Beruflich Dokumente
Kultur Dokumente
Pennoyer v. Neff SCT1877-14thA Due Process: States have jx over people w/in boundaries; cannot
reach outside to exercise jx; 14thA req's full faith+credit only where orig. ct. had jx (collateral inquiry);
state may assign agent for jx by statute
-Dictum: In personam req's personal service; in rem does not: constr. service, notice of seizure
Hess v. Pawloski SCT1927 – Fiction of “consent”: statutorily implied consent; agent assignment
Grace v. McArthur AR1959: D served in airspace over AR; no unlawful force allowed in service of D
International Shoe Co. v. State of WA SCT1945-Physical presence of D not necessary; instead 14thA
fairness doctrine. More fair to exercise personal jx as the corp. has more contacts, more extensive rel.;
Retreat from Pennoyer: corp. must have only substantial presence (incl. past activities) to establish
personal jx.
Carnival Cruise Lines, Inc. v. Shute SCT1991: Forum-selection clause of K (ticket) enforceable unless
court determines it unconscionable; benefits are cruise company not subject to suit in all sorts of
places, eliminates uncertainty about forum and cost of debate, lower fares for passengers
Dissent: Bremen states forum clauses not enforced if they (1) not freely bargained for, (2) create
additional expense for one party, or (3) deny one party a remedy
-Long-arm statutes: specific-act long-arm vs. constitutional long-arm
-Two steps to determine if action falls under jx: 1) Action must fit within those listed in statute; 2)
Must determine if application of statute is constitutional
-Forum-selection clause waives right to object to venue under 28 USC 1391
Woodring v. Hall KS1968: KS S.Ct. interprets specific-act long-arm statute as constitutional long-arm
World-Wide Vokswagen Corp. v. Woodson SCT1980: In order for a state court to exercise in personam
jx over a D, there must exist minimum contacts between the D, forum, and claim.
-OK has specific-act long-arm, look to statute and DPC 14thA. Compare acts of D to statute: fail test
-Measure burden on D (McGee) in an appropriate case
-Stream of commerce ends w/purchase: State may exercise jx over a D that "purposefully avails” itself
to forum state; chain of commerce ends at point of purchase
-D must have "clear notice" that they could be brought into court in state
Asahi Metal Industry Co. Ltd. v. Sup. Ct. CA, SCT1987: Five factors to determine fair play:1) Burden
on D; 2) forum state's interests; 3) P's interest; 4) Interstate efficiency; 5) Interstate policy interests
(offend traditional notions of fair play and substantial justice); placement of product in stream of
commerce not enough, D must purposefully avail
Shaffer v. Heitner, SCT1977: Int'l Shoe, but quasi in rem. Presence of property insufficient, per se, for
jx in quasi in rem cases (general jx): D must also have substantial contacts and action must arise out of
those contacts (specific jx), or case must be straight in rem.
Burnham v. Sup. Ct. of CA SCT1990: Physical presence of D in forum state always sufficient for in
personam personal jx
Cybersell, Inc., v. Cybersell, Inc 9C1997: Purposeful availment satisfied if D has taken deliberate
action w/in forum state or created continuing obligations to forum residents; Internet ad insufficient;
interactive site, direct sales, toll-free phone #, hits+sales w/in forum, location of server
Zippo v. Zippo.com "The likelihood that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature and quality of commercial activity that entity conducts over the
Internet." Commercial, Interactive, Passive continuum
Compuserve v. Patterson: D entered into K with forum resident and transmitted files to forum state
showed D purposefully availed; cause of action must arise from D's activities
Calder v. Jones: Injuries directed at forum state: state court has personal jx over the author/editor of a
libelous article, where the D knew that the article would be widely circulated in the state where the
subject of the article would be injured by the libelous assertion.
ESAB Group Inc v. Centricut Inc 4C1998: Pendent jx arises out of common nucleus of operative fact
into “one constitutional case”; adjudicated NDSLC in addition to 1331 claim in same forum, no
inconvenience to D
Service of Process
Inquiries into service take the same form as inquiries into the jurisdiction of a court:
1.statutory issue—does the employed procedure comport with the applicable state or federal requirement
2.DPC issue—do these requirements satisfy the constitutional due process measure of fairness
Rule 4(e)—governs service upon individuals located within the U.S.; permits service to be accomplished either:
•pursuant to the law of the state in which service is effected; or
•pursuant to the law of the forum; or
•by delivering the process, in any federal district:
•to the defendant personally; or
•to the defendant’s dwelling house or usual place of abode and leaving it with a person of suitable age who also
lives there; or
•to an agent authorized by the defendant to receive service; or
•to an agent authorized by state or federal law to receive service.
Rule 4(f)—contains the procedure for serving defendants outside of the U.S
Rule 4(h)—service on corporations, partnerships, associations
Rule 4(i)—service on the federal government
Rule 4(j)—service on foreign, state, and local governments
Substitute Service
Rule 4(d) permits plaintiffs to transmit a copy of the complaint and a waiver form to defendants by first class
mail, private messenger, fax, or other reliable means
•Defendants then have an option of agreeing or refusing to execute the waiver:
•defendants who accept this notification in lieu of formal service are accorded additional time to respond; Rule
4(d)(1) expressly guarantees that executing a waiver does not preclude a defendant from challenging personal
jurisdiction or venue
•defendants that do not agree to waive formal service may be assessed the costs of effecting this service, unless
they can convince the trial court that they have good cause for refusing to waive service.
Electronic Service
Rule 5(b)(2)(d) now permits electronic service of all pleadings and papers other than the original complaint and
summons upon any party that provides written consent;
Rule 5(b)(3) provides that the presumption that the transmission is complete is defeated if the party making
service knows otherwise.
Mullane v. Central Hanover Bank & Trust Co. SCT1950: Notice given to out of state parties by
publication in a newspaper, when the parties’ addresses were known, is unconstitutional in light of the
Due Process Clause of the 14th amendment. Notice must be reasonably calculated to inform known
parties affected by the proceedings. However, constructive notice by publication was acceptable with
regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due
diligence or for whom future interests were too conjectural to be known with certainty.
Subject-Matter Jx
Any claim arising under a federal constitution or USC can be brought in state court
Article III of USC created federal judicial system: Section II sets forth the judicial power of the federal
courts: “arise under”
Shall extend to all cases under the USC, affecting ambassadors, admiralty, cases between two or more
states, diversity cases, etc.
Osborn v. Bank of the U.S., SCT1824: Congress authorized to extend federal jx power to any cause of
action as to which a federal question forms an "ingredient," regardless of a) whether federal law was
source of that right of action; b) how collateral that federal issue was to the resolution of the claim, or
c) whether the federal matter was actually placed at issue at all
-Since Motley, SC has consistently held that notwithstanding the identity of the "arising under"
language, that Congress chose not to confer jx over federal questions under 1331 to the full extent
authorized by Article III USC
-Objections to subject-matter jx are not waive-able, unlike personal jx
-P is "master of complaint", except where "artful pleading" claim asks federal question but avoids
federal law
-Artful pleading occurs only where federal law preempts state law
Merrell Dow Pharma. v. Thompson SCT1986: Fact that there is violation of federal law not enough,
must be a federal private cause of action to “arise under.” Courts must keep balance by not allowing
too many cases to be removed. Federal issue must also be "substantial" (important to disposition of
case); an important issue of federal law; unclear matter of federal law
Grable & Sons Metal Products Inc v. Darue Eng'g & Mfg SCT2005: 1331 jurisdiction lay over some
state-law claims that implicated significant federal issues. In this case, the national interest in providing
a federal forum for federal tax litigation warranted moving the case to federal court. Must keep federal-
state court balance
28 USC 1332a1: Citizens of different states; P.Rs are citizens of state of domicile
28 USC 1332a2: Citizens adverse foreigners. Alienage provision n/a for dual U.S. Citiz.; U.S. Citiz.
abroad cannot invoke a1 or a2
28 USC 1332a3: Citizens adverse citizens, w/foreigners as additional parties. Alienage diversity need
not be complete (adverse aliens can be from same nation); Aliens cannot anchor 1332 suit, but PR can
28 USC 1332b: Court may deny costs when award <$75,000.01
28 USC 1332c: Corporations; Citizen of state where incorporated and PPB; corporation can be
incorporated in more than one state; corporation can only have one PPB (If more than one physical
operations plant of PPB is difficult to determine – go with headquarters); LLC/partnership has every
citizenship its members have
28 USC 1332e: D.C. its own state
28 USC 1359: Collusion and improper assignment; collusion only when original party maintains
interest in claim to invoke/defeat 1332 s-m jx; look to original party's jx in cases of collusion
28 USC 1369: Statutory limit on complete diversity, restricted to cases >74 people die
28 USC 1441: Removal
28 USC 1447c: Forum D cannot remove; 30-day limit to challenge removal
-Claims by a single P in a single suit can be aggregated against a single D to produce $75k minimum
-Nonaggregation rule: Claims by a single P cannot be aggregated against multiple Ds; claims by
multiple Ps cannot be aggregated against a single D
-Amount in dispute must be in excess of $75k; claims in equity aggregated w/claims for damages
-Assess matter in controversy by looking at face of complaint (not past rulings such as arbitration),
unless it can be demonstrated to a legal certainty that P cannot receive >$75k
-Domestic relations matters never subject to diversity jx; child abuse not a domestic matter
28 USC 1367 codified pendent claim/pendent party/ancillary (3P/cross/counter) jx: Supplemental Jx;
must be attached to claim w/original jx
28 USC 1367a: District courts shall have supp. jx over all other claims (ones not allowed by 1331 or
1332) that constitute the same constitutional case (Gibbs, under Article III) as a 1331 or 1332 claim
(pendent claim/pendent party/ancillary) EXCEPT:
28 USC 1367b: 1332 cases w/o complete diversity; 1332 claims against Ds joined under Rules 14, 19,
20, 24; 1332 claims by Ps joined under Rules 19, 24; does not cover cross/counter/third-party claims
made by D
28 USC 1367c: Issues of discretion: 1) case of first impression in state law; 2) NDSLC is predominant
claim; 3) court has dismissed original jx claim; 4) exceptional circumstances (confusion)
Exxon Mobil Corp v. Allapattah Svcs Inc SCT2005: Contamination: Presence of non-diverse pendent
party eliminates 1332 diversity (no orig. jx anywhere in case, so 1367 n/a); Amount in controversy
cannot be contaminated (need just one >$75k), so 1367 applies; 1367 overturns Finley (no pendent
party jx) and Zahn (Each P must meet minimum amount)
Venue : Third and final pre-requisite for pursuing litigation (statutory, not constitutional); applies only
to claims in original complaint
-Venue about convenience, relevant once ALREADY determined court has personal jx over every D
and s-m jx over every cause of action.
-If there is pjx in a state, jx lies ANYWHERE in that state. Every state has venue statutes to decide
-Venue only needs to be discussed for l33l claim since venue requirements are waived over 1367
claims since they already fall within the district court's supplemental jurisdiction.
28 USC 1391
28 USC 1391a: 1332 cases only; 1) district where any D resides (not citizenship) if Ds reside in same
state (filed in that state); 2) district where substantial portion of events occurred; 3) district where any
D subject to personal jx if there is no district where action may otherwise be brought (only happens
where there are multiple Ds who don't reside in same state and events occurred outside US)
28 USC 1391b: 1331, or 1331/2; 1) same; 2) same; 3) district where any D found (not jx), only if no
district where action otherwise may be brought
28 USC 1391c: Deals w/residence, while 1332c deals w/citizenship; D corp. (or partnership) resides
where ever subject to personal jx
28 USC 1391d: Alien D may be sued in any district
PKWare v. Meade ED-WI2000: 7/8 claims in correct venue; court does not extend “pendent venue” to
8th claim b/c a patent claim w/own venue provision (28 USC 1400b)
-Statutory venue provisions don't apply exclusively, especially where venue is narrow and doesn't
exactly fit, unless they explicitly stated
-Residency of P irrelevant in federal court, though most state courts apply venue to P also
-Cases removed only brought in one district b/c of statutory provision (1441a) that's a command;
requires a two-step to change venue
-Forum-selection clause waives rights to object under 1391
Forum Non Conveniens – not a cure for a defect, only where all other rules satisfied
Piper Aircraft Co. v. Reyno SCT1981: Must show that chosen forum is highly inconvenient to D and
there's another, alternative forum that also satisfies all rules, but is significantly more convenient:
theory being that P chose this (appropriate) forum for a reason; consequence is dismissal, not transfer
(only happens in federal court where alternative forum in another country); In “conditional dismissal,”
D agrees to waive challenges to SoL
Joinder of Claims: Anytime more than one P, or more than one D, must consider joinder of parties;
anytime suit has more than one claim, must consider joinder of claims; every state (and federal system)
has diff. rules of joinder
Rule 13: Deals w/first cross/counter/3P claims
Rule 13a: Compulsory counterclaim; arise out of same transaction/occurrence (aka 1367) and do not
require joinder of party over which court cannot assert jx; no diff. in standard between 13a and 1367a
Rule 13a1: A pleading must state as a counterclaim any compulsory claim that--at time of service--
pleader has against opposing party (or suffer claim preclusion); exceptions in 13a2: counterclaim
subject of pending action, personal jx not yet established
Rule 13b: Permissive counterclaim; no limits, must assess s-m jx
Rule 13g: Crossclaim (brought by D) must arise out of same trans/occurrence (1367 test) as "main
action" (counterclaim or original complaints); must also satisfy 1367a
Rule 18: Joinder of claims; no limits, other than s-m jx
Joinder of Parties:
Rule 19: Compulsory joinder; Joined P/D under R19 will not pass 1367b
Rule 20: Applies only to any joined claim by a joined party, not all
Rule 20a: In order for P to join, must satisfy both 20a1A and 20a1B
-20a1A: transaction/occurrence/series of transactions (R13a) test; and
-20a1B: same question of law or fact common to all Ps (need just one)
-To pass 1367b (diversity claims) Ds cannot be joined under Rule 20; Ps joined under R20 with diverse
state-law claims that do not meet amount in controversy will not contaminate
Rule 21: Misjoinder (by R20) or Nonjoinder (by R19); misjoinder of claims applies to crossclaims
only; misjoinder of parties deals w/R20; not ground for dismissal; court may join/dismiss a party sua
sponte; court may sever any claim; conflict w/1332 b/c could dismiss only nondiverse D joined under
R20
Rule 42b: Consolidation/Separate Trials; remain technically one lawsuit; discretionary action granted
only for jury confusion or jury prejudice caused by ganging-up of Ps on D; deals w/properly joined
claims/parties
Puricelli v. CNA Insurance Co. ND-NY1999: Ps satisfied the "same transaction or occurrence" prong
of R20a b/c claims logically related. Further, Ps' claims contained common questions of law or fact;
plaintiffs asserted identical claims arising out of the same actions by defendant and implicated the same
supervisory employees.
Third-Party Claims:
Rule 14a1: 3P-P's claim must be against non-party who is or may be liable for all or part of P's claim
against 3P-P (D); only indemnity or contribution; only first claim must pass test, rest are under R18
Allstate Ins Co v. Hugh Cole Builder Inc MD-AL1999: Not a claim of indemnification, so 3P-P's claim
against 3P-D dismissed
-Court must have personal jx over 3P-D
-Right to jury trial does not include claims in equity (nor claims <$20)
Rule 56: Summary judgment (postdiscovery): a party may move for summary judgment at any time
until 30 days after the close of all discovery; a party opposing the motion must file a response within
21 days after the motion is served or a responsive pleading is due, whichever is later; and the movant
may file a reply within 14 days after the response is served. Dispute of law, not fact
Rule 50a1: JNOV at close of evidence; If dispute of material fact, must leave for jury, unless, at end of
P's case (1st chance for NOV), a party hasn't produced evidence sufficient for a reasonable jury to differ
Rule 50b: Renewed motion for judgment as matter of law (judgment notwithstanding verdict); After
verdict, losing parties will ask judge to issue judgment notwithstanding verdict: only when no
reasonable jury could decide an issue any way but one; Can only be made if party makes Rule 50a
motion during trial
Rule 12: Pretrial motions; pleading addresses merits; answer = response; must happen during general
appearance
Rule 12a: Times to answer on merits (21 days generally, 60 days w/waiver of service, 90d outside U.S.
w/waiver)
Rule 12b: Defenses: Non-merits-based pre-trial (before pleading) challenge to institution of litigation
(1)lack of s-m jx; (2) lack of personal jx; (3) improper venue; (4) insufficient process; (5) insufficient
service of process; (6) failure to state a claim (allegations, not evidence); (7) failure to join under Rule
19; waived by general appearance
Rule 12h: (1) states party waives 12b(2-5) by omitting it from motion, or failing to make a motion or
to include it in a responsive pleading (at same time)
Rule 12h3: Court must dismiss if it finds lack of s-m jx
Claim preclusion
Sopha v. Owens-Corning Fiberglas Corp WI1999: Judicial economy promoted by allowing splitting of
1987 and 1997 asbestos claims (first for pleural thickening, second for mesothelioma); case presents
special circumstance where all three claim-preclusion elements met, Rest. Judgments agrees w/D:
immaterial that P was not in possession of enough information about damages past/future or that
damages turned out to be unexpectedly large/in excess of judgment; Third rule below creates exception
1. Single cause of action rule/single injury rule/rule against claim splitting: all injuries caused by
single/series of transactions by D are single cause of action so that a later injury from the same tortious
act does not restart the running of the SoL. Considerations are judicial economy, to deter stale claims,
allow repose for Ds to allow for certainty about liability.
2. Discovery rule: tort claim accrues for purposes of the statute of limitations on the date the injury is
discovered or with reasonable diligence should be discovered, whichever occurs first. Considerations
of justice, reasonableness, fundamental fairness.
3. Recovery for damages may be had for reasonably certain injurious consequences of tortfeasor's
negligent conduct
In re the Termination of Parental Rights to Greg H.L., a Person Under the Age of 18: Gail M. and
Roger M. v. Jerome E.M. WI2001: Claim preclusion does not apply b/c not same cause of action: 1st
suit to determine paternity, second to determine fitness as parent; Issue preclusion does not apply b/c
first suit did not determine fitness as parent
-Issue preclusion operates where different claims, different events, same parties, same issue: issue of
D's citizenship settled in the first case (Du Page Forklift Svcs); not enough that P has "more" evidence;
P must have "new" evidence that was unavailable first time around
-Civil case following not-guilty criminal case: issue is the same, but standard of proof is different
(lower), no issue preclusion
-Civil case following guilty criminal case: yes, issue precluded b/c already met higher burden of proof
-Each installment of a contract a separate event (no claim preclusion), two different defenses (K
frauds/unconscionability), no issue preclusion
Herrera v. Reicher (Mo. 1980): Issue must have been "unambiguously decided" in first action, even if
ambiguity is b/c of judicial error; general verdict (no negligence for son using dad's car) based on two
defenses provides no clarity of reasoning; needed special verdict form
-Party stipulation not an adjudication (so no issue preclusion) unless parties contain in stipulation that
parties are estopped
-Parties' consent to judgment trigger issue preclusion? No adjudication, just resolution and no
litigation, so no issue preclusion unless parties agree intent for it to operate as adjudication
-Default judgment. For issue-preclusion purposes, case has not been litigated; would be claim
preclusion, but not issue preclusion
Rudow v. Fogel (Mass. 1978): Ruling on the issue sought to be precluded must have been essential
(not repugnant) to judgment in first suit; In this case, father won case but lost on issue of a trust, so
father didn't have chance to appeal issue, so no issue preclusion
York Ford, Inc. v. Building Inspector and Zoning Administrator of Saugus MA1995: Each ruling was
dispositive, could have decided case alone; Generally prevailing rule is that neither is dispositive, no
issue preclusion on either
Parklane Hosiery Co. v. Shore SCT1979: Overturned doctrine of mutuality (that third party cannot
used issue preclusion, nor have it used against it)
-No non-mutual issue preclusion against a party not in first suit (hasn't had chance to litigate)
-Defensive non-mutual issue preclusion against 1st suit P works
-Offensive non-mutual issue preclusion against 1st suit D applies sometimes at court's discretion
(discourage wait-and-see P):
-Factors tending to invoke IP: 1) If P could not have joined in 1st suit; 2) Judgment in 1st suit
inconsistent w/previous judgments; 3) 1st suit for different damages not litigated as heavily
PRACTICE EXAM:
-Do Personal Jx first, then S-M jx
-Don't talk about service
-Louisiana State: Personal jx: D citizen of state. S-m jx: State-law claim.
-Louisiana Federal: Personal jx: based on state's specific-act long-arm; S-m jx b/c parties are diverse
(citizens of NY and LA), greater than $75k
-1332c defines corporate citizenship
-Rule 4k confers federal personal jx (use applicable state long-arm)
-Alabama State: Personal jx: statute: own warehouse (quasi), do business; Constitutionality of personal
jx: extent of contacts is substantial; cause of action does not arise out of relationship (general jx), but
are extensive relationships; Volkswagon fairness factors: P has no interest in bringing case in Alabama;
State might/might not have an interest; Center of gravity of case is not in AL, could go either way; S-m
jx: state-law claim
-Alabama Federal: same answer as Louisiana
-Mississippi State: Personal jx: long-arm: do business in state; Constitutionality of personal jx: cause of
action does not arise (general jx), so depends on extent of relationship; Volkswagon factors: P has no
interest, State has limited interest, Center of gravity of case not Miss.
-Mississippi Federal: same as LA
-New York: Personal jx: long-arm: property (quasi), does business; contacts are substantial: interactive
website+property; tortious act is questionable: where brewed or where injury occurred.
Constitutionality: stream of commerce ended in NY, but interactive website. cause of action does not
arise out of actions in NY (general jx), but substantial contacts. Volkswagon: state's interests, P's
interests, center of gravity of case
-If only property is anchor, it is quasi in rem and case must arise out of property
-New York Federal: same
3.S-m jx:
a. Rule 12h3: dismiss lack of s-m jx
b. Rule 12a: timely
c. Rule 12h1: cannot omit motion from answer
c. 1331 federal question
d. 1332 diversity: complete + $75k
I. Coury time measure
II.$$ Aggregation (1P vs 1D)
III. 1332c citizenship of corporation
IV. Citizenship determined by domicile: phys. place of residence, w/intent to remain there indef.
e. 1367a-b: same constit. case (Art. III): common nuc. operative fact (Gibbs)
I. 1367c: special circumstances
II. Contamination (Exxon)
4.Venue:
a. 1391
I. 1391c residency of corporations
b. 1404: transfer w/proper venue
c. 1406: transfer w/o proper venue
d. 1441: removal
6.Joinder of claim
a. Rule 18: no limits
b. Rule 13a: compulsory counterclaim (Inglesias factors)
c. Rule 13b: permissive counterclaim
d. Rule 13g: crossclaim (pass
7.Third-party practice
a. Rule 14: indemnity on one claim
b. Rule 18: additional claims
c. P jx over 3PD (See 1 and 2)