Personal Jurisdiction

1. Is there personal jurisdiction? This is a question of what states P can sue D in. Two step process:
a. Is there a state statutory basis? First, there must be a state statutory basis for exercising
jurisdiction.
b. Is the exercise of jurisdiction constitutional? The exercise of jurisdiction must be constitutional.
The due process clause of the 5th amendment of the constitution, which applies to the states
through the 14th amendment, sets the outer limits on how far a state can go in exercising
jurisdiction.

2. How is the action brought?

a. In personam: An in personam case is brought against the D herself. Evaluate whether the statute
allows jurisdiction, then evaluate the constitutionality under Shoe.
b. In rem: An in rem case is brought against D’s property to resolve an interest, right, or ownership
as to the entire world. Look for an attachment statute in the state. The constitutionality is easy
since jurisdiction lies where the land lies. If it is in more than one district, either is fine.
c. Quasi in rem #1: A quasi in rem type 1 case is brought against D’s property to resolve an interest,
right, or ownership claim as to the parties in question. Look for an attachment statute in the state.
The constitutionality is easy since jurisdiction lies where the land lies. If it is in more than one
district, either is fine.
d. Quasi in rem #2: A quasi in rem type 2 case is brought against D’s property but has nothing to do
with the property itself. It is typically brought if the P cannot get in personam jurisdiction. First see
if there is a relevant attachment statute. Then, apply the International Shoe test.

3. Does the state have a statute extending jurisdiction? PJ is not self-executing. The state does not have to
reach the full extent of the due process clause. However, it must have passed a statute granting jurisdiction
to its courts to hear this case. A federal court has no more power of jurisdiction as a state court would in the
state in which it lies. Every state has a battery of statutes including an attachment statute for in rem and
quasi in rem, statutes over people present in the state, persons incorporated in the state, a non-resident
motorist statute, and a long-arm.
a. Does the state have an attachment statute? Use this for in rem and quasi in rem cases.
b. Does the statute grant jurisdiction over people who are present when served? This statute
gives the court general jurisdiction because the D can be sued for a claim that arose anywhere in
the world.
c. Does the statute grant jurisdiction over people who are domiciled in the state? This statute
gives the court general jurisdiction because the D can be sued for a claim that arose anywhere in
the world.
d. Does the statute grant jurisdiction over people who consent? Some statutes will grant PJ over
Ds who consent to jurisdiction. This could come via one of several ways:
i. Express consent
ii. Waiver of consent through court rules
iii. Implied consent: e.g. Hess, where driving a car in the forum gave implied consent to
service of process on a state-appointed agent.
e. Is there a California-style long arm statute? California long-arm statutes give the court power
to the full extent allowable under due process. There’s nothing to test here so it will probably not
be on the test. If you’re sure it is, just mention it and go on to applying the constitutional
standards.
f. Is there a laundry list long arm statute? Most states have a laundry-list statute that provides for
a number of causes of action over which the forum has specific jurisdiction. This will probably be
on the exam. The state SC has final say over interpreting state PJ statutes.
i. Is there any specific language that needs to be addressed? Be very careful about the
language in the statute. For example, some statutes apply where D transacts any business
in the state and some apply where the D transacts substantial business in the state.

1
 ii. Could a term be given more than one meaning by the court? E.g. A long arm that says
the state has jurisdiction over anyone who commits a tortious act in the forum. If a
company manufactures widgets in state A, sells them into state B, and they explode, was
the tortious act in the forum? Argue both sides.
1. NY side: Focuses on the words “act” or “omission.” The acts or omissions take
place in the foreign state before the product is shipped.
2. IL side: Focuses on the word “tortious.” The act was not tortious until
somebody got hurt, which occurred in the forum state.

4. Is the exercise of jurisdiction constitutional? Assuming there is a state statutory basis, the exercise of
jurisdiction must be constitutional. This may involve discussion of one or more things:
a. Can the court use a traditional basis of jurisdiction? If the court can use one of the traditional
bases of jurisdiction; consent and service of process of someone who was in the forum, flag this.
First say that a lawyer for P will say PJ is justified as a matter of con law under the Scalia
approach in Burnham. Then mention the Burnham approach. Then move on to the International
Shoe test.
b. Does it comport with the due process standards outlined by the courts? If the court is using a
traditional basis of jurisdiction, make sure to talk about the international shoe test when
explicating Brennan’s position or mentioning Hess. If the court is not using one of these bases,
begin applying the International Shoe test.
c. What is the International Shoe test? In International Shoe the Supreme Court said that a forum
has jurisdiction over the D if the D has such minimum contacts with the forum so that the exercise
of jurisdiction does not offend traditional notions of fair play and substantive justice. There are
two prongs to this test.
i. Does the D have minimum contacts with the forum?
ii. Does the exercise of jurisdiction offend traditional notions of fair play and
substantive justice?

5. Can the court use one of the traditional bases of jurisdiction?

a. Can the court use service in the forum? In Burnham, the Supreme Court split on whether
presence alone was a basis of jurisdiction.
i. Apply Scalia: The Scalia group said that presence is a basis of jurisdiction on its own. If
the D was served while present in the forum, there is jurisdiction because of historical
pedigree.
ii. Apply Brennan: The Brennan group said that presence alone is not enough. It has to be
analyzed in minimum contacts terms. However, this standard will be relatively low, e.g.
spending 3 days in CA was enough for D to absorb the benefits of the state of CA.
b. Can the court use consent? Hess, which allows for PJ if there is implicit consent, has never been
overruled. Express consent is clearly a basis for jurisdiction. You can also try to argue that implied
consent under Hess is a justification for long-arm statutes. The D, by entering the state and taking
advantage of services, e.g. public roadways and emergency medical service, implied consent to the
long-arm statute.
c. Remember to apply Shoe. Even if you include this information, you should go beyond it and
apply Shoe to all assertions of jurisdiction.

6. Are there sufficient contacts with the forum?

a. Is there a relevant contact? There must be a relevant contact between the D and the forum or
else there can be no jurisdiction.
b. Is the sliding scale relevant? In Burger King the Supreme Court suggests that there is a sliding
scale. If fairness factors balance strongly in favor of jurisdiction, the court might uphold
jurisdiction based on a lower level of contact. However, some contact is still required. This means
you should always apply the fairness factors, even if there is nearly no relevant contact at all.
c. Is there purposeful availment? You must mention purposeful availment. The contact between the
D and the forum must result from purposeful availment. This means the D must reach out to the
forum state.

2
 i. Is D’s contact with the forum the result of the unilateral activity of a third party? If
so, make sure to flag that it may not be purposeful availment.
d. Is there foreseeability? You must mention foreseeability. For a contact, there must also be
foreseeability that the D could get sued in the forum. It is not enough that the D’s product might
get to the forum.
i. Is getting haled into court foreseeable? It needs to be foreseeable that D could get
haled into court.
ii. Is this a particularly dangerous product? With particularly dangerous products, the
mere fact that the product reaching the forum is foreseeable could make getting haled into
court foreseeable
e. Are the contacts continuous and systematic? A court can have general jurisdiction when the D’s
contact with the forum is continuous and systematic. E.g. Milliken establishes that the state has
general jurisdiction over those persons domiciled there. Corporations are also going to be subject
to general jurisdiction where their PPB is.
f. Is this a stream of commerce case?
i. Mention the Brennan school. The Brennan school would hold that if D put a product in
the stream of commerce and reasonably anticipated that it would get to the forum, then
there is a contact.
ii. Mention the O’Conner school. The O’Conner school would argue that D needed a
purpose or intent to serve the markets, e.g. the D must advertise or solicit businesses
there.
iii. Should you include unilateral act of a third party? D could argue that she did not
reach out to the forum because her products arrived through the unilateral act of a third
party.
iv. Should you mention economic value? P could argue that D reached out to the forum
because her sales will increase if the reseller expands into that market.

7. Is the exercise of jurisdiction fair? First say that the exercise of jurisdiction must not offend traditional
notions of fair play and substantive justice. Then, apply the following factors as relevant:
a. What is the burden on the D? The court may consider the burden litigating in this forum places
on the D. Note however:
i. The burden is on the D to show the forum is unfair.
ii. It is a high threshold. This court does not have to be the best forum, just acceptable under
due process. D must show that the forum is so gravely inconvenient that D is at a severe
disadvantage in the litigation. E.g. Burger King, where litigation in FL would be very
inconvenient to Ds, but court still finds that it is constitutional.
b. Does the P have an interest in obtaining effective relief? The court may consider P’s interest in
obtaining convenient and effective relief, though typically P’s interests are protected by her ability
to choose the forum. Also, WW Volkswagon shows that even a case with a very strong P’s interest
may not prevail.
c. Does the forum state have an interest in the litigation? The forum state could have an interest
in providing a court room to its citizens for redress when they are hurt by out-of-staters. Although
it may be embodied in state statutes, it does not have to be.
d. How is the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies affected?
e. Is there a shared interest in substantive policy? We didn’t cover this much, but it may apply to
things like divorce cases or child support, where states have an interest in working cooperatively
to ensure that people don’t skip out on their obligations.
f. Did D agree to a particular choice of law? In BK this was evidence, albeit not dispositive, of
fairness.

8. Is there relatedness? Relatedness asks if this lawsuit arises from D’s contact with the forum. Mention
whether the claim is related to the particular contact, e.g. if it is for personal injuries arising from a car
accident in the state, or a products liability suit for a product shipped to that state. Say that some people
consider this a fairness factor and some people consider it a separate requirement, but in either case,
relatedness significantly lowers the contact requirement, e.g. McGee, where there was only one contact

3
 between the insurance company and CA, but there was still PJ because the contact was related to the breach
of contract suit.

9. What is the effect of a judgment in accordance with these rules? A judgment entered in accordance with
statutory and constitutional requirements is valid. It is enforceable in the state there it is rendered. It is also
entitled to full faith and credit in all other states in the union.
a. Is this an in personam judgment? An in personam judgment creates a personal obligation on D.
P can go to any state to enforce the judgment.
b. Is this an in rem judgment? An in rem judgment does not create a personal obligation on D. The
judgment extends only to the property, so if auctioning the property does not fully restore P, P may
need to file suit in a jurisdiction in which he can either get in personam jurisdiction or where D has
additional property.

4
Notice / Service of Process

10. Was notice properly served? Like PJ, notice must pass two tests. First, if it is service of process, it must
be complaint with Rule 4 of the FRCP. Second, it must be constitutional. However, when service of process
is compliant with Rule 4, it is a safe bet that it is also constitutional.

11. Is this a service of process / FRCP Rule 4 case? Service of process is the notice given to Ds when they
are being sued. It is governed by Rule 4.

12. Did process include a summons and a copy of the complaint? Process consists of two documents: 1)
summons, and 2) copy of the complaint.
a. What must the summons contain? A summons is an official court document. It is a symbol of
the government’s power over you. Service of process, in this sense, is a way to perfect personal
jurisdiction. It comes from the Clerk of Court. Under Rule 4(a) the summons shall be: 1) signed by
the clerk, 2) bear the seal of the court, 3) identify the court and the parties, 4) be directed to the D,
5) state the name and address of the P’s attorney, or if unrepresented, of the P., 6) state the time
within which the D must appear and defend, 7) notify the D that failure to do so will result in a
judgment by default against the D for the relief demanded in the complaint. The court may allow a
summons to be amended.
i. Preparing a summons: You go to the Clerk’s office and get a stack of blank summonses.
You fill in the blanks, then take it back to the clerk to file and stamp the summons. Then,
you put the docket number on the summons, pay your filing fee, and get it ready to serve
with the complaint.
ii. Docket number: CV-03-12345 JP. CV = civil case. 03 = filed in 2003. 12345 = 12,345th
case filed that year. JP = the judge is Jon Peterson, who is assigned at random by the
Clerk when he files and stamps the summons.
b. What must the complaint contain? This is not covered under Rule 4, but under Rule 8(a). It
must contain: 1) a statement of SMJ unless the court already has jurisdiction, 2) a short and plain
statement of the claim, and 3) a demand for judgment.
c. How does P show proof of service? If service is not waived, the person effecting service must
make proof to the court. Unless a marshal or deputy marshal served process, the person should
make an affidavit. If this is a district outside of the U.S., refer to Rule 4(l) on page 33.

13. Who can serve process? Process can be served by any non-party who is at least 18 years old. Make sure
the person serving process is not a party. Also make sure to say the person must be at least 18. The party
does not have to be specially appointed by the court. 4(c)(2) also allows the court, at request of P, to direct
that service be effectuated by a Marshal, but this will not be on the exam.

14. How does P serve process on a human being? Under FRCP Rule 4(e), P can serve process on an (non-
infant, non-incompetent) individual within a judicial district of the U.S. in a number of ways. There is no
descending order rule. The P may choose from any of the available alternatives.
a. Methods permissible under state law. 4(e)(1) incorporates state law. Look at the relevant state
law, especially if service is by mail, or some other method not expressly permitted by Rule 4. P
can serve process via any method allowed by or pursuant to the law of the state:
i. In which the district court is located, or
ii. In which service is effected.
b. Personal service. P can have someone walk up to the D and hand it to her.
i. Limitations on personal service. You cannot beat up the D to serve him, but you can
trick him and pose as a delivery guy. Courts will allow for reasonable efforts at service.
E.g. If a person hides in his locked car, putting the notice under the windshield wiper is
sufficient. If a person will not open his front door, but comes to the open window,
throwing the service of process inside is ok.
c. Substituted service. By leaving copies of the process at the individual’s dwelling house or usual
place of abode with some person of suitable age and discretion then residing there-in.

5
 i. Is the person of suitable age and discretion? The rule does not define suitable age and
discretion. A 16-year-old is probably OK. A toddler is probably not. A butler is fine. The
test is simply whether the person is enough on the ball that they are likely to relay the
service of process to the D. Homen v. Miller did not find that a 13-year-old was of
suitable age and discretion.
ii. Does the person reside there? A live-in maid is fine. A babysitter is not. Some cases
may be more questionable. E.g. How long does an in-law need to stick around before she
resides there? Churchil v. Barach found that a resident manager who lived in the same
building, but not the same apartment, as the D was permissible. Not every court would
buy this.
iii. What constitutes a dwelling house? Indicia of permanence. This is a factual
determination. Doe he spend much time there? Does he spend money on it and care for
it? You can have more than one dwelling house. It is not clear if you can have more than
one dwelling house at a precise time. It could be that a particular one of your homes is
your dwelling house at any particular time. If he is not residing there at the time it is up in
the air.
iv. What happens if the substitute person does not relay the information? As long as
service was proper, it does not matter if D actually gets the process. E.g. If P serves Mrs.
Freer and she decides not to give it to her husband that is still good notice, because Mrs.
Freer is of suitable age and discretion and resides in Freer’s dwelling house. Freer may be
able to throw himself to the mercy of the court, but there is nothing wrong with the
service under the rules.
d. Service of process on an agent.
i. Agents appointed by D. D can appoint an agent for service of process.
ii. Agents appointed by process of law. An agent may be appointed automatically by law,
e.g. in Hess with the out of state motorists act.
e. What if one of these rules is violated but the D still received notice? This is not sufficient. 1)
Even though service of process is affected by civilians who are not wearing uniforms of the state,
it is a governmental act, and we want to ensure that the government plays by the rules. 2) The
procedure was not reasonably likely to give D notice. It merely happened to give D notice.
f. What about service on individuals in a foreign country? Rule 4(f). Service on an individual not
within a judicial district in the U.S can be effected by:
i. Internationally agreed means: Any internationally agreed means reasonably calculated
to give notice, such as those authorized by the Hague convention., or
ii. If there is no internationally agreed means: If there is no internationally agreed means,
or the applicable international agreement allows other means, then provided that service
is reasonably calculated to give notice, the following are allowed:
1. In the manner provided by the law of a foreign country for service in that
country, or
2. As directed by the foreign authority in response to a letter of request, or,
3. Unless prohibited by the law of the country: 1) delivery to the individual
personally of a copy of the summons and the complaint, or 2) any form of mail
requiring a signed receipt, to be addressed and dispatched by the clerk of the
court to the aprt served, or
iii. By other means not prohibited by international agreement as may be directed by the
court.
g. What if the party is not a person or a corporation?
i. Service on infants and incompetents: Refer to Rule 4(g). Page 30
ii. Service on the US or its agents: Refer to Rule 4(i). Page 31
iii. Service on foreign states: Refer to Rule 4(f). Page 32.

15. How does P serve process on a corporation? Under FRCP Rule 4(h), P can serve process on a
corporation or on a partnership of unincorporated association within a judicial district of the U.S. in a
number of ways. There is again no descending order rule. The P may choose from any of the available
alternatives.

6
 a. Methods permissible under state law. Rule 4(h)(1) includes process of service in a manner
consistent with 4(e)(1), which incorporates state law for individuals. Look at the relevant state law,
especially if service is by mail, or some other method not expressly permitted by Rule 4. P can
serve process via any method allowed by or pursuant to the law of the state:
i. In which the district court is located, or
ii. In which service is effected.
b. Delivery to an officer, managing or general agent, or other authorized agent. P must serve a
person who has sufficient responsibilities that it is reasonable to assume that he will convey
important messages. A part-time delivery guy is not good enough. A director of sales clearly is.
The secretary of the director of sales could be allowable if: 1) she has enough job responsibilities
that it is reasonable to believe she will pass on important information, or 2) if state law allows for
it.
i. Reasonable efforts: As with personal service, the P has some leeway if D is avoiding
service of process. E.g. if the president of a corporation refuses to accept service, leaving
it on his desk is permissible.
c. What about service on corporations in a foreign country? 4(h)(2) applies 4(f), which is the law
on service to individuals in a foreign country, excepting 4(f)(2)(c)(i), (personal service) which
would make no sense. Refer to the section above this one.

16. How long does P have to serve process?

a. In general: If P does not make service of the summons and the complaint on the D within 120
days after filing the complaint, the court upon motion or its own initiative, shall either: 1) dismiss
the action without prejudice as to that D, or 2) direct that service be effected within a specified
time.
b. What if the P shows good cause for failure? If P shows good cause for failure to serve, the court
shall extend the time for service for an appropriate period. This does not apply to service in a
foreign country.
c. Is there a statute of limitations issue? While the dismissal is without prejudice, the statute of
limitations could have run in the meantime. Check to make sure it has not expired.

17. Did P send a request for waiver? Under FRCP Rule 4(d), P can send notice and a request for a waiver of
service. It must meet the following requirements:
a. Is the request in writing and addressed to the D? The request must be in writing. If D is an
individual then it must be addressed to him. If D is a corporation or association, then it must be
addressed to an officer or managing or general agent or other agent authorized by appointment or
law to receive service of process.
b. Was the request dispatched through first-class mail or other reliable means? Any reliable
means is OK. E.g. the waiver could be faxed. However, P must provide a prepaid means of
compliance, so he may still have to mail a SASE.
c. Was it accompanied by a copy of the complaint and the name of the court in which it was
filed?
d. Does it inform the D pursuant to Rule 84 of the consequences of compliance and of a failure
to comply with the request?
e. Does it set forth the date on which it was sent?
f. Does it provide the D with an extra copy of the notice and writing, as well as a prepaid
means of compliance in writing?
g. How long does the D have to answer the waiver? The D has at least 30 days from the date on
which the request is sent, or 60 days if the D is addressed outside of a U.S. judicial district.
h. What is D’s incentive to waive? D does not have to waive service of process. However, there are
several reasons to do so. 1) If D fails to waive she is responsible for the cost of service, and if she
refuses to pay, she is also responsible for attorneys fees on any motion required to collect the cost
of service, 2) D has an incentive to build goodwill with the P’s attorney and the court, and 3) The
waiver may extend the D’s deadline to answer, since she has until 60 days after the date on which
the request for waiver was sent. (Or 90 days if D is outside a U.S. judicial district).
i. What effect does waiver have on D’s other defenses? A D who waives service of summons does
not thereby waive any objection to venue or to the jurisdiction of the court over the D.

7
 j. What does P do when he receives the waiver back? P goes down to the court and files the
waiver, at which point the action proceeds as if process had been served.

18. Where did P serve process? Service of process is good throughout the state. Under Rule 4(k) on page 32,
the federal court can serve process if a state court in the state in which it sits could do so as well.
a. What if the fact pattern says service took place within 100 miles of the district court issuing
the summons? The 100-mile rule does not apply because the bulge rule applies only to joinder of
parties under Rule 14 or Rule 19, and this party is neither. The party being served is the original D.

19. Did D have immunity from service? Under some circumstances P may be immune from service:
a. Other litigation: Federal courts recognize that if P is in a state as a party, witness, or lawyer in
another case, P is immune from service of process. However, the P must be in the state only to
serve court business.
b. Force and fraud: Most states have a force and fraud exception. If D is present in the state because
D was tricked, defrauded, or forced into the state, most courts will not recognize service.
c. Sabbath: Some states recognize an immunity for service of process on the Sabbath.

20. Are the constitutional requirements for notice met? Like with PJ, notice must meet due process.
However, if notice meets the requirements of FRCP Rule 4, then it is going to be constitutional.
a. Was notice reasonably calculated to apprise the D? Under Mullane, P must use a form of notice
that is reasonably calculated under all circumstances to apprise the defendant of the suit and tell
the D the time in which D can respond. The fact that D might not actually get service of process
does not make it unconstitutional.
b. Was there notice by publication? Notice of publication is allowable if it is reasonable under the
circumstances, but the circumstances must be extreme. Publication notice is a last resort for cases
where it is no way to find the D.
c. Was there pre-hearing seizure of property? Normally service of process tells the D important
information like how and when to respond and what rights D has to discovery and trial. However,
when property is seized prior to a hearing, e.g. in replevin statutes, D has no chance to raise a
defense. Thus the Supreme Court requires safeguards such as: 1) requiring a seller to give a
specific affidavit showing entitlement to possession, 2) requiring that writs are obtained from
judges rather than sheriffs, 3) requiring the seller to post a bond, and 4) entitling the buyer to
notice and a hearing on the merits. It is not clear if all of these are required, but notice and a
hearing on the merits certainly is.

8
Subject Matter Jurisdiction

21. Is there subject matter jurisdiction? Assuming there is PJ and the P has given proper notice, the court
will evaluate whether there is subject matter jurisdiction (SMJ). SMJ determines in what court the parties
are going to proceed. The basic choice is between federal and state court. The major types of federal SMJ
are diversity cases and federal question (FQ) cases. As with PJ and venue, the constitution must provide for
SMJ, and there must be a statute granting that jurisdiction.

22. What cases can the federal courts hear? Under Article III, Section 2 of the U.S. Constitution, federal
courts can hear nine kinds of cases:
a. Federal Question Cases,
b. Cases effecting ambassadors and public ministers,
c. Admiralty and maritime jurisdiction,
d. Controversies to which the U.S. is a party,
e. Controversies between two or more states,
f. Between a state an citizens of another state (Killed in 11th amendment),
g. Between citizens of different states,
h. Between citizens of the same state contesting claims of land in different states,
i. Between a state or citizens of a state and a foreign state’s citizens or subjects. (Alienage
jurisdiction).

23. Is this a diversity of citizenship case? A diversity of citizenship case must meet two requirements. First,
the case must be between citizens of different states. Second, the amount in controversy must exceed
$75,000. §1332, pg. 617.

24. Is this a case between citizens of different states?

a. Does this case meet the complete diversity rule? The complete diversity rule from Strawbridge
says that there is no diversity if any P is a citizen of the same state as any D. It is OK if two Ps are
citizens of the same state or two Ds are citizens of the same state. The complete diversity rule is
not mandated by the constitution. It I an interpretation of federal statute.
b. When was the case filed? The court tests for diversity at the instant the case is filed. It does not
matter where the parties lived before the litigation or where they moved after litigation
commenced. A subsequent chance of citizenship cannot destroy diversity. The court takes a
snapshot when the case is filed, and bases diversity on that. If P and D were both GA residents
when the claim arose, but P moves to FL permanently before filing the case, there is jurisdiction.
c. What is the citizenship of a human being? For natural persons, or human beings, to be a citizen
of a state, the person must be: 1) a citizen of the U.S., and 2) domiciled in the state.
i. What is the test for domicile? The test for domicile is two-fold: The party must be: 1)
present in the state, 2) with the intent to make that her home for the foreseeable future. A
person cannot be a domiciliary of more than one state. We are ascribed a domicile at birth
(generally our state of birth, since that is where we are usually reared) which we keep
until we affirmatively change it.
ii. What if the person is domiciled in an American possession? §1332(d) tells courts to
treat American possessions like states for diversity purposes.
iii. Residence can differ from domicile. If a kid lived in OK until he was 18, then went to
college in MA for four years, he may be a resident of MA, but he is not a domiciliary
unless he plans to remain there. If he then goes to law school in CA, then travels the
world on a boat for 50 years, he is STILL a domiciliary of OK.
d. Are any parties corporations? A corporation (corp) is a citizen: 1) of all states in which it is
incorporated and 2) of the one state where the corp has its principle place of business (PPB).
i. What is the corporation’s PPB? PPB can be decided by either of two tests:
1. 1) the nerve center test, which looks to where corporate decisions are made, or
2. 2) the muscle center test, which looks to where the bulk of that corp’s activities
take place.

9
 3. These two tests are not usually applied in isolation. In practice, courts will apply
the total activities test, in which they will go with the nerve center test when the
corporation’s base of operation is far flung, e.g. unless all of the activity is in
one state, in which case they will use the muscle center test. Make sure there are
not activities other than manufacturing that the state conducts in other states
before concluding on the muscle center test, e.g. does the corporation have sales
reps in other states? §1332(c)(1), pg. 617.
ii. Is this a direct action against a liability insurer? In this case, the insurer will also be
deemed a citizen of the State of which the insured is a citizen.
e. Are any parties unincorporated associations? According to the Supreme Court in Carden, for
unincorporated associations we look to the citizenship of all the members. Hence, the court will
use the test for natural persons for each of its members. The teamsters have members from all 50
states, so they cannot be sued in federal court on diversity grounds. In a limited partnership, like a
law firm, you look at the general and limited partners, not all of the employees.
f. Is it a case involving minority, incapacity, or decedents’ estates? Because minors,
incompetents, and decedents lack legal capacity, their suits are brought by guardians. However, the
court to look to the citizenship of the represented person, not the representative. §1332(c)(2), pg.
618.
g. Is this a divorce, alimony, or child custody case? The USSC has affirmed where courts have
held that cases involving divorce, marriage, alimony, and child custody are not covered by federal
courts. This does not mean that no family cases make it to federal court, but the preceding list will
not.
h. Is there collusion or improper assignment? A district court does not have SMJ if either party has
improperly or collusively made or joined to invoke jurisdiction. e.g. If I sell a small percentage of
my judgment to a friend who lives in FL so I can bring a claim in GA. The assignment may still be
valid, but it will be ignored for diversity purposes. §1359, pg. 623.
i. How do courts determine if the assignment is collusive? The court will look to see if
there is consideration for the assignment or if the assignee is a mere collection agent. This
may be difficult where P agrees to split recovery. E.g. In a case where a party assigned his
claim by agreeing to give the new P 5% of the recovery, this was collusive. If the parties
split the recovery 50-50, it might not be. It is not collusive if I become a domiciliary of a
new state before filing the claim. I could move to Florida with the intent to remain there
to file a GA claim, though there may be a legitimate question of whether I have truly
formed the intent to stay in FL for the foreseeable future.

25. Does the amount in controversy exceed $75,000? Next, diversity cases require a good faith allegation
that the claim exceeds $75,000 exclusive of interests and costs. The court will only dismiss a good faith
claim that exceeds 75K if it is clear to a legal certainty that the amount in question cannot exceed 75K. (e.g.
If you sue for 100K for goods stolen out of a hotel room in NV, and NV has capped the recovery at 50K, or
if you require punitive to recover above 75K in a BoC case, and the state does not allow punitive, but court
did deny jurisdiction to a claim exceeding 75K where the allegation that P was treated brusquely by a flight
attendant, because there was no way it was worth 75K). This is a very tough standard, and the burden is on
the D.
a. Does the claim EXCEED $75,000? Do not say a case meets if the value is exactly $75,000. It
must be 75K and one penny.
b. Does the figure include interests and costs? If the damage claim includes interest and costs,
subtract these before seeing if the claim exceeds 75K.
c. What if the jury ultimately awards less than $75,000? It is OK that the final award did not
exceed $75,000 because jurisdiction attaches at the outset of the case. As long as P can make a
good faith allegation that the claim exceeds 75K that is enough. However, if P recovers less than
75K, the court might find P liable for D’s costs even though P won.
d. What if the P is suing for equitable relief? How do courts put a dollar figure on an injunction or
other non-monetary damage? The court can either look at it from the standpoint of the P or the D.
e.g. neighbor encroaches by building a house 6 inches onto a lot. From P’s standpoint the damages
are probably less than 75K, but from D’s viewpoint they are, because D would have to spend more

10
 than 75K to move the house and build a new foundation. There is a strong practice in the federal
court of saying that if you meet either of those, you can get into federal court.
e. Is the P aggregating multiple claims? Aggregation is where the P must add together two or more
claims to get over the 75K threshold. E.g. one claim for 35K and one claim for 50K. If there is one
claim for 80K and one claim for 20K, this is not technically aggregation, though it may be
allowable under supplemental jurisdiction. Aggregation is only permissible if there is one P versus
one D.

26. Is this an alienage case? An alienage case must meet two requirements. First, the case must be between
citizens of a state and citizens or subjects of a foreign state. Second, the amount in controversy must exceed
$75,000. §1332(a)(2), pg. 617.
a. Is the alien admitted to the U.S. for permanent residence? For diversity purposes, an alien
admitted to the U.S. for permanent residence is a citizen of the state in which he is domiciled.
§1332(a), pg. 617.

27. Is this a federal question case? Next the court will consider if there is federal question jurisdiction (FQJ).
FQJ gives federal courts jurisdiction over cases arising under federal law. There is no amount in
controversy requirement for federal question cases. §1331, pg. 617.
a. Does P’s complaint meet the well-pleaded complaint rule? The P’s complaint must meet the
well-pleaded complaint rule, which requires that the claim itself arise under federal law. E.g. I
hold a federal patent and I license production of the product to you under contract. You stop
paying me my fee. This is a BoC case, not a patent infringement case. The court will disregard an
anticipatory response to a defense invoking a federal statute, even if interpretation of the statute
will end up being the crux of the case. E.g. Mottley railroad case. This allows us to know at the
outset if a case is properly in federal court. Because of this, the constitutional grant of Article III is
broader than §1331, even though they use identical language. The courts interpret constitutional
limits more broadly than statutes because otherwise it would be difficult to expand jurisdiction.
b. Does the federal government have exclusive jurisdiction? Generally a state court can hear any
case that a federal court can hear. However, the federal courts have exclusive jurisdiction over
some cases.
i. Exclusive federal jurisdiction: Antitrust, copyright, patent infringement, federal tort
claims act.
ii. Ensure the claim itself arises under one of these: e.g. It must actually BE a patent
infringement case. A case involving a failure to pay a licensing fee established under
contract is a breach of contract case, not a patent infringement case.

28. Is there a supplemental jurisdiction issue? Every single claim joined in a federal court case must be
assessed for SMJ. However, supplemental jurisdiction allows a federal court to hear claims over which it
has no independent basis of jurisdiction. Under §1367(a), the court can hear a non-FQ non-diversity claim
if it involves a common nucleus of operative fact with the jurisdiction-invoking claim. The claim has to
arise from the same transaction or occurrence (T/O).
a. Is the claim affected by the diversity limitation? §1367(a) limits supplemental jurisdiction in
diversity cases in three situations, all of which involve claims by Ps. It will not take away any
claims by D.

29. Can the case be removed? D can remove a case filed in state trial court to federal district court if there is
federal SMJ. The D does not ask the state court for permission to remove. He simply removes, and if he is
wrong, the district court will remand.
a. How does the D remove a case?
i. Did D file the correct paperwork? D must file with the DC for the district in which
action is pending a notice of removal signed pursuant to Rule 11 that contains a short and
plain statement of the grounds for removal, together with copies of all process, pleadings,
and orders served upon the D in that action. §1446(a), pg. 635
ii. How long does the D have to remove? The D must remove the case within 30 days of
receiving formal service. The statute says within 30 days of receipt by service or

11
 otherwise, but the USSC in Murphy Bros. says the clock does not start when P serves D a
courtesy copy of the complaint. §1446(b), pg. 635
iii. Did the P give notice to adverse parties? Promptly after filing notice of removal the D
must give written notice to the adverse parties and must file a copy of the notice with the
clerk of the state court. The state court will not proceed further unless and until the case
has been remanded.
b. Are there multiple Ds?
i. Did all Ds agree to the removal? All Ds must agree to a removal. If one out of ten Ds
want to remain in state court, the case will be remanded.
ii. Does a decision by the initial D bind all other Ds? The clock on removal starts running
when the first D is served. E.g. Noble v. Bradford. Bradford does not remove the case.
Noble is later added by amendment, but it cannot now seek removal. This rule seems
counterintuitive but makes sense for two reasons. 1) Since all Ds must agree to removal,
the first D has already indicated its disagreement, 2) It would be very disruptive to a case
to allow removal when a party is added after several years of litigation.
iii. Could adding a new D destroy SMJ? The court can deny joinder if adding the D would
destroy the grounds for SMJ. Or, the court can allow the party to join then remand it,
which may be tempting, since district judges are overworked.
iv. Does the separate and independent FQ exception apply? Under §1441(c), an entire
case can be removed by a D if there is a separate and independent FQ claim against her.
Generally the parties will not argue this because nobody knows what it means. Pg. 633
c. Can the case be remanded? The court can remand the removed case for either of two reasons: 1)
There was a procedural problem with D’s removal, or 2) There is no federal SMJ.
d. When must P seek a remand?
i. Is the P raising a procedural objection? P must raise a procedural objection to removal
within 30 days of the removal.
ii. Is the P objecting to SMJ? An objection to SMJ can be raised at any time. The parties
cannot waive an SMJ defense. Also, the court can raise the issue of SMJ sua sponte at
any time during the litigation, even if it is on appeal 10 years after the case is filed.
e. Where can the case be removed to? Under §1441, removal has its own venue provision. D can
only remove a case to the federal district court that embraces the state court in which it was
originally filed.
f. Do either of the diversity exceptions apply? There are two exceptions to the general rule that
apply only in diversity cases. 1) There is no removal if any D is a citizen of the forum. 2) There is
no removal more than one year after the case is filed in state court.

12
Venue

30. Is venue proper? Once a case is in the federal system, venue tells the parties which federal court they can
go to. In the federal system, venue is handled by statute. There is no U.S. constitutional right to venue in
any particular court. §1391 gives the general venue rules. Every state has its own venue provisions.

31. Is this a removal case? Removed cases have their own venue provision under §1441. D can only remove a
case to the federal district court that embraces the state court in which it was originally filed. §1441(a), pg.
632.

32. Is this a local action? For local actions, the parties may lay venue in the district where the land lies. If the
land lies in more than one district, either is acceptable. The general venue rules do not apply to local
actions, which are most cases involving land, including: 1) IR or QIR cases in which real property is the
basis of jurisdiction, 2) cases in which P seeks a remedy to realty, such as a claim for quiet title, ejectment,
foreclosure of a mortgage, or enforcement of removal of a lien, and 3) claims for damages for injury to
land, such as trespass. If a case is not local, it is transitory, which make up the large majority of cases.

33. Is there a district in which all Ds reside? First, for both diversity and FQ cases, P can lay venue in any
district where all Ds reside. Or, if all Ds reside in different districts of the same state, then P can lay venue
in a district where any one of them resides. §1391(a)(1) & §1391(b)(1), pg. 625
a. Is the D an individual? For an individual, residence is usually the same as her domicile.
b. Is the D a corporation? A corporation resides in all districts where the corporation is subject to
PJ when the case is commenced. §1391(c), pg. 626
i. Was the D subject to suit when the case was filed? If the corporation assigns an agent
for service of process in a state where it has no other business, it may be subject to PJ in
that state but not to venue in the district where the agent lies, because service of process
occurs after the case is filed. §1391(c), pg. 626
ii. What if the corporation is being sued in a state with more than one federal district?
If the state has more than one judicial district in which D is subject to PJ, the corporation
will be a resident 1) of any district in which its contacts would be sufficient to subject it
to PJ if that district were a separate state, or 2) if there is no such district, the corporation
resides in the district in which it has the most significant contacts. §1391(c), pg. 626
c. Is the D an alien? An alien may be sued in any district.
d. Is the D an officer or employee of the U.S. or acting as one? See §1391(e), pg. 626.
e. Is this a civil action brought against a foreign state? See §1391(f), pg. 626.

34. In what district(s) did a substantial part of the claim arise? Second, for both diversity and FQ, P can lay
venue in any district where a substantial part of the claim arose. There may be more than one district in
which a substantial portion of the claim arose.

35. Is it impossible to meet either of the two tests? In very rare cases, there is no district in the US that meets
either of the two tests.
a. Is this a case founded solely on diversity? For cases where jurisdiction is founded solely on
diversity, P can lay venue in any district where all Ds are subject to PJ when the case is filed.
i. Was D subject to suit when the case was filed? If D, on his first trip to MA, is served
process by D, MA did not have PJ when the suit was filed, only once process was served,
so venue would not be proper.
b. Is this case founded on FQ or both FQ and diversity? For FQ cases, P can lay venue in any
district where any D is found.

36. Is transfer of venue appropriate? A case can be transferred only to a district in which venue and PJ would
be proper.
i. What if venue was improper in the original court? Transfer is still allowable, this
merely controls whether the case falls under §1404 or §1406.

13
 ii. What if PJ was improper in the original court? Under Goldlawr, a court that lacks
persona jurisdiction can still transfer venue because it is consistent with the objective of
removing impediments to the orderly adjudication of cases.
b. Did either party waive PJ or venue? Waiver of PJ or venue is not relevant in determining if
venue is proper. The court transferred to must have PJ and/or venue independent of waiver.
c. Is this a multidistrict legislation issue? In mass torts like airplane crashes and toxic torts, there
may be cases pending in several federal districts all of which raise one or more common questions.
§1407 permits these cases to be transferred to a single district for pretrial proceedings without
meeting other venue requirements. The decision is made by the judicial panel on multidistrict
litigation appointed by the Chief Justice. Following pretrial proceedings, the cases shall be
remanded. In Lexecon, the USSC disallowed the court that handled the consolidated proceedings
from transferring the cases to itself under §1404 or §1406 because the statute does not allow it.
d. Was the original court a proper venue? §1404 governs transfers where the transferring court
was a proper venue.
i. Was the case removed? If the case was removed, §1404 always applies, because venue
is always proper in removed cases (as long as they were removed to the federal district
that embraces the state court in which they were filed).
ii. What facts will the court consider in transferring? Transfer boils down to a center-of-
gravity test. Where does it make the most sense for this case to be litigated? It is always a
case-by-case analysis. Under §1404, transfer can be based on several factors:
1. Is the new court a proper venue?
2. Convenience of the parties,
3. Convenience of the witnesses,
4. The interests of justice,
a. Private factors: From Piper list includes: relative ease of access to
evidence, availability of compulsory process for attendance of
unwilling, cost of obtaining willing witnesses, possible need to visit the
premises, and anything else that makes trying the case easy or
inexpensive.
b. Public factors: What community is most effected by the litigation, what
the burden on the court is, who should be burdened with jury duty.
5. What law will govern. Van Dusen indicates that in a §1404 transfer, the choice
of law rules from the original court will go with the case. This may create a
presumption against transfer, if a judge would have to apply the choice-of-law
rules of a different state. According to Ferens, this is true even if the P applies
for the transfer.
6. Is there a forum selection clause? In Stewart Organization, the Supreme Court
held that a forum selection clause will be a significant factor in a district court’s
calculus but is not dispositive.
e. Was the original court an improper venue? 1406 governs transfer where the transferring court
was an improper venue.
i. What are the court’s options under §1406: The court can 1) transfer the case in the
interest of justice or 2) dismiss the case. Usually the court will transfer if it can.
ii. What facts will the court consider in transferring? Transfer boils down to a center-of-
gravity test. Where does it make the most sense for this case to be litigated? It is always a
case-by-case analysis. Under §1406, transfer can be based on several factors:
1. Is the new court a proper venue?
2. Convenience of the parties,
3. Convenience of the witnesses,
4. The interests of justice,
a. Private factors: From Piper list includes: relative ease of access to
evidence, availability of compulsory process for attendance of
unwilling, cost of obtaining willing witnesses, possible need to visit the
premises, and anything else that makes trying the case easy or
inexpensive.

14
 b. Public factors: What community is most effected by the litigation, what
the burden on the court is, who should be burdened with jury duty.
5. What law will govern. Van Dusen and Ferens to not apply to §1406 cases. It
would be illogical for the choice of law rules to transfer from a court that wasn’t
a proper venue in the first place.
6. Is there a forum selection clause? In Stewart Organization, the Supreme Court
held that a forum selection clause will be a significant factor in a district court’s
calculus but is not dispositive.

37. Is there an argument for forum non conveniens? Forum non conveniens (FNC) is a doctrine by which a
court dismisses the case because the balance of convenience tips very strongly towards another court,
typically where transfer is unavailable.
a. What facts will the court consider in dismissing for FNC? A FNC dismissal will consider the
same factors as a transfer case, e.g. it boils down to a center-of-gravity test. Where does it make
the most sense for this case to be litigated? It is always a case-by-case analysis. However, the party
seeking a ruling on FNC has a higher burden of proof than one seeking transfer, because dismissal
is a harsher judgment. However, the decision of the TC will be affirmed unless there is an abuse of
discretion, which is a very forgiving standard.
i. Is the new court a proper venue?
ii. Convenience of the parties,
iii. Convenience of the witnesses,
iv. The interests of justice,
1. Private factors: From Piper list includes: relative ease of access to evidence,
availability of compulsory process for attendance of unwilling, cost of obtaining
willing witnesses, possible need to visit the premises, and anything else that
makes trying the case easy or inexpensive.
2. Public factors: What community is most effected by the litigation, what the
burden on the court is, who should be burdened with jury duty.
v. What law will govern. Van Dusen and Ferens to not apply to §1406 cases. It would be
illogical for the choice of law rules to transfer from a court that wasn’t a proper venue in
the first place.
vi. Is there a forum selection clause? In Stewart Organization, the Supreme Court held that
a forum selection clause will be a significant factor in a district court’s calculus but is not
dispositive.
b. Is there a condition on the FNC dismissal? The court often grants the dismissal conditionally.
E.g. It could be conditional on D submitting to PJ in the foreign court, or on D waiving the SoL in
the new forum, or on submitting to American-style discovery. D will typically agree if it would
rather litigate in that forum.

15
Pleadings and Challenges to Jurisdiction and Venue
38. Is Rule 11 met?
a. Did the attorneys sign all documents? Rule 11 requires the attorney to sign all documents
including every pleading, motion, and other paper excluding discovery documents. Rule 11(a), pg.
41., Discovery = Rule 11(d), pg. 43.
b. What happens if the document is not signed? If the document is not signed, it is stricken, unless
the problem is quickly corrected. Rule 11(a), pg. 41
c. What does the signing signify? When an attorney signs a document under Rule 11 she is
certifying that four things are true to the best of her knowledge, information and belief formed
after an inquiry reasonable under the circumstances: Rule 11(b), pg. 41-2.
i. That the paper is not for an improper purpose, Rule 11(b)(1).
ii. That the legal contentions there are warranted by law or at least by a non-frivolous
argument that the law ought to be changes. Second part allows for argument for changed
law, e.g. D invites P to park car on the curb outside his store, where P is mugged. P has no
claim under existing law because she is not on the property. Could argue the law should
be extended to cover express invitation to park near the property . Rule 11(b)(2).
iii. That any factual contentions have evidentiary support or at least are likely to have
evidentiary support after further investigation. P’s burden. Rule 11(b)(3)
iv. That denials of factual contentions have evidentiary support or are likely to after further
investigation. D’s burden. Rule 11(b)(4).
d. Is the attorney effectively recertifying a document? The certification under Rule 11 is
continuing. It is effective every time that the document is presented to court. E.g. If an attorney
signs a document today and then six months from now advocates a position from that document,
she is recertifying it.
e. Is the belief reasonable under the circumstances? The reasonableness of an attorney’s belief is
dependent on the circumstances. If a PI case has been in litigation for several years and she has not
bothered to read the police report, she may be violating the rule by presenting erroneous
information. By contrast, if a client comes in the morning that the statute is about to run on his
claim, then the attorney may be excused from knowing information only available from key
witnesses and medical records.
f. How are motions for violation of Rule 11 raised?
i. Did opposing counsel raise a Rule 11 issue? Motions for violation of Rule 11 are served
but not filed. A party that thinks opposing counsel has violated Rule 11 drafts a motion
for sanctions and serves it to the other side, who then has 21 days to withdraw the
offending document. If she does not withdraw it within 21 days, the first party can file the
motion with the court and seek sanctions. This is a safe harbor provision to allow
opposing counsel to fix his Rule 11 problems. Rule 11(a), pg. 42.
ii. Did the court raise a Rule 11 issue? The court can, on its own initiative, enter an order
describing the conduct that appears to violate Rule 11 and order the attorney, law firm, or
party to show why it is not a violation.
g. What sanction is imposed for the violation?
i. Are sanctions mandatory? Under Rule 11 sanctions are discretionary.
ii. Who can sanctions be imposed against? The court can impose them against the
attorney, the firm, or the party herself.
iii. What is the purpose of the sanction? The goal is deterrence, not punishment, so the
sanction should be sufficient to deter repeated conduct and the rule tells the court to look
to non-monetary sanctions. Rule 11(c), pg. 42.
iv. Is the penalty for a 11(b)(2)? Monetary damages cannot be awarded against the party
for a violation of 11(b)(2) because such violations arise out of a mistake made by the
attorney in drafting the legal contention.
v. Was the court’s order to show cause before voluntary dismissal? The court cannot
award monetary damages if the OSC was issued after a voluntary dismissal or settlement.
h. Did either party plead contradictory claims? Contradictory claims and claims in the alternative
are allowed, as long as both claims meet Rule 11. e.g. Where a woman’s husband died in a car

16
 crash, she can allege both that he was negligently served alcohol and that he was sober and let the
jury decide which of two Ds is liable. This works under Rule 11 because she has no direct
knowledge of whether her husband was drunk. This rule makes sense. Otherwise she would have
to file two separate cases, which 1) would make litigation more expensive for both her and the
taxpayers, and 2) would allow the Ds in each case to use the other case to escape liability.

39. Is the complaint sufficient?

a. What is the purpose of the complaint? Under the federal rules, the complaint and other
pleadings serve primarily to give notice, e.g. to apprise the D what she is being sued for, and to
apprise the P of defenses.
b. Does the complaint contain the required information? The complaint must contain:
i. A statement of subject matter jurisdiction, (PJ and venue raised by D)
ii. A short and plain statement of the claim showing that P is entitled to relief, This does
not need to include facts. The goal is to promote the resolution of cases on the merits.
iii. A demand for judgment. P needs to tell the court what he wants. Money, injunctive
relied, etc. It is often called the prayer or the ad damnum clause. Some of these figures
are shockingly large.
c. What happens if any of these requirements are missing? If any of those three are missing the
case must be dismissed. Under the federal rules the D has to be able to read the complaint and
figure out what she is being sued for.
d. Does the P need to plead any special matters in detail? Circumstances constituting fraud or
mistake and items of special damage must be pleaded with specificity. Special damages are those
that do not flow naturally from the event. In Leatherman the supreme court made it clear that
courts cannot add categories of cases to this list. If it is not listed in Rule 9, then the court cannot
impose a heightened pleading requirement.
e. How can the D test the formal sufficiency of the complaint? D can test the formal sufficiency
of the complaint with a motion to dismiss under 12(b)(6). It will be granted if the court cannot
even imagine a set of facts under these allegations that would justify a judgment. This is a tough
standard.
f. Can the P file a common count? Common counts do not contain must detail but are available in
federal court and even most code states. The common counts in the federal forms are good by
definition.

40. Is the answer sufficient?

a. What are D’s options for response? D can either file an answer or bring a motion.
i. When can D bring a motion?
1. What motions can the D bring before pleading? A motion is not a pleading.
Rule 12(b) lists seven issues that can be raised by motion. 12(e) allows motion
for a more definite statement when the pleading is too vague to frame a
response. 12(f) allows a motion to strike, which can be used for many things,
including to pare out immaterial or scandalous allegations and to try to prevent
wording that will open the door to punitive damages.
2. What motions can D bring after the pleadings are closed? 12(c) motion for
judgment on the pleadings can be raised after the pleadings are closed. If matters
outside the pleadings are presented and to and not excluded by the court, the
motion shall be treated as one for summary judgment, governed by Rule 56.
Rule 12, pg. 43.
ii. Why would D choose a motion over an answer? D may raise a motion when there is a
good chance of dismissal. D wouldn’t need to bother crafting an answer if the motion is
granted. However, if D is not sure the motion is good, she may wait until the facts are
clearer later on so that the motion is preserved for when it can win.
iii. Has the D consolidated her motions? Under 12(g) and 12(h), D making a motion under
Rule 12 must join all motions then available, else motions available under 12(b)(2), (3),
(4), and (5) are deemed waived. These defenses are also waived if they are not in the
responsive pleading or the first order made before the responsive pleading. Rule 12(h),
12(h), pg. 45.

17
b. How does D challenge jurisdiction or venue?
i. What defenses are available under 12(b)? Rule 12(b) lists seven defenses that the D
can raise either by answer or by motion to dismiss: 1) lack of SMJ, 2) lack of PJ, 3)
improper venue, 4) insufficient process, 5) insufficient service of process, 6) failure to
state a claim, 7) failure to join an indispensable party.
ii. Is D trying to raise a waivable defense? 12(b)(2), (3), (4), and (5) are generally referred
to as waivable defenses. They must be put in D’s first Rule 12 response or the defense is
gone. Watch for a scenario where one of them is in an initial motion, then another is in
the answer after the motion is denied. That is no good.
iii. Is D trying to raise one of the other three 12(b) responses? 12(b)(6) and 12(b)(7) can
be raised anytime through the end of trial, essentially up through judgment. 12(b)(1) can
be raised at any time and is never waived.
c. When must D respond?
i. Was D served with summons? D must respond within 20 days after being served with
process (summons and complaint).
ii. Did D return a waiver? If service of process was waived under Rule 4(d), D has 60 days
after the date the request for waiver was sent if D is within the U.S., or 90 days if D was
addressed outside a U.S. judicial district.
iii. Is D filing a motion for more definite statement or a motion to strike? A 12(e) and
12(f) are brought before filing a responsive pleading.
iv. Is D raising a waivable defense? The waivable defenses must be in the first motion or
responsive pleading made.
v. Is D filing an answer after her motion was denied? D has 10 days from the date on
which her motion was denied to file her answer. Rule 12(a)(4)(A), pg. 44.
vi. Does D meet the incumbent duty of reasonable time? Raising an issue timely under
Rule 12 does not preserve it forever. If D raises an issue properly by motion or in her
answer, then does not pursue it for several years, the court may deem it waived if she tries
to introduce it again. D must pursue the defense within a reasonable time.
vii. How do you count days? All days are counted, including holidays, weekends, etc. If day
20 is a weekend or holiday, then you get until the next business day that the court is open.
d. What must be in the answer? D must respond to the allegations of the complaint and present
affirmative defenses.
i. Has D responded to the allegations of the complaint? D must respond to the
allegations in the complaint. There are three responses:
1. admit,
2. deny, or
3. state that you lack sufficient information to admit or deny. Stating that you lack
sufficient information has the effect of denial but it cannot be used if the answer
is in your control or is a matter of public knowledge.
4. Failure to deny an allegation constitutes an admission. Except for allegations of
damages. Rule 8(b), pg. 38.
5. General Denials: A general denial is a denial of everything in the complaint. It is
OK under federal practice but very rarely appropriate, since there is nearly
always something you can admit to in a complaint. Rule 9(b), pg. 40.
6. Specific Denials: What you normally do. E.g. deny everything in ¶3, ¶5, ¶7 and
admit the allegations of the other ¶s.
7. Negative pregnant: Do not be over-literal with denials. If the client did not do
something, simply deny. You do not want ti implicitly admit that something else
could be true.
8. Pleadings with no response. Averments in a pleading to which no response is
required to permitted shall be taken as denials.
ii. Has D raised affirmative defenses? Rule 8(c) lists 19 affirmative defenses, but the list is
not exhaustive. Any time the D is taking a position as an affirmative defense, it has to be
in the answer.

18
 1. Is a type of response an affirmative defense? Use the “even if” test. Can you
say, “Even if I did everything the complaint alleges, I should not be held liable
because. . . . .”?
e. Can the D raise a direct or collateral attack to forum?
i. What is a direct attack? A direct attack is where D goes to the forum and makes an
argument. If she does this, she must raise all of her defenses. She cannot argue the merits
in the other forum then, once there is a decision, contest that there is no PJ in the forum in
which D tries to enforce the lawsuit. The court will not hear the argument because of
collateral estoppel.
ii. What I a collateral attack? A collateral attack is where D does not go to the forum. D
takes a default judgment and then, when the P tried to enforce the judgment, raises lack
of jurisdiction of the original court, saying it is not entitled to FFC.
f. When can a party raise an SMJ objection?
i. How can a party raise an SMJ objection? D can challenge SMJ by moving to dismiss
under Rule 12(b)(1). P can move to remand a case to state court under §1447(c).
ii. What happens when the party does not raise the issue early in the proceedings? The
notion that lack of SMJ is not a waivable defense is so strong that either party can raise it
on appeal, long after losing on the merits. Capron establishes that even a P suing in
federal court on diversity of citizenship can have the case dismissed for lack of diversity
on appeal. Ds have concealed lack of SMJ until the state court statute ran. Concealing
lack of SMJ may be actionable under Rule 11, but the verdict will be set aside.
iii. Can D bring a collateral SMJ attack? One major limitation on raising SMJ is the
inability to raise it in a collateral attack. 1) If D litigates SMJ and loses, he cannot bring it
again in a separate action. 2) According to Chicot, it appears that Ds also cannot raise
SMJ in a collateral attack if they merely tried the case on the merits in the initial suit. 3)
The restatement allows a collateral attack against a default judgment, but there is limited
case law to support this. And, even though it is a default judgment, the court has a
responsibility to raise SMJ sua sponte, so it may be reasonable to infer that the issue was
resolved, even if D was not there to litigate it.
1. Is this a bankruptcy case? In Kaub, the court found an exception to this rule in
bankruptcy cases.

41. Is a reply necessary? In rare cases, a reply may be necessary as ordered by the court. Reply can be used in
two senses; 1) it can be an order by the court for the P to respond to D’s answer. 2) it can be P’s response to
a counter claim.

42. Who bears the burden of proof?

a. Burden of pleading
b. Burden of production
c. Burden of proof (or persuasion): In general, the side that pleads a claim must prove it at trial. P
needs to prove the elements of the claim. D must prove affirmative defenses. E.g. If ABCD are
true, then P wins unless XYZ. P must prove ABCD. D must prove XYZ.
i. Repayment of loan exception. P must allege that D failed to repay a loan. However, D
must also raise and prove the affirmative defense of payment because, as a practical
matter, there is no way for P to show failure to repay.
ii. Defamation exception. Defamation is an untrue statement that holds somebody up to
ridicule or scorn. P must plead defamation, but D must raise the affirmative defense of
truth, because the P cannot possibly prove a statement is untrue. E.g. If I call Freer a
prostitute, he has no way of proving he has never prostituted himself. I must present some
evidence of the truth of his claim.

43. Does the pleading meet rule 10?

a. Does the pleading contain a caption? Every pleading must contain a caption setting forth the
name of the court, the title of the action, the file number, and a designation as in Rule7(a). In a
complaint the title must include the names of all the parties but in other pleadings it is sufficient to

19
 state the name of the first party on each side with an appropriate indication of other parties. Rule
10(a), pg. 41.
b. Are the paragraphs numbered? All averments of claims or defenses must be made in numbered
paragraphs, the contents of which shall as possible be limited to a single set of circumstances. The
¶ may be referred to by number in subsequent pleadings. Each claim founded on a separate
transaction shall be states in a separate count. Rule 10(b), pg. 41.
c. Is there adoption by reference? Statements in a pleading can be adopted by reference in a
different part of the same pleading or in another pleading or motion. A copy of an exhibit to a
pleading is part of the pleading for this purpose. Rule 10(c), pg. 41.
d. See sample heading on pg. 308 of textbook.

44. Can the case be dismissed?

a. Can P dismiss the case?
i. Unilateral dismissal: P can file a notice of dismissal before service by the adverse party
of an answer or a motion for summary judgment. Note that this is only for an answer or
motion for summary judgment. The case could be open for months and the court could
have held pre-trial hearings, but if there was no answer, dismissal without prejudice may
still be allowed. Rule 41(a)(1), pg. 93.
ii. Stipulation of parties: P can file a stipulation signed by all the parties who have
appeared in the action.
iii. Is the dismissal without prejudice? The dismissal is without prejudice unless otherwise
stated in the action except that the dismissal acts as an adjudication on the merits if the P
has once dismissed in any court of the US or any state court an action including the same
claim. This is to prevent absive tactics and harassment by the P. Rule 41(a)(1), pg. 92.
iv. Payment of costs: If P has dismissed this action before, the court may make P pay for the
proceedings of the dismissed action before proceeding with the case.
b. Can the judge dismiss the case? The court can order a dismissal on such terms and conditions as
it deems proper. If a counterclaim has been pleaded by D, the action shall not be dismissed unless
the counterclaim can remain pending for independent adjudication. Unless otherwise specified the
dismissal is without prejudice. Rule 41(a)(2), pg. 93.
i. Review of dismissal: Under certain circumstances, the judge may lose his ability to
dismiss without prejudice, e.g. in Grover where the judge dismissed without prejudice to
thwart a decision by the Ohio SC.
c. Can the D dismiss the case? If P fails to prosecute or comply with any rules or orders of the
court, D may move for dismissal. Unless the court orders otherwise, a dismissal not provided for
in Rule 41 operates as an adjudication on the merits unless it is for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19. A judge can also initiate a motion on these sua
sponte. Rule 41(b), pg. 93.
d. Can a party voluntarily dismiss her counterclaim, cross-claim, or third-party claim? Rule 41
applies to such claims. Voluntary dismissal is allowed if made before a responsive pleading is
served, or if there is none, before the introduction of evidence at trial or hearing. Rule 41(c), pg.
93.
e. Can the party whose case is dismissed seek relief under Rule 60? Rule 60, pg. 114.
i. Clerical mistakes: Clerical mistakes can be corrected by the judge or by motion. Rule
60(a), pg. 113.
ii. Mistakes, etc. On motion made within reasonable time and upon just terms, court may
relieve party from final judgment in cases of:
1. Mistake, inadvertence, surprise, excusable neglect,
2. Newly discovered evidence which due diligence could not have revealed in time
to move for a new trial,
3. Fraud, misrepresentation or other misconduct by adverse party,
4. The judgment is void,
5. The judgment has been satisfied or a prior judgment upon which ti is based has
been reversed or vacated,
6. Any other reason!

20
45. Are amendments allowable?
a. When can the P amend? P has an absolute right to amend once before D served her answer.
Remember that a motion is not an answer, so if D responds by motion the right to amend is still
open. Rule 15, pg. 49.
i. Why would P want to amend? Maybe P forgot a claim or forgot an element of damages,
or wants to flesh out more information.
b. When can the D amend? D has the right to amend once within 20 days of serving her answer.
i. Why would D want to amend her answer? Two major reasons:
1. Failure to deny some allegation of the complaint. D could realize she failed to
deny something, and would otherwise be admitting to it.
2. Omission of an affirmative defense. If D does not amend to include an
affirmative defense she wanted to make, she may end up waiving it.
c. What if the above timeframes do not apply? If the above time limits do not apply, there is no
right to amend, but either party can 1) seek leave of court or 2) consent of the adverse parties. This
leave to amend shall be freely granted when justice so requires. This is mandatory language so
courts are very liberal about it. Courts will generally only deny if they think you are acting in bad
faith, trying it spring a trap on somebody. The party ought generally be afforded an opportunity to
test the claim on its merits. Appellate division uses reasonable discretion, which si a broad
standard, for reviewing the DC judge.
i. Why would the adverse party consent? Opposing counsel may consent to foster good
will, or in case he needs a favor later. Moreover, if he refuses to consent, and the judge
ends up granting the amendment after the first party seeks leave of court, the judge may
be frustrated at or annoyed with opposing counsel. The goal of litigation is not to win on
technicalities.
ii. What is amendment will prejudice the parties? The court may still rule to allow the
amendment, then use Rule 42(b) to order a separate trial to avoid confusion and
prejudice.
d. Is there a variance problem?
i. Did opposing counsel fail to object? If a party presents evidence that goes beyond what
is plead and opposing counsel does not object, the court will treat the party’s complaint as
if it were amended to show the new claim. After the trial P can amend the complaint to
conform to the evidence, but does not have to.
ii. Did opposing counsel object? If opposing counsel does object, the immediate result is
that the evidence is not admissible, however the court will grant a request for amendment
unless the other side shows it will be prejudiced. Even if the other side will be prejudiced,
the court may simply continue the trial to let him get ready, though it will be reticent to
do this in a jury trial Courts will generally allow an amendment unless it is made with a
bad motive.
e. Is a party trying to amend when the statute of limitations has run? When P amends to add a
new claim against the same D, rule 15(c)(2) allows an amended pleading to relate back to the
original pleading if it concerns the same conduct, transaction, or occurrence as the original
pleading. When P amends to change the D or add a D the change will relate back if P can show
three things: 1) the amendment concerns the same conduct, transaction, or occurrence as the
original pleading, 2) the new party knew about the case within 120 days of filing, 3) the other
party knew that but for a mistake, she would have been named originally. Relation back is also OK
if it is provided for by statute.
i. When is the SOL running? The SOL runs continuously unless something tolls it, or
stops the ticking. One toll is minor statues. The SOL will not start to run until the child
turns 18. Another is commencement of a case. However, the SOL is merely tolled, not
reset. If the case is later dismissed without prejudice, we can refile, but we may have to
do so very quickly to avoid an SOL problem.
ii. Is D trying to change the name of the party or change the party named? If within
120 days of filing the claim, the D 1) knows of the action, and 2) knows that but for a
goof-up they would have been named, the amendment is all right.

21
46. How does P enforce a default?
a. What is default? Default is different from default judgment. Default is simply a notation on the
docket sheet. It is a ministerial act on the part of the clerk.
b. What is a default judgment? A judgment is different. A judgment is an order from the federal
district court that the D owes the P money or some other type of relief. A judgment is enforceable,
while a default is not.
c. How is a default entered? When D has failed to defend as provided by the FRCP, P must present
an affidavit or other evidence to the clerk, who must enter the party’s default. Rule 55, pg. 109.
d. How is a judgment entered?
i. Can the judgment be entered by the clerk? P can present an affidavit and request to the
clerk who shall enter a judgment for that amount and costs if
1. D does not appear or respond at all,
2. The claim is for a certain sum, e.g. liquidated, and
3. D is not a minor or incompetent. Rule 55(b)(1), pg. 109.
ii. Can the judgment be entered by the court? In all other cases P must apply to the court.
1. Is D a minor or incompetent? No default can be entered until a minor or
incompetent is represented in the action by some type of guardian.
2. Has D appeared in the action? If D appeared in the action at any point, he
must be served with written notice of application for judgment at least 3 days
prior to the hearing. The court is accommodating to pro se litigants, so if a
person is representing himself, a mere letter to the court stating that D does not
want to be sued may count as an appearance in this case.
3. Is it necessary to have a damages or issues hearing? The court may conduct
hearing on damages or to prove the truth of an averment as it deems necessary
and proper, and will assign a jury where necessary and proper under U.S.
statutes. Rule 55(b)(2), pg. 109.
e. Can the default be set aside?
i. Is it an entry of default? The court can set aside an entry of default with good cause.
This usually involved excusable neglect, e.g. mistake, surprise, miscommunication about
service of process within a company. The D must throw herself that the mercy of the
court and hope it will set aside the default. Rule 55(c), pg. 109.
ii. Is it a default judgment? The court can set aside a default judgment in accordance with
Rule 60(b). Mistake, inadvertence, surprise, excusable neglect. D will need a viable
defense. That MO must be made within a reasonable time not to exceed one year.
f. Can there be a default by a counterclaimant or cross claimant? This rule applies to counter
claims and cross claims as well as to the original P. Rule 55(d), pg. 109.
g. Is the claim against the U.S. or an officer? The court will conduct an investigation to determine
if the evidence is satisfactory before entering judgment. Rule 55(e), pgs. 109-10.
h. Can the D respond? If the D is over the time limit for response, she can file a motion for
enlargement under Rule 6(b) then, if its granted, respond. However, in practice, almost any court
will allow a D to respond as long as there is no default on the books. Therefore, P should get down
to the court on the morning of the 21st day to get the default on the books.

22