Civil Procedure Outline

I. Personal Jurisdiction
In what states can P sue D?
Court has to have power over person or person’s property
In personam = power over person
In rem = power over property
Quasi in Rem = power over property

Due process clause sets out outer boundaries of jurisdiction

Ultimate reach of a forum

Must also have a statute (long arm statute) that allows jurisdiction.

2 questions: (1) – is there a statute? (2) – is jurisdiction constitutional?

A. In personam jurisdiction – power over defendant

General jurisdiction – D can be sued in the forum on a claim that arose anywhere
in the world.

Specific jurisdiction – D can be sued only for a claim that arose in the forum.

1. Constitutional limits – How far can a state reach?

1877 Pennoyer v. Neff – a state has jurisdiction over everybody and everything q
w/in the forum.
General Jurisdiction Rules from Pennoyer:

a. D is served with process in the forum. (present when served)

b. D’s agent is served with process in the forum.
c. D is domiciled in the forum.
d. D consents to jurisdiction

1927 Hess v. Pawlowski

Implied consent – If you drive into our state we will assume you have consented
to personal jurisdiction.

1945 International Shoe

“Such minimum contacts with the forum so that exercise of jurisdiction does
not offend traditional notions of fairplay and substantial justice.”

a. In personam jurisdiction without service in forum

b. Allows states to reach outside boundaries.
International Shoe has not overruled Pennoyer. It sets rule for services of
process when D is not in forum.

1957 McGee – Texas Ins. Co. sued in California. Had one contact (client)
a. D solicited business from California
b. Relatedness – P’s claim arises from contact with forum
c. State had an interest

1958 Hanson v. Denckla – Wealthy woman sets up trust with Delaware bank,
dies in FLA, her relatives fight over the money. Does bank have no relevant
contact with FLA? NO
a. Relevant contact must arise from D’s Purposeful availment – D must
reach out to forum.

1980 World Wide Volkswagen – car accident, sued dealer and regional
distributor in OK (they were from NY).
a. Court found there was no purposeful availment
b. No relevant contact – car got to OK by the unilateral act of P
c. Must be foreseeable that Ds would be sued in OK

1985 Burger King

a. 2 parts to minimum contacts
i. must have a contact first and then look at fairness if no
fairness then no juris even after contacts are established.

ii. Fairness – burden is on D to show that FLA is so gravely

inconvenient that you are at a sever disadvantage. Doesn’t
matter how rich or poor one is.

1987 Asahi
Stream of Commerce – A sells to B who sells to C,D,E – Is that a relevant
contact? Court is split.
a. Brennan opinion – is a contact if you put it in the stream and you
anticipate that it will get to states C,D,E.
b. O’Connor opinion – Need stream of commerce and intent or
purpose to serve states C, D, & E. ( advertising, customer service)

1990 Burnham – NJ D is served w/ process in CA. Lawsuit has nothing to do

with CA act. Does service of process in state give you jurisdiction in state?
(Pennoyer). Court split again.
a. Scalia opinion – presence when served has historically been good.
Minimum contacts are irrelevant.
b. Brennan opinion – must assess minimum contacts. We don’t care
about historical pedigree.
c. There was jurisdiction under both theories.
 Helicopteros

Analytical Framework:
Qu. 1: Does a traditional basis apply? (Pennoyer)
Qu. 2: Minimum contacts analysis? (Shoe, Burnham)
1. must have relevant contact.
a. forseeability that D would be sued in forum
2. Fairness
a. Relatedness – Does P’s claim arise from contact?
b. Fairness factors
i. Burden on D and witnesses
ii. State’s interest
iii. P’s interest
iv. Legal system’s interest in efficiency
v. Interstate interest in shared substantive policies

3. Stream of Commerce (WWV, Asahi)

2. Statutory Inquiry – even though it is Constitutional you don’t have p.j.

unless there is a statute.
Every state has a p.j. statute ie. non resident motorist, long arm
statutes.

B. In Rem & Quasi In Rem – jurisdiction over D’s property

In Rem = dispute over ownership of property
Quasi in rem = dispute not about ownership, court has to attach property at outset
of litigation.

Pennoyer – must attach prop at outset of litigation

Shaffer v. Heitner 1977 –

Basic rule for quasi in rem – all assertions of p.j. the D must have min.
contacts with the forum.

Shaffer hints that with in rem the presence of prop will satisfy contacts,
especially land.

II. Notice – Due Process requires notice and opportunity to be heard.

A. Service of process – Rule 4

1. 4a & b – process consists of a summons and a copy of the complaint

2. 4c(2) – service can be made by any non party who is at least 18

3. 4e(2) – Individual service

 a. personal service ( give directly to person)
b. substituted service – serving a substitute OK if:
i. it is at D’s normal abode
ii. you serve someone of suitable age and discretion who resides
there.
c. serve D’s agent
d. 4e(1) - you can use any method of process allowed by the state law
where Fed Ct. sits and state where process is served.

4. 4(h) – service on a corporation – you have to serve an officer or a

managing or general agent. (4e(1) applies too)

5. 4(d) – is not service of process but waiver of service of process to cut court
costs.

6. 4k(1)a – You can serve process throughout state where Fed Ct. sits and
you can reach out of state only if state law allows.
a. 4k(1)b – you can serve process outside the state w/in 100 miles of
courthouse. Does not apply to serve process on original D, just joined
Ds.

b. nationwide service of process

B. Constitutional Standard of Notice

Mullane v. Central Hanover Bank 1950
1. Notice is OK if it is reasonably calculated under all circumstances to
apprise D.
2. Service by publication will almost never be good
a. In Mullane they held pub. Notice was OK for people who couldn’t
be identified.

C. Opportunity to be Heard
Connecticut v. Doehr
Safeguards set out by Supreme Court:
1. P must give an affidavit a sworn statement
2. P must state specifics
3. order from a judicial officer
4. Sometimes bond is required
5. D gets a hearing on the merits

III. Subject Matter Jurisdiction

Fed Courts are courts of limited SMJ.
1. Diversity
2. Federal Qu.
State Cts have general jurisdiction – they can hear anything but exclusive Fed Qu cases
(ie. patent)
A. Diversity of Citizenship 1332a1
1. Citizens of Diff states
a. Complete Diversity Rule - no diversity if any p is a citizen of the
same state as any D.
b. test for diversity when case is filed
i. subsequent change in citizenship does not matter
c. citizenship of a human being
i. state of domicile (US citizens)
aa. 1 domicile at a time
bb. you retain domicile until
(1) you go to new state and
(2) while you are there you intend to remain
indefinitely
d. citizenship of a corporation 1332c(1)
i. state(s) where incorporated
ii. also a citizen of one state where you have your principle place
of business.
iii. place of activities, most states will use ppb unless all activities
are done in another state.
e. citizenship of an unincorporated business
i. look to citizenship of all members
f. 1332c(2) For decedents, minors, and incompetents you look to their
citizenship not their representatives.
2. Amt in controversy exceeds 75K
a. Amt. Must exceed 75K not inc. costs or interest
b. P’s claim governs unless it is clear to a legal certainty that she
cannot recover
c. 1332(b) – p’s ultimate recovery is irrelevant to SMJ
d. aggregation – add 2 or more claims to get over 75K
i. You aggregate claims if there is 1 P and 1 D.
ii. no aggregation if there are multiple parties on either side
iii. joint claims use total value, joint tortfeasors you can sue all
3 (or whatever the number is) for 76K and that is ok

B. Federal Question Jurisdiction 1331

Citizenship irrelevant and no amount in controversy
1. Case must arise out of federal law
2. You look only at P’s complaint and not at defenses
3. Is the P enforcing a Federal right

Motley case
a. Congress passes a statute that RR cannot give away free passes
b. Motleys claim they are not covered by statute and sue RR to cont.
getting free passes
c. No Federal Qu. B/c no Federal right has been breached
 C. Supplemental Jurisdiction 1367

P must have 1 of (A and B) to get into Fed Ct. For every single claim in Fed Ct.
there must be SMJ

Supp. Juris – allows a Fed Ct. to hear a claim even though the claim does not have A
or B. Original Claim must but additional claims do not have to have diversity or
Fed Q.

United Mine Workers v. Gibbs 1966 – 2 claims one Fed and one state. PTN
sues DTN on Federal Labor law and state tort law

Gibbs Test: 1367a

a. Supp. Juris over claim if
i. it arises from a common nucleus of operative fact w/ Federal
Claim.

2questions:
a. Does 1367a grant supp jurisdiction?
b. Does 1367b take away supp jurisdiction?
Only applies in diversity cases. Only kills supp juris. Over
claims by p.

D. Removal Jurisdiction 1441, 1446, 1447

D sued in State court he can remove to Fed Ct.
1. It’s a one-way street – State to Fed
2. Only ds can remove, ps can never remove even if he has been hit by a counter
claim.
3. All ds must agree to remove.
4. You can remove only to Fed District embracing the state court
5. You must remove within 30 days of the cases becoming removable. 30 days
runs from when you are served with summons
6. You can remove if case has SMJ in Fed Ct.
a. THE EXCEPTIONS APPLY ONLY IN DIVERSITY
i. no removal if any D is a citizen of the forum
ii. suppose P dismisses claim against TN D. The case has become
removable.
iii. You cannot remove a diversity case more than one year after it
was filed in state court.

IV. Venue
In what Fed Dist do I lay Venue?

A. Basic Provisions 1391a & b

For any case at all P has 2 choices
 1. In any District where all Ds reside
a. people residence = domicile
b. corporation residence 1391c
i. a corporation resides in all districts where it is subject to p.j.
c. if all ds reside in different districts of one state you may lay venue
where one of them resides.
d. Any dist where a substantial part of claim arose

B. Transfer of Venue
Must transfer within same judicial system ie. Fed Dist Ct. of Minnesota to Fed
District Court of Colorado.
2 transfer statutes – In both statutes you can only transfer to a court that is a proper
venue and has p.j. over D.

1. 1404a – applies when the original court is a proper venue

a. convenience of parties and witnesses
b. interest of justice

2. 1406a – when the original court is an improper venue. You can dismiss or
transfer in interest of justice.

C. Forum Non Conveniens

A court dismisses a case b/c the litigation would be far more appropriate in another
place. You dismiss b/c you can’t transfer b/c the appropriate court is in a different
judicial system. Best example is if court is in foreign country.

Piper v. Reno 1981

Sued Plane parts manufacturer in Pennsylvania b/c part was made in Penn
that caused crash in Scotland. S. Ct dismisses case because Scottish Courts
were more appropriate.
Factors court cited in pertaining to public were:
a. administrative difficulties flowing from court congestion
b. local interest of having localized controversies decided at home
c. the interest in having the trial of a diversity case in a forum that is
at home with the law that must govern the action
d. the avoidance of unnecessary problems in conflict of laws
e. the unfairness of burdening citizens in an unrelated forum of jury
duty.

The court can however impose on cases dismissed for forum non conveniens.

V. Challenging Forum Selection

• In some states challenging p.j. you have to make a special appearance and if you
argue any other issue except p.j. you have waived p.j.
 • Federal rules allow Shotgun pleading in either motion to dismiss or answer. Rule
12. But must raise p.j. first or it is waived
o Within 20 days of service of process you must make a motion or you must
answer
o 12b lists 7 defenses that can be raised either by motion or answer
 12b1 – SMJ
 12b2 – P.J.
 12b3 – object to venue
 12b4 – insufficient process (rare)
 12b5 – insufficient service
 12b6 – failure to state a claim
 12b7 failure to join an indispensable party

• 12 g & h – impose strict waiver rules

o Defenses 12b2-5 must be put in the 1st Rule 12 response or else they are
waived
o 12b6 & 7 can be raised at anytime during trial
o 12b1 can be raised any time and is never waivable – Courts also have a duty
to bring it up.

VI. Erie Doctrine

Applies in Diversity cases.
When do Fed Cts apply state law?

Erie v. Tomkins 1938

o Fed Ct. must apply state substantive law
o Mandated by Constitution and Rules and Decisions Act

Hanna v. Plumer 1965

Is there a FRCP or statute on point that directly clashes with state law?
If answer is yes we must apply FRCP as long as it is Constitutional and as long as it
meets the Rules Enabling Act (REA)

QU. What if we want to do our own thing but there is no FRCP?

Apply Erie Test:
o Outcome Determinative
Guaranty Trust v. York – under state law under statute of limitations the
claim was barred. S. CT said statute of limitations is a matter of state law.
 Outcome should be the same in Fed and State court

o Balance of Interests
Byrd – State law said it has to be decided by judge, Fed law said it has to
be decided by jury. S. Ct said Fed Ct. not bound by state law b/c jury
trial very important to Feds and there is no reason articulated why state
wants only judge to decide
o Avoid Forum Shopping
 If Fed Ct. ignores state law will litigants flock to Fed Cts?
 We don’t want this to happen b/c that would cause inequitable
administration