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Transfer

In the interests of justice and for the convenience of the parties, a federal district court
may transfer a case to another district so long as that district would have had original
jurisdiction over the case. Personal jurisdiction, subject matter jurisdiction, and venue
requirements must be satisfied at the district to which the case will be transferred.
Under the common law doctrine of forum non conveniens, a state or federal court may
refuse to hear a case at the request of the defendant because the forum may not be
convenient for the defendant and witnesses. The court will not transfer the case, but will
dismiss it so that the plaintiff may refile in the alternative forum, so long as the statute of
limitations has not expired. In determining whether to dismiss the case, the court will
balance the public and private interests in having the case refiled at the alternative forum
Gilbert!. Personal jurisdiction, subject matter jurisdiction, and venue requirements must
be satisfied at the alternative forum. " court will not dismiss the case if there is no
remedy available at the alternative forum.
Erie
" federal district court sitting in diversity shall apply the substantive law of the state in
which it sits. #owever, uncertainty exists as to whether a law is considered procedural or
substantive. In determining whether a law is procedural or substantive, the court will
conduct an unguided Erie analysis. In conducting the analysis, the court loo$ to see
whether there is a %ederal &ule of 'ivil Procedure %&'P!, %ederal &ule of "ppellate
Procedure %&"P!, or federal statute that is on point. If there is a %&'P, %&"P, or
federal statute on point, then the federal law will be used so long as it does not violate the
'onstitution or the &ules (nabling "ct i.e. so long as it does not abridge, enlarge, or
modify the state)s substantive rights!. If there is not a federal rule that is on point, the
court will determine if using the state law is *bound up+ with state,created rights and
obligations. If the state law is *bound up,+ then the state law will be used. If it is not
*bound up,+ then the court will determine whether using the state law will dictate the
outcome of the case Guaranty!. If using the law would not determine the outcome of the
case, then the federal law will be used. If using the state law would dictate the outcome
of the case, then the court will balance the state)s interests in enforcing its rule with the
federal interests in enforcing its rule, and whichever has the stronger interest will have its
rule applied.
Thin$ public policy-sovereignty
.ill the court sanction /avid for failing to follow the requirements for pleading a fraud
claim0
Under the %ederal &ules of 'ivil Procedure, a pleading must contain1 2! a short and plain
statement of the grounds upon which the court)s jurisdiction is based, 3! a short and plain
statement of the claim upon which the pleader is entitled to relief, 4! a demand for
judgment for the relief the pleader see$s.
In all averments of fraud or mista$e, the circumstances constituting the fraud or mista$e
must be stated with particularity. 5alice, intent, $nowledge, or other condition of the
mind of a person may be averred generally.
(very paper submitted to the court must be signed. 6y submitting to the court a pleading,
written motion, or other paper to the court, an attorney certifies to the best of his or her
$nowledge, information, or belief, after a reasonable inquiry has been made, that the
claim being brought1 2! will not cause unnecessary delay or needlessly increase litigation
costs, 3! is warranted on existing law or non,frivolous argument, 4! has evidentiary
support or will li$ely have evidentiary support after reasonable discovery has been made,
7! denials of factual contentions are warranted on the evidence or are reasonably based on
a lac$ of belief or information. If an attorney has violated any of the aforementioned
rules, a court may impose sanctions on the attorney after notice has been given and the
attorney has had a reasonable opportunity to respond.
"fter the defendant was served with process, did the defendant waive his right to object
to personal jurisdiction when he filed a 23b8 motion0
9ervice of process may be effectuated in three ways1 2! by following the state service of
process rules so long as those rules are constitutional, 3! by personally serving the
defendant, 4! by substituted service in which a copy of the summons and complaint is left
with an individual over the age of 2: who resides at the address of the party to be served
or to an individual who is legally authori;ed to receive service of process for the party to
be served.
9ubject matter jurisdiction may never be waived. The right to object to personal
jurisdiction is waived unless a defendant objects to personal jurisdiction in his first
responsive pleading or by filing a 23b3 motion. &aising an affirmative defense preserves
a defendant)s right to object to personal jurisdiction. " general appearance waives a
defendant)s right to object to personal jurisdiction while a special appearance allows a
defendant to object to personal jurisdiction without waiver.
There are two components to personal jurisdiction1 general jurisdiction and specific
jurisdiction.
" court has general jurisdiction over a defendant who has continuous and systematic
contacts with the forum state. .hen a court has general personal jurisdiction over a
defendant, the defendant may be sued for any and all claims including those not arising
out of the contacts with the state. In addition, a court may exercise a type of general
personal jurisdiction $nown as transient jurisdiction in which a defendant is personally
served with process while physically present in the forum state Burnham!.
" court has specific personal jurisdiction over a defendant if the defendant1 2! has
sufficient minimum contacts within the forum state and a lawsuit arises out of those
contacts, 3! has purposefully availed him<her<itself of the benefits, privileges, and
protection of the laws of the forum state or has purposefully directed his, her, or its
activities towards the forum state, and 4! can reasonably foresee being haled into court in
the forum state such that being haled into court does not offend traditional notions of fair
play and substantial justice. International Shoe and its progeny!
%ederal courts have coextensive personal jurisdictional reach with the state courts of the
states in which they sit.
.ill the court grant =ane)s motion to remove the case and change the venue0
" defendant may ma$e a motion to remove the case from state court to a federal district
court so long as the court would have had original jurisdiction over the case. Thus, the
case must be based on a federal question issue or diversity jurisdiction. " case based on
diversity may not be removed from a defendant)s home state. &emoval does not require
the consent of the plaintiff.
>enue is proper where1 2! any district where a defendant resides so long as all the
defendants reside in the same state, 3! a district in which a substantial proportion of the
events and transactions giving rise to the claim occurred, and if and only if the first two
prongs fail to yield a venue, then 4! in a federal question case, any district where a
defendant may be found, and in a diversity case, where a defendant is subject to personal
jurisdiction at the time the action was commenced.
Issues to $now1
?otice
Pleading
(xception to Pleading
9ervice of Process
.aiver
Transfer
9anctions
9ubject 5atter =urisdiction
9upplemental =urisdiction
=oinder
(rie
Personal =urisdiction
&emoval
"mendment
/efenses
"ffirmative /efense
%orum ?on 'onveniens
>erdicts
&emedies</amages