CIVPRO Outline Ver 1.

2 (11/16)
I. Personal Jurisdiction

a. Minimum Contacts
i. D must have minimum contacts such that maintenance of the suit does NOT offend
traditional notions of fair play and substantial justice.
ii. The quality and nature of the contacts is important
b. International Shoe – Personal Jurisdiction
1. Consent
2. Presence
a. Person present in state and served
b. Property present in the state and attached
3. Domicile of the individual
4. State of incorporate of a corporation
5. Minimum Contacts
a. Specific Jurisdiction  the contacts are related to the claim
b. General Jurisdiction  the contacts are NOT related to the claim
c. World Wide Volkswagen
i. “the D’s conduct and connection with the forum state are such that he should reasonably
anticipate being haled court there”
ii. Personal jurisdiction exists where
1. Defendant purposefully avails itself to the benefits of the forum state; AND
2. BALANCING of fair-play factors favors jurisdiction
a. Burden on Defendant
b. Plaintiff’s interest in obtaining convenient and effective relief
c. Forum state’s interest in adjudicating the dispute
d. Interstate judicial system’s interest in obtaining the most efficient resolution
of controversies
e. Shared interest of the states in furthering fundamental substantive social
policies
d. Personal Jurisdiction in Federal Court
i. PJ depends on the relationship between the D to the sovereign (United States)
ii. 4(k)(1)(A) Generally, a federal court has PJ where a state court in the state in which the
federal court is located would have PJ.
iii. 4(k)(2) Any federal court has PJ where
1. Claim is based on federal law;
2. Jursidiction is constitutional; AND
3. There is NO state that would have personal jurisdiction.
4. If there is a state that has PJ  4(k)(1)
e. Two part Test Burger King
i. Minimum Contacts
ii. Reasonableness (fair-play factors)
1. If a forum is very reasonable, then FEWER contacts are necessary, and there may be
jurisdiction

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2. If a forum is NOT reasonable, then even if there are MANY contacts, there may
NOT be jurisdiction
f. Asahi
i. Brennan on contacts
1. Sufficient for jurisdiction if D is aware that the stream of commerce may take the
product to the forum
2. D is benefitting from the forum through the stream of commerce
3. D can anticipate suit in the forum – foreseeability
ii. O’Connor
1. Need additional conduct of D beyond just awareness that the stream of commerce
will carry the product into the forum
2. Must have conduct of D showing an intent to serve the market of the forum (e.g.
Advertising, customer advice, design, distribution)
g. J. McIntyre
i. Kennedy
1. O’Connor approach
2. Even if D is aware that its product may reach the forum state through the stream of
commerce, there must be additional targeting conduct directed toward the forum
state. (Targeting U.S. is not sufficient)
ii. Breyer
1. Something between Brennan and O’Connor
2. There must be something more than a single sale made through targeting U.S. as a
whole
3. Must also be something more –
a. Regular flow of goods into the forum state; or
b. Additional conduct in the forum state such as design, advertising, or
marketing
iii. Ginsburg
1. Brennan approach
2. Jurisdiction inquiry should be based on fairness and reasonableness
3. Enough for jurisdiction if D places product into the stream of commerce in the
United States and knows or should know that the product could end up in the forum
state.
h. General Jurisdiction
i. Daimler
1. GJ where D’s connections to the forum state are so continuous and systematic as to
render the corporation essentially “at home” in that state
2. “At home” (typically one place)
a. Individual’s domicile
b. State of incorporation
c. Principle place of business (“nerve center”)
ii. Bristol-Myers Squibb
1. An affiliation between the forum and the underlying controversy, principally an
occurrence that takes place in the forum

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2. Specific Jurisdiction is confined to adjudication of issues deriving from or
connected with the very circumstances that establish jurisdiction
i. Explicit Consent and Forum Selection Provision
i. Consent
1. Appointment of agent for service of process within the state
2. Conduct during the litigation (sanction)
3. Forum-selection Clause
j. In rem
i. Proceedings concerns the ownership of attached property
ii. Binds the whole world as to that property
k. Quasi in rem
i. Binds only a particular person as to property ownership
1. Type 1: Proceedings concerns the ownership of attached property
2. Type 2: Proceeding NOT related to the attached property
l. Transient Presence (Tag Jurisdiction) (form of general jurisdiction)
i. Burnham
1. Scalia
a. Due process satisfied by tradition
b. Transient jurisdiction IS traditional
2. Brennan
a. Due process satisfied by fairness
b. Transient jurisdiction was fair in this case
m. PJ and the Internet
i. Sliding Scale  minimum contacts necessary for PJ
1. Passive Site
a. Only look at site, no interactivity  NO
2. In the Middle
a. Some interactivity  maybe
b. Extent of the interactivity
c. Nature of the forum contacts
3. Active Site
a. Repeated online contacts with forum residents, high interactivity
b. YES
n. Statutory Limits on PJ
i. Long Arm Statutes
1. Just because a state MAY assert jurisdiction, doesn’t mean it MUST
o. “Is there personal jurisdiction”
i. State long-arm statute
ii. Constitution (due process)
p. “Is jurisdiction constitutional?”
i. Only analyze the constitution

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II. Notice and Opportunity to be Heard

a. Mullane
i. Notice is ADEQUATE when “notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections”
ii. Notice must be reasonably calculated to inform the D (newspaper = last resort)
iii. Cost v Benefit Analysis
1. Cost of better notice VS Benefit of Better notice
b. Constitutional Requirement
i. FRCP 4(a)(1) Contents; Amendments
1. Contents of summons must: (A) – (G)
ii. FRCP 4(C) Service
1. In general; By Whom;
iii. FRCP 4(e) Serving an individual within a judicial district of the United States
iv. FRCP 4(l)(1) Proving Service ; Affidavit Required
v. FRCP 4(h)(1) Serving a Corporation, Partnership, or Association
vi. FRCP 4(d) Waiving Service
vii. FRCP 4(f)(1) Serving an individual in a foreign country
viii. FRCP 4(f)(2)-(3)
c. Connecticut v Doehr
i. Factors from Mathews v Eldridge
1. Private interest affected (i.e. D’s interest)
2. Risk of error under the procedures challenged AND probable value of increased
procedures
3. Government interest in seizing
d. Rule 4
i. Served by person non-party at least 18
1. Must be served within 90 days with process: summons + complaint
e. Serving an Individual
i. Person Service
ii. Substituted Service
1. Dwelling or usual place of abode
2. Person of suitable age/discretion that resides there
iii. Serve D’s agent
f. Serving a Corporation
i. Officer or managing or general agent
ii. Court can serve however/wherever the state court can
g. Waiver of service
i. P can request D waive service
ii. D must gave good reason to not waive or else pays costs
iii. If waived = 60 days to respond to complaint instead of 21 days
1. 90 days if outside US
III. Subject Matter Jurisdiction
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a. Federal Courts and Limited SMJ

i. Article III, Section 1
ii. Article III, Section 2, PP 1
iii. Article III Section 2, PP 2
iv. 28 USC § 1332(a)(1) Diversity of citizenship; amount in controversy; costs
v. 28 USC § 1332(a)(2)-(3)
b. The Complete Diversity Rule
i. Complete diversity of citizenship exists when NO plaintiff is a citizen of the same state as
ANY defendant
c. Determining Citizenship of Individuals
i. Citizenship for Diversity Purposes
1. A person is a citizen of a particular state for diversity purposes when
a. A citizen of the United States; AND
b. A domiciliary of the state.
2. “Domicile”
a. Person
i. State of residence (“true, fixed, and a permanent home and principle
establishment”)
ii. Where the person intends to return when absent
b. Change in domicile
i. Taking up residence in a different domicile
ii. With the intention to remain there
3. 28 USC § 1332(b)
4. 28 USC § 1332(e)
a. “States” includes Territories, D.C., and Puerto Rico
5. 28 USC § 1332(a)(3)
d. Determining Citizenship of Entities
i. 28 USC § 1332(c)(1)
ii. Corporation is a citizen of
1. State (or foreign state) in which it has been incorporated; AND
2. The ONE state (or foreign state) where it has its principle place of business (i.e.
nerve center)
a. Corporations Headquarters
b. Where officers direct, control, and coordinate the corporate activities
iii. Citizenship of Business Entities for Purposes of Diversity Jurisdiction
1. ALL OTHER business entities are citizens of EVERY state which ANY member is a
citizen
e. Representative Suits and Assignment of Claims
i. 28 USC § 1359. Parties collusively joined or made
ii. 28 USC § 1332(c)(2)
f. The Domestic Relations and Probate Exceptions
g. The Amount in Controversy Requirement

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i. District courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and cost,
h. Federal Question Jurisdiction
i. 28 USC § 1331 Federal Question
1. District Courts shall have original jurisdiction of all civil actions arising under the
Constitution, Laws, or Treaties of the United States.
ii. “arising under” the Constitution or Federal Law
1. Just because a case INVOLVES, does NOT mean it arises under Fed Law
iii. Well Pleaded Complaint Rule
1. A case arises under federal law ONLY IF a federal question appears on the face of
the plaintiff’s properly pleaded complaint
2. Federal-question SMJ is determined by the issues the plaintiff raises, NOT The
issues the Defendant raises
3. Disregard any issues raised by he plaintiff that are NOT necessary to the plaintiff’s
case
4. A case does NOT arise under federal law if
a. The D, not the P, introduces the federal issue
b. The P complaint merely anticipates a defense based on federal law
i. Tennesee v Union & Planter’s Bank (cited in Mottley)
i. SMJ in Declaratory Judgement Actions
i. 28 USC § 2201(a) Creation of remedy
ii. Would there have been SMJ over the controversy if it were brought in federal court absent
§2201
1. If Yes  there is SMJ because there is NO expansion of jurisdiction by DJ action
2. If NO  there is NO SMJ because IF there WERE jurisdiction of the DJ action,
jurisdiction would be expanded.
j. Centrality of the Federal Issue to the Claim
i. There IS federal jurisdiction over a state-law claim if a federal issue is
1. Necessarily raised;
2. Actually disputed;
3. Substantial; AND
4. Capable of resolution in federal court WITHOUT disrupting the federal-state court
balance.
(Gunn v Minton) (citing Grable)

Does federal law create plaintiff’s cause of action?

a. Yes, there IS arising-under jurisdiction. PERIOD
b. No  is there an embedded federal question?
a. Yes, Grable/Gunn Test
b. No, NO jurisdiction

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IV. Venue
a. Local and Transitory Actions
i. Local action – involves claims concerning real property
1. Must be brought where real property is located
ii. Transitory action – everything else
iii. Applies in state courts. Eliminated in federal courts
b. State venue provisions
c. Venue in Federal Court
i. 28 USC §1391(a) – Venue Generally, without regard to local or transitory
ii. 28 USC §1391(b) –
1. If all D’s are residents of State, any judicial district in which any defendant resides.
2. Substantial part of events or missions giving rise to claim; or a substantial part of
property that is the subject to the cause of actions;
3. If there is no district, any judicial district in which any defendant is subject to the
courts PJ.
iii. 28 USC §1391(c) resident for venue
1. a natural person, including an alien (perm res), where domiciled
2. entity – Defendant  any district subject to court Personal Jxd
Plaintiff  any district which it maintains principal place of business
3. non-US-resident  any judicial district, and not affected by joinder of such D
iv. Bates v C&S Adjusters
d. Change of Venue – transfer of cases in civil courts / federal courts
i. Three Main Types
1. §1404 “For the convenience of parties and witnesses, in the interest of justice.
a. Court may transfer to any district where it might have been brought or to
where all parties have consented
b. Private Interest Factors – location of witnesses and evidence
c. Public Interest Factors – judicial convenience, foreign law, consolidation
d. Presumption of plaintiff’s initial cohice
2. §1406 (improper venue) “dismiss or transfer”
a. Dismiss or transfer to district in which it could have been brought
3. “might/could have” – district where BOTH venue and PJ are proper
4. §1407 (multidistrict litigation)
ii. Goldlawr Transfers
1. Lacking PJ, court has power to transfer to proper venue for efficiency 1406(a),
1404(a)
iii. Choice of Law
1. Each state has their own choice of law rule
2. Federal Court
a. Case based on state law under diversity must apply state law of host state
b. Convenience – apply same law, only location changes
i. Does not apply to 1406 (Improper venue)

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e. Forum Selection Clause
i. Valid clauses Do not render venue improper in other districts
1. Venue is always determined under 1391
ii. If P files in a proper venue OTHER than the forum selection clause,
1. D cannot transfer under 1406 or dismiss Rule 12(b)(3) for improper venue
a. Because it IS proper
2. D can file a motion to transfer under 1404 convenience
iii. Law of the transferee court applies (destination court)
1. Plaintiff not allowed to capture the law of an improper forum contrary to the forum
selection clause.
f. Multidistrict litigation §1407(a)
i. One or more common questions of fact; Pending in different districts; Such that they may be
transferred to any district; Such transfer shall be made by the judicial panel on md litigation;
Determinant on the convenience of the parties and witnesses and efficiency; Action
transferred shall be remanded by panel before the conclusion of pretrial proceedings to the
district from which it was transferred unless it shall have been previously terminated
g. Forum Non Conveniens
i. Allows court to dismiss case even though personal jurisdiction and venue exist because the
particular facts make the forum especially inconvenient.
ii. Transfer between
1. Federal or state court and court of another country
2. Court of one state and court of another state
iii. NOT used for
1. federal court  federal court (use 1404)
2. Between federal and state court (use 1441)
iv. Factors
1. law of the other jurisdiction is less favorable to the plaintiff is IRRELEVANT
2. Only matters where remedy provided by alternative forum effectively amounts to no
remedy at all
3. Presumption in favor of plaintiffs choice of forum
a. LESS strong for a foreign plaintiff
4. Public Interest Factors
a. Choice of law (court’s own versus other jxd’s law)
b. Local controversies should be decided locally
5. Private Interest Factors
a. Access to sources of proof
b. Party joinder; impleador

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V. Jurisdictional Challenges
a. Raising Judicial and Related Challenges
b. FRCP 12(b) – How to Present Defenses. Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the following defenses
by motion
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper VENUE
(4) Insufficient PROCESS
(5) Insufficient SERVICE of process
(6) Failure to state a claim which relief can be granted
(7) Failure to join a party under Rule 19
i. A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed. No defense or objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.
ii. FRCP 12(g)
iii. FRCP 12(h)(1)
iv. A defendant does NOT have to make a pre-answer motion
v. BUT if the defendant does, the D must combine any Rule12(b)(2)-(5) into a single pre-
answer motion
vi. AND, if NO pre-answer motion, the D must raise the Rule12(b)(2)-(5) defenses NO LATER
than the answer (or amendment as of course)
c. Collateral and Direct Attacks on PJ
i. Example
1. Direct attack: Make a special appearance in Hawaii and challenge PJ directly
a. Cost and Must accept the decision
2. Collateral attack – stay at home  default judgement
a. When P enforces judgement, argue Not entitled to full faith and credit
because Hawaii lacks PJ
b. If wrong, no chance to argue on merits (must pay up)
3. Baldwin v Iowa State Mens Assc – one bite out of the apple
d. Claim Preclusion (Res Judicta)
i. Second suit SAME cause of action precluded
ii. Elements
1. Same Claim (or “cause of action”)
2. Same parties or privies
3. Valid final judgement on merits
4. Precludes claims that WERE or MIGHT HAVE been litigated

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e. Challenging Federal SMJ
i. CANNOT waive SMJ
1. Can raise it for the FIRST time on appeal
2. Even if NOT raised by the parties, the court has an obligation to raise the issue sua
sponte (e.g. Mottley)
3. Even the P, who invoked jurisdiction, can challenge it on appeal (Capron)
a. Inefficient, Potential for “gamesmanship” in concealing lack of diversity
until you lose on the merits, then raise the issue. Sanctionable, but still must
be held and reversed.
ii. Collateral Attacks on SMJ: Three Contexts
1. Defendant appears in the first forum, raises lack of SMJ in a motion, and loses
that motion – the court finds that it HAS SMJ
a. As with Baldwin, D CANNOT collaterally attack (Durfee)
b. Res Judicta on the issue of SMJ
c. Defendant appears and litigates on the merits but does NOT raise SMJ in
the first case
i. Too late to raise it in a second suit (Chicot County)
d. Defendant does NOT appear at all in the first forum – default judgement
i. According to Restatement, D CAN collaterally attack
ii. But little case law to support it

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VI. Joinder and Supplemental Jurisdiction
a. FRCP 17(a)(1) Plaintiff and Defendant
i. (a) Real Party in interest
1. Issues often arise with assignments and subrogation
2. Assignment - P assigns Z right to sue D – assignee is RPI
3. Subrogation – Insurer receives assignment by law when it pays out claim
a. Insurer is the real party in interest rather than the tortfeasor
ii. 17(a)(3) Joinder of the RPI
b. Claim Joinder by Plaintiffs
i. FRCP 18(1) Joinder of Claims – General
1. Pendant – exercised over nonfederal, nondiversity claims by plaintiff
2. Ancillary – exercised over claims asserted by party other than P. (fed question,
diversity, or alienage jurisdiction
3. Supplemental – both pendant and ancillary, no difference
ii. United Mine Workers v Gibbs
iii. Constitution Article III, Section 2, Paragraph 1
iv. 28 USC § 1367 (a) Supplemental Jurisdiction
1. (a)
2. (b)
3. (c)
4. SMJ is analyzed claim by claim
a. One claim which by itself qualifies for SMJ (fed ques or diversity)
b. Another claim that does NOT qualify for SMJ
c. (a) grants jxd except as tken away in (b) and (c)
d. (b) takes away jxd based on the nature of the jxd good claim and the use of
certain joinder rules
e. (c) takes away jxd based on Gibbs discretionary factors
5. “Hook claim” – jurisidictionally good claim (federal question or diversity)
v. Permissive Party Joinder by Plaintiffs
1. FRCP 20(a)(1)-(2) Permissive Joinder of Parties
2. Schwartz v Swan
3. FRCP 18(a) Joinder of Claims
4. Rule 20 (a) Permissive Joinder of Parties – Plaintiffs
a. Plaintiffs MAY join together in ONE action if
i. They assert any right to relief JSA with respect to or arising out of the
same T/O; AND
ii. Question of law or fact common to ALL plaintiffs will arise in the
action
b. Defendants MAY join together in ONE action if
i. Right to relief JSA arising out of same T/O; AND
ii. Question of law or fact common to ALL defendants
5. FRCP 42(a) & (b) Consolidation; Separate Trials

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c. Claim Joinder by Defendants
i. FRCP 13(a) Compulsory Counterclaim
1. Dindo v Whitney
2. Well Pleaded Complaint – assess jurisdiction from the complaint, do not consider
D’s counterclaim
ii. FRCP 13(b) Permissive Counterclaim
1. Carteret Savings $ Loan v Jackson
iii. FRCP 13(c) Relief sought in a counterclaim
iv. “Transaction or Occurrence”
1. Series of occurrences LINKED by a logical relationship
2. Need not have identical mirror image allegation
3. Counterclaim may “embrace additional allegations”
d. Joinder Overview
i. WHAT is being joined? Claim or Party
1. Claim Joinder
a. By plaintiffs
i. Procedural: Rule 18
ii. Jxd’l: §§ 1331, 1332, 1367
b. By Defendants
i. Counterclaims
1. Compulsory
a. P: Rule 13(a)
b. J:§1331, 1332, 1367
2. Permissive
a. Rule 13(b)
b. § 1331, 1332, or 1367
ii. Crossclaims
a. Rule 13(g)
b. § 1331, 1332, or 1367
2. Party Joinder
a. Permissive party joinder by plaintiffs
i. Rule 20
ii. 1331, 1332, or 1367
b. Overriding plaintiffs party structure
i. Impleader (3P practice)
1. Rule 14
2. 1331, 1332, or 1367
ii. Compulsory joinder (necessary and indispensable parties)
1. Rule 19
2. 1131, 1332, or 1367
ii. Type of joinder?
iii. Is joinder PROPER? Procedurally and Jurisdictionally

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