I.

Chapter 1 – Introduction To Civil Procedure And Practice:

A. The Study of The Subject of “Civil Procedure” And Its Importance:
1. Substantive Law -> the body of law governing the “primary rights
and obligations” of persons relative to others.
2. Civil procedure defines the form and method by which substantive
legal rights are enforced and provides the means for securing a
proper remedy if the client is entitled to one under the applicable
substantive law.
B. Stages of A Lawsuit:
1. Presuit Investigation -> factual investigation; legal research
conducted
2. Pleading -> the plaintiff states a claim in the complaint; the
defendant is served with process; the defendant states defenses in
preanswer motions and/or the answer
3. Provisional Remedies -> the plaintiff can secure temporary relief to
preserve:
 The status quo
 Assets to satisfy a final judgment
4. Discovery -> the parties use various methods of discovery to find
out and disclose information prior to trial
5. Pretrial Conferences -> the court organizes discovery and trial
through conferences with counsel
6. Summary Judgment -> one of the parties can obtain a judgment
without trial by showing:
 No genuine issue of material fact exists, and
 The party is entitled to judgment as a matter of law
7. Trial -> evidence is presented to the trier of fact; rules of evidence
govern what evidence will be allowed
8. Judgment -> an order (judgment) is entered based on the outcome
of the trial
9. Post-Trial Motions -> the parties may move for a new trial or
judgment as a matter of law
10. Appeal -> errors are presented to an appellate court in an attempt
to modify the result at trial
C. An Overview of a Civil Action:
 1. Presuit Investigation:
 Lawyer informs client of possibilities other than trial:
i. Negotiation
ii. Arbitration
iii. Mediation
iv. Other forms of Alternative Dispute Resolution (ADR)
2. The Plaintiff’s Initial Litigation Decisions:
 The plaintiff’s choice of court will be limited in at least three
ways:
i. Subject matter jurisdiction
ii. Personal jurisdiction
iii. Venue
 Choosing A Court Authorized To Hear A Particular Type of Case
(Subject Matter Jurisdiction)
i. Subject Matter Jurisdiction -> the court’s power to hear the
class of cases to which the plaintiff’s suit belongs.
ii. Limited And General Jurisdiction:
 Courts of general jurisdiction possess the broadest subject
matter authority of all the courts within a state.
 Courts of limited jurisdiction are authorized to hear only
certain kinds of cases.
iii. Concurrent or Exclusive Jurisdiction:
 When a court has concurrent jurisdiction with another court,
the plaintiff may choose to sue in either of the courts.
 If a court has exclusive jurisdiction over a class of cases, no
other court can validly exercise jurisdiction over cases
within that class.
iv. Original or Appellate Jurisdiction
v. No-Waiver or Consent Rule:

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  When subject matter jurisdiction is not a “waivable” object,
the inadvertent failure of the parties to raise a subject
matter jurisdiction will not result in the case being lost.
 If a court lacks jurisdiction under applicable constitutional or
statutory provisions, the parties cannot agree to have the
court hear the case anyway.
 Courts will raise subject matter jurisdiction objections
themselves whenever it appears that the case is beyond
their competence, even if the objections are not made by
any party to the action.
vi. Subject Matter Jurisdiction of The Federal Courts:
 Article III of the U.S. Constitution establishes the outer
boundaries of federal subject matter jurisdiction.
 All federal courts are courts of limited jurisdiction.
vii. Federal Question Jurisdiction:
 Federal question jurisdiction exists when the plaintiff’s claim
“arises under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. §1331
 For federal question jurisdiction to exist, normally, the
plaintiff’s claim must be create by federal law.
 Occasionally, cases exist in which state law creates the
plaintiff’s claim for relief, cub a substantial issue of federal
law forms an essential element of the plaintiff’s claim and
thus makes federal question jurisdiction proper.
viii. Diversity Jurisdiction:
 Diversity Jurisdiction -> suits between citizens of
different states on claims arising under state law.
 Must satisfy two components:
a. Diversity of citizenship must exist between defendant
and plaintiffs.
 There cannot be citizens of the same state on each
side of a law suit.
b. The amount in controversy must be satisfied (must
exceed $75,000)

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  A court may not dismiss a case for failure to meet the
amount in controversy requirement unless it appears to a
“legal certainty” that the plaintiff cannot recover more than
$75,000.
 A plaintiff is permitted to aggregate two or more claims
against a single defendant to meet the amount in
controversy requirement, no matter how unrelated the
claims are.
ix. Supplemental Jurisdiction:
 Federal courts are authorized by statute to exercise
supplemental jurisdiction over stat law claims that lack an
independent basis of federal jurisdiction, but are factually
related to claims that are properly within federal
jurisdiction.
 Choosing A Location Where the Particular Defendant May Be
Required to Appear and Defend (Personal Jurisdiction):
i. Personal Jurisdiction -> the court’s power to impose its
decisions on the particular parties in a law suit.
ii. Service of Process -> forms and papers, filed and delivered,
for the purpose of giving a defendant proper notice of the
action against the defendant.
iii. Long Arm Statutes:
 If the defendant lives outside the state, state long arm
statues will often authorize process to be served on the
defendant where the defendant resides.
 Due process requires that the defendant must receive
adequate notice of the action AND a “sufficient
connection” must exist between the defendant, the claim,
and the state to ensure that the state is a “fair” forum in
which to adjudicate the action.
iv. Waiver:
 A defendant will lose a personal jurisdiction objection unless
it is raised in a timely and proper fashion.

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  Personal jurisdiction rules are based on policies of party
protection; if the parties do not promptly raise objections
aimed at protecting their own interests, it is proper to
deem the objections waived.
 Choosing A Court in the Proper Location (Venue):
i. Venue In State Court Actions:
 Statutes usually define the proper venue.
 State venue rules often provide that actions brought in a
proper venue may be transferred by the court to a more
convenient location.
ii. Venue In Federal Court Actions:
 Also prescribed by statute.
 In diversity cases, the general federal venue statute
provides that the plaintiff may bring the action in a district
where the defendant resides or where the events giving
rise to the suit occurred.
iii. Local Action Rule:
 Transitory actions are actions that are based on events that
could have occurred anywhere.
 Local actions are actions that could have occurred in only
one place.
 Local actions always concern land in some respect, but not
all actions that concern land are local actions.
 Local actions may only be brought where those actions
occur.
 Choice of Law Considerations:
i. Traditionally, courts followed a “territorial approach to choice
of law problems:
 The lex loci (the law of the place where the right was
acquired or the liability was incurred) controlled the
substantive rights of the parties.
 The lex fori (the law of the forum or place where relief was
sought) controlled all procedural and remedial matters.
ii. Courts generally ignore the traditional approach today.
 Can The Plaintiff Join Multiple Claims In One Lawsuit?
i. Permissible Joinder of Claims:

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  In the federal courts and many states, the plaintiff may join
any number of claims against the defendant in the same
action.
 Even thought they are factually and legally unrelated to one
another, the claims may be joined as long as a basis exists
for the court to exercise subject matter jurisdiction,
personal jurisdiction, and venue with regard to each claim.
ii. The Prohibition on “Splitting” Claims:
 Certain rules governing finality of judgments might, as a
practical matter, compel a plaintiff to join certain related
claims that the plaintiff possesses against the defendant.
 Claim Preclusion -> once a party sues on a claim,
whether the party wins or loses, that party is thereafter
forbidden from suing on the same claim – or any part of it
– again.
 Who May (or Must) Be Named As Parties In The Lawsuit?
i. Permissive Joinder of Parties:
 The claims asserted by multiple plaintiffs or against multiple
defendants must arise out of the same transaction,
occurrence, or series of transactions or occurrences.
 At least one question of law or fact in common to the
multiple plaintiffs or defendants must exist in the action.
ii. Required Joinder of Parties:
 A person cannot be bound by a judgment unless the person,
or the person’s legal representative, was a party to the
action.
 These operate when, in the absence of another person,
“complete relief” cannot be accorded among the parties
already present in the suit.
 The public has an interest in preventing multiple lawsuits
between the person who are parties to the action when the
entire matter could be resolved in one lawsuit if the absent
person were joined. PAGE 35
II. Chapter 2 – Personal Jurisdiction And Related Matters:
A. Personal Jurisdiction -> the court’s power to impose its decisions on
the particular parties in a lawsuit.

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 B. The party who begins the lawsuit and selects the forum (plaintiff) is
assumed to have voluntarily submitted to personal jurisdiction in the
chosen forum.
C. A judgment entered against a defendant without valid personal
jurisdiction, violates the defendant’s U.S. Constitutional right to due
process of law and is not enforceable against the defendant in that
court or in any other court.
D. There are four constitutionally valid bases for acquiring personal
jurisdiction over a defendant:
1. Personal service of process upon the defendant within the forum
state
2. Consent by the defendant either before the lawsuit or by appearing
in the action without making a proper and timely objection to
personal jurisdiction
3. Domicile by the defendant in the forum state
4. “Minimum contacts” with the forum state by the defendant
E. The defendant must also be properly served with process (the
complaint together with a summons to appear) in order to complete
the court’s acquisition of personal jurisdiction over the defendant.
F. Section A. “Territorial” Rules of Jurisdiction:
1. Personal Jurisdiction Prior to the Adoption of the Fourteenth
Amendment:
 Prior to the Fourteenth Amendment (the due process clause),
governments had sovereign power only over persons and things
within their territorial boundaries.
i. State courts had authority over nonresident defendants who
were served with process while within the state.
ii. In Rem Jurisdiction -> A nonresident’s property within the
state could be seized and used as the basis of jurisdiction to
adjudicate a claim against the nonresident up to the limits of
the property.
 Full Faith And Credit Clause -> Article IV, §1 of the
Constitution, which has been determined to mean that a ruling in
one state’s court should be upheld in that of another state.
2. Incorporation of the Traditional Territorial Rules Into the Due
Process Clause of The Fourteenth Amendment:

7
  Pennoyer v. Neff (Page 71): OUTDATED, LATER CASES, NEW
RULES
i. Facts:
 Mitchell v. Neff:
a. Mitchell (P) is a lawyer representing Neff (D) in the
procurement of some land in Oregon.
b. Neff (D) fails to pay Mitchell (P) what is due him.
c. Mitchell (P) sues Neff (D) in order to recover his fees.
d. Mitchell (P) serves Neff (D) by publishing notice in a
local newspaper.
e. Not being a resident of Oregon, or currently residing
therein, Neff (D) does not get informed that there is a
trial against him.
f. As such, Neff (D) never shows up to the trial and the
courts rule against him in a default decision.
 After the trial of Mitchell v. Neff, the land that Mitchell was
procuring for Neff, becomes Neff’s, but the courts give it
(attach it) to Mitchell to sell off at a public auction in order
to gain monetary compensation for his (Mitchell’s)
services.
 Mitchell then buys the land from himself – dirt cheap –
turns around and sells it to Pennoyer for a pretty penny.
 Pennoyer (D) then spends the next 9 years making
improvements to the land.
 One day, Neff (P) swings by Oregon to use his land, but is
shocked to see Pennoyer (D) living there.
 One thing leads to another – Neff (P) sues Pennoyer (D) to
reclaim possession of his land.
 Neff (P) wins the suit in lower court against Pennoyer (D)
ii. Issue:
 Whether service by publication against a nonresident is
sufficient to confer jurisdiction, where an action involves
the adjudication of personal rights and obligations of the
parties.
iii. Rule:

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  Where the object of an action is to determine the personal
rights and obligations of the parties, service by publication
against a non resident is ineffective to confer jurisdiction
upon the court.
iv. Application of Rule:
 Service of process by publication in a local paper is only a
valid way of getting in rem jurisdiction (power over any
property they have in the state) against a non resident.
 Service by publication is ineffective to convey personal
jurisdiction (power over the person) to a court over a non
resident.
 No state can exercise direct (personal) jurisdiction and
authority over persons and property outside its
boundaries.
 Without personal jurisdiction, the Oregon court had no
authority over Neff, and Mitchell couldn’t get a judgment
against Neff from that court.
 Because the judgment was void, so was the sale of the
property to Pennoyer.
 How could this have been different?
a. Fact -> the land came into Neff’s possession after the
verdict.
b. Fact -> you can’t get awarded property that doesn’t
belong to someone if they lose to you in a court case.
c. If, however, the land belonged to Neff at the start of the
case, Mitchell could have sued for possession of it
(attached it) in the lawsuit.
d. Service by publication is sufficient to get in rem
jurisdiction (power) over the land, even if it is owned by
a non resident.
e. Rationale -> if you own land somewhere, you are
responsible for checking up on it once in a while, or
having some one else check up on it for you. If you
don’t, you don’t deserve to own the property. If you do,
then you will find out about the impending case against
you.

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 f. Why Neff couldn’t have had in rem jurisdiction over the
land -> you can’t attach land to a case that the
intended defendant does not yet own. In order to attach
land, it must be attached prior to a ruling by the court.
g. Because the land was attached after the court found for
Mitchell, the court didn’t even have in rem jurisdiction –
the land still belonged to Neff.
v. Conclusion:
 Affirmed
 The Operation of the Territorial Rules:
i. In Rem And Quasi in Rem Jurisdiction:
 In Rem Jurisdiction:
a. Pennoyer’s concepts of in rem jurisdiction were highly
dependent on the theory of state territorial power.
b. The states had power over property located within their
borders.
c. Consequently, the states could, by a proper procedure,
adjudicate the rights of nonresidents to that property.
d. Conversely, the states had no direct power to affect
property outside their borders.
 Quasi In Rem Jurisdiction:
a. If the absent defendant owned property in a state, the
property could be seized or attached, even if it were
unrelated to the subject matter of the proceeding.
b. Mitchell v. Neff would have been quasi in rem
jurisdiction if the land would have been attached
properly because the suit was over attorney’s fees, not
over possession of the land.
ii. In Personam Jurisdiction – Physical Presence – Personal
Service Upon The Defendant Within The Forum State:
 Jurisdiction Based on Transient Presence:
a. Under Pennoyer, personal service of process on a
defendant who was physically present in the forum
state was sufficient to subject the defendant to personal
jurisdiction consistent with the Due Process Clause.

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 b. Personal service of process upon a defendant while the
defendant is physically present in the forum state
remains a constitutionally valid basis for the exercise of
personal jurisdiction, even though the defendant is only
temporarily I the state and the lawsuit is unrelated to
the defendant’s in state activities.
c. Immunity From Service of Process (discretionary by
state):
d. States often provide immunity from service of process
when nonresident parties, non resident attorneys, or
non resident witness need to enter the forum to
participate in litigation there.
 Fraud-And-Force Rules (discretionary by state):
a. The states have rules prohibiting the acquisition of
jurisdiction over a non resident by fraud or force.
b. Based on the policy of preventing the plaintiff from
profiting from inequitable conduct.
iii. In Personam Jurisdiction – Consent, Appearance, And Waiver:
 Consent to jurisdiction by a part in a particular forum is a
constitutionally valid basis for asserting personal
jurisdiction.
 Conduct of the parties after the commencement of the
action can also form the basis for the valid exercise of
personal jurisdiction.
 After the action is commenced, any objection to personal
jurisdiction must be properly and timely raise or the
objection is “waived”.
 Traditionally, a defendant who wanted to object to personal
jurisdiction had to “specially appear” in the action for that
purpose only.
a. Replaced by a process of raising jurisdictional and other
objections by preanswer motion or in the answer [see
FRCP 12(b)].

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  The consolidation of personal jurisdiction objections with
other objections in a preanswer motion or in the answer
will not result in waiver of those objections [see FRCP
12(g)(2), (h)(1)(A)]
 Once a defendant has appeared in an action and litigated a
jurisdictional objection, the defendant is bound by the
determination of the jurisdictional issue in the original
action and the defendant’s only resource for review is an
appeal of the ruling in the appellate courts of the forum
state [direct attack].
 If a defendant appears in an action and the plaintiff seeks to
enforce the resulting judgment in another court, most
likely in the defendant’s home state or some other state
where the defendant has assets, the defendant is
precluded form arguing in that second court that the
judgment is unenforceable because the original court
lacked personal jurisdiction [collateral attack].
 It is only when the defendant makes no appearance
whatsoever in the original action that a “collateral attack”
of a judgment for lack of personal jurisdiction is allowed in
another proceeding.
iv. In Personam Jurisdiction – Domicile In The Forum State:
 Domicile as a Basis for Personal Jurisdiction:
a. Domicile refers to the place where a person resides and
considers home.
b. Blackmer v. United States -> Both nationality and
domicile are valid bases for asserting personal
jurisdiction over defendants [United States citizens
residing abroad could be validly served with process
outside the U.S. and subjected to the jurisdiction of
U.S. courts on the basis of their citizenship].
c. Similarly, a person domiciled in, but absent from, the
forum state could be validly subjected to personal
jurisdiction under an appropriately drafted long-arm
statute authorizing service of process on the defendant
outside of the state.

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 d. The theory of these cases rested upon the inherent
“power” that a government had over its citizens.
e. These cases refer to the theory that citizens of a state
enjoy the benefits and protections of that state’s laws,
and thus have a reciprocal obligation to answer suits in
the state.
 Issues of “Personal Status”:
a. Domicile also provided the basis for a state to exercise
jurisdiction to alter status.
b. For example, as was stated in Pennoyer, states have the
power to prescribe the conditions upon which the
marriage relationships between its “citizens” could
created and dissolved.
c. More specifically -> a court has the power to exercise
divorce jurisdiction on the basis of a plaintiff’s residence
when the defendant has “removed to a state where no
dissolution is permitted.”
G. Section B. The “Minimum Contacts” Test:
1. Development of Modern Restrictions On State Court Jurisdiction In
International Shoe:
 After Pennoyer, many of the due process cases concerning the
reach of state court jurisdiction involved corporations.
 International Shoe Co. v. Washington (Page 87):
i. Facts:
 Unemployment statute in Washington required contributions
by employers to the government.
 This statute gave power to the Washington Commissioner
(P), to give notice to nonresident companies owing monies
to the state, via mail.
 International Shoe (D) was incorporated in Delaware and
had its principal place of business in Missouri.
 A handful of salespeople were employed under the
supervision of managers in Missouri.
 These sales people lived and worked in Washington, but had
no authority to enter into contracts or make collections.

13
  International Shoe (D) had no offices in Washington and
made no contracts there.
 Service was made both on one of International Shoe’s (D)
salespeople in Washington and it was mailed to Shoe HQ in
Missouri.
 Washington (P) suing for monies owed to the
unemployment fund by International Shoe (D).
ii. Issue:
 Whether due process requires only that a nonresident have
“minimum contacts” with a state, for a state to have
personal jurisdiction over the nonresident without violating
notions of fair play and substantial justice.
iii. Rule:
 For a state to subject a non resident defendant to in
personam jurisdiction, due process requires that the non
resident defendant have certain minimum contacts with
the state such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice.
iv. Application of Rule:
 It used to be that the courts had jurisdiction to render
judgment in personam because of the power over the
defendant’s person, and the defendant’s presence within
the territorial jurisdiction of a court was necessary to a
valid judgment.
 Due process requires only that in order to subject a
defendant to a judgment in personam, if he is not present
within the territorial jurisdiction, he have certain minimum
contacts with the territory.
 The contacts must be such as to make it reasonable, in the
context of our federal system, to require a defendant
corporation to defend the suit brought here.
 An estimate of the inconveniences that would result to the
corporation from a trial away from its “home” is relevant.

14
  To require a corporation to defend a suit away from home
where its contact has been casual or its activities isolated
has been thought to lay too unreasonable a burden on the
corporation.
 However, even single or occasional acts may, because of
their nature, quality, and circumstances, be deemed
sufficient to render a corporation liable to suit.
 Satisfaction of due process depends on the quality and
nature of the activity in relation to the fair and orderly
administration of the laws.
 To the extent that a corporation exercises the privilege of
conducting activities within a state, it enjoys the benefits
and protection of the laws of that state.
 The exercise of that privilege may give rise to obligations,
and, so far as those obligations arise out of or are
connected with the activities within the state, a procedure
which requires the corporation to respond to a suit brought
to enforce them can, in most instances, hardly be said to
be undue.
 International Shoe’s (D) activities were neither irregular nor
casual; rather they were systematic and continuous.
 The obligation sued upon here arose out of these activities.
 They were sufficient to establish sufficient contacts or ties
to make it reasonable to permit Washington (P) to enforce
the obligations International Shoe (D) incurred.
v. Conclusion:
 Affirmed. [held for Washington (P)]
2. Reaction of The States To The Minimum Contacts Test – Enactment
of “Long Arm Statutes:
 After International Shoe, states began to enact “long arm”
statues designed to meet the requirement of the “minimum
contacts” test.

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 A. Uniform “Long Arm” Act §1.03:
B. (a) A court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a [cause of action]
[claim for relief] arising form the person’s
C. (1) Transacting any business in this state;
D. (2) Contracting to supply services or things in this state;
E. (3) Causing [a] tortuous injury by an act or omission in
this state;
F. (4) Causing [a] tortuous injury in this state by an act or
omission outside this state if [that person] regularly does
or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from
goods or consumed or services rendered, in this state;
[or]
G. (5) Having an interest in, using, or possessing real
property in this state; [or]
H. (6) Contracting to insure any person, property, or risk
located within this state at the time of contracting.

H.

1. Developing the “Content” of the “Minimum Contacts” Test:

 World Wide Volkswagen Corp. v. Woodson (Page 101):
i. Facts:
 Robinsons (P) purchase an Audi from Seaway Volkswagen,
Inc. (D), a N.Y. company.
 On their way to traveling to Arizona, they had an accident in
Oklahoma, which caused severe injury to the passengers.
 Robinsons (P) bring product-liability action in a district court
of Oklahoma, claiming that their injuries resulted from
defective design and placement of the Audi’s gas tank and
fuel system.
 They joined as defendants the automobile’s manufacturer,
Volkswagen (D).

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  Seaway and World-Wide entered special appearances,
claiming that Oklahoma’s exercise of jurisdiction over them
would offend the limitations on the States’ jurisdiction
imposed by the Due Process Clause of the Fourteenth
Amendment.
 World-Wide was incorporated and had its business office in
New York.
 It distributed vehicles, parts, and accessories, under
contract with Volkswagen, to retail dealers in New York,
New Jersey, and Connecticut.
 Seaway, one of those retail dealers, is incorporated and has
its place of business in New York.
 Neither defending party did any business in Oklahoma,
shipped or sold any products to or in that state, had an
agent to receive process there, or purchase
advertisements in any media calculated to reach
Oklahoma.
 In fact, there was no evidence showing that any automobile
sold by World-Wide or Seaway has ever entered Oklahoma
with the single exception of the vehicle involved in the
present case.
 Despite the apparent lack of contacts between petitioners
and Oklahoma, the District Court rejected the
constitutional claim and reaffirmed that ruling in denying
petitioners’ motion for consideration.
 They renewed their contention that, because they had no
“minimal contacts,” with the State of Oklahoma, with
actions of he District Judge were in violation of their rights
under the Due Process Clause.
 The Supreme Court of Oklahoma denied the writ, holding
that personal jurisdiction over petitioners was authorized
by Oklahoma’s “long-arm” statute.
ii. Issue:

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  Whether, consistently with the Due Process Clause of the
Fourteenth Amendment, a court can exercise in personam
jurisdiction over a non resident retailer and its wholesale
distributor, when the defendant’s only connection with that
state is the fact that their product sold in their home state
became involved in an accident in the venue state.
iii. Rule:
 A state court may exercise personal jurisdiction over a
nonresident defendant only so long as there exist
“minimum contacts” between the defendant and the forum
state, such that maintenance of the suit does not offend
traditional notions of fair play and justice.
iv. Application of Rule:
 The Due Process Clause of the Fourteenth Amendment
limits the power of a state court to render a valid personal
judgment against a nonresident defendant.
 The concept of minimum contacts can be seen to perform
two related functions:
a. It protects the defendant against the burdens of
litigating in a distant or inconvenient forum.
b. It acts to ensure that the states through their courts, go
do not reach out beyond the limits imposed on them by
their status as coequal sovereigns in a federal system.
 A judgment rendered in violation of due process is void in
the rendering state and is not entitled to full faith and
credit elsewhere. [Pennoyer v Neff]
 Due process requires that the defendant be given adequate
notice of the suit [Mullane v. Central Hanover Trust Co.]
and be subject to the personal jurisdiction of the court.
[international Shoe v. Washington]
 Defendant’s contacts with the forum state must be such
that maintenance of the suit “does not offend ‘traditional
notions of fair play and substantial justice’”.
 The relationship between the defendant and the form must
be such that it is reasonable to require the corporation to
defend the particular suit which is brought there.

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  The due process clause does not contemplate that a state
may make binding a judgment in personam against an
individual or corporate defendant with which the state has
no contacts, ties, or relations. [International Shoe]
 In this case, there is a total absence of those affiliating
circumstances that are necessary to predicate any exercise
of state court jurisdiction.
a. Petitioners carry on no activity whatsoever in Oklahoma.
b. They close no sales and perform no services there.
c. They avail themselves of none of the privileges and
benefits of Oklahoma law.
d. They solicit no business there either through
salespersons or through advertising reasonably
calculated to reach the state.
e. The record does not show that they regularly sold cars
at wholesale or retail to Oklahoma customers or
residents that they indirectly, through others, serve or
seek to serve the Oklahoma market.
 It was argued that because an automobile is mobile by its
very design and purpose, it was “foreseeable” that the
Robinson’s Audi would cause injury in Oklahoma.
a. “Foreseeability” alone has never been a sufficient
benchmark for personal jurisdiction under the Due
Process Clause.
b. If foreseeability were the criterion, every seller of
chattels would in effect appoint the chattel his agent for
service of process.
 Foreseeability is not irrelevant, but the foreseeability that is
critical to due process analysis is not the mere likelihood
that a product will find its way into the forum state.
a. Rather, it is that the defendant’s conduct and connection
with the forum state are such that he should reasonably
anticipate being hauled into court there.

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  When a corporation “purposefully avails itself of the
privilege of conducting activities within the forum state”, it
has clear notice that it is subject to suit there. [Hanson v.
Denckla]
 If the sale of a product of a manufacturer or distributor is
not simply an isolated occurrence, but arises from the
efforts of the manufacturer or distributor to server directly
or indirectly, the market for its product in other states, it is
not unreasonable to subject it to suit in one of those states
if its allegedly defective merchandise has there been a
source of injury to its owners or to others.
a. The forum state does not exceed its powers under the
Due Process Clause if it asserts personal jurisdiction
over a corporation that delivers its products into the
stream of comers with the expectation that they will be
purchased by customers in the forum state.
b. While it is foreseeable that the purchasers of
automobiles may take them to Oklahoma, the mere
unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the
requirement of contact with the forum state.
v. Conclusion:
 Reversed.
 The Helicopteros Case (1984):
i. Specific Jurisdiction -> an exercise of personal jurisdiction
“over a defendant in a suit arising out of or related to the
defendant’s contacts with the forum”.
ii. General Jurisdiction -> the exercise of jurisdiction “over a
defendant in a suit not arising out of or related to the
defendant’s contacts with the forum”.
2. Specific Jurisdiction:
 Burger King Corp. v. Rudzewicz (Page 108):
i. Facts:
 Burger King Corporation (P) is a Florida corporation whose
principal offices are in Miami.

20
  In exchange for access to the Burger King Corporation (P),
there is an initial payment and then monthly rend
payments that a franchisee has to pay.
 The governing contracts provide that the franchise
relationship is established in Miami and governed by
Florida law, and call for payment of all required fees and
forwarding all relevant notices to the Miami headquarters.
 Rudzewicz, a Michigan citizen and resident, is a co-owner
[jointly liable] of a Burger King franchise in the Detroit
area.
 When the papers were signed, Rudzewicz (D) obligated
himself personally to payments exceeding $1 million over
the 20-year franchise relationship.
 The franchise goes under, and the partners fall behind in
their monthly payments to Miami.
 HQ sent notices of default, and an extended period of
negotiations began among the franchisees, the District
Office, and HQ.
 Negotiations were unsuccessful, and Miami terminated the
franchise, ordering Rudzewicz (D) and partner to vacate
the premises.
 They refused and continued to occupy and operate the
facility as a Burger King restaurant.
 BK (P) brought action in Florida federal district court,
invoking diversity jurisdiction.
 Defendants made special appearance and argued, among
other things, that because they were Michigan residents
and because BK’s (P) claim did not “arise” within the
southern district of Florida, the district court lacked
personal jurisdiction over them.
 The court concluded that it had “jurisdiction over the
subject matter and the parties to this cause.”
 The court entered judgment against the defendants.

21
  Defendants appeal and get the judgment reversed on the
grounds that the District court could not properly exercise
personal jurisdiction over Rudzewicz (D) pursuant to the
Florida statute because the circumstances of the Drayton
Plains franchise and the negotiations which led to it left
Rudzewicz (D) bereft of reasonable notice and financially
unprepared for the prospect of franchise litigation in
Florida.
a. The panel majority concluded that jurisdiction under
these circumstances would offend the fundamental
fairness which is the touchstone of due process.
 BK (P) appealed.
ii. Issue:

iii. Rule:
 Direct and continuous contacts by a franchisee with the
franchisor may lead to the franchisee being subject to the
jurisdiction of the franchisor’s home forum.
iv. Application of Rule:
 The state of Florida’s long-arm statue extends jurisdiction to
“any person, whether or not a citizen or resident of this
state,” who, among other things, “breaches a contract in
his state by failing to perform acts required by the contract
to be performed in this state.”
 The Due Process Clause protects an individual’s liberty
interest in not being subject to the binding judgments of a
forum with which he has established no meaningful
“contacts, ties, or relations.” [International Shoe]
 By requiring that individuals have “fair warning that a
particular activity may subject them to the jurisdiction of a
foreign sovereign [Shaffer], the Due Process Clause “gives
a degree of predictability to the legal system that allows
potential defendants to structure their primary conduct
with some minimum assurance as to where that conduct
will and will not render them liable to suit [World Wide
Volkswagen].

22
  Where a forum seeks to assert specific jurisdiction over an
out of state defendant who has not consented to suit
there, this “fair warning” requirement is satisfied if the
defendant has “purposefully directed” his activities at the
residents of the forum, and the litigation results from
alleged injuries that “arise out of or relate to” those
activities.
 With respect to interstate contractual obligations, parties
who reach out beyond one state and create continuing
relationships and obligations with citizens of another state
are subject to regulation and sanctions in the other state
for consequences of their activities.
 A state generally has a “manifest interest” in providing its
residents with a convenient forum for redressing injuries
inflicted by out of state actors
 Where individuals “purposefully derive benefit” from their
interstate activities, it may well be unfair to allow them to
escape having to account in other states for consequences
that arise proximately from such activities.
 Not withstanding these considerations, the constitutional
touchstone remains whether the defendant purposefully
established “minimum” contacts in the forum state.
 Jurisdiction is proper where the contacts proximately result
from actions by the defendant himself that create a
“substantial connection” with the forum state.
a. Thus where the defendant “deliberately” has engaged in
significant activities with a state or has created
“continuing obligations” between himself and residents
of the forum, he manifestly has availed himself of the
privilege of conducting business there, and because his
activities are shielded by “the benefits and protections”
of the forum’s laws it is presumptively not unreasonable
to require him to submit to the burdens of litigation in
that forum as well.

23
  Jurisdiction in these circumstances may not be avoided
merely because the defendant did not physically enter the
forum state.
 When is a contract a contact?
a. A contract is but an intermediate step serving to tie up
prior business negotiations with future consequences
which themselves are the real object of the business
transaction.
b. It is these factors – prior negotiations and contemplated
future consequences, along with the terms of the
contract and the parties’ actual course of dealing – that
must be evaluated in determining whether the
defendant purposefully established minimum contacts
with the forum.
v. Conclusion:
 Reversed (finding for plaintiff)
 Notes And Questions:
i. The Burger King Two Step Minimum Contacts Test:
 In order for a court to have jurisdiction over a defendant,
a. The defendant must have purposefully availed itself of
the privilege of conducting activates in the forum state,
thus invoking the benefits and protections of the forum
state’s laws; AND
b. If purposeful contacts are present, the contacts must be
considered in light of other “reasonableness” or
“fairness” factors to determine whether the exercise of
personal jurisdiction would comport with “fair play and
substantial justice”
 Under the second part of this test, the defendant can only
invalidate the state’s assertion of jurisdiction by
demonstrating that the state is a substantially unfair forum
making the exercise of jurisdiction unreasonable.
 Reasonableness Factors To Be Considered And Balanced:
a. The burdens on the defendant of a suit within the forum
b. The forum state’s interest in adjudicating the dispute

24
 c. The plaintiff’s interest in obtaining convenient and
effective relief
d. The interstate judicial system’s interest in the most
efficient resolution of controversies
e. The shared interests of the several states in furthering
fundamental substantive social policies
 Deutsche Bank Securities, Inc. v. Montana Board of Investments
(PJ Handout p2):
i. Facts:
 Plaintiff -> Deutsche Bank Securities, Inc. -> Delaware
Corp. w/ HQ in NY
 Defendant -> Montana Board of Investments -> Montana
 Prior to incident, Deutsche (P) and Montana (D) spent 13
months negotiating and transacting with eight transactions
under their belt.
 This incident was for the purchase of Pennzoil bonds from
Montana (D), with first communication sent by Deutsche
(P).
 Montana (D) breaks the trade – Deutsche (P) sues in New
York for breach of contract.
 NY court grants motion to dismiss for lack of personal
jurisdiction.
 Appellate court reversed.
ii. Issue:
 Whether a court can have personal jurisdiction over a
defendant doing business in a state, even if the defendant
has never been in that state.
iii. Rule:
 Due to expanding technologies in travel and
communication, a defendant who enters into business in a
foreign state, avails itself of the benefits of the forum
state, and thus who should have reasonably expected to
defend its actions in that state, is subject to the personal
jurisdiction of a court in that state.
iv. Application of Rule:

25
  New York’s long arm statute provides that “a court may
exercise personal jurisdiction over any non-domiciliary…
who in person or though an agent… transacts any business
within the state or contracts anywhere to supply goods or
services in the state.”
 Proof of one transaction in NY is sufficient to invoke
jurisdiction, even though the defendant never entered NY,
so long as the defendant’s activities here were purposeful
and there is a substantial relationship between the
transaction and the claim asserted.
 The growth of national markets for commercial trade, as
well as technological advances in communication, enable a
party to transact enormous volumes of business within a
state without physically entering it.
 As long as a party avails itself of the benefits of the forum,
has sufficient minimum contacts with it, and should
reasonably expect to defend its actions there, due process
is not offended if that party is subject to jurisdiction even if
not present in that state.
 Montana (D) should reasonably have expected to defend its
actions in NY.
a. Not an out of state individual investor making a phone
call to a stockbroker in NY.
b. Montana (D) is a sophisticated institutional trader that
entered NY to transact business in NY by knowingly
initiating and pursuing a negotiation with a Deutsche
employee in NY.
v. Conclusion:
 Affirmed
 Asahi Metal Industry Co. v. Superior Court (Page 119):
i. Facts:
 Asahi (P), a Japanese corporation, made tire valve
assemblies in Japan and sold them to Cheng Shin, a
Taiwanese company who incorporated them into the
motorcycles they manufactured.
 Zurcher was badly injured in a motorcycle accident.

26
  He sues Cheng Shin for product liability.
 Cheng Shin Sought indemnity from Asahi (P).
 Asahi (P) claimed that the California court didn’t have
personal jurisdiction.
 Asahi’s (P) sales to Cheng Shin took place in Taiwan, and
shipments went from Japan to Taiwan.
 Superior court (D) denied the motion to quash, finding it
reasonable that Asahi (P) defend its claim of defect in their
product.
 Court of appeals issued a peremptory writ commanding the
superior court (D) to quash the summons.
 State supreme court reversed and discharged the writ,
finding that Asahi’s (P) awareness that some of its product
would reach California by placing it in the stream of
commerce satisfied minimum contacts sufficient to sustain
jurisdiction.
 From this decision Asahi (P) appealed.
ii. Issue:
 Whether minimum contacts sufficient to sustain jurisdiction
are satisfied by the placement of a product into the stream
of commerce, coupled with the awareness that its product
would reach the forum state.
iii. Rule:
 Minimum contacts sufficient to sustain jurisdiction are not
satisfied simply by the placement of a product into the
stream of commerce coupled with an awareness that its
product would reach the forum state.
iv. Application of Rule:
 Holding (O’Connor):
a. To satisfy minimum contacts, there must be some act
by which the defendant purposefully avails itself of the
privilege of conducting activities with the forum state.
b. The defendant must do more than place a product in the
stream of commerce.
c. The unilateral act of a consumer bringing the product to
the forum state is not sufficient.

27
 d. Asahi (P) has not purposefully availed itself of the
California market.
e. It does not do business in the state, conduct activities,
maintain offices or agents, or advertise.
f. Assertion of jurisdiction based on these facts exceeds
the limits of due process.
 Concurrence (Stevens):
a. The minimum contacts analysis is unnecessary; the
court has found by weighing the appropriate factors
that jurisdiction under these facts is unreasonable and
unfair.
v. Conclusion:
 Reversed and remanded.
3. Application of the Minimum Contacts Test to Internet Activities:
 As a practical matter, internet activities do not involve territorial
boundaries in a traditional sense.
 Harmful effects can be felt in distant locations, including
unexpected ones.
 The lower court decisions have attempted to apply the standards
of the “minimum contacts” test to specific contexts involving
internet activities.
 Gator.com Corp. v. L.L. Bean, Inc. -> out of state vendor’s highly
interactive website that generates multimillion dollar
merchandise sales to forum residents is enough to subject the
vendor to general jurisdiction in the state.
 Jennings v. AC Hydraulic A/S -> assertion of long arm jurisdiction
based solely on passive website that only provided information
about the manufacturer and products insufficient to satisfy due
process.
 Cybersell, Inc. v. Cybersell, Inc. -> specific jurisdiction in a
distant forum not allowed in a trademark infringement case
based on the use of the plaintiff’s mark on the defendant’s
homepage because the contacts with the distant forum were not
“purposeful” and there was no evidence that the defendant had
done business with anyone in the distant forum.

28
  Maritz, Inc. v. CyberGold, Inc. -> specific jurisdiction on a distant
forum proper under the “tortuous act” provision of a long arm
statute based on advertising accessible from anywhere around
the world on the website.
 Zippo Mfg. Co. v. Zippo Dot Com, Inc. -> suggesting the
likelihood that personal jurisdiction can be constitutionally
exercised is directly proportionate to the nature and quality of
commercial activity that an entity conducts over the internet,”
which is essentially a sliding scale approach.
I. Section C. The Status of The “Territorial” Rules After International
Shoe:
1. The court’s decision in International Shoe did not clearly indicate
 Whether the “minimum contacts” test was replacing the
traditional territorial rules approved in Pennoyer, or
 Whether the territorial rules would still be valid bases for
acquiring jurisdiction over nonresidents and the “minimum
contacts” test would constitute an additional way that the states
could satisfy due process when the territorial rules were not
satisfied.
2. Shaffer v. Heitner (Page 138):
 Facts:
i. Heitner (P) owned one share of Greyhound (D) stock.
ii. Greyhound (D) had been subjected to a large antitrust
judgment in Oregon.
iii. Heitner (P), a non resident of Delaware, brought a derivative
suit in Delaware, the state of Greyhound’s (D) incorporation.
iv. Jurisdiction was based on sequestration of Greyhound (D)
stock that was deemed to be located within the state of
incorporation.
v. The Delaware sequestration statute allowed property within
the state to be seized ex parte to compel the owner to submit
to the in personam jurisdiction of the court.
vi. None of the stock was actually in Delaware, but a freeze
order was placed on the corporate books.
vii. Greyhound (D) made a special appearance to challenge the
court’s jurisdiction to hear the matter.

29
 viii. Greyhound (D) argued that the sequestration statute was
unconstitutional because there were insufficient contacts with
Delaware to justify an exercise of jurisdiction.
ix. The Delaware courts found that the sequestration statute was
valid since it was not a per se seizure of the property and was
merely invoked to compel out of state residents to defend
actions within the state.
x. Little or no consideration was given to the “contact”
argument based on a finding that the presence of the stock
within the state conferred quasi in rem jurisdiction.
 Issue:
i. Whether a state may assume jurisdiction over an issue merely
because defendant’s property happens to be within the state.
 Rule:
i. Jurisdiction cannot be found on property within a state unless
there are sufficient contacts within the meaning of the test
developed in International Shoe.
 Application of Rule:
i. Holding (Marshall):
 Mere presence of property within a state is insufficient to
confer jurisdiction on a court absent independent contacts
within the meaning of International Shoe, which would
make acceptance constitutional.
 If sufficient contacts do not exist to assume jurisdiction
absent the presence of property within the state, it cannot
be invoked on the basis of property within the court’s
jurisdiction.
 The defendants do not reside in Delaware or have any
contacts there.
ii. Concurrence (Powell):
 I would only disagree as to cases involving property
permanently within the state.
 Conclusion:
i. Reversed. Found for Defendant
3. Burnham v. Superior Court (Page 147):
 Facts:

30
 i. Dennis Burnham (P) and his wife were living in NJ when they
decided to separate.
ii. Mrs. Burnham moved with the children, at which time he was
served with a California court summons and a copy of his
wife’s divorce petition.
 Mr. Burnham (P) was visiting his children in California when
he was served.
iii. He claimed that the court didn’t have personal jurisdiction
because his only contacts with California were a few short
visits to the state for the purpose of conducting business and
visiting his children.
 Issue:
i. Whether the state courts have jurisdiction over nonresidents
who are physically present in the state.
 Rule:
i. State courts have jurisdictions over nonresidents who are
physically present in the state.
 Application of Rule:
i. Holding (Scalia):
 Jurisdiction based on physical presence alone constitutes
due process because it is one of the continuing traditions
of our legal system that define the due process standard of
traditional notions of fair play and substantial justice.
 Conclusion:
i. Affirmed.
4. Section E. Due Process Requirements of Notice:
 Notice of the Commencement of The Action:
i. Mullane v. Central Hanover Bank & Trust Co (PJ handout p5):
 Facts:
a. A NY statute allowed corporate trustees to pool the
assets of numerous small trusts administered by them.
b. This allowed more efficient and economical
administration of the funds.
c. Each participating trust shared ratably in the common
fund, but the trustees held complete control of all
assets.

31
 d. A periodic accounting of profits, losses, and assets were
to be notified of the accounting so that they might
object to any irregularities in the administration of the
common fund.
e. Once approved by the court, their claims would be
barred.
f. A guardian would be appointed to protect the interests of
principal and income beneficiaries.
g. Central Hannover Bank (D) established a common fund
by consolidating the corpus of 113 separate trusts
under their control.
h. Notice of the common fund was sent to all interested
parties along with the relevant portions of the statute.
i. Notice of accountings was by publication in an interest in
a local NY newspaper.
j. Mullane (P) was the appointed guardian for all parties
known and unknown who had an interest in the trust’s
income.
k. He objected to the sufficiency of the statutory notice
provisions claiming that they violated the Due Process
Clause of the 14th Amendment.
l. Notice by publication was not a reasonable method of
informing interested parties that their rights were being
affected, especially with regard to out of state
beneficiaries.
m. Mullane’s (P) objections were overruled in state courts
and the present federal appeal was brought by him.
 Issue:
a. Whether notice by publication is sufficient to satisfy due
process challenges where the parties to be informed
reside out of state and an alternative means, better
calculated to give notice, is available.
 Rule:

32
 a. In order to satisfy due process challenges, notice must
be by means calculated to inform the desired parties,
and, where they reside outside of the state and their
names and addresses are available, notice by
publication is insufficient.
 Application of Rule:
a. The purpose of a notice requirement is to inform parties
that their rights are being affected.
b. Therefore, the method chosen should, if at all possible,
be reasonably designed to accomplish this end.
c. Notice in a NY legal paper is not reasonably calculated to
provide out of state residents with the desired
information.
d. While the state has a right to discharge trustees of their
liabilities though the acceptance of their accounting, it
must also provide beneficiaries with adequate notice so
that their rights to contest the accounting are not lost.
e. In cases where the identity or whereabouts of
beneficiaries or future interest holders is unknown, then
publication is the most viable alternate means available
for giving notice.
f. Publication is only a supplemental method of giving
notice; the court will approve its use where alternative
methods are not reasonably possible or practical.
g. Where alternative methods, better calculated to give
actual notice, are available, publication is an
impermissible means of providing notice.
h. It fails because under the circumstances, it is not readily
calculated to reach those who could easily be informed
by other means at hand.
 Conclusion:
a. Reversed and remanded.
ii. Jones v. Flowers (Page 161):
 Facts:
a.
 Issue:

33
 a.
 Rule:
a.
 Application of Rule:
a.
 Conclusion:
a.
 Notice And Opportunity To Be Heard In The Context of Provisional
Remedies:
i. Connecticut v. Doehr (Page 171):
 Facts:
a.
 Issue:
a.
 Rule:
a.
 Application of Rule:
a.
 Conclusion:
a.
III. Chapter 4 – Subject Matter Jurisdiction:
A. Section A. Overview of The Subject Matter Jurisdiction of The Federal
System:
1. The Federal Judicial System:
 Judicial Power Under Article III:
i. Article III, §1 of the US Constitution provides that “the judicial
power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from
time to time ordain and establish”.
2. Federal Courts As Courts of Limited Jurisdiction:
 Article III, §2 of the Constitution defines the outer limits of
federal jurisdiction and expressly enumerates nine categories of
cases and controversies to which federal judicial power extends:
i. All cases, in law and equity, arising under the Constitution, the
laws of the United States, and treaties made, or which shall
be made, under their authority

34
 ii. All cases affecting ambassadors, other public ministers and
consuls
iii. All cases of admiralty and maritime jurisdiction
iv. Controversies to which the US is a party
v. Controversies between two or more states
vi. Controversies between a state and citizens of another state
vii. Controversies between citizens of different states
viii. Controversies between citizens of the same state claiming
lands under grants of different states
ix. Controversies between a state, or citizens thereof and foreign
states, citizens or subjects.
3. Subject Matter Jurisdiction of the US Supreme Court:
 Original Jurisdiction:
i. All cases affecting ambassadors, other public ministers and
counsels, and those in which a state shall be a party
 Appellate Jurisdiction
4. Subject Matter Jurisdiction of The Lower Federal Courts And the
Need for Both Constitutional And Statutory Authority:
 With respect to the lower federal courts, all grants of subject
matter jurisdiction, whether appellate or original, must be
affirmatively authorized by Congress.
 Both constitutional and statutory authorization must be present.
5. Seriousness of A Subject Matter Jurisdiction Deficit:
 The parties may not waive subject matter jurisdiction deficiencies
or confer subject matter on an American court by consent.
 If the parties do not raise a subject matter jurisdiction, the court
in which the action is commenced is obligated to raise the
objection on its own initiative (sua sponte).
 RULE 12(h)(3) -> if the court determines at any time that it
lacks subject mater jurisdiction, the court must dismiss the
action.
 If neither the parties nor the trial court raises a subject matter
jurisdiction objection, an appellate court before which the case is
obligated to raise the objection on its own initiative and reverse
the judgment for lack of subject matter jurisdiction if the
objection is valid.

35
 6. Hierarchical Order of Consideration:
 Federal courts must first decide whether they have subject matter
jurisdiction over an action before deciding whether the complaint
states a claim upon which relief can be granted.
7. Effect of A Dismissal Because of Lack of Subject Matter Jurisdiction:
 Dismissal of a claim for lack of subject matter jurisdiction in the
federal courts is not considered an adjudication on the merits of
the claim and, therefore, such claims may be refilled in any state
court where subject matter jurisdiction is proper.
8. Refiling In State Court – Statute of Limitations Tolling:
 Many states provide for the “tolling” of any applicable statute of
limitations while an action is pending in federal court if the action
is thereafter dismissed for lack of jurisdiction.
 Tolling -> the statute of limitations will not bar a claim when the
action that “tolls” the limitations period is commenced before the
expiration of the limitations period.
 Tolling provisions permit the dismissed party to refile the action in
state court, generally within a specified period of time, even
though the statute of limitations on the claim would have
otherwise expired during the pendency of the federal action.
i. Usually six months grace period
B. Section B. Federal Question Jurisdiction:
1. The Scope of The Constitutional Grant:
 Osborn’s “Ingredient” Theory:
i. Osborn v. Bank of United States -> supreme court held
that Article III of the Constitution permits Congress to confer
jurisdiction on the federal courts pursuant to the “arising
under” language of Article III whenever federal law forms an
“ingredient” in the case.
ii. Federal question jurisdiction is considered proper under Article
III whenever federal law forms an “ingredient” of any part of
the case, irrespective of whether the federal law is technically
part of the plaintiff’s initial claim, the defendant’s defense, or
the plaintiff’s reply to a defense.
 Relationship Between The Constitutional Grant And Federal
Statutory Grants of Jurisdiction:

36
 i. 28 USC §1331 -> US District Courts have subject matter
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.
ii. It is not permissible for the district courts to exercise subject
matter jurisdiction over all cases in which federal law forms
an “ingredient” of the case - §1331 requires that the plaintiff’s
claim be properly based on federal law.
iii. 28 USC §1442(a) -> Congress authorizes removal of actions
commenced against a federal officer in state court provided a
federal defense is asserted by the federal officer, even though
the plaintiff’s claim is based entirely on state law.
2. The Scope of the Statutory Grant:
 Under 28 USC §1331, the plaintiff’s claim must “arise under”
federal law before statutory federal question jurisdiction will
exist.

i. Cases In Which Federal Law Creates The Plaintiff’s Claim For

Relief:
 The vast majority of cases qualifying for federal question
jurisdiction under §1331 are those in which federal law
creates the plaintiff’s claim for relief.
 Arbaugh v. Y&H Corp. (SUPP):
a. Facts:
 Arbaugh (P) sued former employer Y&H (D) for
sexual harassment in federal court.
 Fed. TC awarded Arbaugh (P) $40,000.
 Two weeks after the verdict was rendered, Y&H (D)
moved to dismiss the entire action for want of
federal subject matter jurisdiction.

37
  The anti-discrimination law that governs sexual
harassment defines an employer has having 15 or
more employees.
 After verdict, Y&H (D) suddenly claimed that they
had less than 15 employees.
 Fed. TC thought it was obligated to dismiss.
 Arbaugh (P) appeals.
b. Issue:
 Whether the limitation conditions subject matter
jurisdiction or the merits of the case condition
subject matter jurisdiction.
c. Rule:

d. Application of Rule:
 To spare very small businesses from Title VII
liability, Congress provided that:
(i) The term ‘employer’ means a person engaged in
an industry affecting commerce who has fifteen or
more employees for each working day in each of
twenty or more calendar weeks in the current or
preceding calendar year, and any agent of such
person.
 Under §1367, federal courts may exercise
“supplemental” jurisdiction over state-law claims
linked to a claim based on federal law.
 Arbough (P) did so in the instant case by adding to
her federal complaint pendent claims arising under
state law that would not independently qualify for
federal court adjudication.
 The objection that a federal court lacks subject
matter jurisdiction 12(b)(1) may be raised by a
party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry
of judgment.

38
  Rule 12(h)(3) instructs: “whenever it appears by
suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court
shall dismiss the action.
 By contrast, the objection that a complaint “fails to
state a claim upon which relief can be granted”,
12(b)(6) cannot be asserted post trial.
e. Conclusion:
 Reversed dismissal.
ii. Well Pleaded Compliant Rule:
 The well pleaded complaint rule requires that federal law be
an essential element of the plaintiff’s claim.
 Federal law that is only properly asserted as a defense by
the defendant does not count for jurisdictional purposes.
 Although a case “arises under” federal law for purposes of
Article III if federal law forms an “ingredient” of any part of
either the plaintiff’s or the defendant’s case, for purposes
of §1331 an action only “arises under” federal law if
federal law is an essential element of the plaintiff’s claim.
 Under the well pleaded complaint rule, the claims and
defenses of the defendant do not qualify for federal
question jurisdiction, and the plaintiff may not properly
raise an issue of federal law in the plaintiff’s compliant
solely in anticipation of or in reply to a defense or claim of
the defendant.
 Louisville & Nashville Railroad Co. v. Mottley (Page 247):
a. Facts:
 Mottley’s (residents and citizens of Kentucky)
brought suit in federal court against RR, also a
citizen of Kentucky.
 Mottley’s wanted to compel specific performance of a
contract.
 They agreed not to sue RR over a train accident if
they got free passes for life.
 Passes not renewed because of new law prohibiting
giving free passes or transportation.

39
 b. Issue:
 Whether the federal court had jurisdiction to hear
the case.
c. Rule:
 Federal law must create plaintiff’s claim for relief.
 One cannot get federal jurisdiction based on the
anticipation of a defense of federal law.
d. Application of Rule:
 Mottley (P) sued in federal court without diversity
jurisdiction claiming that the law didn’t prohibit their
passes.
 Also asserted that RR would use defense that it did,
and then there would be a claim under fifth
amendment – deprivation of property.
 It would be wholly unnecessary and improper in
order to prove complaintant’s cause of action to go
into any matters of defense which the defendants
might possibly set up, and then attempt to reply to
such a defense, and thus, if possible, to show that a
federal question might or probably would arise in the
course of the trial of the case.
e. Conclusion:
 Reversed and remitted to circuit court with
instructions to dismiss for want of jurisdiction.
 Any case that does not satisfy the well pleaded complaint
rule must be litigated in state court.
iii. Meeting The Requirements for Arising Under jurisdiction IN
Category 2 federal question cases:
 Grable & Son’s Metal Products, Inc. v. Darue Engineering
and Manufacturing (Page 251):
a. Facts:
 IRS seized Michigan real property belonging to
Grable to satisfy federal tax delinquency.
 IRS required to give notice of seizure.
 Grable received notice by certified mail prior to IRS
sale of property.

40
  Grable also received notice of sale itself, but failed to
redeem the property within 180 days of sale.
 Statutory period passed and govt sold property to
Darue.
 5 years later, grable bbought suit in state court
claiming that Darue’s record title was invalid because
IRS had failed to notify Grable of its seizure in the
exact manner required by law.
 Law required written notice must be given to owner
of property or left at usual place of abode or
business.
 Grable said that statute required personal service,
not service by certified mail.
 Darue removed the case to federal district court as
presenting a federal question, because the claim of
title depended on the interpretation of the notice
statute in the federal tax law.
 District court declined to remand the case back to
state court at Grable’s behest after finding that the
claim, does pose a significant question of federal law.
b. Issue:
 Whether want of a federal cause of action to try
claims of title to land obtained at a federal tax sale
precludes removal to federal court of a state action
with non-diverse parties raising a disputed issue of
federal title law.
c. Rule:
 A federal court ought to be able to hear claims
recognized under state law that nonetheless turn on
substantial questions of federal law.
d. Application of Rule:

41
  The national interest in providing a federal forum for
tax litigation is sufficiently substantial to support the
exercise of federal question jurisdiction over the
disputed issue on removal, which would not distort
any division of labor between the state and federal
courts, provided or assumed by congress.
 Darue was entitled to remove the action if Grable
could have brought it in federal district court
originally.
 Whether Grable was given notice within the meaning
of the federal statute is thus an essential element of
his state claim, and the meaning of the federal
statute is actually in dispute.
e. Conclusion:
 The judgment upholding federal jurisdiction over
Grable’s action is affirmed.
3. Distinguishing Proper Subject Matter jurisdiction in a Federal
question case from Ultimate Success on the Merits:
 Subject matter jurisdiction in a federal question case is based on
the existence of a substantive claim that properly “arises under”
federal law.
 It is not necessary, however, that a plaintiff ultimately succeed on
the substantive merits of the claim giving rise to federal question
jurisdiction for subject mater jurisdiction to properly exist in the
action.
 Even though the plaintiff fails to succeed on its substantive claim
and loses the case on the merits, the court is not divested of
jurisdiction and the action need not be dismissed for lack of
subject matter jurisdiction.
 It is only when the alleged federal law claim “clearly appears to
be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and
frivolous and so patently without merit, the dismissal for lack of
subject matter jurisdiction is warranted.

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 i. Grable found that notice did not violate federal law as plaintiff
had alleged and that the plaintiff’s claim should be dismissed
on merits.
ii. Even though the claim lost, the court still had the jurisdiction
to hear the case in order to decide that it wouldn’t win.
 “Jurisdiction… is not defeated… by the possibility that the
averments might fail to state a cause of action on which the
plaintiff could actually recover. For it is well settled that the
failure to state a proper cause of action calls for a judgment on
the merits and not for a dismissal for want of jurisdiction.” Bell
v. Hood, 327 U.S. 678 (1946).
4. Scope of the Statutory Grant in Declaratory Judgment Actions:
 Nature of the Declaratory Judgment Remedy:
i. An action for a declaratory judgment seeks a judicial
declaration of the parties’ legal rights and obligations as
applied to an actual controversy between the parties.
ii. It is especially useful in cases in which the parties need an
authoritative statement from a court to settle a dispute over
their legal rights, but the dispute has not yet reached the
stage at which either party possesses a claim for legal or
equitable relief or the party possessing such a claim chooses
not to sue on it at the time.
 Federal Declaratory Judgment Act:
i. One serious impediment to declaratory judgments in the
federal system was the hallowed principle of constitutional
law that federal courts have no constitutional authority to
render “advisory opinions” because such actions do not
constitute “cases or controversies” within the meaning of
Article III, §2 of the constitution.
ii. 1933, Supreme Court held that actions for declaratory relief
can qualify constitutionally as “cases or controversies” with
the meaning of Article III.
iii. Congress with federal declaratory judgment act.

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  §2201 -> in a case of actual controversy within its
jurisdiction… any of the United States, upon the filing of an
appropriate pleading may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.
 In evaluating whether a declaratory judgment action is
suitable for federal question jurisdiction, the first question
that must be asked if whether either party to the
declaratory judgment action could have commenced a
traditional action for legal or equitable relief in federal
court based on federal question jurisdiction.
 The claims of both sides are examined in the jurisdictional
analysis because in a declaratory judgment action, the
position of the parties is often the exact reverse of what it
would be in a traditional action for legal or equitable relief.
 Skelly Oil -> federal question jurisdiction is still improper in
a declaratory judgment action if the issue of federal law
would have been raised as a defense to a state law claim
in a traditional suit for legal or equitable relief.
 The Franchise Tax Board Qualification:
i. A plaintiff cannot always sue in federal court for declaratory
judgment just because the defendant could have sued within
the federal question jurisdiction for a non declaratory remedy.
ii. In addition, the court held that the declaratory judgment
plaintiff must also have a “clear interest” in a swift federal
resolution of the issue of federal law upon which the parties
disagree.
iii. Clear interest is established by being faced with two
completely unpalatable choices.
C. Diversity And Alienage Jurisdiction:
1. Relationship between the Constitutional And Statutory Grants of
Diversity Jurisdiction:
 §1332(a)(1) -> provides for original jurisdiction over all civil
actions between citizens of different states when the amount in
controversy exceeds $75,000.

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  Alienage Jurisdiction -> §1332(a)(2-4) provides for jurisdiction
over cases between state citizens and foreign nationals.
 Jurisdiction in all diversity cases is concurrent with the state
courts, and such actions do not have to be filed in federal court.
 In narrowing the constitutional grant §1332 imposes an amount
in controversy requirement and also requires “complete diversity
of citizenship”, i.e. EVERY PLAINTIFF MUST BE DIVERSE FROM
EVERY DEFENDANT
 On the other hand, the constitutional grant has no amount in
controversy requirement and allows for jurisdiction based on
“minimal diversity” (at least one plaintiff is diverse from at least
one defendant.)
2. Purposes of Diversity Jurisdiction:
 Unlike federal question jurisdiction, which is based on the
plaintiff’s claim arising under federal law, diversity jurisdiction is
based solely on the citizenship of the litigants, irrespective of the
substantive nature of the plaintiff’s claim.
 Diversity jurisdiction provides a basis for the assertion of purely
state law claims in federal court simply because the litigants are
citizens of different states.
 The traditional justification for diversity jurisdiction is that, even
though diversity cases are not based on federal law, a neutral
federal forum is necessary to protect against bias in state courts
in cases involving out of state litigants.
3. A Litigant’s Perspective:
 The Erie doctrine requires a federal court adjudicating a state law
claim to apply the same substantive law that a state court would
have applied if the case had been commenced in the state court
in which the federal court is sitting.
i. Thus, in theory, the litigants would not receive any substantive
law advantage by filing a diversity case in federal court.
 Litigants choose federal court because they perceive some
procedural or tactical advantage in federal court.
 Wider jury pool (district wide and not county wide).
 State substantive law applies, but federal procedural law applies.
4. Alienage Jurisdiction:

45
  A person who is neither a citizen of the united states nor a citizen
or subject of any nation – a so-called “stateless alien” cannot
sue or be sued within the alienage jurisdiction.
 No authorization of jurisdiction in a suit solely between foreign
states or citizens or subjects of foreign states.
5. 1988 Amendment to §1332:
 An alien admitted to the US for permanent residence shall be
deemed a citizen of the state in which such alien is domiciled.
 CAN BE INTERPRETED TO CREATE ALIENAGE JURISDICTION IN CASDES SOLELY
BETWEEN TWO ALEINS.
6. Special Diversity Statutes:
 The Multiparty, Multiforum Trial Jurisdication Act of 2002:
i. Congress conferred jurisdiction on the district courts in certain
mass tort civil actions where at least 75 “natural persons”
have died in an accident “at a discrete location”
ii. Act only requires minimal diversity.
7. Suites Between Citizens of Different States:
 Definition of A Citizen of a State:
i. In order to be a citizen of a state within the meaning of §1332,
a natural person must be:
 Legally domiciled in that state, and
 A citizen of the United States
ii. People retain their existing domiciles until they acquire new
ones.
iii. A new domicile can only be acquired by being physically
present in a new state and simultaneously having the intent
to make the new state a home.
iv. To effectuate a change in domicile, the factors of physical
presence and intent must coincide.
v. The intent must be a present intention to make the new place
a home, not an intent to make the new place a home in the
future.
vi. A US citizen domiciled abroad may not sue or be sued under
the diversity statute.

46
  A US citizen domiciled abroad is neither a citizen of a state
(because the person is not domiciled in any state) nor a
citizen or subject of a foreign state (because the person is
a citizen of the US).
 Corporations:
i. A corporation has dual citizenship – corporations are citizens of
any state by which they have been incorporated and the state
where their principal place of business is located.
 Walls v. Ahmed (Page 269):
i. Facts:
 Ahmed (D) contends that there was not subject matter
jurisdiction for trial court to hear case.
 Auto accident results in a wrongful death suit.
 Decedent was traveling from her former home in NJ to her
new home in FL when the accident occurred.
 Jurisdiction premised on diversity of citizenship.
 Walls (P) asserts decedent was a citizen of FL.
ii. Issue:
 Whether the fact that the Decedent had not completed
moving to her new home precludes her from being a
citizen of the state she considered her permanent home.
iii. Rule:
 In order to establish citizenship when changing domicile,
there needs to be both an intent element and a physical
element establishing domicile.
 As between two homes, a person’s principle home is that to
which he is more closely related, or stated in other words,
that which is more nearly the center of his domestic, social
and civil life.
iv. Application of Rule:
 In order to sustain jurisdiction based on diversity of the
parties, there must exist an actual, substantial controversy
between citizens of different states, all of whom on one
side of the controversy are citizens of different states from
all parties on the other side.

47
  Legal representative of a decedent’s estate is deemed to be
a citizen of the same state as the decedent.
 Mere residence in a state is not sufficient to establish
citizenship for purposes of diversity.
 The concept of domicile is controlling.
 The test for determining domicile centers on two factors:
a. The intent of the person in question to make a particular
location their permanent home, AND
b. Physical presence
 Where a person changes his state of residence, a
presumption in favor of the original domicile arises,
however, no minimum residence time period exists before
a person can establish a new domicile.
 The court finds clear evidence that the decedent intended to
make FL her home.
 In addition to the substantial step of purchasing a home in
FL, she spend a significant amount of time in FL.
 She made a considerable physical and emotional
commitment to FL.
 The court finds that the decedent established a significant
and lasting physical presence in FL and abandoned her
home in NJ.
v. Conclusion:
 Decedent was citizen of FL. Found for Walls.
 Nerve Center Test -> generally, the principle place of business
is determined by looking at the total activities of the corporation.
If the bulk of the corporate activity takes place in one state, that
state will be its principal place of business. However, if its
activities are spread across a number of states and no state
clearly has a predominate amount of the activity, the state
where the corporation has its headquarters or home office will be
its principal place of business.
 How should the citizenship of an unincorporated association be
determined? –such an association is a citizen of every state
where one of its members is a citizen.
D. Supplemental Jurisdiction:

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 1. Overview:
 Under the jurisdictional statutes you have studied thus far, proper
jurisdiction must exist over all claims asserted in a federal court
action.
 Many cases involve multiple claims and multiple parties, and
proper jurisdiction must exist over these additional claims as
well.
 When these additional claims independently satisfy the
requirements of subject matter jurisdiction, jurisdiction fully
exists over these claims as it would over any other federal claim.
 Supplemental Jurisdiction Statute §1367 -> federal courts
may exercise subject matter jurisdiction over P’s state law claim
against D, if P’s state law claim is sufficiently related to P’s
federal claim. Supplemental jurisdiction extends to any claims
asserted by a party that are so related to another claim within
the original jurisdiction of the district courts as to “form part of
the same case or controversy under Article III of the US
Constitution.”
 Thus, as long as Article III would allow any part of the case to be
adjudicated by a federal court, Congress can give jurisdiction to
the federal courts to adjudicate the entire case, including those
parts over which there would be no federal subject matter
jurisdiction if they were presented alone.
 What is the proper scope of an Article III “case or controversy”?
i. The accepted view is that all claims must “derive from a
common nucleus of operative fact” to constitute the same
“case or controversy” for purposes of Article III.
 With the exception of the requirement of complete diversity in
§1332 actions, the existence of one claim over which there is
original jurisdiction is sufficient to satisfy the “civil action”
prerequisite of the statute.
2. Meeting the Requirements of §1367(a):
 Determining When Claims Are Part of the Same Article III “Case
or Controversy”:

49
 i. Section 1367(a) extends supplemental jurisdiction to all claims
that are “so related to claims in the action within… original
jurisdiction that they form part of the same case or
controversy under Article III.
ii. Therefore, the most important issue under §1367(a) is
determining the degree of relatedness required between the
claims to constitute the “same case or controversy” for
purposes of Article III.
 Restrictions imposed by §1367(b) in Actions Founded Solely on
Diversity of Citizenship:
i. Under §1367(a), provided the supplemental claims are
sufficiently related to the freestanding claim to satisfy the
constitutional case or controversy requirement of Article III,
full supplemental jurisdiction exists for all claims asserted by
or against any party irrespective of whether the party is a
plaintiff, defendant, third-party defendant, intervenor, or Rule
19 party.
ii. In actions in which original jurisdiction is founded solely on
§1332, however, supplemental jurisdiction is substantially
restricted for claims by plaintiffs and any additional parties
joining or intervening as plaintiffs.
iii. §1367(b) restricts supplemental jurisdiction over claims made
by plaintiffs against persona made parties under Rule 14, 19,
20, or 24 of the FRCP, or 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.
iv. Note carefully that §1367(b)imposes no supplemental
jurisdiction restrictions on claims asserted by defendants or
those intervening or joining as defendants.
v. Thus, a plaintiff may not assert claims against parties in a
diversity action if supplemental jurisdiction would negate
complete diversity.

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 vi. Procedural Joinder of Multiple Claims and Parties Under the
Federal Rules:
 FRCP 20(a) -> plaintiff is permitted to join with additional
plaintiffs or join additional defendants to the action if the
claims are properly related under the rule.
 FRCP 14(a) -> impleader, the defendant is permitted to join
an additional party to the action, known as a third party
defendant, when that person is or may be liable to the
defendant for all or part of the plaintiff’s claim against the
defendant.
 FRCP 24 -> non-parties having an interest in the litigation
are permitted to intervene in the action under appropriate
circumstances in order to protect their interest.
 FRCP 19 -> A non-party is sometimes considered essential
to the adjudication of the action and a motion is made
requiring the joinder of this nonparty.
vii.

IV. Chapter 3 – Venue And Related Matters:

A. A plaintiff’s selection of a forum is limited in at least three ways:
1. Subject matter jurisdiction
2. Personal jurisdiction
3. Venue

51
 B. Jurisdiction refers to the power of a court to hear and decide a
particular case.
C. Venue is of a lesser significance and refers only to the geographic
location within a particular court system where the case may be
brought, assuming proper jurisdiction exists in that court system.
D. Venue rules are designed to ensure that an action is brought in an
appropriate location within a court system having some connection to
the parties or the claim.
E. Venue rules are based on considerations of party and witness
convenience and judicial efficiency.
F. Like personal jurisdiction, parties can normally waive venue
restrictions.
G. Unlike personal jurisdiction, venue is not constitutionally required, and
neither the venue restrictions of the forum state nor the U.S.
Constitution will ordinarily render a judgment void and subject to
collateral attack for improper venue.
H. Venue In State Court Actions:
1. Generally, these provisions provide that an action shall be brought
in the county, or other geographic location, where the cause of
action arose or one of the parties to the action resides or does
business.
2. Actions involving real property generally must b brought in the
location where the property is situated.
I. Transitory And Local Actions:
1. Transitory Action -> one that can be adjudicated anywhere.
2. Local Action -> always involve land and can be adjudicated only
where the land is located.
3. Local action rules, when applicable, overrides general venue
provisions, such as provisions allowing suit in the district where the
defendant resides – even though the venue statues in a jurisdiction
often do not indicate that local actions are an exception to their
provisions and even when the statutes make not mention of the
local action rule at all.
J. Venue In The Federal Courts:
1. Development of the Modern Federal Venue Scheme – 28 USC 1391:

52
  Unless Congress has enacted a special venue provision for a
particular type of action,
i. subsection (a) covers venue in all civil actions in which subject
matter jurisdiction is founded solely on diversity of citizenship
ii. subsection (b) covers venue in all other civil actions, notably
actions based on federal question subject matter jurisdiction
 Statutes with Specific Venue Provisions and General Venue
Statutes:
i. Some federal statutes have specific venue provisions for the
particular type of action authorized by Congress.
ii.

 Venue In Removed Actions:

i. §1441(a) -> civil actions can be removed “to the district court
of the United States for the district and division embracing
the place where [the state] action is pending”.
 When Venue is Determined:
i. In general, venue is determined at the outset of the original
action and subsequent additions of parties by means of
certain procedural rules do not make original venue improper.
ii. However, when a plaintiff seeks to join an additional
defendant to the complaint under Rule 20, or is directed to do
so by the court under rule 19, venue in the action may be
affected.

53
  Multiple Venue Choices:
i. In many cases, several judicial districts may properly qualify
for venue under the applicable venue provisions.
ii. In such situations, the choice rests with the plaintiff to select
among the various and proper venues in filing the action.
iii. A defendant may object when the plaintiff selects an improper
venue, but when the plaintiff selects a proper venue, the
defendant’s only recourse is to demonstrate that trial in the
plaintiff’s chosen venue is inconvenient and, “in the interest of
justice,” should be transferred under §1404(a) to another
judicial district with proper venue.
 Challenging Improper Venue And Venue Waiver:
i. When the plaintiff selects an improper venue, the defendant
has the right to object.
ii. Similar to objections for lack of personal jurisdiction, however,
objections for improper venue must be timely made or they
are waived.
iii. The defense of improper venue must be raised by a pre-
answer motion to dismiss under FRCP 12(b)(3) or asserted in
the defendant’s answer.
iv. §1406(b) -> nothing in this chapter shall impair the
jurisdiction of a district court of any matter involving a party
who does not interpose timely and sufficient objection to the
venue.
 Thus, in the absence of a proper and timely objection, the
ensuing judgment is fully valid, even though venue may
have been improper.
v. If a venue objection is made and upheld by the court, the
court must, under §1406(a), either dismiss the action or “if it
be in the interest of justice, transfer such case to any district
or division in which it could have been brought.”
K. Transfers of Venue Within A Judicial System:
1. Transfers of Venue for the Convenience of the Parties and
Witnesses:

54
  When several venue choices are proper under the applicable
venue provisions, the plaintiff has the right to choose where to
file the action.
 Even though venue may be proper, for the convenience of the
parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division
where it might have been brought.
 The burden is on the party seeking transfer, however, to
demonstrate that transfer is justified, otherwise the action
remains in the plaintiff’s properly chosen venue.
 Transfer is one thing – done with ease – but dismissal for forum
non-conveniens is something totally different.
 On a forum non conveniens dismissal, the case is dismissed
entirely for refilling in a foreign judicial system which will often
result in a change in the substantive and procedural laws
governing the case.
2. Transfers when Venue in the Forum is Improper §1406:
 When an action has been commenced in a federal district court
where venue is improper, the burden on the moving party is
different than in §1404.
 A defendant objecting to improper venue need not demonstrate
inconvenience or any other factor justifying transfer other than
to show that under the applicable venue provisions, venue is
improper.
 If the court upholds the defendant’s objection, the court must,
under §1406, either dismiss the action or “if it be in the interest
of justice, transfer such case to any district or division in which it
could have been brought.
 Under §1406, an action may be transferred even if the transferor
court lacks personal jurisdiction over the defendant, provided
venue would proper and personal jurisdiction would be
obtainable over the defendant in the district where the action will
be transferred.
3. Smith v. Colonial Penn Insurance Co. (SUPP):
 The court weighs the following factors to decide whether a
transfer is warranted:

55
 i. The availability and convenience of witnesses and parties
ii. The location of counsel
iii. The location of books and records
iv. The cost of obtaining attendance of witnesses and other trial
expenses
v. The place of the alleged wrong
vi. The possibility of delay and prejudice if transfer is granted
vii. The plaintiff’s choice of forum, which is generally entitled to
deference.
 The convenience of the witnesses and the parties is generally a
primary concern of this court when considering transfer motions.
 Vague statements about the convenience of unknown and
unnamed witnesses is insufficient to convince this court that the
convenience of the witnesses and the parties would be best
served by transferring venue.
4. McGinnis v. Eli Lilly And Co. (SUPP):
 Location turning on key witnesses.
 Who and how determine if key?
L. The Doctrine of Forum Non Conveniens:
1. The doctrine of forum non conveniens is a common law doctrine
that is ordinarily applied only when there is a court in another
judicial system that is substantially more convenient than the court
where the plaintiff has commenced the action.
2. Within a judicial system, statutory transfer is usually employed to
obtain a more convenient venue rather than forum non conveniens.
3. Piper Aircraft Co. V. Reyno (Page 219):
 Facts:
i. Reyno (P) was the representative of five air crash victims’
estates and brought suit for wrongful death in United States
district court in California, even though the accident occurred
and all the victims resided in Scotland.
ii. Piper (D) moved to dismiss for forum non conveniens,
contending that Scotland was the proper forum.
iii. Reyno (P) opposed the motion on the basis that the Scottish
laws were less advantageous to her than American Laws.

56
 iv. The district court granted the motion, while the court of
appeals reversed.
 Issue:
i. May a plaintiff defeat a motion to dismiss forum non
conveniens merely on the basis that the laws of the
alternative forum are less advantageous?
 Rule:
i. Plaintiff may not defeat a motion to dismiss for forum non
conveniens merely by showing that the substantive law that
would be applied in the alternative forum is less favorable to
him than that of the present forum.
 Application of Rule:
i. In this case, all the evidence, witnesses, and interests were in
Scotland.
ii. Thus, the most convenient forum was there.
iii. As a result, the motion was properly granted.
 Conclusion:
i. Reversed.
V. Chapter 5 – Sources of Law:
A. Overview of the Erie Doctrine:
1.

57