Involvement of the court = exercise of governmental power Primary mechanism used by the Constitution = implementation of limits Limits the

governments use of power so that citizens can have a stake in the judicial Even when there are rights given, it can be in the negative (you have the right to not be) Civil procedure reflects societal norms and political expectations Adversarial vs. Inquisitorial systems Constitution only requires 1 court. Article 1 gives Congress the power to oversee and give laws for the inferior courts to use. Article 2 sets forth Presidential power he appoints judges (with the guidance and the recommendations of Congress) Article 3 sets forth the power of the Supreme Court. While state courts have a broad range of issues that they can address. Federal Courts have limited jurisdiction. Where their jurisdiction overlaps is called concurrent jurisdiction. Almost any issue can be brought up in a state court. Federal court is much narrower. Oftentimes, parties will choose to be in a state court in instances where there are issues that could go to both. Article 4 Full Faith and Credit Clause should be given in each state to the judicial proceedings of every other state. Meaning that the courts should apply the rules and judgments of other courts. Ex. If someone is sued in Florida, but is in New Jersey, NJ courts could and should seize his assets. Due Process Differences between the 5th Amendment and the 14th Amendment. 5th Amendment has to do with the protections from the Federal courts 14th Amendment has to do with equal protection of the laws. References the states specifically Federal Rules Enabling Act (pg. 552) Authorized the Supreme Court to make the federal courts use uniform rules of civil procedure, so long as they were not substantive. 1934 Era of the New Deal, centralization of the government, uniformity of government. 1938 Federal Rules adopted by the federal courts Following on the idea that you should be treated in a similar way regardless of whether you are in federal and state court Substance vs. Procedure Procedure plays a significant role in enforcing substantive rules Statute of Limitations Hypo is the Statute of Limitations a procedural rule, or a substantive one? Values that are aspects of the procedure guidelines on how the process should be conducted, limitations on the filing of claims Protects economic interest, political reasons, stablizes social relations, governs behavior Substantive because it does not have any bearing on the court procedure Procedural - Accuracy of decision making, limiting judicial dockets, saves filing spaces, etc If there are different statutes in different states, and the petitioner lives in a different state than the respondent, he can go to federal court Civil Procedure is mostly private citizen v. private citizen Government can initiate a civil action Can require confinement because it is not a punishment, it is an incentive to abide by the rules Example: civil commitment, jailing for not following a court order Constitution gives protection against governmental criminal action, but not civil action

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14th,

Example: burden of doubts, jury decisions right to counsel (6th) court can, under the provide counsel in a civil action, but it is not required to

(7th),

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Civil vs. Common Law - Laws that derive from Roman Law (Continental Europe), inquisitorial model - Common Law civil practice came from common law, but the courts are starting to adopt an inquisitorial model where the judge is the director of a civil case. - Provisional rule rules that you can contract around contract procedure, default rules Avista v. Wausau Insurance There is no right in the Constitution to have a deposition in a certain location Is the rock, paper, scissors process fair? Does it honor our fairness values? Does it give us what we want from civil procedure. Prof no, there is a question of equal treatment of the law, it is possibly democratic, but it does not honor our process because it doesnt follow the merits of the case / doesnt look at the reasoning behind why someone wants to have the deposition in place A vs. place B. Rock paper scissors cuts off the process of being able to tell your side of the story, the losers side of the story. Participation is a very important factor in getting people, even the losers, to trust the system and trust their participation in the system.

Demurrers 12b6 motion Plaintiff alleges something, issues a complaint, defendant says so what (it might be true, might not be, Im not alleging anything) you might be entitled a remedy by law Referencing of precedent and the divergence of precedent in specific courts Precedents typically diverge on specific trials theoretically this shouldnt happen, bifurcation should create an even system where this doesnt happen Key distinction of federal system merging law and equity (1938) Can go to court in the federal system and seek both money damages and equitable relief Idea of a preliminary injunction versus a permanent one Consequences are different latter Traces of the writ system Marbury v. Madison Notion of judicial review Facts are more complicated than typically thought because it is an example of a case that we are familiar with and we are familiar with the characters Fighting over a significant power battle of who can order a writ and how extensive it can be Idea of Supreme Court issuing a writ, there is real consequences, tough to execute rulings where there is no ability to use force (i.e. dont have access to the military where congress and president can) Example Brown v. Board hard for court to effectuate change, change wasnt instant, was slow Different meanings of common law (last page of 800 years document) Emphasis on 7th amendment

Conceptualize the different sources of the rules in the federal system vs. the state systems that govern Top Down of rules Federal Rules Constitution

Amendment, Article 3 (establishment of the Supreme Court) Statutes congressionally passed laws Title 28 of the U.S. Code

7th

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Congress has delegated the making of the rules to the precedential authority of the Supreme Court Separation of Power doctrine significant distinction Federal Rules of Civil Procedure Series of committees appointed by the chief justice, SC signs off on them, uses power given by Congress Court decisions make up a lot of the rules of Federal Civil Procedure Substance v. Procedural Common v. Civil Civil v. Criminal Adversarial v. Inquisitorial Just, speedy and inexpensive determination of every proceedings Fairness, parties with meritorious claims not to be dismissed because of technicalities Inexpensive does not always mean efficient Dispose of litigation by exposing them to a formal process - actual formal process governs less than 10% of cases, 90% settle or go away Important to consider who the parties are in a civil action Single parties, multiple party litigation, non-party players (witnesses, judges, etc) Federal Courts: District Courts Appellate Court 3 judge panel United States Supreme Court In order to go from a state courts highest court, you can only appeal to the Supreme Court if there is a federal question of constitutionality Supremacy Clause 99.9% of cases are finished when they are done with the highest court in the state State court jurisdiction is much more broad 1. there are rules, for almost everything there is a rule 2. we need rules to deal with situations 3. any many of them are intuitive 4. using your intuition and these rules is essential to lawyering Avista Mgmt case - court treated the case as a childrens games, devalued the process of the court system 3 basic decisions litigant must make before filing a suit 1. Subject Matter Jurisdiction - where to sue (state v. federal) and make sure that the court has the power to decide that specific type of case in many cases, there is overlapping jurisdiction and case 2. Personal Jurisdiction - Who to sue and whether the court has the power the enter a judgment against that person 3. Remedy what it is that the plaintiff is seeking Complaint / Pleading sets up the jurisdiction of the court and sets forth

Who When Where Later, What and Why

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Capron v. Van Noorden - commenced in the trial court, but in 1800s circuit court was the trial court Plaintiff loses P appeals with a writ of error Evident that since P lost, he wants to dismiss it and then retry it on state court and try again P claims that D trespassed and injured his property - on appeal, P is claiming that the case should not have been allowed to go to federal court at all because it is a court of limited jurisdiction appealing on two grounds (1) trial court lacked jurisdiction over this case and lacked power to make a judgment because his pleading was incorrect because they never proved the residency of the parties and that the federal court should never had accepted the case, should have been a state case. (2) Plea in Abatement motion to dismiss for reasons other than failure to state a claim There are some things that consent cannot cure just because the two parties consented to go to federal court, they do not get the right to pick and choose what court they will go to. Diversity protection is so that no one gets home court advantage. What is at stake here, where consent cannot cure this, is because this decision could effect more than just the two parties at bar here. We have diversity jurisdiction even if it is against your will the federal court does not have the authority to make the decision and therefore it will not stick. BALANCE OF POWER between the federal system and the state system Even if the parties dont mind, the federal court is taking power away from the state and the Constitutional separation and balance of power prevents that from happening. The court has the duty to see that they have jurisdiction. Federal court has the presumption that they do not have jurisdiction. Parties must overcome that. What happens now? Capron wins the appeal, judgment reversed. Now can file in a different court (w/ jurisdiction) Subject Matter Jurisdiction Civil Procedure Personal Jurisdiction Your Grade Must be both in order for there to be jurisdiction

Tickle v. Barton Diversity of citizenship and assuming that the amount in controversy satisfied the claim (subject diversity) why would Tickle want to sue in West Virginia? To get the benefit of the home court advantage (West Virginian jurors, judges, attorney knows West Virginia Law) What is the problem? Defendant needs to be served and was, but D claims that they were lured into the jurisdiction by fraud, deceit and trickery and is seeking to have the summons rejected. Files a plea in abatement Tickle demurrers to the plea in abatement He doesnt challenge the facts, he challenges the legal effects of the facts Court overruled the demurrer because it accepted Ds claim of the facts Interlocutory Procedure critical legal question in the case that is a pure question of law that must be decided while the original case is going on but before it is completed (court seeks the answer to the question) Pure question of law huge questions follow Does the court have jurisdiction over D when D was summoned and lured into the jurisdiction by a service of process where there is a question of whether fraud and deceit was used. Court affirmed lower courts ruling that they have no jurisdiction over Barton.

CIVIL PROCEDURE 5
Jurisdiction did the court not have it, or didnt want to exercise it p. 30 do not want to lend themselves to the situation where an attorney (officer of the court) is engaged in a fraud that affects the court itself and the integrity of the process. Is using prudence

PERSONAL JURISDICTION:

1. subject matter jurisdiction / competence to hear the dispute is completely separate from the personal jurisdiction/whether the court can impose a judgment on an individual 2. personal jurisdiction is related to territorial boundaries of the state 3. Service of summons is distinct from personal jurisdiction service is a means of bringing about the jurisdiction, it is not the source. Presence is the source. State can act on service as jurisdiction after it has occurred / been served. A courts power to enter judgment over the defendant is dependent on their presence in the state where the court sits

Pg. 31 of Supplement complaint informs defendant about suit notice of the claim Theory NOTICE PLEADING Can attack the pleading before the fact finding discovery begins Motion to dismiss (demurrer) even if we accept everything at face value, the claim does not have a remedy, basis for legal remedy. Case v. State Farm Harm that the plaintiff is alleging that defendant maliciously and wrongfully cancelled his contract Contract says contract can be terminated with or without cause. Court said that P argued the case as if it were a tort against his civil rights, but his pleadings did not contain such an argument If you did not set the case in the pleadings, the court will not do the job for you. Basic ideas about PLEADING: Complaint gives defendant notice of plaintiffs claim what it is intended to do P does not have to allege facts, however, in assessing whether the complaint has a remedy (law provides relief), court must look at least some of the facts, and the court in this case saw that, but P did not amend it. Claim should not be dismissed on technical grounds if there is a hypothetical meritorious claim, court may want to allow the complaint to go forward to discovery Dismissing cases early supports efficiency, but then injustices occur more often. JOINDER refers to the procedure that allows for multiple parties and multiple claims to be brought in the same lawsuit Give the parties, more or less, to decide how large they want the lawsuit to be Rule 18 p. 61 in supplement govern joinder of issues Rule 20 govern the joinder of parties Still have to look at jurisdiction and remedy joinder is just a procedural tool to combining a lawsuit for the sake of efficiency Multiple Claims Multiple Parties same side, opposite side

Permissive joinder also incorporates a principle of equality defendant can counterclaim with all of the claims that they have against the plaintiff under Rule 13 COMPULSARY COUNTERCLAIM: Counterclaim must be transactionally similar to the claim, or risks having the claim dismissed - logical rule that applies so that the case is settled then because if it is tried later, it might be decided differently Temple v. Synthes Usually subject matter jurisdiction might be the reason for bifurcating the process Under Rule 14 federal rules allow for the defendant to implead the doctor and hospital on the basis that they might also be liable Definitional Matter unlike counterclaims, if you have an impleader claim, you know that it requires the joinder of both the party AND a claim Synthes claims that the doctor and the hospital are indispensible to the claim, and claims that because the plaintiff doesnt properly join the cases, there is a motion to dismiss Victim of a tort is eligible to sue any tortfeasor and can claim damages from there Synthes wants to be able to point the finger at the doctor and hospital Supreme Court joint tortfeasors are permissive, not mandatory parties Courts decision might reflect federalism tolerate the cost of lawsuits so as to prevent the scenario where the federal government usurps state power or if the plaintiff is denied the opportunity to be remedied. Joinder of parties is more limited than joinder of claims. Impleader Interpleader Intervention Permissive could may, not required, to permit another to intervene Of Right if your interest is at stake in the suit Cross-claims are always permissive. SEE JOINDER SHEET DISCOVERY mechanism that our system uses Disadvantages cost and time consuming Strike Suits - defendants should not have to face the additional burden of going to trial After discovery, move for SUMMARY JUDGMENT federal rule 56 On the grounds of material facts, if there is a significant factual dispute = trial, if neither party can submit a specific fact, judge can look at the matter and decide whether a summary judgment can be granted Judge the sufficiency of a factual claim before a jury gets the case - critical distinction between this and the original motion to dismiss is that the court has a different record because facts are present and discovery has been done - function is not to determine the facts, but whether there are questions of fact that NEED a jury - now the question is who has the burden of production of facts (most commonly, the plaintiff) Leave to amend the complaint is freely granted in the trial court stage because plaintiff often does not have all of the facts until discovery begins to honor fairness and accuracy, you want the plaintiff to be able to amend. PENNOYER Introduction to Personal Jurisdiction

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CIVIL PROCEDURE 7
PERSONAL JURISDICTION Statutory if the legislature allows them to Constitutional as provided for in the Constitution Remember both constitutional and statutory elements. Jurisdiction=power Pennoyer v. Neff Classic case Unambiguously ruled in personal jurisdiction for years - has been modified, not over ruled Supreme Court - petitioner is the person who is seeking the Supreme Court to review their case, SC is discretionary (7-9,000 petitions are submitted a year, 80 cases are heard per year) Therefore, person is the one who lost below LOWER COURT 1. Mitchell v. Neff: Mitchell sues Neff in a state circuit court, Mitchell wins by default in Feb. 1866 Mitchell gets the Oregon sheriff to attach Neffs land in order to satisfy the judgment Mitchell sells land to Pennoyer in 1867 Neff received the patent for the land in March 1866 July 1874 Pennoyer attempts to obtain new deeds, from ex-sheriff and current sheriff 1874 Neff comes back to Oregon claiming that it is his land by patent from the U.S. 2. Neff v. Pennoyer: Neff brings Pennoyer in federal court - Neff doesnt live in Oregon, there is diversity jurisdiction because they live in different states - Neff claims that he owns the land under the original patent from 1866 - Pennoyer said that he owns the land because he bought it at auction when Neff lost to Mitchell -deed became invalid when your land was attached to satisfy a judgment Neffs argument: 1. Notice provided in Mitchells case was invalid because there was a technicality over the affidavit - technical details that was provided to effect service 2. Constitutional argument property had to be attached at the outset of the lawsuit in order for Oregon to have jurisdiction over him. Lower court rejects Neffs second argument, because they said that Oregon had jurisdiction over Neff because of the land at the outset or execution of judgment. BUT AGREES WITH NEFF because of the first notice the statute required that the affidavit be signed by the foreman, clerk, etc but it was signed by the editor trial court is requiring a high level of formality to ensure compliance and fairness. (notice by publication can be effective as a means of summons) Service is of constitutional significance prefer to give personal service but if it is impossible, attach the property on the theory that the owner always knows whats going on on their land also publish in the paper as a constructive means of notifying of service. SUPREME COURT 1. Supreme Court does not discuss who Oregon wants to allow sign the affidavits their rule - However, those issues would have to be raised on appeal, not on a collateral attack direct attack lose, then appeal the judgment in higher court collateral attack do not appeal, but in a subsequent case you attack it then Neff is not contending that he owes Mitchell legal fees because that matter has been settled - aspects of litigation including defects in affidavit cannot be challenged collaterally

cannon collaterally attack the merits -If Neffs only argument had been defects in service, Supreme Court would have ruled against. 2. Property was not attached at the outset of the proceedings, court attached the property afterward THEREFORE, Oregon had no jurisdiction over Neff HOLDING land was still Neffs, Pennoyer has to give it up [Our legal system cannot afford continuous litigation of the same dispute, we need finality, even if it comes at a cost Judicial errors, incomplete facts can be accepted Predictability, cost effectiveness, repose, etc are pros of the system Finality is a goal of our court system, we need finality and it is justified because the stakes are not so high (example, as they are in criminal court where habeas corpus (basically a collateral attack) is allowed) Once the judgment is final, time to appeal has lapsed, appeals have been used judgment is given FULL FAITH AND CREDIT (constitution judgment from one state is enforceable in another) Finality can trump Article 3 (subject matter jurisdiction) Here, Neff fails to appeal in Mitchell v. Neff, does not make a direct attack Tries to make a collateral attack in the subsequent lawsuit Pennoyer says that the time to appeal that judgment has lapsed Neff claims that the judgment was invalid because of the invalid summons A judgment that is by default is not necessarily grounds for a collateral challenge, neither are invalid summons Must be on the basis that the court in litigation 1 did not have jurisdiction over you in the first place If the state didnt have power over you in the get go any judgment that they issued when they do not have power over you should be invalid We do not ascribe full faith and credit when the court did not have jurisdiction over defendant. FINALITY does not trump PERSONAL JURISDICTION ISSUE: According to the Supreme Court, Oregon law authorizes 3 situations in which it is Constitutionally permissible to assert jurisdiction over the defendant 1. appear in the court, be found within the state + be served 2. resident thereof + be served 3. have property in the state, only to the extent of such property at the time the jurisdiction attached Supreme Courts idea about the constitutionality is in regards to territorial view of jurisdiction (pg. 72-73) Each state has COMPLETE and EXCLUSIVE control over everything in its territory, and ONLY that state has control. Sovereignty issue Territorial Limits [Tickle v. Barton] *Problem Mitchell didnt have the territory attached at the outset of the statute CAN THE OREGON STATE COURT ASSERT POWER OVER NEFF? - cannot go outside the border to assert service / power / must take place within the state - but, if he is served, then the power has been asserted and it remains over him until the matter is settled FULL FAITH AND CREDIT CLAUSE California can be persuaded to enforce the default judgment If this were to happen, Neff would not have had grounds for a collateral attack in litigation 2 - if power is properly asserted, it can not be avoided simply by leaving the jurisdiction JURISDICTION IS UNRELATED TO UNDERLYING CLAIM -even if the claim itself is unrelated to the state (ie if the contract was made in California)

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CIVIL PROCEDURE 9
In regards to property if you own the property, you are reaping the benefits of the state and therefore the state has an interest in the land, and can exert its power over the land - the state can attach it, but it needs to do it at the time of the commencement of the lawsuit Notice in the paper it is not the basis of the assertion of the courts power Informs Neff of the presence of the lawsuit, it does not equal basis for the lawsuit Attachment of the land is the basis for the lawsuit Inconveniences need to be allocated basis of allowing there to be different courts that a case is tried in (most people would say that the defendant has to bear a slightly disproportionate share of the inconvenience) - comes with serious risks - force a defendant to settle even if it is a frivolous lawsuit / system becomes coercive / default judgments all to avoid the inconvenience Therefore, limits the plaintiffs choices This is why there is personal jurisdiction HOLDING: Affirms that the Mitchell v. Neff lawsuit is NOT entitled to full faith and credit because the rendering court lacked jurisdiction over Neff, Neff could therefore collaterally attack the judgment (did not foreclose the judgment) In personam action against Neff for his personal liability for the contract, nothing to do with the land In rem action that pertains specifically to the property Quasi in rem a case in which you go after the individual, assert a claim, but you cannot get in personam jurisdiction so you attach the land and you seek to have the judgment enforced against the land - catch: liability is only up to the amount of the worth of the property itself Exceptions to territorial theory - avoid by leaving the state and taking property out of the state - not forfeited by absence from states territorial borders - extraterritorial effects once the judgment is effected (full faith and credit) - domiciliary considered to always be present in the state - status relations example marriage if A from NY wants to divorce B from IN, and IN wont grant divorce, is A stuck? - corporations designate in-state agent to whom process may be served Territorial limitations on power reflect a principle of general, if not universal, law Principle of international law independent sovereigns Sister-state can refuse to apply judgment if the state in question does not have jurisdiction Jurisdictional rules are political and can be altered must look at this case in terms of the era (post Civil War) Why did the Due Process Clause come into this situation? 14th Amendment was not even adopted yet - Dredd Scott case (1857) - recognizes the power of the state to enforce its own ideas in the geopolitical realm surrounding them Minnesota state court hypo Personal jurisdiction is a question of power over the defendant geographical question - same question whether you are in state or federal court

Two things that give the court power over the defendant: 1. defendant themselves 2. property - liability is limited to the scope of the property

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3 types of jurisdiction 1. in personam power over themselves 2. in rem - at issue is ownership of a particular piece of real property / land 3. quasi in rem Analytically, PJ is a two step process: 1. does a statute grant personal jurisdiction - if not, there is no jurisdiction - if there is 2. does the exercise of personal jurisdiction comport with due process / is it constitutional Pennoyer FOUR TRADITIONAL BASIS OF PERSONAL JURISDICTION FROM PENNOYER gives four forms of applying personal jurisdiction 1. defendant was served in the forum - general jurisdiction presence jurisdiction 2. agent was served while in the forum - ability to receive process 3. defendant has domiciled in the forum (residency, citizenship) 4. consent openly, willingly, contractually, inadvertently transient presence in the state plus service = valid service Extremely easy to come into the state, do whatever, and then get out of the state Hide and seek / tag jurisdiction International principles ground this theory This theory becomes more problematic as country becomes more industrialized and global. Defendant no longer has to stick around because defendant doesnt have to stay in jurisdiction States find themselves in a catch 22 because they no longer can protect their citizens as a result of this protection of their state sovereignty Hess v. Pawloski Changes in circumstances over time change / require change from the law How did D give consent to MA jurisdiction? MA statute says that just by driving on MA roads you implicitly consent - how does the consent theory work when the constitution guarantees citizens the right to travel between states Under Pennoyer, the only way you could sue Hess is by going to PA. There is a theory about the inconveniences of litigation under Pennoyer, all of these inconveniences would go to P. [[HYPO H leaves behind the car, can get jurisdiction quasi in rem over the car that is still in the state, problem is you can only get a judgment for the value of the car (which might not be a lot) ]] Court emphasizes that cars are inherently dangerous use of MA highways would lead to an implicit consent to have the registrar be the agent for a summons. PRESERVES PENNOYER

JURISDICTION - service of process is being conducted in the state CONSENT BASIS Statute also required that a registered letter be sent to his home address practical courtesy Hess appears specially while in abatement solely for the purpose of contesting jurisdiction so that he cannot be served while he is in the state (allows him to avoid the catch-22) Moves to dismiss, challenging that the service violates the due process Supreme Court Upholds statute against Hess Exercise of state judicial power state cannot exclude outsiders (privileges and immunities clause) Restrict dangerous acts = reasonable use of police power Reciprocity not unreasonable to consider that the non-resident driver come back to answer for themselves Regulation is reasonable: Regulation of dangerous activity Applies equally to residents and non-residents International Shoe Co. v. Washington With flexibility, comes uncertainty Opposed to the formalism of Pennoyer- functionalism, concerned with the way the world actually works (legal realism) Reasons last longer than results. Rationales matter 1. argues that the unemployment tax is unconstitutional under the 14th Amendment due process clause (not the focus of our discussion) 2. argues that they did not properly serve them, therefore, no jurisdiction over them Can Washington exercise personal jurisdiction on International Shoe - the 4 ways to get personal jurisdiction (under Pennoyer) 1. Co. was not physically present there 2. Did not have an agent present (able to accept service) 3. Not incorporated in state 4. Did not consent to service Under Hess, selling shoes is not dangerous Quasi in Rem - youre only going to get a shoe in damage How can you argue that you can proceed with the summons (argue for the state) - You want to establish that International Shoe does enough business to constitute the 3rd facet of Pennoyer - salesmens activities in Washington, business contacts in Washington, etc Reasons vs. Rationale the US SC came to the same conclusion as the WA SC, but the rationale is different Justice Stone says that presence is a fiction - wants to see if the corp. has undertaken activities that are reasonable under a federal system of government BIG shift from Pennoyer (exactly the opposite, in fact) Shift in the time end of WWII, people are considering themselves more as Americans Fits with the pivot toward federal system and away from states rights

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Important: - estimate of the inconveniences to the corporation

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CERTAIN MINIMUM CONTACTS SUCH THAT THE NATURE OF THE SUIT DOES NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE (PAGE 88, top) Miliken v. Meyer determining the sufficient context, quality and nature of the activity in relation to the fairness International shoes activities systematic, continuous throughout the years -must be contacts that impinge on the states territory, must relate to the cause of action, implicate the states interest (legitimate regulatory interest of the state) Sovereignty is no longer as important for the states recognize some of the interests cross state lines Justice Black- concerned with fair play and justice, too broad of an idea that would allow complete discretion for SC. Long Arm Laws always a two-step process in determining personal jurisdiction STATUTE CONSTITUTION 4 Categories of long-arm statutes 1. isolated or sporadic contact specifically related to the cause of action arises from these contacts Hess/McGee 2. INVERSE general or nothing at all - Helios 3. continuous and systematic contact with the forum and cause of action arises from these contacts International Shoe (specific jurisdiction) 4. INVERSE general jurisdiction International shoe specific personal jurisdiction 7 things to take away from Civil Procedure 1. Does the court have subject matter jurisdiction? - raises systemic concerns about whether the court can hear a certain type of case Federal have to get in State can almost always get in, question is do you want to be there 2. Does the court have personal jurisdiction over person (in personam) / property (in rem, quasi in rem)? Implicated statutory and constitutional concerns. Even if court does have power over defendant, does not mean that that states law is applied. (Choice of law is different from choice of forum.) 3. Has the defendant received noticed / opportunity to be heard? 4. Has service of process been carried out appropriately? (Tickle) 5. Does the court itself have venue? - statutory, not constitutional - is this the appropriate geographical arena to hold the trial 6. Can the defendant remove the case from state to federal court? - defendants right to veto the choice of the forum, subject to limitations 7. Have any of these matters been waived (intentionally, inadvertently)?

Courts Changing Approach to Personal Jurisdiction McGee v. International Life Look at the statutes to see where the state believes it has some interest At least a general interest in the matter

CA has a law regarding failure to pay insurance claims

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Limitless Principle: The Unauthorized Insurers Process Act Californias insertion of power would oust other states from process transactions with regard to their jurisdictional norms The Constitution limits actors in states doing what they want to do / federal government wants to do CA cannot do whatever they want with regards to other states people / corporations just because they make a law States interest must touch something materially connected to the state In-state ACTIVITY vs. In-state EFFECTS regarding the actions and citizens of the state Plaintiffs injury vs. defendants convenience Would allow parties to overrule states interests Justice Black was very concerned about state sovereignty (first) and the idea of convenience (second) Emphasis on states ability to provide redress for its citizens Only one contract, but premiums were paid, mailed from California so California has an interest BUT, it was only ONE contract but the contact was systematic and continuous Difference between systematic and continuous and one contract One contract vs. long term relationship McGee vs. International Shoe Similar sets of facts can give rise to different conclusions Still a possibility of a different outcome if it is framed differently Hanson v. Denckla Action 1: will daughters file suit in Florida Set to gain less than they would if the granddaughters werent involved Will daughters v. Granddaughters & Delaware Trust FL Court found that the granddaughters appointment in the trust is invalid because the change was made in FL - FL had jurisdiction over the case Action 2: granddaughters sue in DE to see who gets the trust While this action is going on, the FL judgment is rendered in favor of the will daughters Res Judicata DE isnt allowed to decide because it is a thing decided Limited grounds where you can collaterally challenge ONLY basis for the collateral challenge is that personal jurisdiction didnt apply DE Court holds that the FL court had no jurisdiction over the trust (the DE bank) FLs provision that in a trust, the bank is an indispensible party, since they do not have personal jurisdiction, it is not subject to full faith and credit Therefore, DE can do what they need to do make their own judgment (decline FLs judgment) Here, the daughters win. Upholds the trust and the grandmothers appointment in it Is it unduly inconvenient for the trustee to go to Florida? Are there contacts between the trustee and Donner akin to those in McGee Purposeful availment DE company has no interest in doing business in FL, one of their clients just happened to move there Chief Justice Warren in this case didnt say anything about CONVENIENCE No purposeful availment, therefore no contacts, convenience never gets raised Minimum Contacts are the THRESHOLD

Black = convenience Warren = sovereignty

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NY Long Arm statute (Enumerated) p. 294 Allows the courts of NY to exercise jurisdiction and identify particular things, who commits tortious act with regard to the state Long Arm statutes affect the power of the states to reach beyond their borders to exercise their power International Shoe suggested that service of process is not needed as a ritual, source of power comes from defendants contact with the state, so the service provides the notice 20 years after Hanson Supreme Court stay on the sidelines in personal jurisdiction Have yet to read a case that have been overruled, instead, modifications in approach and subtle changes EXAM Figure out what remains good laws, essential principles In the span of 13 years after, Court decides 11 cases of personal jurisdiction, emphasizing Hanson more and more Over this time period, doctrine shifts in the defendants (sorporations) favor, by focusing on them, can veto the plaintiffs (consumers) forum Ends up developing exactly as Justice Black feared that it would in International Shoe World Wide Volkswagen v. Woodson Products liability where a consumer brought the product into the jurisdiction, rather than the manufacturer Woodson is the trial judge appealing during the lawsuit Defendant doesnt want to litigate this throughout the course of the lawsuit when they have a good personal jurisdiction lawsuit Defendant uses this common law writ of prohibition to bar trial court judge from going forward until the jurisdictional question is resolved The family wants to be on OK court, petitioners are fighting so hard because they want to go to federal court where the juries are less sympathetic to the plaintiff probably driven by subject matter jurisdiction OK was perceived as plaintiff / jury award friendly The family is still NY citizens until they establish residence in AZ or elsewhere Requirement of COMPLETE DIVERSITY measured at the time as getting into federal court If 1 member is from NY, you cant get into federal court Arguments for personal jurisdiction two step process 1. statute causing tortious injury in the state IF he engages in persistent course of conduct in the state need to have both the injury and the contacts in the state quite limiting 2. constitutionality OK treated the statute as an OR rather than a AND OK Supreme Court got this very wrong But the Supreme Court has no ability to judge how the OK SC interpreted their statute CONSTITUTIONAL MAX STATUTE US Supreme Court can only review federal law or issues that are in federal court on subject matter Most plaintiff friendly case McGee because it based jurisdiction on ONE CONTACT Did defendants purposefully avail themselves to OK law? No. WWWV sticks to the Hanson test of purposeful availment Two related but distinguishable functions:

1. Minimum contacts requires factual demonstration to prove that state has power over the defendant 2. Protects states from overreaching Two Prong Multi-Factor Approach: 1. Nature of the defendants contacts to see if defendant is put on notice that he/she should reasonably anticipate being hailed into court there LIBERTY INTERESTS a) statutory, b) constitutional 2. Once minimum contacts are established then due process and sovereignty concerns can be considered

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Foreseeability argument in World Wide Volkswagen Court isnt interested in but for causation, nor is it interested in the mere foreseeability of the car getting into OK Foreseeability is not enough to get World Wide and Seaway into OK OK is too far away PA might have been a different story, because advertisement might have been a different story Should proximity be driving the analysis of foreseeability? Is it reasonable to believe that you will be brought into court Minimum contacts affiliating circumstances, amenability to suit Foreseeability Likelihood that the product will find its way into a forum state not sufficient, but for causation not sufficient Dissent only interested in the totality of the factors, reasonableness of it all (Similar to Black n McGee) Actual burden of the defendant needs to be considered, so does states regulatory position Would allow jurisdiction whenever jurisdiction has an interest in the proceedings (BROAD) Effects caused by unilateral acts (Hanson) are not attributed to the defendant Kulko v. Superior Court Wife wants to amend a separation agreement, she lives in CA, needs to get jurisdiction over NY husband Purposeful availment only applies to commercial transactions 5th factor of the World Wide case substantive procedure that affects policy World Wide test 2nd prong is on pg 121 five facets of consideration of fair play Burger King Corp. v. Rudzewicz Dealings for the MI pair are with the MI district office, but headquarters are in FL Consider minimum contacts first: Contract Plus setting up the contract is not enough, but it is a factor Carefully structured 20 year contract For FL Against Supervision Specifically said that suit does not have to be brought in FL Negotiation Fees Choice of Law Brennan (champion of the little guy, very left) rejects argument that it would be unfair to have it in FL Venue rules restrict where plaintiff can try suit, bear a sensible relationship to the parties and case Apart from, but similar to, PJ & SMJ

Statutory not a constitutional doctrine Sophisticated and experienced businessmen pg 125

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Brennan wants to take everything on a case by case basis this is how the evolution is Emphasis on two components of International Shoe 1. contacts purposeful availment foresee that they can be sued there, can occur even if plaintiff does not enter the state 2. fairness fair play and substantial justice In Burger King, contact is easy. Fairness who has the burden? DEFENDANT HAS TO SHOW THAT IT IS UNFAIR What must the defendant show to the point where it can defeat jurisdiction Must show that it is so inconvenient to be unconstitutional Breaks the trend Hanson, World Wide, Kulko Doesnt apply the effects test Asahi Metal v. Superior Court STREAM OF COMMERCE CASE Taiwanese company suing a Japanese company in California Scorecard is as important in the case as the opinion Multiple opinions, plurality World Wide Cheng Shin wants to argue that it was foreseeable to Asahi that they would get brought in - delivery into the stream of commerce with the expectation that they will be used in forum state pg. 130 100,000 units sold, 20% of income \ Affidavit from Cheng manager that Asahi knew / Contacts Sold as part of a finished product, knew it would be used World Wide Asahi wants to distinguish it Dont argue fairness unilateral act of a third party sold parts to Cheng Shin (didnt do any business in California, Hanson) Presence in the state was fortuitous, not by purposeful availment California Supreme Court upheld jurisdiction should have foreseen PART IIA, and III, Renquist, Powell, Scalia and OConnor (PLURALITY, lacks majority) PART IIB, all of the court, except for Scalia UNREASONABLE FOR CA TO EXERCISE JURISDICTION Justice Brennan writes concurrence, joined by 3 others (none of whom are still on the court Agrees with the outcome, does not agree with the reasoning Justice Stevens writes a concurrents, joined by 2 others BOTTOM LINE: Can CA exercise jurisdiction? No. Unreasonable under the World Wide test COURT IS SPLIT ON WHETHER IT SATISFIES MINIMAL CONTACTS PART IIA OConnor requires some sort of purposeful availment

Foreseeability delivery into sphere on commerce with expectation that they will be purchased by those in the state Mere awareness of profit is not sufficient PART IIB HOLDING holds second prong of World Wide Burden, foreign plaintiff, weak regulatory interest in the case (Victim is not a CA resident) Conceivable that this scenario would play out again in a similar way = CA does have an interest BRENNAN benefits from the states laws that benefit and regulate commerce in CA STEVENS minimal contacts do not always need to be examined but if they do, awareness and conduct, test is satisfied by quality and quantity of products Refuses to indulge into the debate between OConnor and Brennan Court is fractured on what are minimal contacts Is purposeful availment quid pro quo for the jurisdiction benefits, enter business relationships expecting those benefits Leaves open questions 1. jurisdiction denied as unreasonable based on 2nd prong, contradictory given that there ARE contacts, should have looked at contacts first 2. are minimum contacts a prerequisite for jurisdiction? do they require a minimum contact? Does there have to be something more? 3. does purposeful availment only come from state law, or from the market that the states citizens apply overall contacts Asahis overall CA business is only a small portion of their sales Its always a small percentage in the grand scheme of things, because theyre huge companies If you do business all around the world, your percentage in any given place is always going to be small / negligible McIntyre v. Nicastro Similar facts to Asahi. McIntyre manufactures machine in England that injures plaintiff in New Jersey Keeton v. Hustler pg. 115 NY sues OH publisher in NH, makes that choice based on a generous statute of limitations Shared substantive policies, cooperating with other states to provide a forum for litigation ISSUE: can you get jurisdiction over Hustler in NH? Contacts that matter, number of issues sold Caulder v. Jones National Enquirer ISSUE: Whether the writer / editor who worked in FL can be sued Writer /editor aimed their work toward California Pennoyer, International Shoe, McGee, Hanson, Worldwide, Kulko, Burger King, Asahi BIG cases in personal jurisdiction, specific jurisdiction General Jurisdiction: cause of action does not relate to the individuals instate contacts? Presence, domiciliary, presence + service = jurisdiction

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Defendant who is found in the forum can be sued over any cause of action even if it didnt relate to instate actions Deriving benefits from the state reciprocal relationship between you and the state Not unfair for you to be sued in that jurisdiction, even if that claim arises out of the jurisdiction Notion that someone can be sued on a PJ level that arises anywhere in the world Relationship to the jurisdiction is so invasive Reciprocal notions of sovereignty International Shoe left the idea intact, but allowed the state to reach out to determine if the minimum contacts were such that substantial fair play and justice can be respected over a specific matter relating to the contacts within the state.

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General jurisdiction is justified by fairness notions As contacts increase, it becomes fairer, and it even becomes fair for them to insert jurisdiction for general claims because they have so many contacts that it is not unfair to have them answer in that state When your relationship is that substantial, you cannot claim unfairness General jurisdiction is justified by state sovereignty State has a strong interest in the case (Worldwide) Interest in substantive policy Community can hold its members accountable in court, community needs to know that there is at least one place that the defendant can be held accountable makes the most sense that it is where they live Reciprocity, benefit, obligation General jurisdiction is available where the defendant domiciles For a corporation, available in the state where it is incorporated Act of incorporation creates the legal person and gives it its life Distinguishing between specific and general: International Shoe Continuous and systematic, isolated and sporadic Isolate and sporadic can the jurisdiction be over things not related to those contacts Supreme Court address general jurisdiction twice Perkins Perkins v. Benguet Separation in 1930 stock market crashed in 1929 had to deal with defendants president giving plaintiff stock as a Christmas gift Contacts in Ohio are unrelated to the cause of action distinct Court looks at the instate activities and judges them as continuous and systematic HOWEVER this IS where the contacts have to do with the suit, the stocks were drawn and dealt with in Ohio Corporation in a way became domiciled in this case, as they were conducting business where they could not in the Philippines. No clear metric of contacts Court did not use the language of specific / general jurisdiction Helicopteros v. Hall After Worldwide but before Asahi Supreme Court beginning of general jurisdiction Claim concerning a dispute arising outside of the forum Not arising out of or having to do with the contacts in that state The way the court framed the question is an all or not proposition it is either general jurisdiction, or nothing. Court is saying that it is not about specific jurisdiction

CIVIL PROCEDURE 19
Helicol wants the Supreme Court to do the all or nothing approach because they have a chance now make the ask a bigger ask for the court, make the jurisdictional consequences bigger If it was possible for them to check specific jurisdiction, Helicol would have lost no matter what At least this way gives them a chance Many of the contacts that were present in Perkins were not present here Rosenberg merely buying product in the forum is not a sufficient contact BEFORE INTERNATIONAL SHOE Brennan purposeful availment, questions courts reliance on general over specific jurisdiction Arises out of action vs. reasonably related to the actions Plaintiffs in this case obtain no remedy for settlement simply because of framing problem Plaintiffs should not have to go to a foreign country to bring this wrongful death suit Other Whether the test only looks to minimum contacts or looks to due process Reasonableness inquiry will rarely prevent jurisdiction In personam to in rem In personam power of the court to enforce judgment regarding personal liability on defendant In rem Power of the court to enforce judgment regarding the ownership of property Jurisdiction to adjudicate claims of the rights of property to everyone else in the world Quasi in rem to adjudicate rights and property of a particular person Two Types: (1) lawsuits in which the property is the source of the dispute but there is a limited pool of claimants, (2) claims unrelated to the property for something else, but limited to the extent of the property Goodyear v. Brown

Tyler v. Judges Court raises question about the type of notice that has to be given to the claimants But didnt question the courts power to judgment

General personal jurisdiction distinct from general jurisdiction International Shoe Level of activity in forum Plaintiff claim related to activity in the forum General Personal jurisdiction contacts with the forum are continuous and systematic Perkins accepted, did not make a lot of the fact that the present was served in the state, while the person was acting in his CEO capacity in the forum; opinion does not show if the in state service affected opinion Helios rejected; court rejects the case for attempting to assert personal jurisdiction, contacts were not continuous and systematic In Perkins, the actual operation was centered in the forum state In Helios, actions were mainly purchases and Quantitative and Qualitative assessment of the contacts

Point to characteristics that deal with both

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In Rem Jurisdiction In personam imposes a personal liability on a defendant In Rem involves the power of the court to enter a judgment that involves ownership of property Example: Make sure the owner has good title to convey; requires elimination of everyone else in the world who might have claim to that property Pragmatic needs to determine who owns land, there is a practical purpose to it Quasi in Rem Jurisdiction to adjudicate RIGHTS in property to particular person 1. lawsuits in which the property is the source of the suit, limited to a specific pool of claimants. 2. claims unrelated to the property that are limited to the extent of the value of the property In Pennoyer only the state in which the property is adjudicated has the power to enter a judgment Pennington v. Fourth National Bank Brandeis upholdss constitutionality of constructive service on a non-resident without regard to whether property is tangible or intangible. Wife would ideally like this to be an in personam case; but this turns into a quasi in rem case by attaching the property Overall, the bank is not responsible for the divorce action and does not have anything to do with the proceedings Deeming property to be within the state borders court is going to great lengths to determine what it means to be in the state forum Harris v. Balk In personam jurisdiction against Harris would not have mattered here because Harris did not owe Epstein money Here, Harris could have dismissed Epsteins claim However, the debt includes a property right, Harris owed Balk money Epstein argues that the debt follows Harris aroundwhen Harris is in MD, it is as if Balks property is in MD When Balks property (in an extremely intangible form) entered MD, there is jurisdiction Harris agrees to pay this money, could have disputed that he owed the money at all There is not a particular SITE for an intangible piece of property Think of stock could think of it to be present in many places Where is the share located? With the person? Where it is located? On the exchange? Where the headquarters are? Where the assets are? Principle place of business? Where the CEO is located? Where the certificate itself is located? Notion of Presence Quasi In Rem #2 Action compromise Defendant is alleged to have violated a personal duty to the plaintiff, plaintiff wants a money judgment but they cannot get it given the circumstances of the claim because of in personam jurisdiction Allows defendants property to be attached so that judgment would be as good up to the value of property Fairness value comfortable with the repose that P cannot get all funds they seek, and P can get something Plays a practical rule, seems to be safe from an International Shoe test In essence, when Harris went to MD, the debt that he owed to Balk went to MD, the property went to MD Epstein attaches the property, gets in personam jurisdiction over Harris and pays it Quasi in Rem 2 judgment is valid

Balk was precluded from suing Harris for the debt because Harris already paid the debt off in MD Full Faith and Credit COMPLETELY CONSISTENT with Pennoyer Expansion of jurisdiction in the 20th century was an effort to expand Pennoyer, but the fictions came to a head Shaffer v. Heitner Shareholder derivative suit claim pressed by a shareholder on behalf of themselves and possibly others against the management of a corporation, who is treated as a person in itself Real targets of the suit are the officers and managers who are joined, theory is that they have failed in their fiduciary duty / obligation to the company Failure is derivatively passed down to the shareholders DE corporation is subject to suit in DE based on general jurisdiction: statute in DE regarding the situs of the stock, they therefore own property in the company and can be open to suit there Even if the certificates or owners are not present in the state Pennoyer and intangibles, special attachment Sequestration statute stop order on the transfer of the shares, restraint on the marketability of the shares Those shares owned by the subjects of the suits Once attachment, would want to make a special appearance BUT, DE does NOT have special appearance mechanism limited appearance prevents Catch 22 In DE, attachment of property coerces the defendant to enter the jurisdiction and subject themselves to personal jurisdiction via service of process ** If you think that you have a strong personal jurisdiction claim, you let it go into default and then attach the judgment collaterally If you fail to contest personal jurisdiction and default and collaterally challenge, you are only allowed to bring up certain arguments on the appeal RISK: if you lose on your collateral attack, you lose the chance to appeal on the merits In this case, would be over $1 million in stock in Greyhound ON AN EXAM, MUST RAISE BOTH POSSIBILITIES SUPREME COURT: MARSHALLs Opinion International Shoe Majorities reasoning in Shaffer is that the state has not made it clear that they have received benefits from being incorporated in DE. Unusual for the state where the property is located not to have interest in the property regulatory interest and policy interest, convenience factor is strong Rejects conceptual framework of Pennoyer and insists that International Shoe tests for minimum contacts in regards to property POWELL is concerned with the notion of changing the minimum contacts and presence in the state requirements Predictability STEVENS is concerned with the fairness aspect of notice Delaware has not enacted a statute that makes it clear that directors can be brought into court BRENNAN concurs and dissents, agrees with the extension of minimum contacts to property Dissents that DE assertion of power does not satisfy minimum contacts Strong regulatory interest Favors a general rule that a state forum has an interest in a derivative lawsuit in regards to the corporation

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unusually powerful state regulatory interest Benefits of being incorporated in DE therefore, state has an interest in providing a forum

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IMPLICATIONS of Shaffer Does not disturb scenarios = in rem has less consequence than it did before, but there is still a subsection that it does not touch property that is questioned Property counts as a contact manifesting purposeful availment and regulatory interest Jurisdiction doesnt automatically flow from the presence of the property If the dispute is about an intangible (bank account, share of stock) doesnt differentiate State regulatory interest may differ depending on the kind of property Still an interest in the states collectively in the efficient resolution BRENNAN interest to have one forum where the intangible product can be brought to suit Analysis must the same between quasi in rem 1 and in rem Does quasi in rem 2 survive survives to the extent that the exercise of power has to meet International Shoe You can still get jurisdiction over property unrelated to the claim itself (as in this case), but now it has to be subject to the International Shoe Court contemplated drastic effects pg. 165 if those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum Long-arm statutes do not go to the constitutional max should a case arise in which the contacts permit another state under due process, but not under the enumerated statute, then a gap would arise If the defendant falls within that gap Shaffer would authorize the action because of the constitutional analysis not because of Shaffer EXCEPTION property has to be the basis of the jurisdiction 1. Statutory Basis 2. Constitutional Analysis If the statute doesnt get you jurisdiction, even if the constitution does Shaffer isnt addressing this situation CYBERSQUATTING: court has authority to exercise in rem jurisdiction in the judicial district in which the domain name is registered. MARSHALL would apply minimal contacts POWELL would limit in rem to tangible non-movables BRENNAN would look at states regulatory interests but WHICH state? (problem with Brennans dissent) STEVENS reasonableness of the notice customs and what governs the interest

Ceiling tile Hypothetical Quasi 2 is what can be used because the property was the source of the claim Doesnt get touched by Shaffer Pennoyer treated status questions like marriage and divorce as status questions, did not go to those Partly because they intertwine multiple parties, questions of statuts NOT IN PERSONAM State interest in determining status questions are important, high Shaffer does not touch these cases

CIVIL PROCEDURE 23
4 Traditional Basis for Jurisdiction under Pennoyer 1. Agency 2. In the state and served with process in the forum 3. Consent to jurisdiction 4. Residence in the forum International Shoe more amorphous test Fairness of exercise of jurisdiction, minimum contacts Shaffer expanded International Shoe to include all assertions of state court jurisdiction Court has never held that residence and consent are not sufficient in themselves Hess v. Palowski IMPLIED jurisdiction Do not have to assess minimum contacts when they reside in the jurisdiction / are served there Presence remains an important factor of jurisdiction, it is arguable, but not as a matter of law In the quasi in rem arena Shaffer clearly holds that minimum contacts test must be applied Shaffer 1. overrules Harris v. Balk and the PORTION of Pennoyer that holds that it is acceptable for jurisdiction with attachment at the outset of the case. Today, the plaintiff would have to demonstrate that the contacts satisfy contacts with the forum test 2. Court goes out of its way to show that property in itself satisfy with in rem, quasi in rem 1, and ONLY quasi in rem 2 where the suit comes from the property Changes the way the world works in quasi 2 cases where the property did not cause the injury After Shaffer, DE passes a statute where any officer or president must appoint an agent. No indication that Hess is overturned by Shaffer the implied consent However, Shaffer does say that ALL assertions must satisfy International Shoe Does this mean that the traditional basis of presence are swept aside? Burnham v. Superior Court Served with papers while doing business / visiting his children in California He wanted to serve in New Jersey If this a status question? Since it is related to the marriage? How might this be in personam jurisdiction Because it is a question of child support, alimony, money Goes back, makes a special appearance, to contest the jurisdiction Issue: can he be served while in the state for unrelated reasons it is service of process in the forum, but he is there for business that is unrelated to the suit Transient service in the forum provide constitutional basis for service in the forum Narrow Holding: The service is valid, jurisdiction here satisfies due process Rationale court is split 4-4 Scalia writes a plurality opinion: satisfies due process because it is a continuing condition of our legal system Pennoyer Presence is sufficient in 1868, when the 14th Amendment was adopted

Due process may evolve by adding new procedures, but the old method is still valid until it has changed If there is going to be a change in the rules, it must come from the legislature The last place the law should come from is judges Gets around International Shoe, which assimilated novel, non traditional assertions of jurisdiction, did not question the traditional bases of jurisdiction, Scalias opinion in this case is consistent with International Shoe still because that case had to do with jurisdiction over an absent defendant, but this case is not about an absent defendant, it is about a defendant who is present in the forum. Shaffer said that all tests of jurisdiction must go with International Shoe, but he gets around Shaffer because in his opinion, Shaffer deals with the limited proposition of absent defendants No independent inquiry into the fairness of the jurisdiction He is a RIDGID MINIMALIST Allocation of power remains with the legislature Tradition justifies the exercise of power over the present defendant Brennan his approach is to go with International Shoe purposeful availment 3 days in California is fair SCALIA responds with the idea that however many days he is there is arbitrary, what is the benefits given, where do they satisfy, where might they not what is fair, what isnt fair: Scalia does not like this arbitrariness voluntary physical presence should be enough Brennans opinion is not as straightforward points to factors of equal justice and fair play would it be fair to turn this into a lawsuit in California because plaintiff ended up in California for business. As a jurisprudential matter, he is agreeing with the outcome There are plenty of 18th/19th century cases but you might want the court to weigh in on in the modern days Sometimes judges need to judge a case by fairness and due process (regardless of what Scalia thinks) because they are questions of due process line drawing Limitations of what legislatures can do in areas where they might not follow constitutional norms Until this point, personal jurisdiction has given a lot of emphasis in protecting defendant instead of states interest PRESENCE IN JURISDICTION AND SERVICE OF PROCESS, since it is a split decision, does not give law, but gives guidance Predictability, reduction of litigation expenses Are personal jurisdiction rules mandatory? Must the court follow them? Dual role protect defendants interest AND the state interest CONSENT not just about the individual, its about the states collective interest Insurance of Ireland v. CBG Personal jurisdiction is a right, a right which you can waive Gives no weight to the interest of the competing states Each jurisdiction gives its own weight to the jurisdiction issues Objections can be waived, assumption that they can be made the subject of an agreement between the parties. Is this consistent with Hess Removes states power to determine its own interests Parties looking at their own interest waiving structural rules in the states Breman v. Zapata Ex ante agree to a forum before a state arises Ex post facto agree to the forum after the suit Forum chosen was designed to be a neutral ground

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Court upholds the jurisdiction, emphasizing that the agreement was made at arms length by sophisticated corporations in light of the expanding international marketplace Carnival Cruise v. Shute Contract and provision were ex ante, but the provision was on the ticket after they had bought it Plaintiffs did not have any idea that this is what they were agreeing to. However, this is the CONSENT (liberally construed) It is not clear what substantive law the court applied State contract law Didnt seem to apply contract law of Washington or Florida, applied general contract law common law principles Forum selection clauses in consumer and employer clauses

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Why might the analysis in Carnival Cruise Lines perfectly reasonable and consistent with International Shoe? ** Consent was a traditional basis of Pennoyer, and International Shoe does not touch the traditional test of consent Two Step Process to Jurisdiction: 1. Statute, & 2. Due Process Clause of the 14th Amendment Two Steps in Federal Courts Federal Rule 4 Not a jurisdictional statute; incorporates jurisdictional rules but is really a service of process rule U.S. Constitution Federal courts power to exercise personal jurisdiction is not limited by the 14th Amendment 4(k)(1)(a) piggy back means that the state long arm statute applies and when the question is such that the federal rule is directing the court to the state long arm, then the analysis under the Due Process Clause is under the 14th Amendment There are some instances in which it matters in a situation where you want it to matter If precedent under the 5th or 14th Amendment is inapplicable 4(k)(1)(c): What if the District Court is hearing a claim that is under federal laws Statute that gives rise to the federal court, if that includes a federal long arm statute, then the Due Process Inquiry is governed by the 5th Amendment (which allows due process to be applied against the federal government) 4(k)(2): District Court is hearing a Federal claim, but there is no federal long arm statute and defendants conduct would not satisfy a states long arm statute, then this rule comes into play Omni Case: serves to help the plaintiff where there is a gap 14th Amendment state jurisdiction only over defendants who had established a relationship with a state 5th Amendment need only have an appropriate relationship with the United States / Federal Government Generally speaking, Congress has the power to authorize the exercise of nation-wide jurisdiction If it were broader, more plaintiffs would file. Reasonable Notice p. 203: Mullane: Notice that is reasonably calculated under the circumstances Means employed must be such that one would employ if actually interested in informing the absentee what you would really do if you really wanted to reach them

Court has come to different conclusions p. 208 Justice Brennan: in a case involving an eviction, held it was inefficient to nail summons to door and then proceed with the eviction. You need to mail as well. Dissent: No argument that same thing cant happen with the mail but at least reasonable effort was made p. 209 Dousenberry: prisoners, receipt of mail regarding legal processes, mail is sent to prison and to stepmothers last known address reasonably calculated to reach the defendant

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SUBJECT MATTER JURISDICTION

Basic assessment between personal jurisdiction and subject matter jurisdiction: Personal power over the person / matter of geography Subject Matter power to adjudicate the subject / System Federal vs. State - power to adjudicate a particular type of dispute Some cases where federal jurisdiction is exclusive where the states cannot hear them: Admiralty, bankruptcy, certain patent and copyright infringement cases ** Categories of exclusive federal jurisdiction is very, very small Vast majority are brought in state court, principle defenders of federal rights State courts plenary jurisdiction Federal courts specific jurisdiction Subject matter jurisdiction is largely a matter of state statutory / constitutional law Republican form of government clause requirement of a representative form over government and some argue that this clause acts as a restraint on how states organize their judiciaries. If citizens have no reasonable redress for the claim they are bringing, republican form of government clause may be upset Moot courts have decided that this is only regards to a political process question What limits are placed on SMJ by the states by Constitution: Since the states have plenary power unless the document removes the power from the state Presumption: State court has jurisdiction Constitution can circumscribe this assumption State is free to organize its court system however it wants to Sometimes SMJ is allocated in regard to the amount of money involved Within the state system: small claims court for example 99% of the time, if the state court has personal jurisdiction, there will be a court that has SMJ Suppose in International Shoe, the state had tax court with exclusive SMJ over the claim and the case was brought in court of general jurisdiction insteaddefendant can claim court had lack of SMJ Unless the federal court has taken jurisdiction away, the state court has jurisdiction even though it is federal in nature

Ultimately, Congress does not confer jurisdiction on the state, it is presumed. Can confer exclusive jurisdiction on federal courts State has to respect the power of the federal courts decision to govern a certain area HYPO: Congress says there is a national interest; CO says they dont want to honor that How do you balance this? Would CO hear this same type of state action? If so, they cant not hear it Supremacy clause prevents a state from closing the door on a federal right just because they disagree with the outcome p. 271 Howlett But what about the states Federalism right to organize their state the way they want to HYPO: MA extends benefits to same sex couples the same way that they do to traditional couples When the company learns that the couple is single sex, they refuse payments Company is in NJ, couple wants to judicate in NJ But NJ does not recognize FULL FAITH AND CREDIT CLAUSE must not refuse unless it outweighs the national interest State can apply its own statute of limitations even if it extinguishes or resurrects a claim that is unavailable in another state Capron v. Van Noorden Plaintiff challenged judgment on appeal on the ground that the court lacked subject matter jurisdiction Defect of a lack of SMJ can be brought up in any point in the case, even on appeal, as done in Capron Point where we want different interests to be respected Lacks v. Lacks 1970 date is important in this state because NY divorce law was in a state of transition has always been a bit of an outlier, 1970 was a softening transition, did not allow no fault divorce you have to have a reason, it has to be specific, and you have to establish sufficiency Collateral Challenge based on rendering courts lack of jurisdiction She based this challenge on the fact that husband did not reside in NY for required 1 year before action Court of Appeals holds that this is not a matter of SMJ that the flaw that the husband was not a resident for the year was a substantive element of the cause of action meaning that there was no basis for the collateral action. Practical Meaning: the err, according to the court, is one of characterization trying to re-adjudicate on the merits. When the court heard the case, they must have heard about this in the case, it would have been the crux of the case. There may have been an err, the court had the authority to engage in that inquiry, and it had jurisdiction to look into whether he was there for a year. If it failed to do so / botched it thats a finality interest that we have to respect even though it may have touched on whether the case could have been heard. NOT about whether there was SMJ, its about whether the court messed up We cant reopen the questions, it has to be done at some point. This is about the claim itself, were not going to reopen the merits that the court had the SMJ to investigate This may be an issue in a death penalty case or where the stakes are higher that a technicality might be wrong You must balance these kinds of considerations when figuring out whether to reopen the case Ultimately, the court absolutely had SMJ to determine whether he lived there for a year in determining whether he fit into the statute. Their decision that he did, gave them SMJ and is final. FEDERAL SMJ: opposite rule in Article 3 2 unless it is specified, court cannot amend SMJ 9 classes of cases that can Constitutionally be heard in federal court:

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Party based (7) Look Up Claim based (2) Look up

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Divide the categories of jurisdiction as set forth in Article 3: Party based Claim based Diversity Jurisdiction as it relates to the citizens of different states Article 3 of the Constitution as it relates to diversity jurisdiction Do the courts have the power to hear the states because of the Congressional Provision Constitution says that the judicial power shall extend to all of these controversies Constitution did not create the lower courts kind of like the constitutional max You still need a congressional grant to execute the constitutional max Article 3 doesnt authorize exercise of diversity jurisdiction only says that if it IS exercise, it comports with the Constitution CONGRESS has to pass legislation allowing for it to happen Judiciary act of 1789 circuit courts concurrent with the state courts where the parties were citizens of different states and the amount was over a certain amount defined by statute Where is the statutory provision to direct: 28 US Code 1332 Amount in controversy matter much exceed $75,000 pursuant to the statutory provision Diversity Jurisdiction allows federal court to decide state law claims (if youre in a federal court under a federal claim, no need for diversity jurisdiction) Allows federal court to decide state law claims when they are citizens of other states and the amount in controversy is over $75,000. Pg. 242 of the Supplement Law that is going to be applied is state law, to govern substantive issues that arise Why do we allow this? Need to Protect Citizens: Needed to protect out of state litigants from in state bias (Justice Marshall) Proptect creditors from state populace bias: Consequences for business need the protection from defendants home state juries Might deter trade, corporations from entering unfriendly states / debtor friendly states State courts may be unpredictable of bias Notion of cross fetilization of ideas across the bar useful to have federal courts decide state claims in order to expose the federal courts to those laws/policies/interests/perspectives [Diversity of perspectve =/= neutrality of perspective] Better ways to do this that doesnt go into constitutional protections State courts are over-burdened Doesnt hold up. Would only make up 1% of the state courts, even though they take up 25% of the federal courts Want uniform outcomes [but isnt that the crux of the federalism system? We dont want the same outcomes, states are allowed to be different from themselves] Important for complex cases, with outcomes that impact many states, short of requiring Legislation (if we wanted TRUE uniformity) * Dont want to subject national things to 50+ different standards Requirements for Diversity Jurisdiction

Suit must arise between citizens of different states Dred Scott: (p. 280) to be a citizen of a state you must be a citizen of the United States Pivot is jurisdictional even though the case is very significant Objection on jurisdictional grounds, claiming that he was not free Dred Scott claimed he was MO and owner was NY No descendant of African slaves can ever be a citizen of the United States Invalidated MO Compromise that states could rule on slavery Lincoln refused to uphold the Dred Scott holding and thus the 14th Amendment was created Off Topic Love Stuff v. City of Hoover case from Alabama, in the NY Times on October 6 AL Supreme Court upheld the statute banning the sell of sex toys (7-2) Despite U.S. Supreme Court Lawrence v. Texas held that sodomy statute was unconstitutional Determined that on privacy / autonomy grounds Alabama would likely want judges who would uphold the law. We have rights in this country for our rights to be exercised even when those are unpopular e.g. race relations where the courts are the arena Competing concerns because federal courts are implicated No federal rule for choice of law what is the governing law of the case that is in federal court Problem in deciding which state to apply no federal contract / tort law (small exceptions) 2002, 2005 Congress expanded scope of jurisdiction 2002: catastrophic mass accidents where defendants and at least 1 plaintiff are from different states 2005: high stakes class actions class action fairness act: effort by big business to federalize the state based discrepancies Should the legal system care where cases are filed? How are the law making powers different between state and federal courts different? Federal Law = statutory Scalia feds are not common law = may judge whether you want to get into State law = built up from common law or get out of federal court Can create rules of decision Class actions / business perspectives period going back to 1980 until Obama took office, (Clinton was moderate because the Senate during his presidency was even or more republican / Gingrinchs legislature) = Lower federal courts became much more business friendly from 1980-2009 Big Business perceived those courts as friendlier Therefore, they want to get in Concept of complete diversity USC 1332 A from NY suing B from NJ and C from NY does satisfy Article 3 Section 2 1332A as in Strawbridge v. Curtiss requires COMPLETE diversity so it would not satisfy EXCEPT high stake class actions How do you determine the citizenship of a party HYPO: Plaintiff P born in Texas, leaves home in 20, travels N and E, job in Toledo to earn money to come to NY, 2 months on job, gets hurt, brings suit against diner in Ohio. Residency =/= domicile Domicile REQUIRES two factors: (1) established residence, (2) intent to remain

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Is there a reason why federal court should reject the jurisdiction on policy grounds? Plaintiff has the initial choice about where to bring case Purpose is to protect out of state defendants here, plaintiff is the out of state person Person is an instate defendant Plain language of 1332 provides for jurisdiction and does not limit Mas v. Perry Domicile = true, fixed, and permanent home and principle establishment, and to which he has the intention of returning wherever he is absence there from. 1. taking up residence in a different domicile 2. the intention to remain there Mas triggers the alienage jurisdiction Mrs. Mas is Mississippi where her parents were before she left for school. Fading notion wifes domicile is her husbands

Citizenship in regards to CORPORATIONS (p. 281) Suppose that the Ohio diner is owned by a Texas corporation P sues both the diner and the corporation. Is the citizenship requirement satisfied? 1332(c) corporation is a citizen of two places: 1. state is in which it is incorporated (any state, could be more than one, realistically is not) 2. state in which it has the principle place of business Nerve Center Test: Where the main decisions are made, corporate brain trust, where it is run, HQ Corporate Activities Test: Location of corporations production or service activities Total Activities Test: Considers all circumstances surrounding a corporations business Realistic, flexible and non-formalistic approach to determining PPB Our case: No, no diversity because P is a TX domiciliary and corporation is TX. TX on both sides of v Suppose the diner is not a corporation, but it is a partnership. 1332(c)(10) multi-state class actions looks to the state where it has its principal place of business and the state in which it is organized. Partnership: Not a Corporation? Citizenship for diversity purposes considers each and every members state in which they would be a citizen REMOVAL allows a defendant to remove a case that has been filed in state court if the federal court would have had jurisdiction. defendant can invoke diversity jurisdiction 1441 covers Removal HYPO: TX P sues OH diner in TX. They will want to remove and use 1441(a) to remove to federal HYPO: P dues OH diner in OH state court. 1441(b) :If there is some reason they want to remove, they will not be able to because if none of the defendants are not citizens of the state in the action are involved BARRED from removal

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Differences in Federal Courts: Jury pool is different Regional rather than local Rules are different Judges are different 1359 bars collusion on the part of corporations to manipulate what court they get manufacture of federal jurisdiction is the very thing which Congress intended to prevent State laws do not matter procedurally the structuring of business in this way (a state question) effects how the federal would take precedent because this is a question of whether the assignment is proper for federal jurisdiction question. Question is whether there is a reason for the assignment OTHER than diversity Doesnt speak to collusive joinder to defeat jurisdiction - 1359 doesnt help Rose v. Giamatti: MLB unincorporated association: citizen of every state in which they have a member (Reds are a member, in case the Reds cant be joined) Reds incorporated business Court held that they were nominal parties: is this acceptable? Reds might have an interest manager might get banned / jailed = more than nomial parties nominal parties: one who has no interest in the result of the suit real parties: one who, by substantive law, has the duty sought to be enforced or judged Alienage Citizenship: 1332 Permanent resident aliens are citizens of the US for diversity citizenship purposes (green card holders) 1988 Contracts DJ in situations where US citizen of state A sues a green card holder who is considered a resident of state A Expands DJ is permanent resident alien of state A can now sue permanent resident alien of state B Does congress have the power to define this? Deeming noncitizens to be citizens = upsetting balance of power Congress cannot confer citizenship AMOUNT IN CONTROVERSY must exceed $75,000 Used as a way to queue their cases Blocks trivial cases Historically, may have been geographic component if federal court is not close P from NY in a car accident with D from NJ - $68,000, costs $3,000 more to repair his car. No. But, throw on some punitive damages pain and suffering Defendants defense: AFA v. Whitchurch Is it clear, to a legal certainty, that the plaintiff cannot recover the amount set forth How do you have clarity to a legal certainty in this scenario Plaintiff may be barred by statute / cap on punitive damages then you would know to a legal certainty where it is not barred

If not, court accepts the good faith claim of the plaintiff and if the inability to be exact, where bad faith is not an issue, does not dismiss the court from having jurisdiction Changes in Post-Filing Events General rule: at the time complaint is filed, P could recover amount in controversy, and it is not a gross deviation from the amount subsequent events do not matter 1332(b) authorizes the court to impose costs / impose fees on the party if there is a gross deviation could bear his/her own costs. Losing defendant could have costs too. ONLY if they are in bad faith. INJUNCTIVE relief: 1. amount based on the value to the plaintiff 2. based on the party seeking to invoke jurisdiction Aggregate claims: p. 290-291 Rule 18 Joinder Plaintiff can join unrelated claims in order to meet the amount in controversy requirement Two plaintiffs cannot claim amounts together if there is an uncommon interest Except in some in rem cases cant split Plaintiffs whos interest are the same Whether or not the interest is the same turns on contract, tort, other substantive law Substantive Law Limitations on the amount in controversy question: Federal courts will not hear custody / divorce questions as a matter of diversity jurisdiction (exception) If she sues on abuse an exception to the exception Reasoning: State is better situated to hear the matter, matters of status.

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FOR THE MIDTERM: Asahi: Unique case and if you end up with stream of commerce, specific type/category of cases. Vendor A creates widget, sells to Company B, Company B sells to C as incorporated in a finished product Grew out of precedent that was out of there in World Wide It would be weird to cite Asahi instead of World Wide you want to pull from the various cases. Fairness Factors in Asahi Asahi is still a plurality instead of a majority Quasi in Rem: Implications of Shaffer Marshall rejected conceptual framework of Pennoyer and insisted that minimal contacts should apply to jurisdiction to property cases. In Rem Survive? If it is a true in rem it is about the property, and the property is in the state so it does satisfy the minimum contacts pg. 164 presence of property may bear on jurisdiction by proving a minimal contacts states interest and defendants taking advantage of the benefits of the state. Property counts as a contact manifesting purposeful availment However, JURISDICTION DOES NOT FLOW AUTOMATICALLY

Exercise of power is still subject to minimum contacts

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What if dispute is about an intangible court doesnt distinguish Powell draws a distinction he wants to limit it to tangible, non-movables. Quasi 1: survives and should be held to same standard as in rem Quasi 2: survives if exercise of power meets International Shoe If ties do not exist, cases cannot be brought in that forum Contacts with forum = good under due process BUT go beyond enumerated Gap Arises: Shaffer then authorizes QiR2 not because of constitution, but because of statute (assumes can make a limited appearance) Attachment of bank account 1 district court case in which it was held up Post-Shaffer: Much of what Marshall said in Shaffer was dicta case did not need to address everything it did Therefore, opinion as subject to criticism Controversial even within the court at the time of the opinion MOST IMPORTANT PART = PART 3 concluding sentence We therefore conclude that all assertions of state court jurisdiction must be analyzed based on International Shoe and its progeny minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantive justice. EXAMPLES: 1. Claims to property itself are the underlying source of the controversy hard for this NOT to be a sufficient contact (FOOTNOTE 4) Presence of property in the state is likely a sufficient contact 2. Presence of the property may also favor jurisdiction in cases where ownership is conceded but the cause is likewise dealing with controversies regarding other rights growing out of ownership Pennoyer questions of status =/= in personam State has an interest in dealing with such questions. Shaffer clearly holds that International Shoe must be analyzed Plaintiff must demonstrate that defendants conduct in the state constitute minimum contacts Presence of property satisfy International Shoe because that is a significant contact with the forum May only change quasi in rem 2 where the property does not cause the injury / controversy In context of QiR greatest practical impact is when cause of action is unrelated to the property QiR acts as a type of judicially created long arm statute The only role played by property is to provided basis for bringing defendant into court This type of situation Shaffer concluded did not mean to meet International Shoe but it can be used to see that other ties might also be present Nature of property itself can lead to sufficient contacts Two judges reserve judgment when the property attached has the situs permanently attached in the statute Real Property

ARISING UNDER JURISDICTION Subject matter has to be handled different in the state vs. federal system

Focus is on the federal system because the federal system is limited states are pretty inclusive for most matters Limited Exceptions to the rules Areas of exclusive federal jurisdiction Tougher question is about whether the federal system has jurisdiction DONT FORGET THE STATE COURTS If a federal court does not have subject matter jurisdiction, chances are some state court does (may be specific) Whenever you read a federal case in law school / as a lawyer, ask yourself every time: how is it that this case is in the federal court anyway on a subject matter jurisdiction On what grounds is the case in federal court Analysis will lead you in a productive manner Federal court limited, enumerated power Cannot do anything unless it is authorized under the Constitution, which is often not automatic, must have a statute that authorizes it The court acts only when people come to them, and when someone comes to them, when the courts have to ask whether they have the authority to act in those specific circumstances. Federal courts cannot adjudicate anything unless they have the power under Article 3 and they are within the reach of a jurisdictional statute as passed by Congress. By what right is the case in federal court. Can be raised at any time in the proceedings whether or not it has been raised Sua sponte on their own even if the parties fail to raise it (opposite to personal jurisdiction, where if they fail to raise it, they lose it) Subject matter can be raised on appeal, even if you didnt raise it below Which is not true for almost every other issue in the legal arena Even if the parties agree, subject matter jurisdiction problems is infringing on rights, state sovereignty Balance of power between the federal and states 1331 places where federal government always has jurisdiction (general federal jurisdiction) 1875 Congress extends general federal jurisdiction Before then, they did have diversity jurisdiction big deal The only court that would weigh in to protect the federal right was the Supreme Court If this is the case, it tells you about the way in which the structure of the government, you see how important the state court systems were in order to vindicate federal interests 1875: Original arising under had a amount in controversy power Power is concurrent with the courts of the federal states Legislative history to this statute is very sparse Only comment: precisely the power that the constitution asserts, nothing more, nothing less Sounds like a constitutional max, doesnt it? 28 USC 1331: Arising Under Jurisdiction Court has interpreted the constitution provision more broadly than the statutory one 2 concepts to be kept distinct from one another

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1. placement of the federal issue / where does it come into the case: complaint, answer, elsewhere 2. substantiality of the federal issue Do not always fall neatly, but both are criticial. Constitutional Test: limits Congress authority Move to dismiss under 12(b)(1) for lack of subject matter jurisdiction Osborn v. Bank of the United States Congress created First Bank of the US furnishing loans to feds / collecting taxes Ohio decided to tax the bank in order to put it out of business It has been held that MD could not tax the Bank (McCullough) Bank files suit in federal court granted an injunction to stop the state from collecting the tax Osborn was the OH state auditor he gets sued because of OH statute which named the Bank of the United States as a bank transacting in the state and thus subject to the tax Purpose of statute is to drive the federal government out of the banking industry in the state Despite the injunction: they proceed by violence to the office of the bank and take $100k Osborn is required to return the money Another request for injunction to restore money Then the federal government takes money, physically, from the state Osborn: The circuit courts does not have authority Congress did not give them the power Even if they did, it was out of the scope of Article 3 it would be too broad Supreme Court: The act creating the bank allowed the federal government to hear any case involving the bank as a party Issue: What is the meaning of the arising under language in the statute Bank brings suit on trespass grounds, wants the money back as relief return of goods that are wrongfully held But the jist of the action is on a federal constitutional issue is the OH attempt to tax the bank unconstitutional? Marshall focuses on the banks charter federal issue is the FOUNDATION of the case, constitutionality Banks charter is the law for which the suit arises The main ingredient of the case Bank is not suing under the charter these are goods we want back, (state) But the defendant might contest the suit based on the charter, you lack the capacity to bring the suit under your charter POTENTIALITY of the federal issue coming up does it satisfy? The potential of the federal issue might come up whether or not the charter gave the bank authority Marshall yes, because there is a federal issue, the federal INGREDIENT is sufficient to satisfy Article 3 Ingredient was federal, it didnt even have to be disputed, could have been background Need not be actual or substantial The fact that the case involved issues of general law did not ruin jurisdiction BROAD reading of the arising under language There is a divergence between the constitutional provision and the statutory provision Arising under jurisdiction is potentially very broad

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1331 legislative history says that the scope is as broad as the constitution In many cases though, the court will cut back on the courts reach HYPO: GPSs were created for the military by the government and are since marketed to everyone else. Congress creates a statute, and Osborn is the test what is the test in Osborn? The test is: Is it possible that a federal question of law might arise in the cases as authorized by the statute? They may potentially arise is enough to justify the federal jurisdiction Osborn does not require that the federal issue does not arise out of the matter, only that it is a POTENTIAL ingredient in the matter Louisville v. Mottley Government passes a law prohibiting the giving of lifetime passes on the railroads Law passed to prevent governmental benefits of riding for free Congress passes the statute Unforeseen contingency something happened that they were not expecting Mottleys bring a suit in equity They were seeking specific performance were not seeking damages, they were seeking full performance in the contract They had a property interest in the lifetime passes Make two arguments in bringing the case: 1. Breach of Contract 2. Argument for the breach (excuse for the breach) was no good. They say that the statute doesnt apply to the situation 3. If it does apply to their situation, it is against the 5th Amendment to take away their property without due process Without the second argument, it would just be a breach, state issue Their case is we had a contract they are predicting the defendants argument and answering it in their pleading. Defendant, in response, demurrers stating that they did breach, but congress told them to Even if you take all of the facts as true, they have no legal basis for their claim They did it, but they had a requirement to do it Lower court plaintiffs win, defendants appeal Supreme Court on its own motion went to subject matter jurisdiction (if neither party had brought a personal jurisdiction question, the court would deem this question waived) Neither party objects to subject matter Court can bring up subject matter because it protects the sovereignty of the state courts the relationship between the federal system and the states. Parties cannot waive this interest in the balance of power between the federal and the state (this balance is protected in the Constitution) This is a case that would be decided the same exact way today 1. No diversity of citizenship 2. Federal question jurisdiction Why not? Surely the question of a federal statute outlawing the pass would be a federal question The only issues in the case are federal However, the federal matter is inappropriately placed in a original pleading, because they were anticipating the railroads defense THEY ARE NOT A PART OF THE CAUSE OF ACTION not a part of the original claim

Original claim is a CONTRACTS issue Well Pleaded Complaint Rule Only when the federal element is necessary to the complaint Interpretation of the statute Congress can still change this

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Why might the court not want to have this kind of rule? It would have required the court to delve too deeply into the facts of the case it should be able to ascertain this from the complaint If there is a federal issue, the Supreme Court can take the case if there is a federal question Article 3 2 Allowing state courts to hear federal issues so long as the Supreme Court has final review If there isnt a federal issue in the court, if it wont TURN on a federal issue, it is done when it is in the states highest court. Only if there is a federal question can it get to the Supreme Court

Statutory Test for Arising Under Jurisdiction: 1331 We know that the courts have interpreted that constitutional provision more broadly Even though the two are written almost entirely similar The legislature is not in a position to edit the constitution, but they can modify 1331 Keep in mind two concepts: 1. placement of the federal issue (complaint, answer) 2. substantiality of the federal issue Cases do not fall neatly into one or the other, but it is critical Constitutional test for Arising Under limits authority to get cases into federal courts Purposes of: 1331 it can be more restrictive Article 3 minimum requirements Suit arises under federal law only if the cause of action shows that case to be arising under federal law The proper elements in a cause of action are governed by the sovereign that created the statute If it is a state issue, then federal courts will have to look at how the state defines that process If the elements are allocated as a federal rule Mottley rule: One of the elements in the complaint has to be federal Does the courts decision really protect federal issues in this case? If we have federal courts to ensure that federal interests have a safe forum, isnt that more important than traffic control arent the federal interest more important and the Mottley rule is too underinclusive Benefits of Mottley - gives predictability - traffic control Can arise under the state statute and 1331 if it is stated in the pleading / complaint

Actuality Disputed Substantiality Drop of Purple to Make the Case Federal

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Private Rights of Action: 1. does the statute create a federal right in favor of the plaintiff? 2. is there any indication, explicit or implicit, either to create such a remedy or to deny one? 3. It is consistent with the underlying purposes of the legislative scheme to imply a remedy for the plaintiff? 4. Is the cause of action one traditionally regulated to state law In the vast majority of cases, the case is federal if the federal question is in the complaint Shoshone v. Rutter Congress established a system allowing miners to file land patents on claims and to settle conflicting claims Right to possession was to be determined by local customs or rules of miners in the mining districts so long as they are not inconsistent with the laws of the United States state law is leading to the federal law Court declines federal jurisdiction Because there is state law and state interests local customs and local rules This is a scenario where youre trying to bring a cause of action that points to the Constitution, but you DONT HAVE A FEDERAL RIGHT to look to those things (in federal court) This is a case where you can bring a federal question into state court Marshall WOULD decide that the ingredient is there Protective protect federal interest in state / interstate commerce Smith v. Kansas City Converse. State cause of action incorporates a federal rule into a cause of action HYPO: State based cause of action Pharmco is marketing for un-medically necessary reasons Violation turns on whether or not the marketing representation is in violation of federal law FDA limits marketing to medically necessary uses Pharmco wants to remove to federal court In Smith, state law but there is a federal question Plaintiff sues a trust company for a breach in illegal investments investments were illegal because the Act authorizing it was unconstitutional state law prevented them from investing in this illegal way based on the constitutionality of Agricultural bonds issued by the U.S. Government Placement is not sufficient must be an issue that is required under the federal interest If a claim is created by federal law, there is almost certainly going to be 1331 jurisdiction October 22, 2009 Well Pleaded Complaint: federal question must be in the plaintiffs cause of action, in the pleadings. Cannot bring up the federal jurisdiction question in response to an anticipated defense or for an offensive move further down the line. Must begin with the federal question.

Federal issues really only come in during the defense we know there is a potentiality, but you never know exactly what the defendant is going to do. Dont let the plaintiff trump the gate keeping rule in 1331 by pleading with defenses in their initial complaint If the essence of the complaint is still a state issue, the fact that both parties agree, it does not change the essence of the jurisdictional analysis ie breach of contract, the breach was violation of a federal law. Essence of the complaint will still be a breach of contract issue, will still be a state issue. Whether plaintiff and defendant agreed does not matter because subject matter jurisdiction is still a more important issue it is a state sovereignty issue. In personal jurisdiction: state sovereignty is the final hoop In Subject Matter Jurisdiction: it is continuous and always needs to be evaluated Do not want federal courts intruding in state places, even if it is in the realm of 1331 instead of constitutionality * this is why personal jurisdiction can be waived, and subject matter cannot why it can be raised at any time. Cases cannot go forward without subject matter jurisdiction (cases can go all the way up, with all aspects being done (discovery, witnesses, etc) and can get thrown out for want of subject matter jurisdiction Supplemental Jurisdiction If count 2 is violating federal law, then it is a federal question. Then the other part will follow because you dont want to make people litigate separately on similar matters not efficient. * Claims rise out of a common nucleus of operative fact, part of the same case or controversy Article 3 Constitution grants authority to hear cases or controversy clause Placement is essential, but it is not sufficient The weight of the federal question is important Typically, if you satisfy the Mottley rule and you are seeking to enforce a federal cause of action The issue is almost certainly going to be sufficient However, in Shoshone, court declined to give jurisdiction when the case was governed by the state law pointing to the federal law Smith v. Kansas City Company breached duty by making illegal investments because it was deemed that the law allowing the investments was unconstitutional Majority holds that it was a federal question because the right to relief depended on the construction or application of the Constitution or laws of the United States the claim rests upon a reasonable foundation Dissent reasons that the law tries to piggy back on the federal law but it is really a state issue Smith doesnt give guidance on how to approach a federal statutory claim Moore v. Chesapeake Plaintiff wants to bring an action under the KY Employer Liability Act for negligece Negligence act is grounded in traditional negligence theory But the Act was such that the employee would not be barred under contrib. or assumption if the employer failed to comply with federal safety statute Therefore, the federal safety statute is at issue

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However, there is no federal jurisdiction because the duty imposed by the federal statute is only a reference Reconcile Smith and Moore Moores emphasis is on intrastate commerce maybe the question is not as substantial as it seems You dont want to impact intrastate commerce state law should only effect people who have interests in the states in question Merrell Dow v. Thompson Tort case negligence, breach of warranty, gross negligence, fraud = state tort action The important count is that the 4th count, a federal matter, for the companies non-compliance with the FDCA in branding the drugs Defendant wants to move to federal court says it should have been brought to federal court originally Can ONLY do this if they could have been brought in federal court in the first place Is there SMJ in the first place arising under federal jurisdiction Question of whether there is an implied private cause of action under the FDCA NO JURISDICTION because there is no explicit remedy for a private right of action Plaintiffs arent arguing if there is a cause of action Congress did not create a cause under the FDCA They claim a second type a derivative: the vindication of a right under state law (right not to be ingesting drugs that create birth defects, to be subject to all of these torts) here, the vindication of that right TURNS on some other construction of FEDERAL LAW in violation of the FDCA Negligence Per Se you can infer the negligence in the violation of the safety statute How does this square with Mottley: does it satisfy the well-pleaded complaint rule? Yes. Then why isnt there jurisdiction? Where do we find the issue? How do we square them all: Merrell, Smith, Moore Federal Question Jurisdiction only if there is a substantial, disputed question of federal law In Merrell, there is not a federal jurisdiction because Congress did not put a private right of action in the statute [sometimes you do what you have to do to get a bill through maybe it wouldnt have gotten through if the remedy was there compromises in the legislative process is that you may have to give up remedy to get it passed] Congress chose to punt it doesnt say no, just doesnt include one In Merrell, the court reasoned that Congress failed to create a private right of action, for whatever reason, for violation of the FDCA That is an indication of a matter that is insufficient on substantiality grounds Federal Question that the plaintiffs are trying to bring, no one is arguing the matter that needs to be resolved, the matter of the torts case. It is not substantial Question is: is the issue substantial enough to be a federal interest Settlement of local interests pursuant to federal law that references local customs Drugs distributed are labeled inconsistent with safety standards October 27, 2009 If youre sued in your home state court, then you cant remove based on diversity jurisdiction

When the defendant is in their own home state

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Merrell v. Thompson General gist of the plaintiffs case is a state tortexcept count 6 deals with the FDCA a federal Act. Defendants in this case want to get into federal court because they want it dismissed on forum non conveniens ground (this case would be better brought in another country) ER Triage you are always going to get treated for your stab wounds before your headache Courts, constitutionally, will look to subject matter jurisdiction before anything else. (forum non conveniens is rarely applieddown the triage list) Vast majority of federal question jurisdiction arising under Mottley Federal law creates the cause of action = federal subject matter jurisdiction In Merrell, the cause of action here is created by the Ohio tort law that just so happens to incorporate the federal standard state cause of action references the branding guidelines under the FDCA Holmes in Mottley would say that this is a state issue, does not arise under the FDCA However, this is a hybrid situation, because the state cause of action turns on the federal thing Rarely is this going to be enough, but it might be central enough Why didnt the defendant argue that the FDCA created a cause of action? Conceding that there IS a cause of action = cause of action for all the other people who are looking to sue them Not good on a cost/benefit analysis Does this satisfy the well-pleaded complaint rule? Where to look? The issue of the sufficiency of the federal question 1331 limitations, circumscriptions on the scope of the federal question jurisdiction not going to let everything in How do we distinguish between Smith, Merrell, Moore Whether there is a sufficiently substantial federal question to satisfy federal subject matter jurisdiction? After Merrell lack of a Congressionally created private right of action is generally going to be determinative. Dissent: [Brennan] whether or not there is a federal remedy should be distinct from whether or not there is a federal issue The lack of a remedy =/= lack of a federal issue Because, realistically speaking, the legislature might avoid putting in a remedy in order to get the other side to pass their bill punting strip it of its effectiveness. Brennan would allow jurisdiction regardless of the omitting of a question He would have allowed federal subject matter jurisdiction Merrell holds that there was not a federal question jurisdiction over a state tort claim where that state tort claim had a federal element but where congress had not created a federal remedy See footnote 12 on page 312 These rules have the problem of not always fitting perfectly into the real world Leaving plaintiffs without redress Balances that are constantly being struck in the federal court standpoint Grable v. Darue

Defendant removed to the federal court on the basis that the plaintiff himself could have brought the case to the federal court case had to have been originally brought to federal court, and not subject to an exception Basis to bring this case to federal based on subject matter to begin with Exercising their right / the balance 1. Significant Question of Federal Law 2. Cannot throw off balance of federal / state balance of power Court considers the imbedded federal question from a sufficiency and substantiality Does it necessarily raise a federal law issue that is DISPUTED, and SUBSTANTIAL, that the state can judge without upsetting the BALANCE OF POWER. Federal governments interest in collecting taxes, taking care of disputed claims buyers need to be satisfied that they will get quiet title. This is the kind of case that does not come up all that often opposite of Merrell IRS notifies via mail, instead of personal service Court unanimously holds that there is federal subject matter jurisdiction Mottley well pleaded complaint. Requires plaintiff to dispute the federal question in the quiet title action Smith Substantiality turns on the strength of the federal interest Merrell p. 13 Justice Souter rejects Holmes test in certain circumstances says it is too broad Wants other practical considerations Test raise a disputed, substantial federal question that would not upset the balance of power. October 29, 2009 Summary from Shoshone Supplemental Jurisdiction In Grable: a tax delinquent learned that his property had been sold. Defended right to property on the ground that had was not served properly. Court unanimously held that federal jurisdiction is available in the case. Souter rejects the notion that the federal cause of action that gives rise to the suit is the only thing that we need to look at. Very pragmatic. Holmes would not find SMJ if the cause is not from federal statute. If the state cause of action seeks to enforce a federal issue Jurisdictional inquiry claims under state law that turn on substantial questions of federal law Uniformity, efficiency Some state causes of action will, and some will not. Souters test p. 319 State law claim necessarily raise a federal issue a) disputed? b) substantial c) federal forum can entertain the matter without disturbing the Congressionally approved balance between states and federal. * Similar / Equivalent to traditional notions that are identified in International Shoe Notions of fair play and substantial justice What does necessarily arise mean (in the same way you ask what minimum contacts are) Federalism absence of a federal right of action is not the only touchstone anymore

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Significant, but no longer the sole Treated as a missing welcome mat

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Empire Health Choice Sample does not think that it is that important Argued that case is so wrought with federal jurisdiction that federal courts have to have jurisdiction Common law systems Federal Law is codified Was the federal law stated, was it disputed, was it substantial? Merrell providing a forum where federally related causes of action Brennan in federal questions, there should be uniformity of federal law Grable allows court to look at litigation reality assessment of whether federal issue will be litigated if it goes to trial. If it gets to trial, will the question be litigated and will the case turn on it? Empire rejects SMJ when a company sues under a federal law when they try to reclaim money they had paid out, when the 3rd party reimburses her. As a matter of contract law, you are required to reimburse insurance. Held that no significant issue of federal law. Litigation reality not clear that the adjudication required the application of the law SUPPLEMENTAL JURISDICTION Something that actually makes life easier Its a liberalizing rule that makes it easier to get into federal court Plaintiff files a claim in federal court and the plaintiff has a sufficient basis. NOW, how big is your case, how much leverage do you have, how much can they decide Federal Question or Diversity Jurisdiction Claim has an independent basis of jurisdiction and can get in on its own. However, in addition to the original claim, additional claims can be thrown on USC 1367 Every claim asserted has to have a basis for federal jurisdiction, and supplemental jurisdiction is the place to get it NEVER available to get the original case into court, but it applies to subsequent claims Original claim has to have its own independent basis of jurisdiction In Article III constitutional mooring is that constitution grants jurisdiction over CASES, NOT claims. Rule 14 Impleader Rule 24 Intervention: intervene as a matter of choice United Mine Workers of America v. Gibbs Gibbs gets into a dispute with the unions and is a worker for a subsidiary as the superintendent of a coal mine Sweetheart deal union members are not too happy about it Company is laying off mine workers who are unionized New mine would have been under the jurisdiction of the union, but the company wants to use the other union a more company friendly union District Court asserts jurisdiction because it arises under the federal labor statute, but ultimately did the equivalent of a motion to dismiss on the federal claim even though there was already a jury verdict on it. Jury is better at deciding the facts fact finders Judge applies the rules of law / sets up the rules to be applied by the jury

Judge says that there isnt a claim of law on the federal issue so the federal issue falls away

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No independent jurisdiction over the conspiracy claim, which is a state law issue Could not have gotten into court on the basis of the diversity unincorporated association = present where ever it has members (union) District Court looks at Hurn v. Oursler if the state law has a separate but parallel claim Where the federal claim is supported by both state and federal cause of action If the federal and state claims derive from a common nucleus of operative fact such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding - once you are in this arena, they can decide whether or not to take the case - they can, but they dont have to - plaintiff doesnt have the right to exercise this power Judicial economy, convenience, fairness to litigants Against jurisdiction: you do not want a naked state claim in federal court For Jurisdiction: case has been seen this far Remains an open question throughout the course of the litigation Brennan constitutional case: Osborn. Article III 2 only needs a federal ingredient Constitutional set Need Statute: 1367 did not exist Statutory: efficiency and convenience are important, but do not justify overreaching In Gibbs, no statutory basis Osborn constitutional analysis is really broad Gibbs makes sense, two claims but they were really about the same deal. What is the consequence? What if the court had decided two different jurisdictions? Try two cases in separate courts? Inefficient. Try them both in state court? Cost, inefficiency, time, less level playing field on substantive law Civil Rights Actions in state courts? November 3, 2009 Gibbs did not create pendent party / ancillary jurisdiction Hurn created pendent Brennans innovation was to reconcile pendent jurisdiction with the pleading rules / Federal Rules of Civ. Pro. 1331 federal question section: read to confer jurisdiction that ran to the full extent of the Constitution Default: recognize pendent in relevant cases where the state and federal claims were under the same nucleus of operative fact Gibbs: either 1331, diversity, or rare cases where the statute sets forth the cause of action PARADIGM P vs. D on a 1331 claim + a state law claim + no diversity TRIO of cases: Pendent or Ancillary was NOT available to join non-diverse claims Aldinger v. Howard

Civil Rights Claim hired to do office work by the Spokane Co. Treasurer Told she was going to be dismissed because she was living with her boyfriend Sues treasurer and other county officials raising violations of 1st, 9th and 14th Jurisdiction alleged under the Federal Civil Rights statute.

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P v. D on a 1331 claim + state claim + non diverse Pendent jurisdiction did not reach the state law claim against Spokane County Distinguished pendent CLAIM jurisdiction from pendent PARTY jurisdiction There is a difference between bringing additional claim, but over a defendant claim and bringing in another defendant Unlike Gibbs, the basis for jurisdiction is the Civil Rights Statute which confers jurisdiction to the federal courts for specific federal civil rights violation, but at the time, the court interpreted that statute to exempt counties from liability Permitting jurisdiction in this case would undermine Congress determination that cities and counties are not liable. Congress singled out counties as being exempt Court will be fiduciary to Congress where they have the ultimate say Must give a careful statutory reading and look at the facts in light of the language and purpose Owen Equipment v. Kroger Wife of decedent sued for the wrongful death of her husband Sued Omaha Public Power District, which was a Nebraska corp, based on diversity. OPPD filed a 3rd party complaint over Owen Equipment PPB of business is now in Iowa, destroying diversity (Missouri River changed the principal place of business from Nebraska to Iowa, changed the geography) District Court denies the motion on the ground that ancillary jurisdiction is available despite the lack of diversity Defendant not plaintiff who brought in the party that destroyed diversity Applying Aldinger look at the posture of the specific statute that confers jurisdiction Here, that statute is 1332, to determine if there is express or implied negating of jurisdiction 1331(a) requires complete diversity Court reasoned that plaintiff should not use ancillary or pendent jurisdiction to get around diversity Why would the court withhold ancillary jurisdiction did not rule per se Just said that they have the discretion The specific grant in this case (diversity in this case) did not permit joinder of the supplemental claim / party Default rule is still in favor but these two just hold that there has to be specific situation Finley v. United States Jurisdiction under 1346(b) U.S. is charge of assuring proper runway light Jurisdiction is not just allowed it is EXCLUSIVE in the case against the United States Later amends claim to include claims against San Diego, and the power company District allows Appeals rejects, reverses Supreme Court affirms reversal Assumes that the constitutional criteria is analogous to the extent Will not read jurisdiction statutes broadly Finley is a statutory case that turns on 1346

Scalia unless Congress approves, it is not available Relies wrongly on Aldinger and Owen which really held that it is available unless it specifically says no Scalia proposes a new default Congress must speak expressly if they want the federal court to have jurisdiction 1367 Supplemental Jurisdiction Create the presumption that the supplemental jurisdiction reaches as far as the constitution unless expressly prohibited. - Congress passed a law that made the default pre-Finley Includes pendent party jurisdiction Though the statute doesnt read this way: you can break (b) into 3 distinct parts Limiting principles for the broad grant in (a) 1. bars claims by plaintiffs against persons made parties under rules 14,19,20,24 of the federal rules 2. Claims by persons proposed to be joined as plaintiffs under rule 19 3. Claims by persons seeking to intervene as plaintiffs under rule 24 P (MI) v. D (CA) on state law claim in federal court on diversity D (CA) joins T (MI) under federal rule 13(h) in accordance with 19, 20. P wants to assert a claim against T Reason through: - we are in a diversity case, watch out for 1367 (b) - we know that a plaintiff wants to assert a claim against T Exxon Mobil v. Allapattah 2 consolidated cases Exxon: All class members were required to meet the jurisdictional minimum Upholds supplemental on the view that one of a class does, so the other ones can get in Ortega: Minor child Family members did not, they were not a class action, and since some did not meet AiC, then no jurisdiction How does court analyze 1367(a)? Well pleaded complaint if one of them does, then the federal court has original jurisdiction Stakes in this case are high Single question before us is whether the diversity case in which the claims of some satisfy the AiC, but other does it represents a civil action where the federal court has jurisdiction Presence of other claims doesnt oust the court of federal jurisdiction How does the court treat 1367(b)? (b) applies only to cases in jurisdictional basis is founded on diversity BOTTOM LINE: rejects notion of indivisibility theory, that the inclusion of a claim / party falling outside original jurisdiction somehow contaminates every other cause / claim in the complaint 1331 is more narrow than Article III 2 1332 has carve outs Both of which are more narrow.

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Supplemental Jurisdiction: 28 U.S.C. 1367 Fill in some of the Article III power not filled by 1331-1332 As a threshold matter, need a jurisdiction-invoking claim Supplemental jurisdiction applies to any additional claim that if standing alone would be insufficient to confer subject matter jurisdiction 1367(a): Except as provided in (b) and (c)in any civil action of which the district courts have original jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution 1367(b): courts shall NOT have supplemental jurisdiction under (a) over claims by plaintiffs against persons made parties(see above for the 3) Certain diversity claims by plaintiff ruled out: 1. Rule 14: additional parties brought into the case by defendants 2. Rule 19 : additional parties who must be joined 3. Rule 20: Additional parties who may be joined 4. Rule 24: additional parties who want to be joined 1367 (c):may decline jurisdiction even if it has it 1. claim raises a novel or complex issue of state law 2. claim substantially predominates over the claim where district court has original jurisdiction 3. district court has dismissed all claims over which it has original jurisdiction 4. Exceptional cases in which there are compelling reasons for declining jurisdiction APPLYING 1367: FRAMEWORK 1. Is there a claim that gives an original grant of federal SMJ? (is there an independent basis?) - If not, stop: supplemental jurisdiction cannot apply 2. If so, is there a second, or more claim, for which there is no independent basis for federal SMJ? (state law claim over a non-diverse party?) - If not, you dont need supplemental jurisdiction 3. If so, does the claim meet the relatedness requirements of 1367(a)? (Gibbs) - If not, stop: supplemental jurisdiction does not apply 4, If so does (b) or (c) override to take supplemental jurisdiction away? - If yes, then supplemental jurisdiction does not apply - If no, then supplemental jurisdiction DOES exist over that claim November 5, 2009 REMOVAL & VENUE Transfer - 1404/1406 from one like court to another like court Change Courts Within a System Removal from state court to federal court by a defendant Change Systems 1441: Except as otherwise provided, a civil action brought in state court where the district courts had original jurisdiction may be removed only by defendant or the defendants - there has to be a statute that gives the federal courts original jurisdiction (a) may be removed by defendant or defendants to the district court of the US for the district and division embracing the place where such an action is pending (c) when there is a separate federal question, the court may chose not to hear the tag along questions associated with the case

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DEFENDANTS remove an action. Plaintiff will never remove What if 1 defendant wants to remove, and the other wants to stay? ALL of the defendants must agree Plaintiff has the original choice if they wanted federal court, they should have filed in federal court to begin with When removal is based on diversity is it pretty much the same with a few distinction - home state removal bar (1441(b)) only if none of the defendants is a resident in the state in which the action is brought If there isnt federal question in the first instance, there isnt federal removal in the second REMOVAL OUTLINE 1. General 2. Venue 3. Special Rules for Diversity Cases 4. Removal Procedure 5. Post-Removal Procedure Plaintiff can avoid removal by waiting for a year and amending the complaint Efficiency sake you dont want to allow them to change the venue ones youre in the suit What is the procedure after the removal notice is filed? 1447(c) after a case has been removed, the plaintiff has 30 days to file to remand How does the statute that governs supplemental jurisdiction work with removal? 1441 is read to remove both the claims and the parties and claims that are brought within supplemental brought under 1367 VENUE Venue rules are all statutory (no constitutional basis) 3rd hurdle after personal and subject matter jurisdiction (constitutionally, you have to have both) Addresses the issue of which court within the particular judicial system is going to hear the case Which means that it is within a court system that has jurisdiction 1391 (a) diversity cases (b) federal question term 1391 uses the term resides, not citizenship or domicile Transfer from a proper venue to another, does not accomplish a change in the law. It only is a change in geography. The rule creates a strategic opportunity. P. 389, Note 4, Van Dusen v. Barrack **Transferee Court Applies Law of Transferor Court** November 10, 2009 Gabys Notes

VENUE. PERSONAL JUR AND SUBJECT MATTER JUR

CIVIL PROCEDURE 49 VENUE IS HURDLE IN CHOICE OF FORUM BUT VENUE RULES ARE ALL STATUTORY-NO CONSTITUTIONAL BASIS 3RD Triage-personal and subject matter first and then venue-can waive objection to PJ though. Venue is much smaller deal. Addresses which court within a particular system can hear the case. Within a court system that has both PJ and SMJ. The statute for venue is 1391 (a) and (b) (a) founded solely on diversity (b) not founded solely on diversity-I.e federal questions. Both are identical o A1 and b1-RESIDES. (Not domiciled-can be temporary). o A1 and B1 a judicial district where any defendant resides, if all defendants reside in the same State. (more than 1 defendant and they all reside in the same state) o P sues D for breach of K. Machine designed in New Mexico assembled in Illinois from parts made in Ohio. WHERE WILL VENUE LIE? Southern District in NY. Because D resides there. Most of the time if you have PJ you will probably. have venue but dont assume Where did D reside Where was significant part of events leading to claim If both parties reside in same state-venue proper in district where either defendant resides. Purely statutory in federal system. Venue can be waived it is a privilege. Unlike SMJ o Congress divided country into 13 judicial circuits, 91 districts, and a lot of 50 states only have one district and some have several. o Transfer of venue-transferring within a state system or within a federal system 1404 and 1406. Transfer in federal system and state system differs. No state can transfer to another district outside of state. In federal state-proper to transfer from state to state within the federal system. 1404 P has originally filed action in district with proper venue. But there may be better place. 1406-p filed action in district with lacks proper venue.

CIVIL PROCEDURE 50 What law is applied in transfer-note 4 page 389. Van dusen v. Barrack. Transferee court must apply law of transferor court. Change in geography not law. Strategic opportunity for P. P wants to file suit in forum with favorable substantive law and then transfer to more convenient forum. Being in convenient forum with benefit of earlier more favorable law. Note 5. Van dusen rule. Note 5 on 389 Section 1404 applies when plaintiffs original venue choice is proper 1406 applies when venue not proper when brought by plaintiff. Not a lot of case law driving venue questions 1391-removal (corporation vs. citizen) 1404 and 1406-transfer of venue 1407-page 391 note 8. Multidistrict litigation provision. Creates judicial panel on multidistrict litigation. Concept: panel of 7 circuit judges Pre-trial preparation consolidated Dont need to know details or procedures but it is worth understanding.

In addition to statutory TRANSFER devices---we have forum non conveniens Gulf v. Gilbert Recognized as discretionary device Two categories-private and public interest Private: Witnesses, access to proof, compulsory service of process, viewing of premises, enforceability of judgments. What will have affect on parties to litigation Public-judicial economy, choice of law. Transfer-from one court to another within same system Dismissal-there is no other court in the system Absent clear balance of factors in favor of D, Ps choice of forum should be honored. Cannot transfer to foreign court-so you need to use FNC. Primarily a doctrine you will see in litigation involving foreign parties Piper-leading SC case on FNC 1. Removal to CA FEDERAL COURT (1391) based on alienage jurisdiction 2. Transfer to PA FEDERAL COURT (1404) using convenience arguments below 3. Motion to dismiss on FNC grounds. DEFENDANTS can remove if there is federal SMJ (Diversity, Alienage, federal question).

CIVIL PROCEDURE 51 Reyno (P) is administratix of Scottish decedents estates filed wrongful action in CALIFORNIA STATE COURT. Why did Reyno (P) sue in the U.S. it recognized strict liability, lifetime earnings, more generous laws on capacity. In CA STATE COURT. Piper transfers to CA federal court. Can remove to federal court of where STATE litigation happened. (Diversity, alienage jurisdiction). 1404-transfer based on convenience of parties, witnesses. Hartzell wants to transfer case from CA district court to PA district court because of the above-cited factors. Reyno could argue it would be inconvenient to litigate in PA-but it doesnt really matter because she is a representative. Defendants got to PA by transferring and arguing PA is more convenient forumappropriate place to try the case. Once in PA district court-Piper (D) moves to dismiss on FNC grounds. District court grants FNC motion, Circuit Court reverses, Supreme Court agrees.

****A motion to dismiss for forum non conveniens should not be denied merely because the SUBSTANTIVE LAW of an alternative forum (Scotland) is less favorable to plaintiffs*** Court says this should not be given conclusive or substantial weight if the remedy would be so clearly inadequate that dismissal would not be in the interests of justice. Can only deny motion for FNC because of unfavorable substantive law in the alternate forum when there would be no remedy at all. This is a CLARIFICATION OF GILBERT. **Concerned with preventing U.S. courts from serving as a magnet to foreign plaintiffs* It is about closing court house doors to foreign plaintiffs against U.S. defendants. THE ERIE DOCTRINE-State law in federal courts What body of law should federal courts arise when they decide state law disputes-key significance to diversity, but scope is not limited. We will focus on diversity however. Fundamentals Constitution- Article III doesnt say anything Congress passes Judiciary Act in 1789 RULES OF DECISION ACT. Laws of the several states shall be regarded as rules of decision in civil actionsexcept where federal law otherwise applies. Swift interpretation of Rules of Decision Act. Under NY LAW-Tyson has a defense Under general federal common law-Swift will win. Swift-common law contract action between banker and NY land purchaser. NY COMMON LAW (JUDGE) Gives debtor (Tyson) a defense when fraud is involved. Federal common law requires Tyson to pay Swift if Swift accepted instrument in swift. Justice Story looks to natural law principles. Story looks to the RULES OF DECISION ACT. He interprets laws of several states to mean only state statutes, not state common law (judge made) decisions.

CIVIL PROCEDURE 52 State judge made common law serves as evidence of the law-can be reversed/qualified by courts. Laws are said to include STATUTES and ESTABLISHED LOCAL CUSTOMS having the force of laws-SWIFT. SWIFT-state common law judge made law is not law. But federal common law is and so is established local customs. Part of a trend in which federal courts were seen to be more elite. TAKEAWAY: The scope of Swifts statement. Keep this in the back of your mind. In a diversity action based on common law, federal court not bound to apply state judge made law. Instead, federal court sitting in diversity can choose what law to apply. ONLY EXCEPTION was for state judge made law governing local actions Swift intended to use diversity jurisdiction for creating independent body of federal law. State rule of judge made law that is not really law and federal judge made law. We dont know which rules apply-it would be an EX POST DETERMINATION This raises characterization problems leading to a lack of predictability in the law. Under regime of swift, defendants manipulated citizenship to exploit difference in substantive law (Taxi cab case) Plaintiffs can also decide to sue in federal court to escape state common law. Swift was the law from 1842 to 1938

November 12, 2009 ERIE DOCTRINE Tompkins was walking home along a footpath parallel to the Erie RR tracks in PA, was struck by an object that was protruding from a passing train. His right arm was severed. Was awarded by the trial court $30,000 (450x his income), appellate affirms - loses the award, loses his job, cant work, unemployed His lawyer advised Tompkins not to accept the first settlements, basically strong arms him into going to the Supreme Court where he loses the large settlement Litigated below raised a question of substantive law Questions of tort and property law duty to a pedestrian Trespasser / Invitee they thought that this is what they would have been litigating in the Supreme Court - case becomes a landmark about the relationship between the courts and the states Overturning precedent is very unusual given stare decisis but it happens 1. Why did the Supreme Court find it necessary to overturn Swift a) Policy - problems with forum shopping Brown & Yellow Taxi Cab: corporations manipulating citizenship for forum shopping Could have been solved by narrowing diversity for corporations Discrimination / Fundamental Unfairness: can move to federal court and choose law Non-residents depriving residents of forum law in state court simply by choosing the federal forum Changes to diversity would not have solved this - Swift created problems in uniformity where it intended to solve it general common law kept expanding, failing to help uniformity

PURPOSE of diversity jurisdiction was to provide an un-biased jurisdiction This is the only reason that the federal government was involved at all Subordinates state law Federal courts were required to apply state legislation despite the facts that non-residents had no power to effect state legislative rules Argument Congress had 97 years to get around to changing the Swift rule, but they didnt Makes it even harder to change the Rules of Decision Act, but they didnt Normal court would be to leave it to the legislature Principle against overturning previous interpretation of the statute yields when it is determined that the interpretation of the statute is deemed to be unconstitutional Politically, if you want to reverse it, the stakes are high Remarkable that this thing has been unconstitutional for a century and no one has noticed. Challenging it can only be on constitutional grounds b) Constitution - Interpretation was unconstitutional: Federal courts were overstepping their bounds by allowing them to create federal general / common law judiciary does not have the power to create law. [Federal Rules of Decision Act IS still constitutional, its interpretation in Swift was unconstitutional) - Court doesnt actually cite constitutional grounds 10th Amendment: Power to create law isnt expressly granted to the judiciary and therefore it is given to the states Erie is overturning their interpretation of the Rules of Decision Act, not declaring the RDA unconstitutional - Federal courts, under the guise of creating general rules, exercised power the Congress could not themselves do - Congress cant set out terms of substantive law - As a matter of general rules, state boundaries are rigid and states are sovereign and can make their own substantive laws (even though there are a couple exceptions) Commerce Clause? Cant congress regulate the railroads? Not in this case, because the cause of action is a simply, state tort claim. Congress had not set out a specific cause of action here so long as there is a hook to interstate commerce. Here, the basis for the cause of action was not an Article I rule passed by Congress. Except where the constitution / federal law the law that is to be applied is the law of the state Whether it is state legislature or state court is irrelevant to its force in federal court - big switch from Swift Erie does not mean that Congress cannot make law to govern state transactions Article 3 Courts & Congress derive their power from the Constitution, not by custom - enact substantive law and delegate, BUT the act of law making is significantly different Brandeis concerned with political equality, the federal-state point Concurrence: Didnt want to open up the Pandoras box of the constitutionality Only wanted to reexamine the interpretation of the words state law Worried about the power of Congress to create laws / procedures for Article 3 courts to use Circle Back: Swift

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1841: Federal Court in NY on diversity grounds substantive issue was bills of exchange and consideration. NY law would have applied their law (common law) Justice Story wants to ignore judge made law which rested in common law. Issue was whether or not the phrase law of several states incorporated judge made common law Federal courts can reach their own conclusions based on general common law Types of state law that require the application of are state statutory law but not judge interpretation of common law Court ultimately disagreed with the rule of law, had a different interpretation of consideration Federal law and State law is different Common Theme running through this cases If they agree, who cares The problem arises in certain circumstances where the two laws are different Swift assumed that it gave a federal court in diversity can interpret as they see fit. Is Congress limiting the Courts power? It can, and it does. It has the power to regulate the lower federal courts Example 1332 narrower than the constitutional scope that is given to the federal courts Not a new concept that there is a statutory inquiry and a constitutional inquiry - Broadest extension - has congress granted the full scope (with the RDA) Swift was a matter of interpretation. Interpreted it narrowly to not include state judge made common law. Fast forward to Erie Tompkins wanted to sue in federal court but could have sued in either PA court or federal court He wanted the benefit of the federal law that did not define him as a trespasser (the federal stance) Questions of venue and personal jurisdiction overlap - 1391 nerve center / muscle center (citizenship) and for corporations, where a defendant resides where subject to personal jurisdiction (venue) Tompkins had the decision of what system to use and which geographical state to sue He chose federal court instead of state court because he wanted to avoid PA state judge made law which could classify him as a trespasser. Lead to the manipulation of jurisdiction by plaintiffs - Unfairness - Lack of uniformity Black and White / Brown and Yellow Taxicab cases = high water mark for plaintiff manipulation of choice of law Different rules by going across the street federal / state court = a problem Erie fixes the problem and says that the result under Swift is unconstitutional Structural argument, presumably under the 10th Amendment Article I Congress can pass laws, what the scope can be - Erie what is not indicated in Article I should be left to the states Article III extends Article I principal if Congress does not have power to make law in those areas, the judicial branch cant either Politically responsive branch = legislature Where does that leave us with respect to the Rules of Decision Act?

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Passed by Congress It is not unconstitutional RDA: State law will control unless federal law governs to the contrary, otherwise require or provide Forum Shopping Happens all the time, in a controlled manner You have choice of venue, different courts within each level To a lesser, limited extent look at courts decisions and figure out which would be the most favorable More/Less favorable juries It is only improper insofar as federal courts are making law in fields left to the states - when a federal court is more favorable than a litigant would receive in state court on a matter that is essentially a state law matter Erie addresses a certain type of forum shopping based on discrepancies between the state and federal interpretation of the common law 1904 in NJ, hits the car of a NJ resident, you are NY resident. He sues in federal court in NJ. Assume AiC is satisfied. - Subject Matter? - Personal Jurisdiction? - Statute operation is strict liability - Most states apply a negligent standard. Now, NJ doesnt have a statute, but the Supreme Court has held that the operation of a motor car is a dangerous activity, subject to strict liability. Most other states apply negligence. November 12, 2009 (Class 2) HYPO 2004 driving snowmobile in Maine, hits tractor of NH resident, he is a NY resident who is not negligent Sued in federal court in Maine Assume that the amout in controversy is met Is there personal jurisdiction minimums contracts analysis is satisfied; therefore there is specific jurisdiction Lawsuit is connected to his driving a snowmobile in the state Maine has strict liability Other states have a negligence standard Under Erie, defendant wins because state law should apply. Variation: Maine does not have a statute, but its highest court has held strict liability Then, defendant wins, even if negligence is applied more. Judge made is irrelevant Variation: Congress regulating and licensing snowmobile use, federal negligence cause of action. No longer a diversity lawsuit, because suit arises under a federal question Variation: Two count complaint, 1 under federal and one under state law. Supplemental jurisdiction, brings the second count in because its a common nucleus of operative fact

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- federal law will cover federal count - state law will cover state law because must apply the state (Erie shouldnt even impact this) What if Congress doesnt want snowmobiles to ever be strict liability Preemption doctrine can preempt state laws Congress cannot (according to Erie) tell states what their state laws should be Therefore, Erie is a separation of powers issue Guaranty Trust v. York Erie held that exclusion of judge made common law is unconstitutional Rules Enabling Act: enables the Supreme Court / delegated to the Supreme Court to have the authority to promolgate the rules of procedure for the federal courts so long as those rules dont alter substantive rights Federal Rules become law in 1938 What is the effect of Erie on these new rules of procedure How do you determine what alters a substantive right and what doesnt? Choice of Law Problems: 1. Vertical Choice of Law: as between a federal law and a state law (Erie) - problem arises because of overlapping power between state and federal judicial systems 2. Horizontal Choice of Law: As between one state law and another state law - arises because of injuries and actions that arise across state borders Article I Congress Article II Executive Article III Judciary Rules of Decision Act: 28 U.S.C. 1652 Guaranty: ------------------------------------- Substantive Procedural - matters that concern merely the manner and means by which recover is enforced - matters bound up with rights and obligations of parties out of court - matters that are outcome determinative Guaranty was the note holder for the Vans (debtors to the Vans) Company couldnt meet its obligation and the trustee works out a payment plan to purchase outstanding notes for $0.50 on the dollar and some of Vans stocks Turns out Guaranty wasnt innocent in all of this breached fiduciary duty by being trustee for the note holders and being a note holder themselves conflicted interests York had received notes from a donor who had not accepted the deal swap And she tried but failed to intervene (Rule 24) in the lawsuit and then brought her own suit on behalf of nonaccepting note holders What is the question: Does the federal court have to apply the state statute of limitations? Was Yorks lawsuit out of time.

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Court of Appeals held that the plaintiff won, that the feds did not have to follow the states statute of limitations p. 417: Congress provided that the forms and modes of proceeding in suits of equity would conform to the settled uses of the courts of equity - Did the federal court have a strict statute of limitations (laches in equity courts) more flexible, looks at facts and circumstances, if plaintiff has been lazy or if they had a good reason for delaying Here, applying state law would end the state law claim Applying federal law would allow the suit to go forward / keep it alive Court held that you have to stick with the NY statute of limitations because if the court disregarded it it would significantly effect the outcome OUTCOME DETERMINATIVE Pure Substance Pure Procedural Federal court sitting in diversity should be acting just like a state court just another court of the state Does not mean that remedies / form and mode of enforcement has to be identical But, when it is asserting a state based right Test: whether the application of a rule that is in conflict could significantly affect the result insofar as legal rules determine the outcome of litigation - no formal distinction, but whether deviation would result in a substantially different outcome AT SOME POINT, EVERYTHING CAN BE OUTCOME DETERMINATIVE At some point, even the most administration-based rule can determine the way in which the suit is going to turn out Example: Filing on certain sized paper, 4:59pm on the filing deadline Connection to Diversity Jurisdiction Notion - protection from state court bias Majority Congress gave another venue, not another mode of law Dissent: 7 years have passed since Erie, if they wanted equity to be included they would have included it Triple Play cases All favor state law Ragan v. Merchants p. 422 Ragan argues, suit was commenced in September, tolling the clock Defendant says that the state said that commenced when service happens Court follows state law rules no suit Byrd v. Blue Ridge Electric Company Switch focus to constitutional role of federal courts in the federal system (Brennan think balancing test) Defense is a statute the Workers Compensation Statutory Scheme, but the determination that the judge makes the decision is judge-made. Relief in this case turns on whether he is defined as a statutory employee State defines him as a statutory employee under Workmens Compensation reimbursed according to schedule

Will not be able to sue on an independent cause of action JUDGE makes the determination Federal: JURY makes the determination, according to the 7th amendment (factual determination = jury) Supreme Court ultimately says that the federal law will trump the state law because the federal policy and interest in constitutionally allowing a jury trial trumps any reason that South Carolina gave for wanting a judge to determine [7th Amendment does not apply to the states under the 14th Amendment] If it had, supremacy clause would have trumped Brennan acknowledges that the federal court must follow the definition of a state created right By contrast, a federal court does not have to follow state rules that are merely a form and mode of enforcing immunity unless the rule is bound up with the definition of the rights The SC rule only has to deal with the judicial process, not the citizens rights

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November 17, 2009 Byrd continued Application of state rule would negate an essential characteristic of the state court 7th amendment right to a jury for a factual determination. Brennan says we do not have to have exact compliance if it is going to disrupt the federal system Court thought that the decision might not be outcome determinative, but the application of the rule might preclude the plaintiff from filing in federal court in the first place State Interest Weak, Unexplained -vsFederal Interest Strong Interest (Constitution)

(In York, the difference was defined. Outcome would OBVIOUSLY DIFFER between the two here, it would be a fairly small possibility of a difference) Federal court decides that it is free to disregard the state law because here the federal interest outweighs the state interest. 7th Amendment calls for a jury trial, and the Constitution is the Supreme Law of the land Byrd Test 1. Is the state practice bound up with the definition of the rights and obligations of the parties if so, then it is substantive and state law governs (roughly, Erie) 2. Even if state law isnt part of the substantive rights and obligations, would its application determine the outcome of the case (roughly, York) If necessarily yes, then probably substantive, and state law governs 3. But if the state practice is not bound up with the rights and obligations, and is not necessarily outcome determinative, then are there affirmative countervailing federal judicial interests (roughly, Byrd) If so, then this is probably procedural Qualifies the Rules of Decision Act interpretation in York - court concerned with desire for uniformity and preventing forum shopping & fairness for litigants

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Federal court sitting in diversity must balance the interest of uniformity and fairness against the federal procedure Right to trial by jury is EXTREMELY important, so it controls Constitutional to apply Federal Rules of Civil Procedure in diversity Rules of Decision Act Whether Congress has said that federal law can be displaced by state laws in diversity jurisdiction Rules are divided substantive and procedural (although it is oversimplified) Procedural Federal court determines if it is outcome determinative No Federal Yes goal of promoting equality and uniformity must be balanced Substantive state rules applies Hanna v. Plumer How and when a federal rule applies Hanna had an accident, defendant dies, so he sues the estate Sues in MA Federal Court, serving the executor by leaving service with his wife Service is PROPER under FRCP 4(d)(1) Service is IMPROPER under MA law must service in hand when its an executor District court granted summary judgment, affirmed by appellate and then reversed by Supreme Court Is the Federal Rule of Civil Procedure Is it an appropriate exercise of power under the Federal Rules Enabling Act / Constitution Congress delegates the power to the lower federal courts, which Congress gave the power to Rules of C. Pro Supreme Court characterizes the rule as procedural, meaning that it is within Congress Constitutional power This is about the federal court, but its really about how the federal court governs itself, which is Congresss job Congress has the power to delegate to the courts on how to handle service of process Application of the rule WILL affect rights, but it comes within the Constitutional Grant of the Rules Enabling Act because it will not abridge, enlarge, modify a substantive right Court here is resisting the rigid outcome determination test Only if the application would promote Eries twin aims will it be required to enforce 1. discouragement of forum shopping 2. avoidance of inequitable administration of the laws Supreme Court respondent has made an incorrect assumption that the rule of Erie constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure - Erie is not required, Federal Rule of Civil Procedure always works - Erie has never been applied to void a Federal Rule of Civil Procedure, commanded enforcement of state law where no federal rule reached the situation at hand. Hanna clash between state and federal rules is unavoidable What we thought was one Erie doctrine is actually two separate doctrines HANNA PRONG 1 HANNA PRONG 2

Justice Harlan in his concurrence takes issue with the fact that Erie was just about the twin aims to him, Erie is about federalism Whether there should be two conflicting versions of law that govern the primary activities of human beings in their relations with other citizens Primary Decisions decisions you make every day - choice of rule would affect these matters, this should be regulated by the state Majoritys test is too far in the other direction Questions courts treatment of the Erie cases said federal law ought to have applied Therefore, what we are really after is that primary conduct is left un-impacted ASK HIM FOR THE SLIDES WITH HANNA STEPS 1 Hanna Step 2 Only if there is no Federal Rule on point will the Court then turn to the type of multi-factored approach in the Erie line of cases But this approach is reconfigured around the twin aims of Erie November 19, 2009 AFTER HANNA: District Court will ask a series of questions when there is a conflict between a state and federal rule: 1. Is there a federal rule on point? 2. Does the federal rule reach the situation in dispute? / Is there a genuine federal-state conflict? 3. Does it conflict with the state rule in terms of having contrary requirements which cannot be accomated 4. Whether the federal rule is a proper exercise of power under the Rules Enabling Act - does it really affect federal procedure / not abridging-modifying substantive right 5. If it abridges/modify turn to Erie: is it outcome determinative based on the twin aims of Erie Erie / Hanna Test: Multi-prong sequential inquiry to channel inquiry All substantive state policies should yield to federal rules in the interest of uniformity Gasperini v. Center for Humanities NY: Award can be overturned if it deviates materially from previous, like cases Provision for a stronger level of review on appeal Appellate court reviews the verdict de novo (without with district court) Federal Rule 59: Award is excessive only if the verdict shocks the conscience Application of the NY law presents a problem under the 7th Amendment 7th Amendment does not allow judicial review of a jury decision 2 Questions asked by the Supreme Court 1. Whether court should have applied NY statute 2. Did the Court of Appeals err by reviewing the case de novo GINSBERG: 59 doesnt provide a standard Ask if federal rule could be outcome determinative, while looking at the twin aims of Erie 1. Yes, Erie precludes recovery in NY court, but would allow it in federal court Therefore, should use NYs deviates materially standard

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 Different treatment, would create forum shopping 2. Would close review by a Court of Appeals violate the 7th Amendment? 7th Amendment doesnt have anything that precludes them from reviewing

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Court of Appeals had to use an abuse of power standard Trying to be accommodating the system of discretion between the federal district / federal appellate court its really an allocation of power within the federal judicial system. DISSENTS: Stevens: red flag if Stevens dissents from Ginsberg Scalia: Never reaches Erie because he finds it to be procedural and on point. Court of Appeals vacates, applies deviates substantially award Supreme Court instructs for remand to the district court so that the trial judge could apply the NY standard. On review, the Court of Appeals will apply the abuse of discretion standard. Federal Rule did not govern: conflict of a state rule and a judge made rule of federal practice At first, court applies Erie analysis: application of federal standard would cause substantial variation therefore, state rule ought to apply Determine twin aims if the state standard is substantive, then constitutionally, one wouldnt even need to consider the policies goals of the Rules of Decision Act Rules of Decision Act: State Rules Enabling Act: Federal Turns to the allocation of judicial authority and the levels of federal courts Treating the rule as substantive, it also considers that it is procedural Court then finds a way to accommodate that state and federal interest Effort to harmonize the state and federal system not to have them be the same, but to have them reach the same result from a multi-ingredient approach Klaxon How a federal court determines the state law that it applies while sitting in diversity Federal courts sitting in diversity also have to determine which jurisdiction / state law to apply Choice of Law provisions Federal court, sitting in diversity, applies state law, the district court is required the apply the choice of law rule in the state in which it sits Bridges the gap between the horizontal choice of law and the vertical choice of law All states have choice of law rules which determine which state law applies with the cause of action is not local Looks to the highest court of the state for a decision Van Dusen: If a case is transferred, the transferee court will apply the Choice of Law rules of the forum in which the transferor court sits

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August 25, 2009 Historical Lecture Freidman Origins of Common Law 1066 the year that the Normans conquered England establishment of own court system William, baron, wanted to establish centralized governmental court system King, in attempt to exert power, charged fees To do so set up court system Judges were fairer, business began to grow 1272 Barons wanted to stop proliferation of royal courts In order to begin an action in one of the Kings courts you would go to a clerk, tell them what court you wanted to go to and what kind of case you had. For a fee, got a writ which ordered the sheriff to tell the defendant, defendant had to reply and it would be in local court - stopped practice king giving a writ, confining you to those writs that had been recognized = check on royal courts Public wanted kings courts, kings courts wanted the income Thinking was to establish new cases that would be heard in the kings courts Assuming that your action was sufficient for a writ, and that you had a pleading Subject had a trial, limited to pleadings, if you won you got a judgment, if default sheriff would go out, seize goods and sell them so winner would get paid ACTION AT LAW defendant given notice, must adhere to specific requirements of pleading, if you do, and there is a disputed issue = trial by jury, money judgment enforceable against property Chancellor chief of staff for the king read petitions addressed to king, petitions claiming that the petitioner could not get justice in the royal courts - reasons that there was an injustice (bribing jurors, her complaint didnt fit in with the rules) - money is not sufficient (specific performance, seek not the monetary benefit, but for the defendant to do what he said he was going to do Chancellor found these injustices troubling, wanted things to work in the kings courts (conscience and political) After 1272 he could not establish / invent a new writ

Turned to church law Heavily based on Roman law continental Europe civil law Inquisitorial system judge has the responsibility to ferret out the truth, as opposed to adversarial where the responsibility is on the parties and the judge acts as the umpire Chancellor got the petition (bill) distinguished from complaint and determined if there was a remedy at law If not gave a subpoena, which said that the defendant had to come or pay a fine, imprisoned Nothing about the nature of the situation requirement to show up Under oath, go through petition line by line, defendant answers Chancellor would make determination and stipulate what had to be done If defendant did not comply, held in contempt Sub-chancellors = judges in chancery Counselors in equity as opposed to attorneys in law Differences in procedure Equity no jury, enforcement in contempt, no right to be there at all unless there was no remedy in law, enforcement of resulting judgment by contempt / seizure if failure to comply Stylistic differences Free-wheeling, not-precedent driven, look into situation and give a specific remedy, looked at broader public interest that might have been raised by the case Example statute of limitations Can look at why you waited, see if defendant changed their position because of your failure to comply Equitable defense of delay 1600s lord cook (common law) vs. person whose idea that the common law was directed at persons to not do things that they shouldnt be doing anyway King James was happy with equity courts and parallels of two courts Colonists came with them and brought the system with them Doctrines began to evolve with local decisions Blackstones Commentary on England Every state passed a reception statute that said that, until overruled, common law of England would be part of the law of the United States - used when we wanted to know what the framers believed to be what the common law was Dual court systems NJ still has a separate equity court, Delaware still has a chancellor, most important corporate law courts in the country chancery over trusts Federal system same courts handle both, must specify whether youre going to want to go into the equity docket or the common law docket Many states abolished, and federal rules did so too Only means that you can demand mixed relief in one complaint, dont have to choose Standards for whether youre going to get your relief hasnt changed 2. COMMON LAW PLEADING Forms of action at common law 10 writs Not useful now, but need to recognize the terms of the writs when you see them Need to be aware that traces of the writ system are in the law today, need to be sensitive to this because the remedy wll be useful in courts making their decisions today Modern procedural statutes = codification of old writs, and are read that way

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4. THE COMMON LAW Originally just another name for the Kings Law because that body of law was common to all of England as opposed to the law that was only good on some Lords manor 1. What was the rule in England prior to the American Revolution? 2. What was the rule in the courts of law as opposed to the courts of equity 7th amendment jury trial protection in civil actions 3. System of rules in courts based on the common law system as opposed to the civil law system 4. Common law is often used to refer to areas in which the rules are primarily derived from court rulings / precedents instead of statutes in the civil law countries, there is a civil law code judges want to get their information from the code and not from what other judges say about the code our statutory areas pay more attention to the rules of the statute (congress made the rules, desires a result) but in the common law areas, courts will apply more fully the classic common law style common sense analogy to known precedents consideration of history and principle attention to the facts Professor Sample reiterating important points: 8 minutes, 800 years document is really good, dense and should be re-read Bifurcation between law and equity still important today, although not as much Used be huge consequences in the decision about which court to go to Whether youre seeking money or equity (trimming the tree)