General themes and A Civil Action____________________________________________________________

Goals of Civ Pro. Where the rules come from Steps of a trial
Justice 1. Congress gives authority to the Supreme Court Complaint filed
Fairness 2. Goes to a judicial committee conference Discovery
Efficiency 3. Draft revisions to the old rule Pretrial motions
Finality 4. Details work way back up Trial
Truth 5. Congress can block them Post trial motions and appeals

1. Federal courts have jurisdiction over

a. Federal Questions (§1331)
b. AND Diversity (§1332)
i. Must be domiciled with an intent to remain (Harkins)
2. Rule 8, 11 and 12
a. Must provide a plain claim for relief and a demand for judgment (Bell)
i. Allegations may be bare bones (Rule 8).
b. The claim cannot be totally frivolous (Rule 11)
i. The old rule 11 didn’t constrain that many people; just must have “good grounds”
c. The defendant must answer, but can also file a Rule 12, pre answer motion.
3. A Civil Action
a. Must consult clients about settlements
b. Rule 26: you have to disclose documents that support your claim
i. Not supposed to have “trail by surprise”
c. 12(b)6: forces you to assume all is true, and that you have a legal claim.
d. Should we let a civil trial to get ahead of science?
i. Too many disputes in the facts?
e. Time doesn’t work against the EPA as much as it does the private parties.
i. Procedure can make it into a war of attrition
f. Difference between client goals and lawyer goals
i. Pyrric victory v. a boat load of cash.
g. Rule 11: was it too broad under the old rule? Ne
i. “Warranted by existing law” and “evidentiary support”
ii. Should you be punished because it didn’t pan out?
h. Finality trumped truth
i. The adversarial system encourages people to play games.

Personal Jurisdiction (Where does a court have power)___________________________________________

1. The Old Rule (Pennoyer v. Neff)

a. Court’s personal jurisdiction extends to its territory UNLESS
i. D was personally served within the state.
1. Even when flying over in an airplane
2. So long as they weren’t fraudulently induced.
ii. Property within the state is attached (in rem jurisdiction)
iii. D consents to the jurisdiction
iv. The state is trying to determine the status of one of its citizens (e.g. marriage or divorce).
1. Assumes the property is always in the possession of the owner.
b. Why limit personal jurisdiction?
i. Structure of federalism means that states retain some sovereignty.
 ii. Due process clause prevents courts from enforcing judgment without personal
jurisdiction.
1. Collaterally attack a decision entered by a state with no PJ
2. An exception to the full faith and credit clause
iii. More about power than notice.
c. Pennoyer doctrine was formalistic
i. Only a couple of ways to get someone to show up.
ii. Advantage: the law was clear?
iii. Disadvantage: what about cases that didn’t fit (e.g. corporations).
iv. Trying to prevent fraud against the out of state defendants.

2. The new doctrine of in personam jurisdiction

a. A D domiciled in one state can be sued in that state, even if they are served somewhere else
(Milliken v. Meyer).
i. Demonstrates that notice is different from power.
ii. Personal jurisdiction is about power.
b. The International Shoe doctrine: changing in personam
i. QUOTE: “due process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend “traditional notions
of fair play and substantial justice.”
ii. Is it reasonable to make the D show up?
iii. Enough MINIMUM CONTACTS so that it doesn’t offend FAIR PLAY and
SUBSTANTIAL JUSTICE
c. Concurrence of Justice Black
i. “fair play and justice” are squishy terms. Very elastic.
ii. Standard instead of a rule…
d. Applying International Shoe standard: two different results

McGee
PJ upheld
Corporation aimed itself at forum state
Increasing commerce=more J/D
State had a strong interest
High water mark of J/D aggressiveness
Hanson
PJ rejected
Bank did not aim itself at the forum state
Unilateral activity NOT enough
State has less of an interest.
A draw down from the McGee standard

3. The new doctrine of in rem jurisdiction Shaffer v. Heitner

a. Old rule of quasi in rem led to funny results
i. EX: can obtain jurisdiction by seizing debts owed to the defendant; made creditors liable
wherever their debtors stepped foot (Harris v. Balk).
b. New rule: Shaffer v. Heitner
i. Can’t just attach a random piece of property or stock to get jurisdiction over someone.
ii. Property CAN be evidence that there is personal jurisdiction
1. “Providing contracts among the forum State, the defendant, and the litigation.”
2. “The presence of the D’s property in the State alone would not support the State’s
jurisdiction.”
3. “Appellants have simply had nothing to do with the state of Delaware.”
iii. Can require people to consent to jurisdiction in order to be a shareholder in a DE
corporation.

iv. Can still get in rem in some states; the property must be what is at issue.
 1. IF It its about ownership of the thing, or the event happened on the thing.
v. Property can still be relevant in establishing contacts
vi. Minimum contacts applied to all PJ on state defendants

4. Stream of Commerce Corporation test

a. Personal availment: “not an isolated occurrence, but to serve the market directly or indirectly.”
b. Minimum contacts
c. fairness and reasonableness analysis,
i. interest of the forum state
ii. intrest of the interstate judicial system.
iii. Huge burden on the D?

WWVW v. Woodson Asahi v. Superior Court

No marketing to FS
No evidence any VW ended up there
Chattels should not be service agents
Moving independent of corp actions?
Not just foreseeability
Brennan dissent: was a mobile product!
Burger King v. Rudzewicz
Franchise agreement
K created substantial connections
Wanted a long term relationship with FL
D reached into FL
FL choice of law clause
Could sue BK first in Michigan…
O'Connor plur: must be more than just there
OCP: must advertise, design
8/9: fairness and reasonable
State interest is weak
Burden on the D is high
Brennan: stream of C should suffice.
Pavlovich v. Superior Court
Calder "Effects Test"
Knew P was a place, effected her
Website was passive…
No minimum contacts
Broad effects test=get rid of pers avail
Knowledge insufficient for express aiming

d. Federal Court PJ is the same as state court PJ (Rule 4(k)(1)(a))

e. EFFECTS TEST: “An article that they knew would have a potentially devastating impact upon
[Jones]. And they knew that the brunt of that injury would be felt by [Jones] in the State in which
she lives and works and in which the National Enquirer has its largest circulation.”

5. General jurisdiction v. Specific jurisdiction

General Jurisdiction Specific Jurisdiction

Can be sued for anything Must be sued about the activities
Continuous activity Sporadic activity
Always where you live Where the activity took place
Corporations: where incorporated Corporations: where your activities did the harm

a. General jurisdiction examples

i. Perkins v. Benguet: Enough contacts to create GJ
1. Command nexus is in the state
2. GJ by necessity? No specific J because actions were in another country.
ii. Helicopteros v. Hall Not enough contacts to create GJ.
1. Everything about the deal was based out of Peru
2. Activity must be “continuous and systematic” (International Shoe).

6. Transient jurisdiction (Burnham v. Superior Court).

a. If D is physically served in the state, must defend in the state.
b. “tag” jurisdiction
i. Scalia: good because it’s a long held rule
ii. Brennan: old≠ fair…availed of services maybe?
 iii. Nothing in International Shoe requires overturns tag jurisdiction.
c. BUT doesn’t count if you were kidnapped, fraudulently induced, subpoenaed as a witness.
d. Doesn’t this create a perverse incentive for people not to come to the state?

7. Consent as a Substitute for Power (Carnival Cruise Lines v. Shute).

a. Forum selection clauses are ok
i. Efficiency for companies subject to suits in hundreds of venues
ii. Contractual issues: K of adhesion?
iii. Not invalid for public policy reasons.
b. As a matter of federal contract law, nothing is per se unreasonable about forum selection clauses
i. Valid if there is a good reasons for them
1. Party otherwise at risk in multiple forums
2. Dispels confusion.
3. Everyone benefits: lower ticket prices
4. CANNOT be in bad faith: random state X for some random reason.
ii. Dissent:
1. Troubled by adhesion contracts; are both parties really knowingly consenting to
this
2. Undermining the courts ability to determine jurisdiction.

8. The Requirement of Notice (Mullane v. Central Hanover Bank and Trust CO)
a. MUST provide notice if at all possible
i. Reasonably calculated to reach people under the circumstances
ii. Using the normal method of communication
iii. Can use constructive notice (publication) if it is impossible to find the people.
iv. DO NOT have to actually notify the person, BUT must attempt to!
1. Don’t want to allow people to try and dodge service.
b. EX: Bank wanted an accounting of the trust, had to notify the little people; they had the
addresses and regularly communicated via mail.
i. Did so via statute as was required by statute
ii. Statute assumed that publication was OK in re.
c. Large groups: don’t have to notify everyone, just as many people as possible.
d. Modern mechanics of service of process
i. Rule 4(m)= after filing the complaint, summons is generated which you must serve
within 120 days (ask for an extension if need by)
ii. 4(d) waiver of service of process: You get an extra 40 days to answer
e. Don’t have to serve people who are unknown; then publication is ok.

9. Long Arm Statutes (Gibbons v. Brown)

a. States do not have to extend their court’s reach to the maximum extent available by law.
i. Long Arm statutes can limit the reach of a court.
ii. EX: driver subjected to PJ because of a previous lawsuit? Nope FL LAS requires more
than the minimum contacts analysis.
iii. Different law suit
b. BUT: Adam v. Sanger: same parties, same lawsuit, counterclaim
i. Can’t show up and sue them, then run away
ii. You can’t unring the bell: avail and then unavail for the same issue.
.

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Venue, Transfer, and Forum Non Conveniens__________________________________________________

10. Venue:
a. Rule §1391-1392
i. (a) IF claim is based on diversity, may only be brought
1. In a district where any D resides if all are in the same State
2. Where substantial amounts of the event occurred
3. A district where any D is subject to PJ at time of the complaint. (fall back)
ii. (b) IF Federal Question
1. In a district where any D resides if all are in the same State
2. Where substantial amounts of the event occurred
3. Where any D MAY BE FOUND
iii. (c) A corporation resides in (sections not real)
1. Any district subject to PJ at time of the action
2. In a state with more than one district, the one where PJ would be found if an indy
state.
3. If no district with indy sufficiency, the district with the most.
iv. (d) Aliens
1. Any district where they have PJ.
b. Applied (Dee-K Enterprises v. Heveafil)
i. Under Rule 4(k)(2), a defendant not subject to the jurisdiction of any state court that is
served with process is subject to personal jurisdiction in federal court as long as the
assertion of the jurisdiction is:
1. Consistent with federal law
2. Does not offend the constitution
ii. Clayton Act provides for world wide service when the antitrust defendant is a
corporation.
iii. 1391(d), which applies to alien corporations, eliminates any other impediments; goes
over that special statutes.
iv. BUT One of the American defendants must be found within the district, not just the state
(1391(b)(3)).
v. Just because an alien can be sued anywhere, does not mean that this can be used to satisfy
1391(b)(3).
1. Cannot sue foreign D and American D anywhere; American D must have
minimum contracts.
b. IN STATE COURT: Different standards for weighing venue (how relevant is this?).
i. Where the cause of action arose
ii. Where some fact is present or happened
iii. Where the defendant resides (The most common)
iv. Where the defendants is doing business
v. Where the defendant may be found
vi. Where the defendant may be summoned or served
vii. The court designated in the plaintiff’s complaint
viii. In any county
ix. Where the seat of government is located.

2. Declining Jurisdiction: Transfer and Forum Non Conveniens

a. States and federal courts may decline jurisdiction even though they posses it
a. EX: long arm statutes that do not extend as far as they would permit.
b. Common law: forum non conveniens
c. §1404→ transfer among federal judicial districts
 i. Applies only to federal courts, allowing them to move cases around the country “for
the convinence of parties, witnesses, and in the interests of justice.”
2. Forum Non Conveniens (Piper v. Reyno)
a. Real parties of interest in Scottland, all the evidence in Scotland.
b. Scottish law is less favorable→ does not recognize strict liability in tort.
c. When trial in the chosen forum would “establish…oppressiveness and vexation to the
defendant…out of all proportion to plaintiff’s conveience,
d. OR when the chosen forum is inappropriate because of considerations affecting the court’s
owen administrative and legal problems”
e. THEN the court may dismiss the case.

Private Interests Public Interests

Access to proof
Availability to unwilling witnesses
Cost to get willing witnesses
Possibility of view of premises
Other practical problems
Court congestion
the local interest of deciding local interests at home
Knowledge of applicable law
Avoiding conflict of law, or foreign law
Unfairness of citizens in an unrelated forum w/ jury duty

b. BUT not just that the law is less favorable in the other forum (Canada Malting Co.)
i. UNLESS the remedy provided by the alternative forum is so clearly inadequate or
unsatisfactory that it s no remedy at all
1. EX: can still get some relief, just not optimal relief (Piper).
c. Two times you see FNC
i. Booted out of a state
ii. Booted out of the country
3. Venue Transfer
a. 1404(a): convenience to that parties or witnesses
b. 1406(2) to cure a defect in venue
c. 1631: to cure a jurisdictional defect (PJ).

Subject Matter Jurisdiction__________________________________________________________________

§1331: A federal question can lead to jurisdiction.

The federal question must be the cause of the action

- Well pleaded complaint rule.
- Must ARISE under federal law.
- Cannot anticipate the defenses in order to get into federal court
- “Only when the plaintiff’s statement of his own cause of action shows that it is based upon those
laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his
cause of action and asserts that the defense is invalidated by some provision of the Constitution of
the United States.”
- EX: Louisville and Nashville R.R. v. Mottley: the defense cannot be taken into account, but rather
the actual issue at hand
- Keeps federal courts cleaner and more exclusive.
- The constitutional meaning for “arising under” is broader than the statutory one, which is why the
Supreme Court could hear the Mottley case the second time.

Tushnet Factors
National interest in disposing of the case w/ Fed findings
Likelihood national interest will be implicated
Likelihood SC will hear the case
Diversity Jurisdiction

§1332

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs, and is between--

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties;
and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of
different States.

1. Redner v. Sanders: the permanent expat problem

a. Render living in France “from” CA
b. Not under 1332(a)(2): not a citizen of France
c. Not under 1332(a)(1): not domosicled in NY
i. Must have a present domicile with the intent to remain indefinitely.
d. What can he do now:
i. File in state court OR establish domicile or become a citizen of france.

2. Strawbridge and complete diversity

a. All parties on one side of the “v” must be different from the parties on the other side of the “v”.
b. The diversity tattute says that ANY forigen state is treated as the same place
i. Court might be inclined to favor the us citizen.

3. Saadeh v. Faroki: Stingy construction of 1332(a)

a. What is the status of the paries at the time the case was diled?
b. Looking at the intent of congress

4. Amount in controversy (just for diversity jurisdiction; don’t need a larger threshold for Federal
questions).
a. Must be more than 75K
b. Counterclaims are not substracted out
c. Unrelated claims can aggregate with the same plaintiff
d. Cannot aggregate between plaintiffs.
e. Each, independently, must be over 75K

Supplemental jurisdiction
1. If there is jurisdiction in the first place, what claims can you suck up to the federal level with you?
a. 1367(a) Are the supplemental claims “so crealted to claims in the action within such original
jurisdiction that they form part of the same case or controversy?
i. Is there a common nuclus of operative facts? (UMW v. Gibbs)
ii. ALSO- such supplemental jurisdiction shall include claims that involve the joinder of
additional parties.
b. 1367(b) If just under diversity, then no supp. Jurisdiction against people joined under Rule 14
(impleader) 19 (involuntary joinder) 20 (permissive joinder) or 24 (intervention)
i. Can’t do it on P side under 19 or 24
 ii. Does no exclude plaintiffs under rule 20
1. BUT cannot join plainttifs with Rule 20 if it would destroy diversity (see
Allapattah).
2. BUT: can join non-diverse people if they don’t meet the amount in controversy.
c. EX: In re: Amerigquest: truth in lending act and state law fraud claims sufficently related. Would
greatly affect the remedies available
d. BUT 1367(c): if the state law predominates, or it presents a novel or complex issue of state law,
no supplemental jurisdciton.

Removal to federal court

You have 1 year to remove the case for diversity if the facts in the case that come up are within the time frame
(1446(b))

Cateripllar v. Lewis
Still no diversity because all parties are not diverse; BUT one party settles which allows removal.
By the time it went to trial, there WAS no diversity
Even though there was a mistake, the jurisdiction did eventually exist
Primarily an efficency concern: the finality of the thing
Defendants won’t try to jump the gun because it relies on the thought that the judge will make a mistake.

Strategies
- Collaterally attack the judgment if you are 100% sure ≠ PJ
- In WWVW: wanted to be able to stay in state court and not be dragged into federal court; trying to
quash diversity jurisdiction by getting parties on both sides of the v from NY
- In Burger King, D could have sued first in Michigan to avoid having to defend a suit in FL.

Specific jurisdiction
- If the thing actually happened there

Tribal Courts______________________________________________________________________________

11. Brief history of legal relationship with the Indian Tribes: GO BACK THROUGH THIS
a. Discovery, conquest and treat making (1532-1828)
b. Removal and relocation (1828-1887)
c. Allotment and Assimilation (1887-1928)
d. Indian Reorganization Act (1928-1945)
e. Termination (1945-1961)
f. Self-determination (1961-???)
12. Two major threads through history
13. William v. Lee
a. Lee was the original P; not a tribal member
b. Williams was a debtor
c. If D was from AZ or NM, pretty easy to demonstrate PJ
d. Questions
i. Has congress authorized state jurisdiction or state law?
1. Look at treaty, relevant fedral law.
2. General statute.