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CIV Pro Plan of attack

Personal Jurisdiction

I. Does it satisfy the statute (long arm)? In Ca, the long arm permits service to the full extent permitted by the
Does it satisfy the constitution (Due Process)? No Deprivation of life liberty or property without due process of law.
II. Is it in state or federal court? If in federal court then use 4k
4k 1 (a): federal court piggybacks state long arm statute and the 5th amendment (national contacts
4k 1 (b): parties joined under rules 14 and 19 “100 miles from the place from which the summons issue.
4k 1 (c): defendant who is subject to federal interpleader which allows for nationwide service.
4k 1 (d): is a service rule that the federal court may use when a federal statute authorizes jurisdiction
4k 2: limited federal long arm provision applies to defendants whom claims arising under federal law are asserted when
there is no applicable federal process provision and who are not amenable to suit in any one of the 50 states.
III. (a) Are there minimum contacts?
The contact must be purposeful availment, systematic and continuous, reaching out to directing activites into the forum
state (benefitting from the protections and laws of the forum state). (Volkswagen and International Shoe) Forseeability
that d would be sued in that forum.
(b) Fairness (fair play and substantial justice)?
(Burger King test)
i. burden on the D
ii. Interests of the forum state
iii. P’s interest in obtaining relief
iv. Interstate judicial system’s interest in obtaining an efficient resolution
v. other states trumping interest.

IV. General or Specific Jurisdiction?

Specific: Nexus between the claim the defendant and the forum state. Less contacts are needed, the claim arose out of the
defendant’s contacts. (Gray and McGee) Unilateral activity is not sufficient (Hanson)

General: The claim is not related to the contacts. Need more contacts (Helico and Perkins) Mere purchases are not enough
(Asahi) (Volkswagen) (Gray) Stream of commerce v. Ocean of consumption. Ocean of consumption no purposeful availment
(Volkswagen). Stream of commerce (Asahi and Gray) O’Connor view need more contacts Gray and Brennan view if they
know it is going to be incorporated elsewhere it is reasonable for them to be hauled into court there.

V. Internet Contacts
(Zippo and Bellino) sliding scale test Active (conducts business over the net) Passive (gives information) Interactive
(exchanges information with a host computer)

VI. Transient jurisdiction (Burnham)

Subject Matter Jurisdiction

I. Federal subject matter jurisdiction is limited by Congress (and to a broader extent the Constitution) to federal question
(FQ) jurisdiction (1331) and diversity of citizenship jurisdiction (1332).
II. Diversity of citizenship (1332): Requires that the amount in controversy exceed or equal 75K and is between citizens of
different states.
i. Requires complete diversity (Strawbridge)
ii. For humans citizenship is determined by domicile at the time the case is filed (Mas v. Perry)
iii. For corporations it is the place where it is incorporated and the principal place of business. For the
principal place of business it is either the “nerve test” where most of the decisions are made
headquarters. Or the “muscle center” where it does most service or production activity
iv. If unincorporated then looks at each individual member
v. For decedents, minors and incompetents look at the citizenship of them not their representative
vi. An alien admitted to the U.S. for permanent residence shall be deemed a citizen of the state in which
such an alien is domiciled.
a. Amount in Controversy (1332)
i. Plaintiff believes in good faith that the damages pleaded are accurate. The defendant has to prove to a legal
certainty that it is less than the required amount. (A.F.A. tours)
b. Aggregation of claims (1332)
i. one P against one D may combine unrelated or related claims to meet the amount in controversy
ii. Two P’s may not aggregate claims against one D. Does not matter if separate or related
iii. If there is a single indivisible harm (joint tortfeasor) P’s may aggregate.
III. Federal Question (1331) Article III sec. 2: Claim arises from the laws, treaties, constitution of the United States.
i. Well Pleaded Complaint Rule (Mottley): A well pleaded complaint stripped of all of its
surplusage, must raise an issue of federal law. Not based on a defense based on federal law.
ii. Justice Holmes Creation test: Federal law must create the cause of action under which the P is
iii. Justice Cardozo meaning and Application test: state claim raises an issue of federal law or hinges
on the interpretation of a federal law. (Merrell Dow and Grable Sons)
IV. Supplemental Jurisdiction (1367) (Gibbs)
i. 1367 (a): has to come from the (CNOOF) arise from the same transaction or occurance
ii. 1367 (b): Jx founded on diversity. Adding parties which destroy diversity also destroys
supplemental Jx. If the party joined does not destroy diversity based on supplemental jx only one
of them needs to meet the amount in controversy (Exxon Mobile Case)
iii. 1367 (c): District courts may decline supplemental Jx if:
1. The claim raises complex issue of state law
2. The state claim predominates
3. The federal court dismisses the fed claim
4. In exceptional circumstances there are other compelling reasons to decline jx.
Iv. 1367 (d): tolling period of at least 30 days (more if state law allows) for dismissed claims.
Bad: asserted by the P , in a diversity claim would destroy diversity.
V. Counter Claims: Rule 13
i. Compulsory Counterclaim: Counter –claim against the defendant arises out the same transaction or
occurrence (CNOOF) the defendant must bring the counterclaim at the time of the main claim or it is waived.
j. Permissive Counterclaim: Unrelated to the claim, the defendant may or may not bring it at the time of the
main claim. It is not waived if the defendant does not raise it. Has to have its own basis for Jx.
VI. Third Party Defendants: Rule 14
i. A.When a defendant can bring a third party (at any time after the commencement of the action). Third party
that is liable for all or part of the P’s claim against the D. May bring a claim against the D or the P.
j. B. When the P can bring a third party. As long as it does not destroy diversity (Kroger). Any way the
defendant can.
VII.Removal 1441:
i. (a) Claim filed in a state court may be removed by the D (all D’s if multiple D’s), to the district court sitting
in the same geographic location if the federal court would have jurisdiction over the claim
j. (b) Diversity jx: D may not remove if a citizen of the state in which the action is brought
k. (c) fed Q: with state claims joined, all claims may be removed to fed court and the district court at its
discretion may remand all claims in which state law predominates (Lancaster 1441 c uncons)
l. Also serves as a venue the district ct becomes the proper venue
m. If D asserts a fed law counterclaim the P may not remove (Shamrock Oil)
VIII.1447 Procedure after removal
i. (c) if Fed Ct lacks Jx has to be brought in 30 days after filing of the notice of removal. Can remove back to
the state court.
j. (e) join additional D’s that would destroy Jxthe court may deny joinder, permit joinderand remand the action
to a state court.
IX. Venue 1391
i. (a) Diversity Jx
- may be brought where any D resides (If all D’s reside in the same state)
- or a substantial part of the events giving rise to the action occurred, or a substantial part of the
property which is the subject of the action is situated
- Where any D is subject to Personal Jx. If there is not district where the action might otherwise be
brought. This occurs when outside the U.S. and there are multiple D’s all whom reside in a different

ii. (b) Federal Q: Civil actions may be brought in a district where:

i. Any defendant resides, if all defendants reside in the same state, or
ii. A substantial part of the events giving rise to the action occurred, or a substantial part of the part of the
property which is the subject of the action is situated, or
iii.A judicial district where any defendant may be found, if there is no district where the action may otherwise
be brought.
iii. 1391(c) – a corporate defendant is said to reside in any district in which it is subject to personal jurisdiction.
a. In a state which has more than one district, and in which a corporate defendant is subject to personal jurisdiction, the
corporation resides in any district in that state within which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate state.
i. If there is no such district in that state, the corporation is said to reside in the district with which it has the
most significant contacts.
b. An alien, under 1391(d) may be sued in any district.

X. Transfer of Venue
i. 1404 For the convenience of parties and witnesses, and in the interest of justice, the district court may transfer a
case to any other district in which it might have been brought. (Hoffman)
i. Private interests
1. Ease of access to proof
2. Ability to compel witnesses to attend
3. Cost of compelling witnesses to attend
4. Access to the site of the accident (if applicable)
5. Any other problems which show a need to transfer
ii. Public interests
1. Administrative difficulties of trial in an inconvenient forum
2. Burden on the community for jury duty
3. Interest in following public proceedings
4. Local interest in local controversies
5. Choice of law issues
State law travels with a case transferred under 1404, but not 1406.
a. 28 U.S.C. § 1406
i. If an action is brought in an improper venue, the district court shall dismiss, or transfer to a proper venue.
ii.If there is no proper venue in the United States, the case must be dismissed. (Forum non conviens Piper
II. (Goldlawr, Inc. v. Heiman)
Section 1406 authorizes the transfer of an action even if the transferor court lacks personal jurisdiction

XI. Choice of law

i. Erie Doctrine: In diversity cases apply state substantive law 1. Elements of the claim or defense 2. Statute of limitations
3. Rules for tolling the statute of limitations 4. Choice of law
ii. if there is a federal law that conflicts with the state law apply the federal law (Hannah)
iii.does not affect an state substantive right and constitutionally valid it is arguable procedural (Stewart Org. Inc.)
iv. If not federal law on point and judge does not want to apply state law. If there is a state substantive law apply that.
(1) Outcome determinative: would applying or ingnoring the state rule affect the outcome of the case?
If so, it’s prob substantive rule use state law. (Guaranty Trust Co.)
(2) Balance of interests: does either fed or stat system have strong interest in having its rule applied?
(3) Avoid forum shopping: if the fed court ignores state law will it cause parties to flock to fed court?
If, so apply state law. (Guranty Trust Co. and Erie)