PJ SUBJECT VENUE RES JUDICA JOINDER JUDGMENT AS A MATTER OF LAW

Is there SUBJECT MATTER JURISDICTION?

The authority of federal courts to hear certain types of cases is given by Article III of the Constitution. To establish federal subject matter jurisdiction you need: 1) Article III (tells us the types of cases that can be heard in federal court) 2) A statute a. (generally) Arising under jurisdiction: 28 USC 1331 OR b. (generally) Diversity Jurisdiction: 28 USC 1332(a)(b)(c)(1) c. Could also fall under 28 USC 1367 (supplemental jurisdiction) Types of Subject- Matter Jurisdiction: 1) Federal Question (1331) 2) Diversity (1332) 3) Supplemental (1367) + removal (incidental) Federal Question ( 1331): Federal Question IF it falls under 28 USC 1331 which permits federal jurisdiction in all cases arising under federal law. This generally means that the claim must contain a federal element in the Ps wellpleaded complaint. P CANNOT anticipate defenses D may make in response in order to satisfy federal question (Louisville v Mottley) 1) Does the action fall under 28 USC 1331? A.) Does it contain a federal question/ a question that arises under the Constitution? If yes, skip next Q and move on B.) Substantial federal interest test: ??? (p 53 acing) C.) Well-pleaded complaint rule: Make sure the federal question is apparent in the plaintiffs well-pleaded complaint; it is not permissible for Ps to anticipate defenses that may or may not arise under federal law (Louisville v. Mottley) if the federal question is apparent then federal question jurisdiction is appropriate. Diversity Jurisdiction ( 1332) Subject Matter Jurisdiction: Jurisdiction over the nature of a case and the type of relief sought; the extent to which the court can rule on the conduct of persons and the status of things. DIVERSITY: 1) Domicile/residency 2) Exceeds sum or value of $75,000 (do not include interest and costs) need to be careful with corporations. Corporations can have dual citizenship (up to two) place of incorporation is easier. Principal place of business not as easy (Hertz) Subject matter jurisdiction can be challenged at any stage of litigation and cannot be waived DOMICLE= The persons true, fixed, and permanent home and principal establishment, and to which eh has the intention of returning whenever he is absent therefrom. 1a) What is the persons domicile? Domicile: Two elements needed to establish domicile: 1) Taking up residency in a different domicile (physical component)

2) With the intention to remain there indefinitely (mental component) ** Since it is only possible for a person to have ONE domicile (corporations can have up to two), look for elements: buying a house, changing voters/vehicle registration, drivers license, current residence, mailing address, property, bank accounts, etc. None of these PROVE your intent to remain there indefinitely but do suggest. **REMEMBER: Your domicile is what it is at the time of the filing of complaint court does not consider post-complaint events such as moving 1b) What is a CORPORATIONS domicile? Principal place of business = nerve center (Hertz Corp v Friend) A corporations domicile is determined by: 1) Principal place of business (nerve center), which is often the headquarters 2) Place of incorporation Things to remember generally: 1) Courts have interpreted this to mean that every defendant must be diverse from every P. The rule doesnt say this explicitly, but thats how the rules are construed. Same with the idea that Ps cant add their amount in controversy together. NOTE: This doesnt require that every party be of diverse citizenship from every other party. It requires that no P be a co-citizen with any D. (write each on each side and draw a line down middle) 2) Plaintiffs cannot aggregate claims with one another (unless they are being sued jointly) 3) However, an individual plaintiff can aggregate all of his/her claims (related or not to Rule 18) brought against a d (i.e. a negligence claim resulting in $25,000 in damages and a claim demanding $60k in medical expenses against defendant for same thing may be combined)

Supplemental Jurisdiction ( 1367) IF 1331/1332 dont work, we look to 28 USC 1367: Q: If the claim does not qualify for diversity or federal jurisdiction does the claim qualify for supplemental jurisdiction under 28 USC 1367? Supplemental Jurisdiction (Blacks): Jurisdiction over a claim that is part of the same case or controversy as another claim which the court has original jurisdiction. Supplemental jurisdiction only exists where the federal court already possesses subject matter jurisdiction over the original claim based on either federal question or diversity jurisdiction. However, a court is not required to exercise supplemental jurisdiction 28 USC 1367 Supplemental Jurisdiction (a) Supplemental jurisdiction includes jurisdiction over any state 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 United States Constitution (do Gibbs analysis) (b) (founded from Owen) Supplemental-diversity jurisdiction: In any civil actions of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over (1) claims made by plaintiff against persons made parties under Rule 14, 19, 20, or 24 or (2) over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) A court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if: (1) the claim raises a novel or complex issue of state law (2) the claim substantially predominates over the claim of claims over which the district court has original jurisdiction (3) the district court has dismissed al claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction ** District Court should say no despite there being a common nucleus of operative fact if: the state claim is predominant, there is an issue that hasnt been resolved in the state court (novel question of state law), likelihood of jury confusion **14 (impleader), 19 (mandatory joinder when a party NEEDS to be joined), 20 (permissive joinder if plaintiff wants), 24 (intervention someone wants to get in and court allows) In short: 1) Look at 1367(a): Is the supplemental claim based on the same common nucleus of operative fact? (United Mine Workers v Gibbs) 2) Look at 1367(b): If A is satisfied, we still need to look at B. These are for cases based solely on diversity (so 1332). If it is based solely on diversity and is against persons made parties under Rule 14, 19, 20 or 24

Is there PERSONAL JURISDICTION?

Three Ways to Exercise Personal Jurisdiction over Defendant: 1) Defendants appearance in the forum state a. General appearance: You concede that the court has personal jurisdiction. If you think there is a problem, you are consenting to be subject to the courts authority b. Limited appearance: D does not want to generally appear because they want to retain argument that the court does not have personal jurisdiction 2) Presence in forum state PLUS personal service of process 3) Seizure/attachment of land in forum state (Assuming we cant get D to submit to court generally and assuming they are not in forum state to serve personally, we seize Ps property) ** A fourth way CAN exist with defendants consent. Even if D hasnt generally appeared, there are things you can do to consent to PJ: 1) To contract with opposing party and agree that you would have a representative in the state to be a designee for service of process 2) You are serving a corporation, etc. 3) Private parties can do this too. We can serve X person that will accept service of process 4) Parties agree on the forum in which they will have the law suit take place Before you do anything: FRCP Rule 12: Requires Ds to raise any challenges to personal jurisdiction in initial response. You can waive personal jurisdiction, not SJ jurisdiction. -Also, 4(k)(1)(a): Long Arm Statutes: A statute providing for jurisdiction over a nonresident D who has had contacts with the territory for which statute is in effect (to determine personal jurisdiction over D, the federal court pretends to be the state court. Ex: ED Mich uses Mich. state law re: individual residing in Indiana). Some states simply say to the extent that due process allows which can be interpreted broadly, where others will take a more narrow approach. 1.) Is jurisdiction appropriate under the state long arm statute? 2.) Minimum Contacts Analysis look to International Shoe What we look for: Out of State Defendants If they did not voluntarily appear, consent, or otherwise waive/not be physically in the state

and served, it boils down to CONTACTS: 1) Ds contact in the forum state a. Contacts formed through purposeful availment of privilege of conducting activities within forum state (Hansen) b. Exercise of jurisdiction would be specific a single, isolated contact may satisfy if the claim arises from or is related to Ds claim c. Exercise of jurisdiction would be general Continuous and systematic. There need not be a relationship between the claim and the contacts 2) Fairness Factors: Not only do we have to determine that they have a contact or more with the forum state, but we also need to make an inquiry as to the fairness, the reasonableness, of exercising PJ over this individual (from Asahi). Used to determine if there might not be personal jurisdiction even though D may have contacts 1) General jurisdiction: Claims against defendant are SO continuous and systematic as to render them essentially at home in the forum state (Goodyear, see International Shoe) 2) Specific Jurisdiction: Can uphold jurisdiction over a claim arising out of a single, isolated incident in the forum state (as in McGee) so long as the claim arises from the single, isolated contact in the forum state 3.) If minimum contacts are met Must look to fairness factors (Asahi) 1) The burden on the defendant (would this inconvenience be unconstitutionally burdensome, or impact the Ds ability to defend? If yes, it would probably be unreasonable) 2) The plaintiffs interest in obtaining relief (Does P have strong interest in obtaining relief in this particular forum? If so, probably reasonable) 3) The forum states interest in adjudicating the dispute (Think of policies, their own citizens, if there is a strong interest in resolving the dispute it is probably reasonable) 4) The shared interest of the several states in furthering fundamental substantive social policies 5) The interstate judicial systems interest in efficient resolution of controversies **use first three!! Brennan: If minimum contacts analysis proves weak, a strong showing of reasonableness can still support appropriate exercise of personal jurisdiction A. Stream of Commerce Cases: The product has caused harm to P only after traveling through the stream of commerce. Look to see if facts satisfy OConnor or Brennan standard for purposeful availment (from Asahi): OConnor (a D would argue this view): Rejected the idea that mere awareness that the stream of commerce may take goods into a particular state after they leave Ds control suffices to satisfy purposeful availment. She would require clearer evidence to show that they meant to serve the market in that particular state, such as designing the product for market there or advertising. Applied a two part test: 1) Are the contacts sufficient? 2) Would subjecting D to jurisdiction in this location be unfair or unreasonable (bc they were a foreign company)? Brennan (a P would argue this view): (Concurrence in part) Cant say they were surprised by a lawsuit in such state thinks there were minimum contacts at the very LEAST. Discarded concept of soverign authority in favor of fairness and foreseeability considerations: jurisdiction premised on the placement of a product into the stream of commerce [without more] is consistent with the Due Process Clause [a]s long

as a participant in this process is aware that the final product is being marketed in the forum state, the possibility of a lawsuit there cannot come as a surprise. Stevens: (Concurrence in part) Not worried about stream of commerce. Says all factors go against personal jurisdiction

Was there proper NOTICE?

Mullane v Central Hanover Bank (this case was before McGee) (bank posted cryptic ads in newspaper as notice) Says that distinctions between in rem and in personam are ancient. Here, as a matter of due process, first class mail would have been sufficient Destroyed most existing limitations on service of process (re: within state borders as in Pennoyer) Requirement of notice: due process requires notice reasonably calculated to apprise [give] parties knowledge of action Just because the state rules of the court are satisfied doesnt mean the Constitutional th standards are met (Due Process- 14 Am) Also looks at reasonableness of notice. Should the bank have to send first class mail? Process serve? What is sufficient to satisfy due process? Due process is not a guarantee of actual notice (you must TRY think about return receipts. There is an obligation on the part of the party that is notifying. If P has actual knowledge that D hasnt received notice they have an obligation to try again even if notice was reasonably calculated initially) 1) Complaint and summons appropriate to commence lawsuit 2) Timeliness 3) Proper method (was it reasonable?)

Is VENUE proper?
Venue 1391: Places yet another geographical limitation on plaintiffs options in selecting the forum for suit. Supreme Court says the purpose of statutorily specified venue is to protect the D against the risk that a P will select an unfair and inconvenient place for trial 1391(a)(b) also apply to cases involving corporate defendants (c) tells us that a corporation resides where its contacts would support personal jurisdiction over it - look at (c) first for the purposes of applying (a) or (b) to a corporate defendant

28 USC 1391(a)(1)&(2) is for diversity only actions (those falling under 1332) 28 USC 1391(b)(1)&(2) is for those that are non-diversity actions 28 USC 1391 Venue Generally A) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in: 1. a judicial district where any defendant resides, if all defendants reside in the same State; 2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or 3. a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought

B) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in: 1. a judicial district where any defendant resides, if all defendants reside in the same State; 2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or 3. a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought C. For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced

Both (a)(1) and (b)(1) provide that venue is proper in the district where any D resides, provided the Ds are from the same state. For corporate Ds they are deemed to reside in the district where they are subject to personal jurisdiction, or, where multi-district states are involved, to reside in the district with which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state. Both (a)(2) and (b)(2) make venue proper in any district where a substantial part of the events or omissions giving rise to the cause of action occurred. If property is at issue, then venue is proper in the district where a substantial part of the property is located. 1) Is there a forum selection clause that covers this situation and binds the parties? Such clauses generally prevent a party from challenging proper venue under the clause 2) Has there been consent to suit in forum or has the party challenging venue already responded to the complaint without challenging venue such that the challenge is waived under Rule 12(h)? Fallback provisions: (a)(3) and (b)(3) are only used when other provisions fail to identify any proper venue(a)(3) the judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced (b)(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought Forum non conveniens dismissals are only proper when the more appropriate forum is outside the judicial system where the case was filed This allows the court to dismiss a case when it anticipates it will be refilled in a more convenient jurisdiction Common law doctrine that permits courts to dismiss a case if there is another forum which is so much more convenient for the parties and the courts that the case would more appropriately be tried there **Differentiate between this and personal jurisdiction if a D had continuious and systematic contacts in a state they would be subject to personal jurisdiction by 1391(c) says that for venue purposes we have to look at each district separately (Think about it like each district is its own separate STATE) **Venue does not require the most CONVENIENT forum, rather just PROPER VENUE. It does not have to be the most substantial contact, just a contact. Always mention why convenience is not very persuasive. A corporation may be subjected to personal jurisdiction anywhere in the state, but for the purposes of venue, it resides only in the DISTRICTS where it would support personal jurisdiction if we pretended it was a separate state

Are the parties properly JOINED?

RULES/ Statutory Provisions

28 USC 1331 Federal Question 28 USC 1332(a) Diversity of Citizenship/ Amount in Controversy (b) Costs may be denied to P if when the matter is adjudicated the P recovers less than 75K (c) For the purposes of this section and section 1441 A corporation is a citizen of any state by which it is incorporated and where it has its principle place of business 28 USC 1367(a) Supplemental Jurisdiction: District Courts will have supplemental jurisdiction over all other 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 US constitution. (b) In any action where they have original jurisdiction based solely on 1332 (Diversity), they district courts shall not have supplemental jurisdiction in (a) over: - claims by Ps against persons made parties under Rule 14, 19, 20, or 24 or - over claims by persons proposed to be joined as Ps under 19 or seeking to intervene under 24 (c) Courts discretion to decline to exercise supplemental jurisdiction 28 USC 1441(a) Removal: Any civil action brought in state court of which the district courts have original jurisdiction may be removed by D or Ds. 1441(b) Any claim under 1331 can be removed without regard to citizenship or residence of the parties. Any other such action (1332) shall be removable only if none of the parties in interest properly joined and served as Ds is a citizen of the State which the action is brought 28 USC 1446(a) Procedure for removal 1446(b) Notice of removal 28 USC 1447(c) Motion to remand 28 USC 1391 Venue (a) Diversity cases: For civil actions wherein jurisdiction is founded solely on diversity of citizenship ( 1332) (b) When Jurisdiction is for Federal Question/ Supp cases: For civil actions wherein jurisdiction is NOT founded solely on diversity of citizenship may (c) Corporations: A D that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced (d) Aliens 28 USC 1404(a) / 1406(a) Transfer/ 1927 DONT NEED TO KNOW FOR EXAM- no sanctions FRCP 1 Scope and Purpose FRCP 2 One form of Action FRCP 3 Commencing an Action FRCP 4 Summons FRCP 8 General Rules of Pleading (a) Claim for relief: A pleading that states a claim for relied must contain:

A short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support 2. A short and plain statement of the claim showing that the pleader is entitled to relief; and 3. A demand for the relief sought, which may include relief in the alternative or different types of relief (b) Defenses; Admissions and Denials (c) Affirmative Defenses Affirmative Defenses under Rule 8(c): In general: In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: - Accord and satisfaction - Arbitration and award - Assumption of risk - Contributory negligence - Duress - Estoppel - Failure of consideration - Fraud - Illegality - Injury by fellow servant - Laches - License - Payment - Release - Res Judicata - Statute of Frauds - Statute of Limitations; and - Waiver **NOTE: This is not a comprehensive list, and there are other avoidance or affirmative defenses that can be pleaded affirmatively (p.212)

1.

FRCP 9(b) NOT ON EXAM FRCP 11 NOT ON EXAM (NO SANCTIONS) FRCP 12(b) Defenses and objections: (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 subject-matter jurisdiction (2) lack of personal jurisdiction (3) improper venue (4) insufficient process (5) insufficient service of process (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19 FRCP 13(a) Compulsory Counterclaim 13(b) Permissive Counterclaim 13(g) Crossclaim against co-party

FRCP 14(a) When a defending Party may Bring in a Third Party (b) When a plaintiff may bring in a third party FRCP 15 Amended and Supplemental Pleadings (a) Amending as a Matter of Course **remember courts should consider possible prejudice and undue delay (c)(1) Relation Back of Amendments- NOT ON EXAM FRCP 18 Joinder of Claims (a) In general: This is merely a permissive provision. But if it arises from same transaction or occurrence, look at res judicata

FRCP 19(a)(1) NOT ON EXAM (but be able to identify/mention omission) Required Joinder of Parties FRCP 20 Permissive Joinder of Parties (a) Persons who may join or be joined FRCP 23(a) NOT ON EXAM FRCP 24 Intervention NOT ON EXAM FRCP Form 11 FRCP 41 NOT ON EXAM FRCP 55 (a) (b) (c)

Claim & Issue Preclusion

Res Judicata: Concept of preclusion. Two preclusion principles: 1) Claim preclusion (aka Res Judicata, or claim splitting) 2) Issue preclusion (aka Collateral Estoppel) *Res Judicata is an affirmative defense *Applies only to parties who were involved in the original judgment A. Claim Preclusion (Res Judicata) Elements of Res Judicata: 1) Final judgment on the merits (means court has examined claim and made assessment as to the merit of the claim) SMJ, PJ, Venue would be procedural dismissals (non-merits) so claim preclusion / res judicata would not apply in these situations 2) Mutuality (same parties) 3) Same claim/cause of action **As to p: Res Judicata covers any issue, though not litigated that was part of the same cause of action as the original claim.

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**As to D: Res Judicata covers any claim the D actually asserted (including counter-claims, crossclaims, third party claims). As for claims the D failed to assert, res judicata bars any claim the defendant was REQUIRED to bring under a compulsory counterclaim rule under 13(a). The whole point of compulsory counterclaims is to prevent unnecessary litigation in promotion of efficiency and in consideration of the judicial economy. It only makes sense to require D to assert any counterclaims that are based on the same transaction or occurrence. **LOOK FOR : Same evidence being used ** Res judicata does not apply when a second claim could not have been asserted in the first action B. Issue Preclusion (Collateral Estoppel) Elements of Issue Preclusion: 1) Same issue in question 2) Actually litigated and decided (doesnt mean precise issue is decided, but that other issues could have been decided also) 3) Decision/resolution of the issue was necessary 4) Party against whom preclusion is sought litigated and lost on issue **IN ISSUE PRECLUSION (AND UNLIKE IN CLAIM PRECLUSION/RES JUDICATA) YOU DO NOT NEED TO HAVE THE SAME PARTIES

Removal & Remand

1) 2) 3) 4) 5) When can a D remove? 1441 What does the federal court need? Original jurisdiction How long does D have to remove? 30 days Can D remove to a different state? No, must be removed to a federal court What if D is from the state your claim is filed in? Then you cant remove!

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