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Grable Test? Gasperini? 1332 1367 28 USC 1331 1391 1404

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Ch 2: Jurisdiction Over the Parties or Their Property Personal J Checklist: o Was the defendant properly served with process within the state (constitutional ? yesthere is general personal jurisdiction nogo to the next question o Does the forum states long-arm statute provide for jurisdiction over the defendant? (may list the required contacts) nothere is no personal jurisdiction yesgo to the next question o Does the defendant have proper contacts to satisfy general jurisdiction? (Consent, Domiciled, Owns Property) yesthere is general personal jurisdiction no- go to next question o Does the defendant have substantial minimum contacts with the forum state to allow for specific personal jurisdiction? Expanding the Bases of Personal Jurisdiction o Hess v. Pawloski Hess was charged with negligent driving Was not personally served and had no property in Mass. Mass govt passes a law of implied consent, that when you drive through the state, you appoint govt official to serve process Appeals that it violated police power Court says that it is ok because state has the right to regulate Theres a safety concern-police power No discrimination against out-of-staters

A New Theory of Jurisdiction o International Shoe Co v. Washington Issue: whether Washington has J over an out-of-state business that engages in business within the state, with an agent in state who was served. Presence: Minimum Contacts Agents, Rentals, Sales Systematic and continuous Specific J: Can be sued for something arising out of these contacts, regardless of minimal-ness General J: Can be sued where HQ is Test: Received benefits as a result of protection form state laws/ services Not violate fair play/substantial justice: burden on parties, interest of state, evidence, witnesses Quality and frequency in relation to law General J: Corporate HQ State of Incorporation Domiciled Specific Jurisdiction and State Long-Arm Statutes o Development of Long-Arm Laws Gray v. American Radiator and Standard Sanitary Corp When the statute covers a particular event and that event both relates to the case and occurred in the forum state, the event satisfies minimum contacts

o Due Process and Long-Arm Statutes McGee v. International Life Ins. Co. Contract issued by foreign corporation to resident of California had substantial connection with that state sufficient to meet requirements of due process. Less burdensome to litigate across states Substantial Connections Hanson v. Denkla How extensive must contacts be? Must be some act by which the D purposefully avails itself of the privilege of conducting activity in the forum state, thus invoking its benefits and protections Worldwide Volkswagen Corp. v. Woodson Purposeful availment Test: Minimum contacts Foreseeability Reasonableness and Fairness Burger King Corp v. Rudewicz Ds purposefully availed themselves to the forum Foreseeability and fair warning Site of injury as well Asahi Metal Industry v. Superior Court Purposeful availment: knew product could end up in forum state Calder v. Jones

A state has personal jurisdiction over any party whose actions intentionally reach another party in the state and are the basis for the cause of action. General Jurisdiction and State Long-Arm Statutes o Domicile: Where you intend to stay o Perkins v. Benguet Consolidated Mining Co Can a state exercise PJ over a foreign corp when the cause of action does not arise in the state or relate to an of the corp.s activities while in the state? As long as activities in the state are systematic and continuous o Fisher Governor Co. V. Superior Court Need more than sales and sales promotion within state by ind nonexclusive sales reps o Helicopteros Nacionales De Colombia, SA v. Hall Personal J Test: Can you hail D to state? Purposeful Availment Interest of Forum State Reasonableness Internet and Other Technological Contacts o Pebble Beach v. Caddy Personal Jurisdiction Purposeful Availment Purposeful Direction Jurisdiction Based Upon Power Over Property o Harris v. Balk

Creditor can claim a debt against one of his debtors debtors The debt follows the debtor wherever he goes o Shaffer v. Heitner Kills Pennoyer Needs a quasi in rem standard(subject to min contacts) Mere ownership of property in a state is not a sufficient contact to subject the property owner to a lawsuit in that state unless the property is the subject of that lawsuit Insufficient contact owning stock in a company Everything must meet min contacts A Refrain: Jurisdiction Based Upon Physical Presence o Burnham v. Superior Court Issue: whether due process requires a similar connection between the litigation and the defendants contacts with the state in cases where the D is physically resent in the State and the time process is served upon him Physical presences has been and still is always jurisdiction but must be voluntary Shaffer: quasi in rem jurisdiction and in personum jurisdiction are really one and the same and must be treated alike, and satisfy the litigation- relatedness requirement of Shoe Another Basis of Jurisdiction: Consent o Ins Corp of Ireland v. Compagnie Des Baux-Ites De Guinee If you contest the issue in court you consent to abiding vy the court rule and procedures By contesting the jurisdiction you may not be contesting to whether the jurisdiction is valid but you are consenting to the courts authority to decide that issue o M/S Bremen v. Zapata Off-Shore Co There cant be globalized commerce and not honor forum selection clauses o Carnival Cruise Lines, Inc v. Shute Cruise line had a special in limiting forum because customers come from all over

Types of clauses: o Choice of law clause:

Tells course which law should apply o Consent to jurisdiction clause Parties consent to a certain forum but is not limited to that forum o Forum selection (Carnival, Bremen) This is the only appropriate forum o Arbitration Clauses Parties waive right to jury trial Controversial, legislature trying to limit arbitration clauses Arbitrators can be swayed Ch 3: Providing Notice and an Opportunity to be Heard The Requirement of Reasonable Notice o Mullane v. Central Hanover Bank & Trust Co Notice Requirements: Notice by publication is insufficient if address is known But ok if address is unknown o Goldberg v. Kelly Post-termination is not allowed if it is a right, but entitlement is not a right Requirements for a post-hearing Adequate notice

Need opportunity to confront witnesses Need to be able to present oral argument o Matthews v. Eldridge Termination of benefits: Due process: meaningful time and manner Balancing test: Private interest at stake Risk of erroneous deprivation Government interest- cost o Lassiter Private Interests Parent has strong interest in fairness and justice of the trial Risk of erroneous deprivation Shouldnt take away a parent who deserves child Government Interest Keeping cost down The Mechanics of Giving Notice o Specific Applications of the Service Provisions Federal Rule 4(d): Waiving Service Maryland State Firemans Association v. Chaves Federal Rule 4(e): Personal Delivery on Natural Persons

Federal Rule 4(e)(2)(B): Service on a Person Residing in Ds Dwelling or Usual Place of Abode Federal Rule 4(e)(2)(C): Delivery to an Agent Authorized by Appointment National Equipment Rental Ltd. V. Szukhent Federal Rule 4(h): Serving a Corporation, Partnership or Association Ins Co of North American v. S/S Hellenic Challenger Federal Rule 4(f): Serving an Individual in a Foreign Country Wagenwerk Aktiengesellschaft v. Schlunk Immunity From Process and Etiquette of Service o Immunity From Process State Ex Rel. Sivnksty v. Duffield A nonresident defendant may be served with process for a civil action while confined to jail for a criminal prosecution arising from the same acts if the defendant was voluntarily in the jurisdiction at the time of arrest and confinement. o Etiquette of Service Wyman v. Newhouse A judgment based on service of process procured by fraud is invalid. Ch 4: Jurisdiction Over the Subject Mater of the Action: The Courts Competency Subject-Matter Jurisdiction in State Courts o Lacks v. Lacks Problems discovered in cause for relief does not remove SMJ o Tafflin v. Levitt State courts have concurrent jurisdiction to decide civil claims brought under the Racketeer Influenced and Corrupt Organizations Act Holding: the principle that lack of SMJ makes a final judgment void is not applicable to cases which, upon analysis, do not involve jurisdiction, but merely substantive elements of a cause for relief

Would undermine res judicata: a case in which there is a final judgment is not subject to appeal And would eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect Because the matter had gone to final judgment the matter should have ended o Thrasher v. U.S. Liab. Ins. Co. Drew a distinction between courts competence to entertain an action and its power to render a judgment on the merits Absence of competence to entertain action deprives court of SMJ; absence of power to reach the merits does not The Subject-Matter Jurisdiction of the Federal Courts- Diversity of Citizenship o Domicile: Primary establishment where someone lives/lived and intend to return to sometime in the foreseeable future Corporated places of business: weight is given to where production or service activities are Considers all circumstance of a corporation Unincorped like unions or law firms Domicile of every member is considered If one person is domiciled in the same state as the P there is no diversity jurisdiction o Aggregation Rules: Single Parties can aggregate all claims, even if unrelated. Multiple Parties: no aggregation unless the claims are joint, such as undivided interest claims (i.e., s jointly liable); s allegation of amount suffices unless disproved as a legal certainty, injunctions should be quantified in $ value to meet the jurisdictional requirement. Single P cannot aggregate costs for one D 2 P sue 1 D and neither meet juris threshold cant aggregate claims unless they are seeking to enforce right they share unlikely in personal injury More than one P and one doesnt meet jurisdictional threshold the court can exercise Supp. Juris. Over both P -> D (c1+c2)

Can be aggregated P-> D1 <- $75,000 D2 <- $75,000 Cant be aggregated As long as one of the claims is > $75,000 and there is diversity citizenship, you can get into federal court The SMJ of the Federal Courts- Federal Questions o Complaint arise from federal law No minimum amount o Express or implied federal cause of action? No> Allege a state cause of action in which fed law is essential? Yes > Private right of action?> Yes? FQJ o Four-part test (307) Private Right of action Is P one of the class for whose especial benefit the statute was enacted Is there an indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one Is it consistent with the underlying purposes of the legislative scheme to imply a remedy for the plaintiff Is the cause of action one traditionally relegated to state law in an area basically the concern of the States, so that is would be inappropriate to infer a cause of action based solely on federal law o Louisville And Nashville R. Co. v. Mottley Anticipating that a D will make a claim under a fed statute does not qualify for fed q o Merrell Dow Pharmaceuticals Inc v. Thompson If legis never intended statute to allow a private cause of action- there can be no fed q o Grable And Sons Metal Products Inc v. Darue Engineering And Manufacturing If there is a coexisting fed and state law can choose either for jurisdiction so long as fed j wouldnt disturb any congressionally approved balance of fed and state judicial responsibilities The SMJ of the Federal Courts- Supplemental Claims & Parties

o 1367(a) authorizes a court to exercise supplemental jurisdiction over civil actions and contains two bases for declining supplemental jurisdiction: (1) a federal statute that prohibits supplemental jurisdiction o Part (b) lists the Rules of Civil Procedure under which a district court could not exercise supplemental jurisdiction. o (c) details other circumstances in which the court may choose to decline to exercise supplemental jurisdiction: (1) a novel or complex issue of State law, (2) predominance of a state claim, (3) dismissal of the case under original jurisdiction, and (4) in exceptional circumstances, other compelling reasons o Same case or controversy? Y> Fed Q /DJ? Fed Q>SMJ, DJ> no o United Mine Workers of America v. Gibbs three-part test to establish jurisdiction: (1) the federal claim must confer subject matter jurisdiction, (2) the federal and state claims must derive from a common nucleus of operative fact, (3) the claims must be such that the plaintiff would be expected to try the cases together If the federal claim loses out the state claim can still be heard in fed court if it passes the test (Pendant J) Shouldnt exercise Pendent J: Doctrine of discretion Even if federal claims are dismissed before action can be furthered then they should dismiss state claims as well even if fed claim was sufficient If state claim is the real body of the claim o State National Ins Co v Yates If diversity is destroyed by P over Joinder rules then no J BUT if diversity is destroyed by D court can Counter claims do not make a D a P for 1367 o Exxon Mobil Corp v. Allapattah Services Inc At least one of the Ps in a claim have to meet the 75,000 threshhold to qualify for SMJ o Executive Software North American Inc v. United States District Court for the Central District of CA

Affirmed Gibbs but with 1367 which is stricter- mandatory language The SMJ of the Federal Courts- Removal o If there is a case for SMJ in federal court, and the P files in state court, the D can file for removal to federal court Court can also move a case o 1441: When can a case be removed? Only goes from state court to federal court Cant remove the other way o Federal court can remand though if the case could have been filed in federal court in the first place where federal SMJ (diversity or fed q) If D is sued in the state its domiciled and theres a case for diversity jurisdiction, it cannot remove to federal court on basis of diversity The purpose of diversity jurisdiction to prevent out of state prejudice is no longer an issue If diversity changes after the original complaint cannot be removed (there are exceptions) o 1446: Procedure for removal o If lack of SMJ is discovered late in the process itll be allowed for efficiency, finality and economy (Caterpillar v Lewis) o Challenging the SMJ of the Court Direct Attack on a Courts Lack of SMJ United States v. Unites Mine Workers Common nucleus and try together Grupo Dataflux v. Atlas Global Group Even if a lack of diversity is cured after filing, the case lacked SMJ at the time

Collateral Attack on a Judgment for Lack of SMJ Court can raise a challenge to SMJ on behalf of parties Ch 5: Venue, Transfer, and Forum Non Conveniens Venue o Venue In Federal Courts Bates v. C and S Adjusters Inc Can avail self of forum if forwards mail Transfer of Venue in Federal Courts o Hoffman v. Blaski Court can transfer for convenience of witnesses Forum Non Conveniens o Gulf Oil Corp v. Gilbert Ease of access to sources of proof Availability of compulsory process for attendance of unwilling witnesses Cost of obtaining attendance of willing witnesses Possibility of views of premises if appropriate All other problems of ease, expeditiousness, and cost o Piper Aircraft Co v. Reyno Applies Gilbert o Odenton Weigh public and private interests

Must weight heavily in favor of moving party Ch 6: Ascertaining the Applicable Law State Law in Federal Courts o The Erie Doctrine: The Rules of Decision Act and the Rules Enabling Act Erie R Co v. Tompkins A federal court in diversity jurisdiction must apply state substantive law Prevents forum shopping Guaranty Trust Co v. York Outcome-determinative test: state law controls only if the choice between state or federal law could determine the outcome Ask about state law Whether kind of law that would cause are reasonable litigant to choose or escape the state forum at a point in time when it is still possible to comply with both federal and state law because of the laws effect on the character or result of the law suit. question about STATE LAW. Can't forum shop for diff substantive standard Point in time matters. Statute of limitations - not outcome determinative Byrd v. Blue Ridge Rural Electric Cooperative, Inc Interest Assessment test Is the state rule bound up by the [state created] rights and obligations? if so state rule applies? Even if it isnt, would application of state v. federal law determine outcome? Even is so, then court must balance state interest against federal interest. Hanna v. Plummer

Federal procedural rules (unless found constitutional and invalid under the Rules Enabling Act) are not overridden by state law or policy Test: Is there a FRCP or statute on point? If so, question is whether its constitutional and, in the case of a rule, comports with the Rules Enabling Act? When theres no fed rule or statute, question is whether fed practice would lead to o Forum shopping OR o Inequitable administration of the laws Walker c. Armco Steel Corp If both rules can operate together: awesome If not: if there is a state SOL, that will be respected by the court. There is not specific statute or FRCP that sets a SOL for every kind of action Stewart Org, Inc v. Ricoh Corp Forum selection clauses respected in federal court Gasperini v. Center for Humanities Inc If a state law can be used without violating the federal it should

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1. Does court have subject matter jurisdiction? Diversity Federal Q o Four-part test (307) (Private Right of Action) Is P one of the class for whose especial benefit the statute was enacted Is there an indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one Is it consistent with the underlying purposes of the legislative scheme to imply a remedy for the plaintiff Is the cause of action one traditionally relegated to state law in an area basically the concern of the States, so that is would be inappropriate to infer a cause of action based solely on federal law Supplemental Jurisdiction o Three-part test to establish jurisdiction: (1) the federal claim must confer subject matter jurisdiction, (2) the federal and state claims must derive from a common nucleus of operative fact, (3) the claims must be such that the plaintiff would be expected to try the cases together If the federal claim loses out the state claim can still be heard in fed court if it passes the test (Pendant J) Shouldnt exercise Pendent J: Doctrine of discretion Even if federal claims are dismissed before action can be furthered then they should dismiss state claims as well even if fed claim was sufficient If state claim is the real body of the claim 2. Does court have personal jurisdiction over D? Specific: Minimum contacts (International) o Purposeful availment

Offices or Agents in Forum State (McGee) Reached into forum state to solicit or initiate business (McGee/ BK) Engaged in significant or long-term business activities in state (BK) Nature, quality, and extent of the parties communications about the business being transacted (Consulting) Did D make in-person contact with the resident of the forum in the forum state regarding the business relationship (Consulting) Any ads must be aimed at the specific forum o Claim arises from forum-related activities or was a result of such activity D committed intentional tort P felt brunt of harm in forum D expressly aimed tortious conduct at the forum o Reasonableness o Contact with forum state must be significant General o Corporate HQ o State of Incorporation o Domiciled 3. Assuming SMJ and PJ, has the D received proper notice and ability to be heard? (Minor Part/ Elderidge standard) 4. Have the service of process been carried out properly? Service of Process: the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. 5. Does the court have proper venue? 6. Can D remove the case to federal court?

if the case could have been filed in federal court in the first place where federal SMJ (diversity or fed q) If D is sued in the state its domiciled and theres a case for diversity jurisdiction, it cannot remove to federal court on basis of diversity 7. What law applies? Federal or state? The Rules of Decision Act requires that federal courts apply state law in their decisions arising out of diversity jurisdiction, except when in conflict with federal law. 2072. Rules of procedure and evidence; power to prescribe (REA) o (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. o (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. o (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. Basic Rule: o Federal court hearing a state claim pursuant to diversity or supplemental jurisdiction must apply state substantive law and federal procedural law o Sometimes, line between substance and procedure is blurred Steps in the Analysis: o Is there a conflict between the state and federal standard? If they can be harmonized, no conflict and court will apply both If there is a direct conflict, apply the various tests from Hanna/Byrd Modern Erie Test (use only if a direct conflict between federal and state law): o Step 1: Is there a federal statute or rule on point? (fed r of civ pro, statute passed by congress, constitutional provision) If yes, under Hanna test, federal law is supreme and must be followed, but there is a check o Step 2: Is the statute a valid exercise of federal (congressional) power that comports with the Rules Enabling Act (in other words, is this truly a procedural rule, or does it improperly abridge, enlarge or modify a substantive right?)

***Most cases resolved at this point, because federal law is supreme and will be applied o Step 3: if no federal rule or statute on point, consider the following questions: A: will following the federal practice lead to 1) forum shopping or 2) the inequitable administration of laws (the twin aims of Erie)-if yes, then use the state practice/law B: Is the state rule bound up with state-created rights and obligations? If so, under Byrd, state rule applies C: UNLESS, the federal interest strongly outweighs the state interest (if Byrd had been decided using Hanna test, would have been resolved earlier because there was a federal constitutional provision on point, and federal Constitution is supreme)

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Federal Rule of Civ Pro 4 (d) Waiving Service. (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must: (A) be in writing and be addressed: o (i) to the individual defendant; or o (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form; (D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sent or at least 60 days if sent to the defendant outside any judicial district of the United States to return the waiver; and (G) be sent by first-class mail or other reliable means. (2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorneys fees, of any motion required to collect those service expenses. (3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent or until 90 days after it was sent to the defendant outside any judicial district of the United States. (4) Results of Filing a Waiver.

When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver. (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue. (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual other than a minor, an incompetent person, or a person whose waiver has been filed may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individuals dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country's law, by: o (i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or (3) by other means not prohibited by international agreement, as the court orders.

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendants waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute and the statute so requires by also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

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