Lonnie: Civil Procedure I

Table of Contents

Ch. 1: Overview (CB. 117)

Ch. 3: Subject Matter Jurisdiction (CB. 197284)
Ch. 4: Venue (CB. 287345)
Ch. 2: Personal Jurisdiction (CB. 19193)
Ch. 5: Erie Doctrine (CB. 347429)
 Ch. 1: Introduction

Civil Procedure: Defined

Rules/statutes/legal doctrines governing the who/where/how private civil suits are
initiated, litigated, and resolved
Key issues:
o Who may file a lawsuit and against whom?
o In which court may a lawsuit be filed?
o How does one obtain information from an adversary?
o Parties to a lawsuit

Statutes & Rules

Federal Rules of Civil Procedure (FRCP)
o Govern the procedure in all civil actions/proceedings in U.S. Federal District
Courts
Significant portion of this class requires reading and interpreting the applicable rules in
order to successfully apply such rules.
Sources of Procedural Law
o U.S. Constitution
o Statutes: State and Federal
o Court Rules: promulgated by the Supreme Court
o Case Law (e.g. Common Law)

Course Overview/Stages of a Case

Complaint
o states facts and legal bases of claim; inform defendant what plaintiff is seeking
Pre-answer motions
o motion to dismiss
plaintiffs allegations are false;
defendant wasnt served complaint properly
Answer (ie. defendants response)
o deny allegations
o counterclaims: separate complaint against the plaintiff
o cross-claims: separate complaint against a third party that arises out of same
factual occurrence
Discovery: both parties seeking further details about opposing parties case
o Interrogatories: written questions
o Deposition: asking oral questions under oath
has to be relevant claim*; still may be undiscoverable if a party can
convince court it has potential for annoyance, embarrassment, oppression,
undue burden, or expense
o option for Summary Judgement: deciding if trial is not necessary for the case

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 has to follow the discovery; no genuine dispute as to any material fact
Rule 56(a)
o option to file Motion in Limine
request advance ruling on variety of issues, (ie) evidence, limit scope of
witness testimony
Opening Statements
Plaintiffs Case
Defendants Case
o *Motion for Directed Verdict
challenging sufficiency of the evidence presented in support of the non-
moving partys claim
judge will grant motion only if it determines no reasonable juror could
interpret the evidence in favor of non-moving party
Closing Arguments
Verdict
o Motion for Judgment: following the juries verdict/ gives the judge one final time
to change her mind about anything is case (evidence sufficient to support jurys
decision); Similar to Motion for Directed Verdict
o Motion for New Trial: final opportunity for trial judge to correct any serious legal
errors that may have occurred during the trial.
o Final Judgment
Appeal: Address the correctness of trial court rulings that are could affect outcome
o Court of Appeals; State Supreme Court

Overview of U.S. Judicial System

United States Supreme Court
o highest Court in the U.S. judicial system
o has authority to review decisions of the court of last resort in each stateboth state
and federal courts
Federal Judicial System
o U.S. District Courts: 94 Districts
Claim filed in federal court begins here
o U.S. Courts of Appeals: 11 Circuits
Hear appeals from the U.S. District Courts
State Judicial Systems
o Each state/territory has its own court system; wholly separate and distinct from
the federal judicial system

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Class Framework: Where are We Going
Step 1: Select a Court with Jurisdiction
o Subject Matter Jurisdiction & Removal;
o Personal Jurisdiction
Step 2: Select the Proper Court in a Jurisdiction
o Venue
Step 3: Determine the Applicable Law
o Erie Doctrine
Step 4: Initiate the LawsuitPleadings
o Complaint;
o Answer
Step 5: Discovery
Step 6: Disposition without Trial
Step 7: Trial
Step 8: Post-Trial Motions
Step 9: Judgments & Appeals

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 Ch. 3: Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction
o Ie. Some cases have to be heard in federal court
most are concurrent with the states; does not say that cases cannot be heard in other
courts
o If claim arises under federal statutes, it CAN be filed in federal court BUT it does
not have to be (ie. not exclusive) BUT Some claims are (ie. admiralty matters)

Constitutional Framework
U.S. Const. Art III, 2, Cl. 1
o Authorizes federal jurisdiction in certain types of cases
o only creates one Supreme Court BUT gives congress power to create inferior
courts (lower federal courts)
o U.S. Constitution authorizes federal courts to hear certain claims and Congress
confers, via statutes (e.g. 28 U.S.C.____), power to hear such claims
Limits on Power: Art III, . 2
o Provides list of set case subjects that must AND are only type to be heard in
federal court
o If your case is not on the list, it cannot be in federal court
Congress & Federal Statutes
o Congress enacts jurisdiction-conferring legislation, via federal statutes, to give
lower courts the authority to hear cases

Three Key Questions of SMJ

Plaintiff: can you bring a claim in federal court?
Defendant: does federal court have SMJ over the claim?
Defendant: can a claim brought in state court be removed to federal court?

SMJ Uniqueness
Courts will raise this issue even when none of the parties or earlier courts have raised it
Unlike Personal Jurisdiction, which has to be raised immediately, Subject Matter
Jurisdiction can be raised at any time by any party
Judgment becomes void and plaintiff must refile in court with Subject Matter Jurisdiction

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 (A) 28 U.S.C. 1332: Diversity Jurisdiction
Two Basic Requirements:
1. Diversity of Citizenship; and
2. Amount in Controversy

28 U.S.C. 1332
(a)The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between:
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the district
courts shall not have original jurisdiction under this subsection of an action between citizens of a
State and citizens or subjects of a foreign state who are lawfully admitted for permanent
residence in the United States and are domiciled in the same State;

Key Topics
Definition of state citizenship;
Definition of diversity (between what parties);
Amount in controversy (money);
Citizenship determined at time the action is filed;
Legal Representation
o For minors; mentally incompetent; decedent-lawyer is citizen of state where
person represented is from

1. Diversity of Citizenship Requirement

1332(a)
*district courts shall have original jurisdiction . . . when action is between:
(1) citizens of different states; and
(2) citizens of a state and citizens or subjects of a foreign state

(A) Citizenship: 1332(a)(1)-(2) Individuals

Rule: Individual is deemed a citizen, for purposes of diversity jurisdiction, of the state in
which they are domiciled
Residence is not the same as citizenship

Requirements
must be a natural person;
citizen of the United States;
domiciled within the State

Domicile
Where you permanently live and plan to stay
o *note: a person may have multiple residences but can only have one domicile
Changing Domicile: Must be physically present in the new place & intend to make this
home permanently

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Mas v. Perry (5th Cir.; 1974) pp. 200
See attached Brief.

(B) Citizenship: 1332(c)(1) Corporations

Corporations shall be deemed a citizen of every state and foreign state by which it has
been incorporated and where its principle place of business is located

Terminology & Rules

Citizenshipdeemed a citizen of every state and foreign state where:
o it has been incorporated; and
o where it has its Principle Place of Business
**Thus corporations can be citizens of more than one state
Principle Place of Business See Hertz Corp. (2010)
o Defined as the "nerve center" where the minds arenot the muscle; such as the
location of the corporations headquarters
o Example: Boeing office in Chicago rather than the plant in Washington state

(C) Citizenship: Unincorporated Businesses

Examples: partnerships; limited liability companies; labor unions
Such entities are not treated as corporations for diversity purposes but rather as a
collection of individuals
Rule: Entity is deemed to be a citizen of each state that each member is from

(D) Citizenship: 1332(c)(2) Legal Representatives

the legal representative of the estate of a decedent shall be deemed to be a citizen only
of the same State as the decedent, and the legal representative of an infant or
incompetent shall be deemed to be a citizen only of the same State as an infant or
incompetent.
Rules
o Decedents Legal Representative
Citizen of the same state as the decedent
o Infant & Incompetent Legal Representative
Citizen of the same state as the infant & incompetent

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(E) Citizenship: 1332(a)(2)-(3) Aliens
(a)The district courts shall have original jurisdiction of all civil actions between:
(2) citizens of a State and citizens or subjects of a foreign state, except that the district
courts shall not have original jurisdiction under this subsection of an action between
citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for
permanent residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign state are
additional parties;

Alienage Citizenship
Citizen of a Foreign State
o Person must be a true citizen of foreign state and domiciled in that foreign state
Aliens
o lawfully admitted aliens deemed to be a citizen of state in which they are
domiciled
Permanent Resident Aliens
o New York (Pl.) vs. French Citizen domiciled in New York (D): no diversity

Alienage Diversity Jurisdiction

U.S. Citizen vs. Alien: Yes
U.S. Citizen vs. U.S. Citizen + Alien: Yes
Alien vs. Alien: No
U.S. Citizen + Alien vs. U.S. Citizen + Alien: Yes
o Alien can be solely aligned against U.S. Citizen; or
o Alien can be an additional party to a claim between U.S. Citizens; or
o Aliens can be adversaries so long as U.S. Citizens are parties on each side

Examples
Alabama (Pl) vs. Mexico (D): Yes
Alabama & Mexico (Pls) v. France & New York (Ds): Yes
France (Pl.) vs. Germany (D): No
France & Alabama (Pls) vs. Germany (D): No

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(f) Special Rules on Diversity Jurisdiction
Complete Diversity
Cannot have citizens of the same state on each side of a dispute
o Ie. No plaintiff can be from the same state as any defendant for diversity
jurisdiction
Example: New York (Pl.) vs. Virginia (D1) + New York (D2): no diversity

Exceptions to Diversity
Even with complete diversity, federal court will not hear domestic relations claims or
claims involving probating wills
Examples: divorces, child support claims, child custody decrees, probate wills

Time of Filing Rule

Issue: when is citizenship of parties determined for diversity purposes?
Rule: citizenship is determined at the time the complaint is filed
o Thus diversity requirement is satisfied so long as there is complete diversity at the
time of filingsubsequent changes will generally not have an effect

2. Amount in Controversy Requirement 28 U.S.C. 1332(a)

the district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000
Procedure
o Step 1: Determine diversity of citizenship among litigants;
o Step 2: Determine whether the amount in controversy between litigants exceeds
$75,000

Rules
Only applies in diversity jurisdiction
o If claim is under federal law, it does not need to comply with amount in
controversy because there is federal question jurisdiction
Diversity Exceptions: Even if claim goes over $75k, invalid if claim is a domestic
dispute or probate of a will
Court is lenient and generally will accept the complaint on its face
o Ie. "my claim is worth $75k"
Good rationale argument must be madebut it is still ok if the claim does not get $75k in
the trial
o Only way it will not work is when it is clear to a legal certainty that this amount
will not be received
Punitive Damages: only second guessed when they cannot be received in particular state
for the action

Del Vecchio v. Conseco, Inc. (7th Cir.; 2000) pp. 212

See attached Brief.

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Aggregating Claims
Issue: may a plaintiff or plaintiffs combine/aggregate their claims against a single or
multiple defendants to satisfy the amount in controversy requirement? Maybe

1. Single Plaintiff may aggregate claims (related or unrelated) against a single defendant
Plaintiff (Claim 1: $31k & Claim 2: $45k) vs. Defendant: Yes

2. Single Plaintiff may NOT aggregate separate claims against multiple Defendantsunless
Defendants are jointly liable
Plaintiff (Claim 1: $31k) vs. Defendant 1 + Plaintiff (Claim 2: $45k) vs. Defendant 2: No
Plaintiff (Joint Liability Claim: $76k) vs. Defendant 1 and Defendant 2: Yes

3. Multiple Plaintiffs may aggregate claims against single defendant so long as the claim is
based on a common undivided interest
Common Undivided Interest: Plaintiff 1 & Plaintiff 2 own building destroyed by
Defendant; Plaintiffs may assert 1 claim against Defendant exceeding $75k
Unrelated Claims: Plaintiff 1 & Plaintiff 2 each sued Defendant for breach of contract
seeking $50k eachcannot aggregate because claims are unrelated as each plaintiff had
an independent contract, rather than a shared undivided interest

4. Multiple Plaintiffs may NOT aggregate separate and distinct claims against a single
Defendant
Car Wreck Example: Plaintiff 1 (Claim 1: $40k) & Plaintiff 2 (Claim 2: $40k) vs.
Defendant: No

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 (B) 28 U.S.C. 1331: Federal Question Jurisdiction
Art. III, 2: Extends Power
o Extends judicial power to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties.
1331: Grants Authority
o The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.

1. The Constitutional Standard

Osborn v. Bank of the United States (S. Ct. 1824. C.J. Marshall) pp. 222
See attached Brief.

2. The "Well-Pleaded Complaint" Rule

Issue: What must the plaintiff prove to recover
o If it is not federal matter; it cannot be held in federal court
Rules
Federal question must exist in the plaintiffs complaint, as basis for the cause of action
Not sufficient that a federal question appears only in response to a complaint
Not sufficient that allegations in the complaint merely anticipate and set forth potential
federal law defenses

Louisville & Nashville R.R. Co. v. Mottley (S. Ct. 1908) pp. 224
See attached Brief.

Hypo #1
Worker sues employer; claims violation of FLSA (a federal statute that established
minimum wage); employer does not contest the statute BUT contends the number of
hours the employee worked are debatable and he is not entitled to amount sought
Federal Question Jurisdiction? YES
o Plaintiff's claim is under a federal statute and defendants claim is a factual
dispute; and
o Relief for plaintiff is on federal statute

Hypo# 2
Plaintiff sues newspaper claiming defamation; newspaper's defense rests on 1st
amendment (not liable unless they acted negligently)
Federal Question Jurisdiction? NO
o Plaintiff's COA does not arise federal statute; only the defense does; Same as in
Louisville RR. V. Mottley

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 3. The "Essential Federal Element" Requirement
Context: plaintiff asserts a state-law claim that requires determination of federal legal
issues the claims ultimate resolution
Example
o P sues D for breach of fiduciary duty (state-law claim) on basis that Ds conduct
violated federal securities law; If D is found to have violated the federal securities
law, P prevailsbut if not, P loses
o As such, Ps claim hinges on a determination of a matter of federaldo these
claims arise under federal law as to satisfy the requirements for federal question
jurisdiction?

Rules
Plaintiff's cause of action must be created by federal law

Grable & Sons Metal Prods., Inc. v. Darue Eng. & Mfgr. (S. Ct. 2005) pp. 232
See attached Brief.

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 (C) Removal Jurisdiction
Basic Rules
Must have Subject Matter Jurisdiction
o **based ONLY on plaintiffs claim[s]NOT defendants defenses/counterclaims
Only defendant can remove, provided that all defendants agree
Can only remove from State Court to Federal Court
Subject Matter Jurisdiction is determined for removal purposes at the time of filing
notice of removal
Notice of Removal is not a motion; Once it has been filed in federal district, it becomes a
federal matter and state court has no power
Rationale: Few actions have to be filed in federal court and most can also be heard in
state court (i.e. "concurrent")

1. General Standards of Removability: 28 U.S.C. 1441

1441(a): Generally
Except as otherwise expressly provided by Act of Congress, any civil action brought in
a State court of which the district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such action is pending.
Rule
If action complies with SMJ and filed in state court, defendant can remove to federal
court

1441(b): Removal Based on Diversity of Citizenship.

(1) In determining whether a civil action is removable on the basis of the jurisdiction
under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall
be disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section
1332(a) of this title may not be removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.

Rule
If claim can get into court on federal question jurisdiction, it can always be removed to
Federal Court
If basis of claim is not federal question but is based on diversity defendant(s) can remove
only if he or any defendant(s) are not from the forum state

Limits on Removal: 1441(b)(2) Diversity Exception

Defendant[s] CANNOT remove claim, based solely on Diversity Jurisdiction, if any
Defendant is a citizen of the forum state
o ie. State where plaintiff filed initial claim in state court

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Hays v. Bryan Cave L.L.P. (7th Cir. 2006) pp. 272
See attached Brief.

2. Removal & Remand Procedures

Rules
Who can remove: only Defendant
1446(a) How to Remove: D files notice of removal
1446(b)Timing: D has 30 days from receipt of complaint to file a notice of
removalOR 30 days after receipt of amended complaint, which then makes the claim
removable

(a) Pre-Removal: 1446 Removal Procedures

1446(a) General Rule

Defendant is to file in district court of U.S. that is in the district which such action is
pending
o Ie. Whatever federal district the state court geographically sits in
Defendant must also give notice of removal
o State why there is SMJ (Diversity & AIC or Federal Question); and
o Must contain a copy of all papers that have been filed in state court

1446(b) Requirements
(1) Timing: Defendant has 30 days after he receives complaint to file notice of removal
*BUT even if defendant takes 60 days to file notice, it is up to the plaintiff to state
improper removal for going over allotted time limit under the statute
(3) Subsequent Changes: Plaintiff may send initial complaint with only $10k damages
BUT plaintiff can amend complaint seeking $85k; now defendant still has 30 days from
receipt of amendment complaint to file notice of removal

1446(c) Requirements: Removal Based on Diversity Jurisdiction

One Year Limitation: If plaintiff amends complaint more than 1 year after
commencement of action, the case cannot be removed
o Ie. $10k then 13 months later goes to $150k; amount in controversy works but its
too late to be removed

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(b) Post-Removal: 1447 Remand Procedures
1447(c)
A motion to remand the case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.

Grounds for Remand

Defect in removal process
o Example: Defendant took over the 30 days to file notice of removal
Caveat: Lack of Subject Matter Jurisdiction
o If at any time before final judgment it appears there is no Subject Matter
Jurisdiction, the case will be remanded
o no time limit for court or plaintiff to bring this up
o courts are able to decide this on their own and will even make judgment void on
appeal if there was no SMH

Procedure for Remand

Plaintiff must file Motion to Remand case on basis of defect within 30 days after
Defendant has filed Notice of Removal

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 Chapter 4: Venue
Venue limits choice of courts
o Must have personal jurisdiction (courts power)
o Must be in correct venue
Hypo
Pl. lives in Atl. & Def. lives in Birmingham; Pl. has claim against Def; Def. has
substantial contact with Ga and this gave rise to claim
Jurisdiction and Courts?
o All Alabama state and federal courts
o All Georgia state and federal courts
Which Court? Have to look at state venue rules

State Venue Rules

Each state venue rules vary
Says what court the claim should be filed in; All statutory

(A) Original Venue: 28 U.S.C. 1391

Governs the venue of all civil actions brought in district court of the U.S.

1. Basic Venue Rules

(a) 1391(b): Three Categories
A civil action may be brought in:
(1) Judicial district where any defendant resides, if all defendants are residents of the
State in which the district is located
(2) A judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of the property that is the subject of action is
situated
(3) Default: If there is no district in which an action may otherwise be brought (not 1 or
2), any judicial district in which any defendant is subject to the court's personal
jurisdiction with respect to such action

Rules
(1) venue is proper in any district where any defendant residesBUT only if all
defendants are residents of the state in which the district is located
(2) venue is also proper in the judicial district in which a substantial part of the events or
omissions giving rise to the claim occurredor substantial part of the property at issue
is located
(3) Default Rule: if neither (1) or (2) work, venue is proper in any district in where the
court would have personal jurisdiction over the action
o ie. Can be used if claim arose outside of U.S. soil or defendant is U.S. citizen
living abroad

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Hypos
1. P sues D.1 and D.2 for b/k/ D.1 lives in N.D.GA and D.2 lives in S.D.Ga./ what venue is
proper?
Could be either one/ both defendants live in the same state/ could also be in district where
the claim arises from but need more facts

2. P sues D.1 and D.2 for b/k/ D.1 lives in N.D.GA and D.2 lives in N.D.Ala./ what venue is
proper?
Have to be district in which the claim arises from/ need more facts

3. P sues D.1 and D.2 for injuries in car wreck/ D.1 lives in N.D.Ga. And D.2 lives in
N.D.Ala./ wreck happened in N.D.Ala./ what venues is proper?
N.D.Ala because the claim arises in this district. Cannot use residency

4. P sues D for b/k/ D lives in S.D.N.Y./ contract was for mfr and delivery of a machine/
machine was designed in N.M., Assempbled in N.D.ILL, parts from Ohio, Cal, and Penn,/
supposed to be delivered in W.D.N.Y./ what venues could work?
S.D.N.Y. and would have to know more about what the claim is to determine in what step
did the claim arise from, therefore giving another district that would work

Surface Supplied Inc. v. Kirby Morgan Dive Systems, Inc. (N.D. Cal. 2013) pp. 289
See attached Brief.

(b) Residency

1391(c): Residency
(1) A natural person, including an alien admitted for permanent residence in U.S., shall be
deemed to reside in the judicial district in which that person is domiciled
(2) an entity with the capacity to sue or be sued, whether or not incorporated, shall be deemed to
reside, if a defendant, in any judicial district in which such defendant is subject to the court's
personal jurisdiction in respect to the civil action, and if plaintiff, only in the judicial district in
which it maintains its principle place of business
(3) Defendant not resident in the United States may be sued in any judicial district, and the
joinder of such a defendant shall be disregarded in determining where the action may be brought
with respect to other defendants

Rules
(1) Individuals: for venue purposes, an individuals residency is his domicile
o Aliens: If alien is lawfully admitted citizen, alien is deemed to reside in judicial
district they are domiciled in
(2) Business Entities/Corporations
o Defendant: any district in which the court has personal jurisdiction
o Plaintiff: only in judicial district where principle place of business is located
(3) Alien Defendants: for venue purposes an Alien can be sued in any judicial
district.(but court would still need Personal Jurisdiction & Subject Matter Jurisdiction)
o Applies to: Aliens, U.S. Citizens domiciled abroad, and Foreign Corporations

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 1391(d): Residency of Corporations in States with Multiple Districts
For purposes of venue under this chapter, in a State which has more than one judicial
district and in which a defendant that is a corporation is subject to personal jurisdiction
at the time an action is commenced, such corporation shall be deemed to reside in any
district in that State within which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State, and, if there is no such district, the
corporation shall be deemed to reside in the district within which it has the most
significant contacts.

Rules
Corporations are residents of any district where they are subject to the courts personal
jurisdiction
o If state has more than one district, a corporation is a resident of any district in
which it could be subject to personal jurisdiction were that district a state
Need to look at corporations contacts with particular jurisdiction
o Ie. Walmart is likely resides in every district in the U.S.

Venue and Personal Jurisdiction

Venue and Personal Jurisdiction are NOT synonymous
o Ie. Venue can be proper in a district yet the court may still lack personal
jurisdiction

Challenging Venue
FRCP 12(b)(3): Motion to Dismiss for Improper Venue
o Brought by defendant
o Exists as a waivable defense meaning that unless the motion is made in
defendants initial response to plaintiffs complaint, venue is waived

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 (B) Change of Venue (Transfer)
28 U.S.C. 1404
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought or to
any district or division to which all parties have consented.
(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil
nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from
the division in which pending to any other division in the same district. Transfer of proceedings
in rem brought by or on behalf of the United States may be transferred under this section without
the consent of the United States where all other parties request transfer.
(c) A district court may order any civil action to be tried at any place within the division in which
it is pending.
(d) Transfers from a district court of the United States to the District Court of Guam, the District
Court for the Northern Mariana Islands, or the District Court of the Virgin Islands shall not be
permitted under this section. As otherwise used in this section, the term district court includes
the District Court of Guam, the District Court for the Northern Mariana Islands, and the District
Court of the Virgin Islands, and the term district includes the territorial jurisdiction of each
such court.

Overview of 1404(a)
Rule: If venue is proper and defendant makes initial motion, court uses MAY transfer the
case based on their own discretion
Venue must be proper and court can only transfer to another district where it could have
been in the first place;
Transferring district must still have PJ
Consider the convenience of parties
o Ie. Where the evidence is; witnesses; travel
Motion to transfer must be made early

28 U.S.C 1406(a): Federal Cure or Waiver of Defects

The district court of a district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.

Overview of 1406(a)
Rule: If the venue is improper and defendant makes initial motion, the court can either
dismiss the case or transfer to where it could have been (a proper venue)

Hoffman v. Blaski (S. Ct. 1960) pp. 311

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 See attached Brief.

Atlantic Marine Constr. Co. v. U.S. Dist. Court, W.D. Tex. (S. Ct. 2013) pp. 314
See attached Brief.

Smith v. Colonial Penn Ins. Co. (S.D. Tex. 1996) pp. 325
See attached Brief.

Bolivia v. Philip Morris Co.'s, Inc. (S.D. Tex.) pp. 327

See attached Brief.

Venue and Forum Selection Clauses

Standard of Enforcement
o Such clauses will be enforced unless it is shown that enforcement would be
unreasonable and unjust, or that the clause is invalid for reasons such as fraud or
overreaching
What happens when a party files suit in a district other than the venue, federal and/or
non-federal, provided for in a valid forum selection clause?
1. 1404(a): Mechanism to Enforce Forum Selection Clause to Federal Venue
So long as the present venue fits into one of three categories provided by
1391(b), venue is proper. thus venue is NOT improper or wrong under 1406(a) nor
FRCP 12(b)(3)
Venue provided for in clause is controlling and will generally be transferred unless
extraordinary circumstances are shown
2. Forum non Conveniens: Mechanism to Enforce Forum Selection Clause to Non-Federal
Venue
Applies when clause provides venue as a state court or foreign court

(C) Forum Non Conveniens

Has to be brought up early in litigation by one party
Exists as a common law doctrine
What if venue is proper under statute but is very inconvenient?
o Court may waive jurisdiction and dismiss the case then tell the party to refile in
another courtUp to the courts discretion
Used to transfer an action to a non-federal venue (e.g. state court or foreign court)
Standard: whether other court is in a better position to hear the case
Considers multiple factors:
o All parties involved in litigation;
o Most efficient (witnesses/ evidence);
o Cost of travel;
o Has to be convenient/ efficient to all parties

Piper Aircraft Co. v. Reyno (S. Ct. 1981) pp. 332

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 See attached Brief.

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 Chapter 2: Personal Jurisdiction

Modern Analytical Framework: Personal Jurisdiction

(1) Courts Power
A. Statutory Power-Long Arm Statute
Federal
o Rule(4)(k): federal court only has jurisdiction if state court in forum state
would have PJ (applicable long arm statute)
State
o Due process limit; laundry list
B. Due Process/ Constitutional Power
Contacts *analyze every contact independently
o Extent and nature;
o Purposefully availing (receive any benefits);
o Voluntarily;
o Foreseeable to be hailed into court here;
o Relationship to claim;
o Stream of Commerce
Split Court: knowledge & awareness; intentionally directed at
forum state; value and volume
Courts have been reluctant to establish sufficient contact unless
product was directly marketed or put in state purposefully
Split Court: directed at U.S. is sufficient vs. directed at forum state
is sufficient
C. Balance Contacts & Fairness COA: Specific or General
Contact Factors
o Specific (casual contacts; claim arises from contacts);
o General (continuous contacts; claim does not arise from contacts);
o Consent to jurisdiction;
o Transient Jurisdiction;
o In Rem;
o In Personam
Fairness Factors
o State interest;
o Plaintiff interest;
o Burden on defendant;
fairness can outweigh contacts
*majority view holds that contacts and fairness are two
separate issues

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(2) Notice
A. Statutory Requirement (not always sufficient; have to balance with Due Process)
Federal FRCP Rule 4
o Follow state laws of forum state;
o Follow state laws where service is effected;
o Personal service on defendant;
o Leave complaint at Ds dwelling or abode with applicable person who
resides there;
o Personal service on an authorized agent;
o Constructive service (certified mail) for waiver only
State Rules
B. Due Process/Constitutional Requirement
Sufficient information
Allow enough time to appear and defend
Method of service
o Use most reasonable method available UNLESS this method is a burden
(too expensive) stick with practical method available
Standard
o reasonably calculated under all circumstances to reach defendant and
allow time to defend
Response
o D has 30 days to waive service (if so, has 60 days to answer complaint)
o If not, D must be served with process and has 21 days to answer the
complaint

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 Introduction & Overview
A court, state and federal, must have jurisdiction to hear the claim
Two aspects of a courts jurisdiction:
o Personal Jurisdiction: jurisdiction (power) over the litigations; and
o Subject Matter Jurisdiction: jurisdiction (power) over the subject matter of the
claim

Overview of Personal Jurisdiction

power of a court to render a binding judgment on a person[s] who may or may not be within
the forum state
o Ie. If Iowa has judgment over a person living in Alabama, Alabama courts can
enforce the judgment of another court

Constitutional Provisions & Jurisdiction

Full Faith and Credit Clause: states have to recognize and enforce judgments of another
state
Due Process Clause: no state shall deprive any person of life liberty, or property without
due process of law
Supremacy Clause: constitution and federal laws shall be supreme law of the land

See World-Wide Volkswagen pp. 61

the Due Process Clause of the 14th Amendment limits the power of a state court to render
a valid personal judgment against a nonresident defendant. A judgment rendered in
violation of due process is void in the rendering State and is not entitled to full faith and
credit elsewhere

(A) Historical Background

Pennoyer v. Neff (S. Ct. 1877) pp. 21
State courts have to require both state jurisdiction laws and the requirements of the U.S.
Constitution to get personal jurisdiction (ie. 14th amendment)
In Personam: over the person
o to obtain jurisdiction over a non-resident defendant, plaintiff must arrange to have
defendant personally served with notice of process in state of the court
In Rem: over the thing
o if property is located in the same state as the court, court can enter judgment by
attaching property before judgment is made and notice of process
Defendant had to be physically present in the forum state to have personal jurisdiction

Hess v. Pawloski (S. Ct. 1927) pp. 32

See attached Brief.

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Modern Approach

International Shoe v. State of Washington (S. Ct. 1945) pp. 35

See attached Brief.
Established Due Process in Personal Jurisdiction analysis
o minimum contacts are such that the suit does not offend traditional notions of
fair play and justice
Defendant only need certain contacts with the forum state
o Quality of contacts: Casual and isolated OR Systematic and continuous
o Whether the claim arises from the activities OR is it unrelated
Implied Consent: If a person engages in certain conduct in a state, they are consenting to
laws and power of court in state (ie. driving on the road)

(B) Power Component

Considers:
o power of court
o burden and inconvenience
o how defendant is served process of notice
Formula: Long Arm Statute + Contacts + Fairness

1. Statutory Authority

(a) FRCP 4(k) pp. 16872

The scope of Federal Courts personal jurisdiction authority is generally determined by
the scope of personal jurisdiction of the State Court sitting in the same state

FRCP 4(k)(1)
*Serving a summons of filing a waiver of service establishes personal jurisdiction over a
defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where
the district court is located;
o Ie. Any judicial district where a state court has personal jurisdiction
(B) who is a party joined under FRCP 14 or 19 and is served within a judicial district of
the United States and not more than 100 miles from where the summons was issued; or
o Ie. 100-mile Bulge Rule
(C) when authorized by federal statute

(b) State Long Arm Statutes

How to get personal jurisdiction over individual outside of the forum state
Balance constitutional aspect plus long arm statute
Long arm statute: States power over their courts; Statute based
o Some states merge the two and other states have "laundry list"
Still most comply with due process

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 2. Contacts & Fairness
Two Types of Personal Jurisdiction
1) General
continuous and systematic contacts with forum state BUT the claim does not arise from
the arise from the contacts
can be sued for anything in forum state
Contacts must be such that the defendant feels at home in forum state
2) Specific
casual and isolated contacts BUT the claim does arise from the contacts

(a) Specific Jurisdiction

Rules
Defendant must have minimum contacts with forum state such that the suit does not
offend traditional notions of fair play and justice
Contacts Analysis
o Casual and Isolated OR Systematic and Continuous
o Does the claim arise from contacts or is it unrelated
Purposeful Contacts
o Has Defendant reach out and created relationship in the forum state
o Has Defendant purposefully availed itself to the benefits and protections of the
states laws
Fairness Factors
o Plaintiffs Interest
o Forum States Interest
o Burden on Defendant

Mcgee v. International Life Co. (S. Ct. 1957) pp. 48

See attached Brief.

Hanson v. Deckla (S. Ct. 1958) pp. 50

See attached Brief.

World-Wide Volkswagen Corp. v. Woodson (S. Ct. 1980) pp. 59

See attached Brief.

Keeton v. Hustler Magazine, Inc. (S. Ct. 1984) pp. 72

See attached Brief.

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Calder Effects Test
Defendant can have purposeful contacts if such contacts have an intended effect in the
forum state and are purposefully directed therein.

Calder v. Jones (S. Ct. 1984) pp. 75

See attached Brief.

Burger King Corp. v. Rudzewicz (S. Ct. 1985) pp. 79

See attached Brief.

Stream of Commerce
Must put product into stream of commerce directed at specific state, or at least have some
additional contacts with the forum state such as advertising/marketing its residents
o Not purposeful contacts if defendant sells product with knowledge/awareness that
its product may end up in the forum state

Asahi Metal Industry Co. v. Superior Court (S. Ct. 1987) pp. 89
See attached Brief.

J. Mcintyre Machinery, Ltd. v. Nicastro (S. Ct. 2011) pp. 97

See attached Brief.

Personal Jurisdiction Based on Internet Contacts

Defendant directs electronic activity into the forum state;
With manifested intent of engaging in business or other interactions within the forum
state; and
Such activity gives rise to a claim for injury by a resident of the forum state
o **essential that defendant has intentionally directed its conduct toward the
specific forum statenot merely an incidental impact

Young v. New Haven Advocate (4th Cir. 2002) pp. 112

See attached Brief.

(b) General Jurisdiction

Arises when defendant has contacts with forum state but the claim does not arise from
such contacts
Rule: contacts with forum state must be substantial such that the defendant feels at home
there

Perkins v. Benguet Consolidated Mining Co. (S. Ct. 1952) pp. 123
See attached Brief.
Goodyear Dunlop Tires Operations, S.A. v. Brown (S. Ct. 2011) pp. 125
See attached Brief.

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(c) Power of Property: In Rem
True In Rem: power over property so long as such property gives rise to the plaintiffs
cause of action
Quasi In Rem: power over property within the forum state that does not give rise the
plaintiffs cause of action but may be proper so long as defendant has minimum
contacts with the forum state
o Rule: Requires contacts + claim arises from contacts
o Cannot merely exercise personal jurisdiction over a defendant based solely on
property within the forum state

Shaffer v. Heitner (S. Ct. 1977) pp. 134
See attached Brief.

Hypotheticals: True In rem v. Quasi In rem

1. Defendant inherits property in Idaho, but has no other contacts in the state. Defendant is
involved in a car accident in Alabama and the Plaintiff is from Idaho and sues in Idaho district
court. An Idaho Statute provides that Defendants property within the state can be seized and
notice through publication and mailed to Defendant. Does Idaho have personal jurisdiction over
the non-resident Defendant?
Under Pennoyer: YesTrue in Rem
o Sufficient notice was provided, property was seized before the lawsuit, and
property was located in forum state.
o Could not exercise In Personam jurisdiction because Defendant has never been to
Idaho and has virtually no contacts and the claim doesnt arise from contacts
Under International Shoe & Shaffer: Nofails under True In Rem and Quasi In Rem
o Defendants only contact with Idaho is the inherited property. Minimum Contacts
are lacking
Change of Facts: What if Defendants Aunt left money in bank (i.e. property in forum
state) instead of the land? No insufficient contacts

2. Defendant inherits a large property, including a home, located in Idaho. The property is large
and Plaintiff child enters the property and falls into a large hole, resulting in personal injury.
Plaintiff then files suit against Defendant for negligence in Idaho district court. An Idaho statute
provides that the property can be seized and notice is provided via publication and certified mail.
Does Idaho have personal jurisdiction over the Defendant?
Under Pennoyer: Yes
Under Intl. Shoe & Shaffer: YesTrue in Rem Jurisdiction
o Contacts are sufficient; Claim arises from contacts
**Difference between 1. and 2. is sufficiency of contacts and claim arising from contacts

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(d) Transient Jurisdiction
Arises when defendant is served with process while physically present in the forum state,
albeit temporarily, and with little to no other contacts with the forum state
Rule: court may exercise in personam personal jurisdiction over defendant who is
physically present in and served within forum state

Burnham v. Superior Court (S. Ct. 1990) pp. 147

See attached Brief.

(e) Consent to Jurisdiction

Pre-action contracts
Consent to jurisdiction clauses
o "if sued here, you are subject"
o Can still bring suit in another state
Choice of forum clauses
o "litigation will be decided in this court"
Choice of law clause
o States what state's laws will be used
Failure to timely object (waiver)

Carnival Cruise Lines, Inc. v. Shute (S. Ct. 1991) pp. 160
See attached Brief.

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 (C) Notice Component
Notice has a Statutory and a Constitutional aspect
Rule/Statutory Requirements of court giving instructions on how to serve process
o Every state court has prescribed method of serving process
o Similar to long arm statute on power

1. Constitutional Prong: Due Process Clause

Must comply with due process requirements
o Ie. Sometimes statutory requirements are not sufficient with due process
Rules
o If better means of notice is available, and is practical (not too expensive) it should
be used;
o If better means exists but is too expensive or inconvenient stick to practical and
sufficient methods
Specific Requirements
o Must notify defendant of upcoming action and give him an opportunity to defend
himself by adequate information;
Ie. what claim is and how to respond
o Timeliness: enough time to appear;
o Method: most reasonable means of service available

Mullane v. Central Hanover Bank & Trust (S. Ct. 1950) pp. 173
See attached Brief.

Dusenberry v. United States (S. Ct. 2002) pp. 181

See attached Brief.

Jones v. Flowers (S. Ct. 2006) pp. 186

See attached Brief.

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 2. Statutory Prong: FRCP 4
Federal courts may use notice requirements of state that the court sits in
Federal courts may use notice requirements of state that service is being made in
o Ie. Alabama court serving in Georgia can use Georgia statutory laws
Serve directly on person
Leave at home with applicable person

FRCP Rule 4: Summons

a. Contents; Amendments
1. Contents: a summons must:
a. Name the court and the parties
b. Be directed to defendant
c. State name and address of plaintiff's attorney (if unrepresented the plaintiff's
information)
d. State the time within which defendant must appear
e. Notify defendant that a failure to appear will result in default judgment
f. Signed by clerk
g. Bear the court's seal
2. Amendments
a. The court may permit a summons to be amended
b. Issuance
1. If all information is correct, the clerk will sign, seal, and issue summons
c. Service
1. In General
a. Summons must be served with a copy of the complaint
b. Plaintiff is responsible for having summons/ complaint served within time
allowed and must furnish copies to the person making service
2. By Whom
a. Any person who is at least 18 years old and not a party may serve a
summons and complaint
3. By a Marshal or Someone Specially Appointed
a. At plaintiff's request, the court may order service be made by a U.S. Marshal
or someone specially appointed by the court
d. Waiving Service
1. Requesting a Waiver
a. Person subject to service has a duty to avoid unnecessary expenses of
serving the summons. Plaintiff may notify such a defendant that an action
has been commenced and request that the defendant waive service of
summons. Notice and request must be:
1. Be in writing and be addressed to the individual defendant
2. Name the court where complaint was filed
3. Be accompanied by a copy of the complaint
4. Inform defendant of consequences
5. State the date when the request is sent

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 6. Give defendant reasonable time of at least 30 days/ 60 if not in the
U.S. to return the waiver
2. Failure to Waive
a. Defendant must pay expenses incurred in making service
b. AND the reasonable expenses, including attorney's fees, or any motion
required to collect those service expenses
3. Time to Answer After a Waiver
a. Defendant who, before being served with process, timely returns a waiver
need not serve an answer to the complaint until 60 days after the request was
sent
4. Results of Filing a Waiver
a. When plaintiff files a waiver, proof of service is not required
5. Jurisdiction and Venue Not Waived
a. Waiving service of a summons does not waive any objection to personal
jurisdiction or venue
e. Serving an Individual Within a Judicial District of the United States
1. Following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made
2. OR doing any of the following
a. Delivering a copy of summons and complaint to the individual personally;
b. Leaving a copy of each at individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there;
c. Delivering a copy of each to an agent authorized by appointment or by law
to receive service of process
f. Serving an Individual in a Foreign Country
g. Serving a Minor or Incompetent Person
h. Serving a Corporation, Partnership, of Association
1. In a judicial district of the U.S.
a. In manner prescribed by Rule 4(e)(1) for serving individual
b. Delivering copy of summons and complaint to an officer, managing general
agent, or any other agent authorized by appointment or by law to receive
service of process OR if agent is authorized by statute (can be by mail if
statute requires)

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 Chapter 5: The Erie Doctrine
Deals with diversity jurisdiction
Question: Which law, State or Federal, must apply to claims in Federal Court sitting with
diversity jurisdiction?

Constitution
Allocates/ Disperses Governmental Power
Embodies notion of federalism: enumerated powers
o Federal power exclusive
o Other powers given to state
Separation of Powers: Legislature; Judicial; Executive
o Checks and balances system to keep equal
General Limitations: Bill of Rights

Choice of Law
State Courts: Whatever state the court is in, that states law applies
Every state has choice of law doctrine
o Based on common law; Each side attorney will argue for what law applies
Federal Courts: If the case is not a federal question, court must determine what law will
be applied
o Either that of the state (common law); or
o federal common law

(A) Applicable Law Prior to Erie

28 U.S.C. 1652: Rules of Decision Act
The laws of several states, except where the Constitution or treaties of the United States
or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in
civil actions in the courts of the United States, in cases where they apply
Question: what does the laws of several states mean, other than State law will apply to
non-federal question claims?

Swift v. Tyson (1840)

Tyson (New York) tendered a bill of exchange to a group of land speculators as payment
for land he sought to purchase. The land speculators then used the bill of exchange to pay
off a pre-existing debt owed to Swift. Upon discovering that the land he sought to
purchase was not owned by the speculators, Tyson refused to honor the bill of exchange;
thus Swift could not get paid.
Tyson seeks New York Law
o Provides that transactions obtained through fraud are void
Swift seeks Prevailing Commercial Law
o Provides that a bona fide holder, who acquired such bill for consideration and
without notice of fraud, are entitled to payment on the bill

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 Issue: whether the Federal Court of New York was bound to apply the laws of New York,
or whether the court was free to develop its own view on the law?
Held: federal courts sitting in diversity jurisdiction are not bound to apply the substantive
law of the states, but rather are free to exercise an independent judgment as to what the
common law of the state is

Court interpreted 1652 as meaning only state statutes, not state common law.
o The decisions of local tribunals are not laws but merely evidence of what the laws
are
o Thus federal courts are entitled to create their own law in the area
Promote Uniformity
o States are all individualistic and do their own thing BUT society needs uniformity
in the law for commercial matters; Works to aid commerce
Philosophical Concept of Law
o In the 19th century, Common Law was reasoned to not be made by courts
o Instead courts deduced law by figuring out the law using their own judgment
o (used gift of reason to deduce unchanging, transcendental law; the law was
already out there unchanging and omnipresent)
o SO if state courts made common law rule and federal courts did not like it, they
would develop their own common law

(B) Establishing the Erie Doctrine

Erie v. Tompkins
Plaintiff (Penn.) was injured by Defendant Railroad in the State of Pennsylvania. Plaintiff
then filed suit alleging Negligence in New York Federal Court, which had diversity
jurisdiction over the claim.
Plaintiff seeks Federal Common Law
o Because no Pennsylvania statute exists for negligence, the federal courts should
determine the lawwhich ultimately would provide a simple negligence standard
Defendant seeks Pennsylvania Common Law
o Provides that a Railroad is only liable for Willful or Wanton negligence
Supreme Court is faced with precedent in Swift v. Tyson to apply federal common law
BUT the court refusesIt was common at this time for federal courts to enforce only
state statutes and not state common law

Erie Holding
federal courts sitting in diversity must apply states substantive law (ie. Tort law),
whether that law is in the form of a state statute or state judicial decision
1. New Scholarship
Lost documents were found; Maybe writers of 1652 actually meant that state common
law applies
2. Experience with Swift
Uniformity did not develop

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 o Federal and state courts split even further
Confusing distinction between general and local law
o General law was law federal court could use and local law state common law;
Hard to tell the difference between the two
Unfairness of Forum Shopping: Discriminated against in state citizens
3. Legal Realism
Law is now seen as what an authority says it is; Even if it goes against human injustice;
Laws are viewed as unjust because we fundamentally disagree with them NOT because
some transcendental, unchanging law is inconsistent with it
Laws are now seen as a matter of policy; Courts & legislature decide if laws are just; We
have procedural system set up; States can have bad law if they want to and federal courts
cannon change it

Swift Rule as Unconstitutional

Held this but did not explain why
1. Equal Protection
Different people get to choose different lawsBUT nobody was really being treated
differently; Courts were just applying their own set of laws
2. Separation of Powers
Gives creation of substantive law to congress
3. 10th Amendment (Most Rational)
federal government only has certain power & other powers are left to the state
Problem: if 10th amendment forbids federal court to hear cases (state common law) which
they were not given power to hear, then it requires federal courts in diversity to apply
state tort lawBUT if constitution requires federal courts to apply state tort law, WHY
did first congress enact 1652 statutorily directing federal courts to do just that (apply
state tort law)

Questions from Erie

If federal court has to apply substantive state law, does that apply to procedure/ evidence?
How to decide if issue is substantive or procedural

35