. Constitution: broad interpretation; Statute: narrow interpretation
Alienage (see purpose of diversity, to prevent bias, discrimination against non-citizens)
Alien v. Alien does NOT invoke diversity.
Alien vs. non-alien DOES invoke diversity.
Determining Citizenship – Individuals
Citizenship at time of filing, not afterwards.
Two requirements to be citizen of a state:
a- Must be U.S. Citizen
b- DOMICILED in that state
a. Person always has a domicile and only ONE domicile.
i. Changing domiciles requires two things:
1. Physical presence in new domicile
2. Subjective (mental) intent to make new state the domicile.
b. Residence does NOT = domicile OR citizenship.
c- EXCEPTION: Permanent residents (non-citizens) considered citizens of the state (though not U.S.
Citizens) (28 U.S.C. 1332(a) unnumbered sentence).
Non-corporations: Citizenship is citizenship of each member (partnerships, LLPs, etc.)
-Ex: partnership w/ 3 members (CA, WI, PA) – partnership citizenship is CA, WI, and PA.
-LLCs are treated like partnership (Belleville Catering v. Champaign Market Place)
Corporations: 28 U.S.C. 1332(c)(1)
Key: ONLY businesses that are INCORPORATED. All other business fall under non-corp. rules.
-State(s) of incorporation (ANY state; usually one, but CAN be more)
-Principal place of business (only ONE)
Must allege BOTH to invoke diversity
a) Does not require “magic words” but does require something close.
b) “registered office” NOT principal place of business. (Randazzo v. Eagle-Picher Industries)
Because jurisdiction exists or does not, P MUST properly allege diversity jurisdiction or case must be dismissed.
Determining principal place of business (for corp.):
“Total activity” test (2 parts) – (J.A. Olson v. City of Winona)
1- “place of activity” test
a. Where operations primarily take place.
2- “nerve center” test
a. Where operations stem from.
If corp. has “far flung operations” (multiple states): nerve center
If operating in ONE state (ex. Headquarters in one state, operation in another): place of activity
If passive activity (transit or minimal operations): nerve center
Generally: If operations in MANY states then nerve center. If operations in ONE state, then that state is place of
activity and therefore principal place of business.
Do NOT confuse-- test to determine CITIZENSHIP for subject matter jurisdiction in DIVERSITY, not personal jurisdiction!
Federal Question Jurisdiction (28 U.S.C. 1331)
Note: No amount in controversy requirement (only for diversity/alienage)
Part of a well-pleaded complaint.
A federal question that is “sufficiently central to the dispute.”
Well-pleaded complaint rule:
Complaint must allege a federal question.
Use of fed. law as defense does NOT invoke federal question jurisdiction (Louisville/Nashville RR v. Mottley).
Rule requires that the complaint without anything else (defenses, extraneous materials) states a federal question.
-Ex. Mottley claim was for breach of contract and D’s defense would have been federal law.
Well-pleaded complaint only includes the breached contract and how P damaged.
Declaratory judgment raised under 28 U.S.C. 2201, 2202.
Court deciding relative rights of parties. This alone would NOT invoke federal question.
Generally: case brought in state court; removal is invoked ONLY by D to move case to federal court. (Not third party D’s
or P on counterclaim).
ONLY: state court to federal court (one way)
Requires federal subject matter jurisdiction be satisfied (diversity, alienage, federal question)
-ALL defendants must agree to remove (28 U.S.C. 1441(a)).
-30 days from time of service.
Removal sends case to the district court in which the state court was. (Removal from CA ct. in S.F. N.D. Cal.
A case that IS removable must be removed w/in 30 days, or no longer removable.
D’s joined to claim that CREATES removal jurisdiction have 30 days more days to remove.
D’s joined to a case that was already removable CANNOT remove. (Noble v. Bradford Marine)
-Required that all D’s agree to removal; if D could remove but did not, and second D wants to remove,
ALL D’s agree to remove cannot be satisfied.
If amended complaint creates NEW basis for removal, 30 days begins from that time.
Types of personal jurisdiction:
- In personam: jurisdiction over person.
o Generally, requires personal service IN STATE of proceedings (Pennoyer v. Neff)
- In rem: jurisdiction over property.
o True in rem: ownership “as to the whole world” (i.e., gov’t condemnation, admiralty)
o Quasi in rem (QIR) type 1: adjudicate ownership between parties (i.e., foreclosure, ct. decides if
bank or homeowner has title)
o QIR type 2: property is used to assert jurisdiction (i.e., Nonresident D’s in state property “attached”
to create jurisdiction)
Recovery limited to value of property.
Property must be attached at outset of case (Pennoyer)
Establishing in personam jurisdiction
- Of ‘residents’ (interpreted to mean domicile).
- Of D’s ‘found within the state’ (presence)
o Service of nonresident D in the forum state (Pennoyer)
- Personal service absolutely required! (historically)
o ‘constructive service’ (short of personal service, i.e., publication) NOT sufficient under Pennoyer.
- Shift: Personal service is SUFFICIENT in most instances (Burnham v. Superior Ct. of Cal.)
- Consent: appearing to defend lawsuit.
o Exception: special appearance for purpose of contesting jurisdiction.
- Implied consent
o State can exclude individuals unless consent to agent for service.
o As condition of entering state. (Hess v. Pawloski)
Specific personal jurisdiction:
Over non-individuals (businesses, corporations):
- Requirement that agent for service be appointed as condition to do business in state.
o Complies with Privileges and Immunities Clause
o Therefore, in personam jurisdiction consented to for all companies that do business in state.
- Restrictions: conditioning business on consenting to in personam jurisdiction (Commerce Clause)
o Prohibited over companies conducting INTERSTATE commerce.
Shift to “presence” test to assert jurisdiction (Int’l Harvester v. Kentucky)
Determining sufficient “presence”:
a. “minimum contacts” test (Int’l Shoe v. Washington)
a. Nature of contacts – “systematic and continuous” or “casual”
b. “Fair play and substantial justice” requirement.
i. Burden of litigating in inconvenient forum; limit of state’s power (coequal sovereigns)
ii. Quid pro quo—business benefits from state; should be subject to court’s jurisdiction.
Unrelated 2-No 3-Maybe
Related 4-Maybe 1-Yes
↑Contacts Casual Continuous &
Lev. of Systematic
Sliding scale: contacts required changes depending on relatedness (extent to which lawsuit relates to contacts)
b. Foreseeability and convenience:
a. Lawsuit would not be surprising; not itself sufficient (WW Volkswagen v. Woodson)
b. Convenience of forum also insufficient itself.
c. Foreseeable such that can reasonably anticipate being haled to court there.
c. “Purposeful availment” to benefits of state. (WW Volkswagen)
d. Interest of forum state to adjudicate matter ; fairness (McGee v. Int’l Life Ins.)
e. Unilateral activity does not itself create jurisdiction (contra purposeful availment) (Hanson v. Denckla)
Absence of sufficient contacts:
Directed actions – sufficient to create jurisdiction
Intentional, aimed actions: D should reasonably anticipate being haled into court (Calder v. Jones)
Plaintiff does NOT need to have sufficient contacts in forum. (Keeton v. Hustler)
Burden on D to show unfairness of forum (beyond inconvenience to unconstitutional)
Physical presence (at one time) in the forum is NOT a requirement. (Burger King v. Rudzewicz)
Establishes the substantial burden that D must overcome to demonstrate unfairness of forum.
Stream of commerce:
- Company sells product in CA; buyer sells to WI then PA; P injured in PA; sues company in PA.
- Placing product in “stream” not enough (Asahi Metal v. Super. Ct. of Cal.) (O’Connor)
o Requirement: Additional factors (designing, advertising, channel for advice, marketing)
- Placing product in stream + awareness that product marketed in forum enough
o Awareness means lawsuit cannot come as surprise. (Asahi) (Brennan)
o Litigation is not burden without benefit (indirect purposeful availment)
REMEMBER: contact AND fairness factors. Failure on EITHER defeats jurisdiction.
General personal jurisdiction:
Jurisdiction over issue NOT related to contacts.
EXTENSIVE continuous and systematic contacts may create general personal jurisdiction.
Company may essentially become citizen of the state (Perkins v. Benguet Mining)
Contacts requirement is HIGHER when issue arises out of unrelated activity.
Contacts requirement is LOWER when issue arises out of related activity.
To create general personal jurisdiction, contacts must be extremely continuous.
Ex. For specific jurisdiction: Continuous/systematic contacts; For general jurisdiction: Contacts ‘+++’
Contacts sufficient to establish specific personal jurisdiction not sufficient here (Helicopteros v. Hall)
Service of Process:
Sufficient (not necessary if satisfies minimum contacts standard) to establish personal jurisdiction through personal
service in forum (Pennoyer; Burnham)
“Minimum contacts” test only used to replace service (alternative way to establish jurisdiction) (Burnham) (Brennan
In rem and quasi in rem jurisdiction:
A. Holding property—in an in rem action.
a. To compel personal appearance; NOT allowed!
i. If no in personam jurisdiction; indirect assertion is also not permissible (Shaffer v. Heitner)
ii. Mere presence of property is not sufficient.
Where within court system will cause of action take place—geographic location.
Ex. PA has general jurisdiction over party.
o Party lives in Philadelphia.
o PA court in Philadelphia would be proper venue. (or federal district encompassing Philadelphia).
o Only in district where any D resides, if all D’s in same state (28 U.S.C. 1391(a)(1))
o Judicial district where substantial part of events giving rise to claim occurred (1391(a)(2))
o If no other district, then district in which any D is subject to personal jurisdiction (fall back, (a)(3))
Not in diversity:
o District where D resides (1391(b)(1))
o Substantial events occurred (1391(b)(2))
o If no other district, where D may be found (fall back, (b)(3); contra (a)(3))
Change of venue: by the parties
Alternative forum must be CLEARLY more appropriate. (strong presumption toward P’s choice) (Gilbert, Koster).
- Original venue proper (28 U.S.C. 1404): “1404 transfer”
- Original venue improper (28 U.S.C. 1406): “1406 transfer”
- Ct. does not have personal jurisdiction. Permissible: “Goldlawr transfer”
Note: Transferor’s choice of law provisions would apply.
Courts power: Forum non conveniens
Dismissal because more appropriate venue in different system.
Court will DISMISS because it CANNOT transfer to another system (i.e., state court to another state’s court)
NOTE: if transferrable, then use 1404/1406; not forum non conveniens.
Favorableness of law is not alone a basis for dismissal. (Piper Aircraft v. Reyno)
Must be so unsatisfactory that there would be no remedy at all.
Forum non conveniens dismissal requires EVEN STRONGER showing than transfer to disturb P’s forum choice.
Often conditional: dismissal requires certain defenses be waived (ex, statute of limitations, jurisdiction)
Challenges to Jurisdiction
Challenging personal jurisdiction:
A. Traditionally – special appearance.
B. Modern – Rule 12(b)(2).
a. By pleading or motion
C. Choice of direct OR collateral attack (can only litigate issue ONCE)
- Defending lawsuit on merits in P’s choice of forum
- Assert Rule 12(b)(2) defense: Raise jurisdictional issue.
o If successful, lawsuit dismissed/transferred for lack of personal jurisdiction.
o If unsuccessful, lawsuit must continue on its merits.
Not defending on merits after jurisdictional motion fails does NOT allow further attack on
jurisdiction. (Baldwin v. Iowa State Men’s Association)
Defending on merits DOES allow appeal of jurisdictional issue AFTER final decision.
- Not defending lawsuit on merits. Allowing default judgment entered against in P’s choice of forum.
- Upon P attempting to enforce judgment in home forum, assert lack of personal jurisdiction.
o If successful, default judgment rendered against is null/void.
o If unsuccessful, default judgment is VALID.
CANNOT assert defenses based on MERITS of the case.
Challenging subject matter jurisdiction:
Direct attack: Can be raised by any party at any time (including court sua sponte, party asserting subject matter
jurisdiction in the first place)
Collateral attack: Default judgment then challenging subject matter jurisdiction. Might be allowable.
Choice of Law
Vertical: federal law vs. state law.
Horizontal: the law of which state should apply?
In Federal Courts:
When does Fed. Ct. apply state law?
Historically (no longer applies!):
- Disagreement between state law and federal law (i.e., NY: discharge of debt consideration; Fed: discharge of
debt NOT consideration)
o “Forum shopping allowable” (disparity in vertical choice of law)
If case filed in NY state ct., state law applied
If case filed in Fed. Ct., fed. Law applied
o “Laws of the several states” (Rules of decision Act) interpreted to include only state statutes and
state common law of local concern. Federal court could ignore state law. (Swift v. Tyson)
o Different result in same case in same STATE. (Vertical disuniformity) (Black&White Taxi v.
- Choice of forum should NOT have differing outcomes based on choice of law (Erie R.R. v. Tompkins)
- There is no “federal common law” – states to determine.
- Federal courts sitting in diversity apply state common law, if no federal law on point (Constitution or Acts of
o Body of law created by state’s highest court.
o How the highest court would apply the state law.
Federal judges ‘predict’ how the highest court would rule.
Only conscientious duty to predict state court interpretation (Deweerth v. Baldinger).
If court actually rules differently, not grounds to reopen case under Rule 60(b)(6).
- Federal courts apply state SUBSTANTIVE law.
- Federal courts apply federal PROCEDURAL law.
Constitution requires there be no deprivation of property without ‘due process of law’
- Providing notice
o Copy of complaint- informing D of action.
o Through service of process via summons (Rule 4(a)(1); 4(c))
- Opportunity to be heard
Satisfying notice requirement:
- Puts litigants “on notice”: informs them of the pendency of the action.
- ‘Of such nature as reasonably to convey the required information.’ (Mullane v. Central Hanover Bank)
o Individual notice is NOT necessarily required. (notice does NOT require doing everything)
o Circumstances determine the notice required to satisfy due process.
Notice by publication IS sufficient when whereabouts MAY BE ascertained, but not during
normal course of business (notice does not require this burden).
Notice by publication also sufficient where no other means of notice would be more
sufficient (whereabouts cannot in due diligence be ascertained).
Where residence is KNOWN, publication NOT sufficient notice (mail or individual notice
would have been better)
- Notice provides interested parties the opportunity to be heard (if so choosing).
- Due process would NOT be satisfied if judgment against party without chance to defend.
Substituted Service (where no personal notice/service given)
- Service on “agent” in party’s dwelling house/usual place of abode is allowed (Rule 4(e)(2)(B); National Dev.
V. Triad Holding)
- Should be left with someone competent, not a minor. (Rule 4(e))