1) Ask if Ds acts fall within the states long-arm

statute
2) Would Exercising jurisdiction here comport with
Personal Jurisdiction [go after any of Ds assets you can find!
Does the
ariseCredit]
from Ds contacts with the forum state, or is it unrelated
Full claim
Faith and
Arise from contact
to the forum state?

Unrelated

Is D at home in the forum state?

General
o Individual citizen of forum state
the forum state? *
o Corporation incorporated/principal place of
- Are the contacts related to the claim?
business
- Is it reasonable for the forum court to
Did
D
consent?
exercise jurisdiction? (comports with fair
o D litigates action without timely objection to
play and justice)
jurisdiction (waiver)
o Forum states interest in the
o
Forum selection clause in parties contract
action applies to each proposed
(not ridiculous)
claim
o
State statute requiring out-of-state
o Ps interest in obtaining
corporations to appoint in-state agent for
convenient and effective relief
service of process within the state (courts
o Burden on D to litigate in the
dispute whether this extends to general
forum state applies to each
jurisdiction or is limited to specific
individual D
jurisdiction)
- Transient Tag Jurisdiction
o D served with summons and complaint while
*Minimum Contacts analyzed differently depending on the claim:in forum state
In General: Did D purposefully avail itself of the privilege of conducting activities within the forum
state?
- Is Ds conduct and connection with the forum state such that he should reasonably
anticipate being haled into court there?
Stream of Commerce: Some distributor/middle man involved
- Have to do something more than just introducing a product into the general market.
i.e. manufacturing specifically for that state
- Advertising specifically to that state [note that it is to the state, not an individual in the
state]
- Having customer service specifically for that state
Effects Test: Intentional Torts and some Business Torts Only! (Element Test)
- D has to create contacts with forum state
- Action has to be targeted at the forum
- Knowledge that the brunt of the injury would be felt in the forum
- Needs to be intentional!
Contract Cases: Minimum Contacts determined by; (Factor Test)
- Prior Negotiations
- Contemplation of Future Consequences
- Terms of the Contract
- Course of Dealing
Sliding Scale/Zippo Test: For Internet Cases
- The more interactivity on the website, the more likely it is that the operators purposefully
availed themselves to the forum state.
o Actively does business = availment
o Passively presents info = no availment
- Not much guidance as to how much interactivity is needed
-

DoesSpecific
D have Minimum Contacts within

In Rem Jurisdiction: Based on property in the state and judgement is limited to the property
In Rem: Action to determine ownership of specific property against the world
Quasi in rem I: Action to adjudicate ownership/title of property between identified parties
Quasi in rem II: Court asserts jurisdiction based upon the in-state property which is attached,
but the claims do no
concern ownership/title of the property
- After Sheffer v Heitner have to apply International Shoe (minimum contacts)
Even if the property satisfies minimum contacts, the contacts have to be related to the

Notice:
-

Must be reasonably calculated under all of the circumstances to apprise interested parties and afford
them an opportunity to be heard
o Actual notice not always constitutionally necessary
If sender learns notice was definitely not received, they have to take further action
Posting notice on property and publication are traditional means, but typically not enough
o Publication upheld where location is unknown/unascertainable
Actual notice is insufficient if Summons and Complaint arent delivered according to the rules.

Service:
(within US): An individual (other than minor, incompetent person, or person who filed waiver) may be
served by:
- Following state law in the state where the court is or where service is made; or
- Do any of the following:
o Delivering a copy of the summons and complaint to the individual personally
o Leaving a copy of each at the persons dwelling with someone of suitable age and discretion
who resides there
o Delivering a copy of each to an agent authorized by appointment or by law to receive service
(outside US): By any internationally agreed means that is reasonably calculated to give notice
- If no agreement, or no means in agreement, then by means reasonably calculated
o As prescribed by foreign countrys laws
o As the foreign authority directs; or (unless prohibited by foreign country)
Delivering to individual personally
Using any form of mail that requires a signed receipt
o Or by any other means not prohibited by international agreement that the court orders
For corporations: they must be served
- In a judicial district of the US
o Following state law in the state where the court is or where service is made; or
o By delivering to an officer/agent
Summons and Complaint & Waiver
Summons must: name court and parties; be directed to D; state the name and address of Ps attorney, or if
unrepresented- of P; state the time D has to appear and defend; notify D that failure to appear and defend will
result
in a default judgement against D for the relief demanded in the complaint; be signed by the clerk; and bear the
courts seal
P is responsible for serving within the time allowed- 90 days after complaint is filed within the US, but extensions
available for good cause
Service can be made by any person 18 or older and not a party in the action (attorney okay)
Waiver: P can notify D about the action and request they waive service to avoid unnecessary expenses.
If D does not waive then he pays for expenses for service and any attorney fees required to collect on those
expenses.
D has 30 days to return the waiver after request was sent -60 days if outside the US
Request must: be in writing and addressed to D or Ds agent authorized to receive service; name the court where
complaint was filed; include the complaint, 2 copies of the waiver form, and a prepaid means for returning the
form;
inform D of the consequences of waiving/not waiving the service; state the date the request was sent; be sent First
Class Mail or other reliable means

Subject Matter Jurisdiction (cannot be

waived)
Federal Court When:
- Diversity with statutory minimum
- Federal Issue
- Patent/Copyright/Trademark/etc.
Diversity Rules have to be satisfied at time it is filed [Probate and Divorce proceedings are
Excluded]
-

$75,000 statutory minimum and:

o Citizens of different states
o Citizen of state vs foreign alien unless alien is permanently admitted to the US and
domiciled in the same state as other party
o Citizens of different states in which citizens/subjects of a foreign country are additional
parties

The connection from any P to any D has to fulfill diversity, so if 3 Ps and 3 Ds, no P can be a citizen of the
same state as any D.
The only way to have a foreign country vs a foreign country is if they are connected to US parties on their
respective sides and the US parties are not in the same state as each other.

To be a citizen of a state you must:

- Be a US citizen
- Be domiciled in that state (you are domiciled in a state when you intend to stay there
indefinitely)
Corporations are citizens of the state(s) where they are incorporated or have their primary place of
business
- For place of business Nerve Test: Wherever the headquarters are as long as that is where
decisions are actually being made
Interpleader Statute: If at least 2 Ds are of diverse citizenship then it could be a diversity case Insurance claim, death
benefit left to John Smith and the dead guy knew 3 John Smiths . Insurance would be afraid to pay any. When this exists,
the insurance company (stakeholder) can give the court the money/property and the court decides between the three
John Smiths. If two of the John Smiths are from different states then under the Interpleader Statute this is a diversity case.

Policy: If you are not on your home turf, then you do not want to be overpowered by your opponents state
laws. Federal Judges have positions for life/until impeachment while state judges are elected this could leave
the state judge with a bias toward constituents. It is more expensive to litigate in federal court because there
are more hoops involved. Diversity gives a more neutral forum to prevent state bias. For alienage, to show the
world that you can have fairness in federal court if you are a foreign citizen.
Court takes into account many factors when determining if someone intends to remain in a state, such as:
voter registration, location of their job, where they pay taxes, if they bought a house, etc.
Jurisdictional Amount: the court accepts on Good Faith that P is asking for a reasonable amount (sometimes D
can prove otherwise). If it is over the jurisdictional amount you are good. We do not want entire cases thrown
out if the final damages do not reach the minimum amount. P has to pay Ds legal costs if P loses; winning P
can sometimes collect too.
Jurisdictional Amount: Has to be MORE THAN $75,000 so $75,000.01 works.
Interest and Costs/Attorney Fees do not apply
Punitive Damages do not count in Breach of Contract only
P can combine all claims that P has against D whether they are related or not (aggregation)
Each P has to meet statutory amount with respect to each D to qualify (some small exceptions)
o Exception 1: Joint tort-feasors under same claim (P can recover full amount from either)
o Exception 2: If 2 Ps joint suing one D and 1 P meets the amount, there may be a basis for supplemental
jurisdiction over the other as long as theyre related
o Exception 3: If non-monetary (like injunction) then if value to P or cost to D is over the amount. Different
courts look at it from one side or the other depending on circumstances.

Federal Issue: Determined when considering the claim P is actually asserting. Disregard any assumed issues that D
is expected to raise.
Except: Patents, plant variety protection, or copyright infringement

Well-Pleaded Complaint Rule: In determining whether there is a federal question- only if Ps actual
claims set out on the face of the complaint determines if there is a federal question. Not Ds
anticipated counterclaim (exceptions for: copyright, patent, federal trademark, bankruptcy, and
plant variety protection claims)
There are few federal exceptions to a state courts
State Law Claims with Embedded Federal Issue: A
general jurisdiction (states can hear federal issues
except some) -bankruptcy, federal securities laws,
patent, copyright, and federal antitrust law (also
admiralty and maritime cases)
Declaratory Judgement/Relief: If you are
threatened with a lawsuit, you can ask court if you
are infringing on anyones rights. This saves time
and money (other party may wait a while to sue
and that whole time the money rolls up) [Often
with patent infringement if someone sends a
cease and desist]
Strategically it lets you choose the forum as long

Removal: State
Federal
- Diversity
- Federal Issue
- Federal only
cases

federal court will hear a state claim with an embedded federal

issue if (element test):

The parties actually dispute the issue

The issue is necessary/essential to resolve Ps
issue
The issue is substantial to the federal system as
a whole (no to a party personally)
It doesnt disrupt the balance between federal

One Bite of the Apple: If you could have

brought it to federal court for a reason
but missed your chance, then another
issue/diversity pops up that would
otherwise qualify it, you cannot do it.
You only get one chance.

Basic Principles of Removal:

May remove a case filed in state court if:

o the case could have been filed in fed court originally
o the Ds join in filing a timely signed notice of removal within the fed
court in the district where the state court is located. [by removing it to fed
court you do not waive arguing personal jurisdiction and can argue to
have it moved to another region]
o to be timely, the notice of removal must be filed within 30 days after D
served with the initial pleading or, if the initial pleading is not removable,
within 30 days of Ds receipt of an amended pleading, motion, order, or
other paper from it may first be ascertained that the action is removable.
o If Ds served at different times, Ds who did not previously file a notice
of removal may consent to removal by a later-served D. [if one D served
30 days after others, then the others agree with late D to go to Fed, then it
goes to Fed]
o The notice of removal must contain a short and plain statement of the
grounds for removal and include copies of all pleadings and orders that
have been served upon the defendant(s). [must say it is a federal issue
because of diversity/federal issue/etc.]
o

Promptly after filing a notice of removal in federal court, the defendants

must give written notice to all adverse parties and file a copy of the notice
of removal with the state court.

In-State Defendant Rule:

If any D is citizen of the forum
state, and diversity
requirements are met, you
cannot remove to federal
court because with D as a
citizen no court bias exists (D
Timing: 30 days after served. If
multiple Ds, then early D can
consent to removal on
timeframe of later D
Diversity Case- can only
remove within 1 year of action
being commenced, unless Bad
Faith. 30 days after diversity is
established to file, but if 1 year
is already past then it is too

Moves to federal court, state court

late.
retains original file and sends a copy
to federal- if it goes back to state then
State picks back up adjudication.
State puts in the file while it is in fed
court that it was removed to federal
court and halts any proceedings.

There are a few actions that cannot

be removed even though the
requirements for removal might
otherwise be satisfied. 1445.
includes; workers comp issues,
claims under federal law against
carriers or receivers for damaged
shipments unless the matter exceeds
$10K, the claims under federal law
(FELA) for negligence by railroad
employees against railroad employer

Remand: Federal State

Cant be remanded if originally
filed in federal, only dismissed
30 days of filing

If no subject matter, must

dismiss/ remand immediately
If P adds party to fuck up
diversity, courts may remand or
keep their discretion.

Usually remanded for timing or

subject matter. If filing because
removal was too late, and you are
too late with remand, it is
assumed you consented to the
removal, but were late on the

Remand of Removed Cases

With respects to defects in the removal- other than lack of subject matter jurisdiction- the P must make a
motion to remand a case to state court within 30 days of the filing of the notice of removal in federal
court
If a federal court grants a motion to remand, a fed court clerk must mail a certified copy of remand order
to the state court which then proceeds with the case
the district courts granting a motion to remand and remanding a removed action to state court in not
reviewable on appeal. Note, however, that a party would have the right to appeal the district courts denial
of a motion to remand the case to state court, but because of the final judgement rule applicable in federal
courts, the D would not have an immediate right to appeal and would have to wait until a final judgement
in the case
if it appears any time before final judgement that the fed court lacks subject matter jurisdiction, the case
must be remanded back down to State court
if after removal to federal court, the P seek to join additional Ds who would destroy diversity, the court
may deny joinder or permit joinder and then remand to action to state court

Venue

Where substantial part of the action

A person can only be a resident of
occurred
one state at a time. It is the location
No Due
- Where D is a resident
of their permanent domicile.
Process
- If D is not resident of US, then any venue
Citizenship is not what matters here,
issue
residency is.
Can be
Have to make sure venue is
Some states have multiple
proper for everyone
districts, if multiple Ds in
waived
Venue is separate from personal
same state, but different
Fallback Provision: If there is
jurisdiction, but personal jurisdiction
districts, then can sue in any
no good answer to a venue,
can make a proper venue an improper
district in that state where at
then to anyplace where any D
place for jurisdictional purposes.
least one D resides.
is
a
resident.
Car
crash
in
Purpose of venue is to have a
Canada
where
two
Ds,
each
geographically convenient
If co-Ds and one is an alien,
from different states. This can
place to litigate
can sue where other D is
create issues of personal
resident even if accident was
Can consent to venue through jurisdiction and P will probably
have to split into 2 lawsuits,
forum selection clause
but venue is good in either of
Local actions: concerns ownership
Must challenge at onset of
to land or injury to land
litigation
Transitory actions: basically
everything else

Transfer of
Venue

in general if venue is improper in the court where

action was filed, a state court may transfer an
action to another court within the state court
system. since venue within a state is determined by

Transfers for:
Convenience (1404) Discretion of Court
Improper Venue (1406) Court discretion to
dismiss or transfer in the name of justice

Transfers under 1406:

county, state venues transfers are from state court

to same state court
Transfer under Section 1404:
A 1404 transfer is basically for convenience. Venue is proper
in the district where the action is filed, but you are arguing
that it would be even more convenient in another district.
The other district must have proper venue also, and have
personal jurisdiction over the defendant-- Unless all parties
agree/consent to transfer because you can consent to personal
jurisdiction and venue.
1404- district court has discretion (very unlikely to ever be
reversed on appeal)
o Public and Private factors taken into account by
court
Location of relevant documents
State most familiar with governing law
Ps choice of forum
partys contacts with the forum
differences in costs in forums
availability of compulsory process
D sued in his home district can still ask for 1404 transfer of
convenience to another district possibly easier for
evidence/witnesses.

This could be a strategic move to take advantage of

different laws/standards or the type of people that will

Venue is improper in the first forum and the court

basically decides if it will send it to the 2nd court
2nd court venue has to be proper and specific
jurisdiction over D had to exist
Court has some discretion here: language states if venue
is proper then the court can dismiss, or in the interest of
justice, transfer it to another district where jurisdiction
Forum Non Conveniens
Venue is proper in the first court, but there is a more
convenient forum
Courts usually only grant this if the more convenient
forum is in a different country because this would
dismiss the case entirely for it to be transferred to
another country. If it was in the US, then the court
would just transfer it to that venue.
Federal court may be able to dismiss for forum non
conveniens if it was filed in federal court, but belongs
in state court because federal cannot directly transfer to
a state court.

Looking at same factors as 1404 transfer for

convenience.

Erie and Transfer of Venue:

Court 1
1404

Court 2
Was originally

Court 2 applies

Forum Selection and Venue:

filed in proper

choice of law

A forum selection clause is assuming you are consenting to

personal jurisdiction and venue. A transfer can be done for
convenience, and courts should routinely grant this, but stick
with the law analysis of Court 1.

venue

analysis of Court

Originally filed

1
Court 2 applies

1406