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1. Are we in the right court?

a. Personal Jurisdiction- (can the court exercise control over the parties?) i. Can the plaintiff sue the defendant in this state? 1. Same answer for state or federal court 2. Court must have power over: a. Defendant herself (preferable) i. In personam- she has various contacts with the forum 1. Specific- where the defendant is being sued on a claim that arose in the forum a. The Doctrine of Relatedness- did the claim arise within the jurisdiction? If not move on to check for general jurisdiction 2. General- the defendant can be sued in this forum on a claim that arose anywhere in the world. 3. Explicit/express consent (including forum selection clauses in contracts, such as in the Carnival Cruise matter at p. 195-196) 4. Voluntary appearance in a lawsuit, i.e. by more than contesting personal jurisdiction 5. Special Appearance to dispute personal jurisdiction b. Defendants property- power over any property real estate, a bank account, a car, etc.. but not the person- must have a statute and everyone has an attachment statute i. In rem- the lawsuit itself is about who owns the property ii. Quasi in rem- the suit has nothing to do with the property ownership- the defendant clearly owns that property. 1. Pennoyer is a great example: attached the property over a $350 legal fee, it would have worked if the court had seized that property at the outset of the case it would have been quasi in rem 3. To get power must have both: (then decide federal or state court) a. Constitutionality-Due Process clauses of the constitution sets the boundaries i. Entitled to full faith and credit if falls inside the circle of due process, the judgment is constitutionally valid ii. If outside the due process circle, the judgment is void b. State Statute- The state must have a statute that grants personal jurisdiction in this case i. Personal jurisdiction is not self executing ii. The state has to take personal jurisdiction power by passing a statute 4. EXAM- first question is Is there a statute? start here because even if the case were constitutionally OK there has got to be a statute

a. In personam- long arm statute b. In rem and quasi in rem- attachment statute 5. EXAM- second question Is it constitutional? does it fit within the due process circle? On the facts of the case, the test is seize at outset and have minimum contacts a. Shafer- seizing the property at the outset of the case is not enough, you do have to do that but not enough on its own, also show that the defendant meets Shoe. Do they have such minimum contacts with the forum? 6. Case Examples: a. Pennoyer-the traditional basis of in personam jurisdiction i. Served with process in the forum; presence 1. Must be present when served with process- gives general jurisdiction ii. Defendants agent is served with process in the forum- gives general jurisdiction iii. Defendant is domiciled in the forum- gives general jurisdiction iv. Defendant consents to personal jurisdiction- gives jurisdiction b. Hess v. Polaski- out of state car wreck- got out of the state before being served, jurisdiction upheld under the non-resident motorist act- every state has this same statute to this date- statute says that by driving into our state you consent to jurisdiction for a case arising from your driving- you appoint a state officer as your agent for service of process, i. consistent with Pennoyer ii. expanded Pennoyer from consent to implied consent c. International Shoe- not just expanding the traditional basis- time to restate the principle- minimum contacts is the test IF the defendant is not present when served. i. To have jurisdiction over the defendant, the defendant must have such minimum contacts with the forum, so that jurisdiction does not offend traditional notions of fair play and substantial justice ii. Three points: 1. By now it is clear we can serve process outside the process outside the forum 2. It appears when we look at that language- two parts a. Contact- must have minimum contacts b. Fairness- must not offend traditional notions of fair play and substantial justice 3. Nowhere does it over rule Pennoyer d. McGee- upheld jurisdiction in CA over a Texas insurance Company- jurisdiction based on the sale of one contract in California i. The court emphasized that the court had solicited the business- that they had reached into California to sell that one policy. ii. California had an interest in providing justice for its resident

e. Hansen- no jurisdiction because under Shoe the contact must result from Purposeful Availment the defendant must reach out to the forum- the defendant must avail herself of the forum f. World Wide Volkswagon- horrible wreck in Oklahoma while moving to Arizona from NY, claim car was defectively designed. Oklahoma had no jurisdiction over the NY retailer and the NY distributor who sold the car to the family. Because the NY defendants did not avail themselves of Oklahoma- the car only got to Oklahoma because the plaintiffs drove it there- minimum contacts is based on the defendants conduct. i. Foreseeability is relevant- but it is not enough that the product might get there- it must be foreseeable that the defendant could get sued in that forum. g. Burger King- contract case brought in Florida- jurisdiction upheld on two guys out of Michigan who got sued by Burger King in Florida i. Court emphasizes that there are two parts to Show the contacts and fairness ii. You must have a relevant contact before you even look at fairness 1. All the fairness in the world will not make up for no contact iii. Court said they had availed themselves of the forum 1. If you want to argue that the forum is unfair you must show that it is so gravely inconvenient that you are at a severe disadvantage in the case- almost impossible to show a. The relative wealth of the parties does not matter h. Asahi- Stream of Commerce. Example- make components in state A and sell to a manufacturer in state B who sells to states C, D and E. So even though the component company can anticipate i. 4-4 split among the justices- so case gives us no law ii. two arguments: 1. Brennan-it is a contact if I put it into the stream of reasonably anticipate that it will get to states C,D and E 2. OConnor- you need more than that. You need what Brennan said plus an intent to serve states C,D and E; you must target the states by advertising, having customer service etc. without that there is no purposeful availment a. All you have is the unilateral act of a third party i. McIntyre- stream of commerce, metal shear company to cut up scrap metal- English company reaches out to Ohio to sell the product, Ohio then sells the machines into other states incl. NJ where the plaintiff is injured who then sues English company in NJ. i. No definitive law ii. Six justices say no jurisdiction with two opinions (so still no majority) 1. Kennedy- adopt the OConnor approach- no jurisdiction in NJ because the English company did not target or reach out to NJ 2. Brier- no real position- neither the Oconnor or Brennan tests are met

3. Dissent- Ginsberg- would have upheld the jurisdiction in NJ with a theory consistent with Brennan- you targeted the US and knew it would get into states like NJ j. Burnham- Nj citizen sued in California- served with process in California, but the claim arose in NJ. It is a general jurisdiction case, all 9 justices said there was jurisdiction. But does presence when you are served give general jurisdiction, Pennoyer says yes- is that still true? No answer- court split 4-4 i. Scalia-presence when you are served is OK by itself- Shoe is irrelevant it is good law under Pennoyer- OK because of historical pedigree and that the Shoe test outright said that it was the test when the defendant was not present in the forum to be served- in this case the defendant was served in the forum ii. Brennan- you must apply Show to all cases- we do not care about historical pedigree- Do the Shoe k. Goodyear- now the leading case on general personam jurisdiction. Unanimous opinion. i. Helicopteros- earlier case- general jurisdiction good if the defendant had substantial continuous ties to the forum. Goodyear changed slightly ii. Goodyear- defendants ties with the forum means that the defendant is essentially at home in that forum. Examples: 1. For human beings it is satisfied by where domiciled 2. For businesses two options: a. State where you are incorporated b. State where you have your principle place of business 3. Goodyear may cast doubt on national companies being at home in each state they do business in may only be in state of incorporation and principal state of business 4. Goodyear- general jurisdiction can not be based on buying and selling in the state- you need a physical presence ii. How to approach the test: 1. Does the traditional basis apply? From Pennoyer a. Presence in the forum when you are served with process b. Domiciliary c. If so then based on Burnham the traditional basis is sufficient by itself according to four justices, on the other hand half the court said it is not enough because you always have to do Shoe (which means you have to apply shoe anyway for the exam) i. How do we do the shoe? 3 steps 1. Is there a relevant contact between the defendant and the forum? a. All the fairness in the world will not make up for a lack of contact, assess contact two things: i. Purposeful availment, defendant must reach out to forum

ii. Foreseeability- it must be foreseeable that the defendant could get sued in that forum 2. Assess relatedness. Specific or general jurisdiction Does this claim arise from the defendants contact with the forum? a. Yes. It is specific jurisdiction b. No. it is only Ok if you have general jurisdiction- so tell them about Goodyeari. Are they at home there? 3. Constitutional Analysis- Fairness. Is jurisdiction fair on the facts of this case? Five fairness factors: a. Inconvenience for defendant and her witnesses- Burger King in put a huge burden on defendant here b. Forum states interest- McGee- our state has an interest has an interest to provide justice for our people c. Plaintiffs interest- wants to litigate at home, especially if plaintiff is badly injured d. Legal systems interest in efficiency e. Shared substantive policies 2. State Statute question a. Every state has a statute for traditional things like domicile and service of process b. Every state has a non-resident motorist act c. Every state has a long arm statute for non residents who did something in the state- these are for specific jurisdiction i. Allows you to sue a non resident and usually they have a laundry list of things that a non-resident can do in the forum that submits them to jurisdiction 1. Study long arm statute given by professor carefully- is it substantial contact? 2. The same language may be interpreted in different ways- best example: a. Watch for this language The defendant committed a tort in the forum i. Direct sale not a stream of commerce ii. I sell my product from state A to you in state B, you sue me in state B iii. State B long arm says they have jurisdiction over nonresidents who commit a tort in State B- the question is was the tort committed in state B? iv. can be argued either way- AND DO! v. tort is where the injury is vi. or- tort is where the mfg took place 3. EXAM- ALWAYS MAKE ALTERNATIVE ARGUMENTS b. Notice- service of process- Must give the defendant notice and a chance to be heard i. Service of Process - Federal Rule 4

1. Process consists of the summons and a copy of the complaint (2 pieces of paper) 2. Service can be made by any non-party who is at least age 18 for federal court, some state court require that it be done by an officer like a deputy 3. Service on an individual a. 4(e)(2) gives three choices (federal guidelines): i. personal service- hand it right to the defendant, can be done anywhere ii. substituted service- only possible at the defendants dwelling or usual abode 1. must serve someone of suitable age and discretion who resides there a. babysitter will work, butler will not iii. serve the defendants agent 1. appointed by contract or by law b. 4(e)(1) you can use methods for serving process that are allowed by state law, of the state where the federal court sits or where the service is effected i. states generally allow service by mail if allowed by state 4. Service on a business 4(h)(1) a. Serve an officer, or a managing or general agent b. Also can use state law methods under 4(e)(1) 5. Waiver of Service under rule 4(d) a. Done by mail, it is not service by mail- it is a waiver b. The plaintiff mails to the defendant the process and two copies of a waiver form and a self addressed stamped envelope. If the defendant signs the waiver and mails it back she has waived formal service of process. She has not waived any other defenses c. Testable issue- if the defendant does not mail it back- then we have to serve process on her and the defendant pays the cost of the service ii. The Constitutional Standard- reasonable expectation of apprising defendant 1. Mullane v. the Central Hanover Bank- notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding 2. The methods under Rule 4 are all constitutional- even if the defendant did not get the notice a. If substituted notice and they dont get it, service is still constitutional 3. Flag- Jones v. Flowers- if you become aware that it was not received you may have to try other means of giving notice, mailed service to wrong address and they were returned unclaimed c. Subject Matter Jurisdiction- (can the court hear this kind of claim/case?) i. What court do we go to in that state? 1. Federal Courts a. Article III- limited subject matter jurisdiction, Federal courts can only hear certain kinds of cases i. Diversity of citizenship; Section 1332(a)(1) of judicial code (statute), must have both:

1. Case is between citizens of different states a. Complete diversity rule- there is no diversity if any plaintiff is a citizen of the same state as any defendant b. Person- The citizenship for a US citizen is the state where they are domiciled- As a human being you can not be domiciled in more than one state (as a corporation you can) i. To establish a new domicile do two things 1. Be present in the new state 2. Form the intent to make that your permanent home ii. Whatever your domicile is you retain it until you change it c. Corporation- Section 1332(c)(1) can have more than one citizenship, both states must be included in considering diversity, defined by: i. Is a citizen of state(s) where incorporated ii. Citizen of the one state where the company has its principle place of business, determined by: iii. Hertz- the principle place of business is where the corporation has its nerve center, where mangers direct, control and coordinate corporate activities, usually at headquarters iv. If unincorporated 1332(c)(1) does not apply, it only applies to corporations, so partnerships, LLC and the like, we use the citizenship of all members, so could have 50 citizenships like a union, which would then never qualify for diversity of citizenship, would have to use federal courts for federal questions and everything use state courts 2. Amount in controversy exceeds 75k a. Amount must exceed 75k, 75k is no good, 75k + 1 is good b. Aggregation where we must add multiple claims to get over 75k i. We aggregate the plaintiffs claims if there is one plaintiff versus one defendant. No limit on the number of claims, the claims do not have to be related in anyway- so if one claimant sues 40k for breach and 50k for an unrelated tort- aggregate works ii. Cannot aggregate if you have multiple parties on either side, so one plaintiff suing two defendants will not aggregate c. Joint claim-you use the total value of the claim, the number of the parties is irrelevant. So look at the total of the joint claim- because a joint claim means any defendant can be on the hook for the total amount ii. Federal Question section 1331

1. Citizenship and amount in controversy are irrelevant 2. We need a claim that arises under federal law- it is not enough tht the case raises a federal issue, the claim itself must arise under federal law 3. The Well Pleaded Complaint Rule- look only at the claim in the complaint, do not look at anything that the defendant says, ignore everything except the claim itself. a. Is the plaintiff enforcing a federal right? If yes, it arises under a federal law b. Louisville & Nashville v. Motley- lifetime passes on the RR, congress passed a statute (federal law- circle statutes and federal law on test so you can determine if it is a federal question) railroads cannot give away free passes, Motleys sue the railroad claim RR breaching contract and new federal law does not apply to us. On the face of the complaint it is raising a federal issue- but the statute did not give the Motleys a right. The answer is no. cannot look at the anticipated claim of the RR that a statute prohibited their fulfillment of the contract. Their claim was for breach of contract, which is not a federal issue iii. Supplemental Jurisdiction: Section 1367, When a claim in federal court does not have subject matter jurisdiction through diversity of citizenship or a federal question- does not GET a case into federal court; applies only to additional claims to a case that is already in federal court 1. Section 1367a, Must arise from the same transaction or event as the case that does have federal subject matter jurisdiction a. Claims share a common nucleus of operative facts 2. Section 1367b, cuts back on availability for diversity cases, kills jurisdiction in certain circumstances: a. Applies only in diversity cases b. Certain claims by plaintiffs (not over claims by defendant) iv. Removal: defendant sued in state court removes case to federal court; You do not need judicial permission to remove; Removal only goes from state to federal 1. You can remove if the case could have been brought in federal court in the first place a. EXCEPTION: The In-State Defendant Rule: Applies only in diversity cases, you can not remove a diversity case if any defendant is a citizen of the forum- You CAN remove federal question with an in-state defendant 2. You must remove within 30 days of service of process (service not filing) 3. Rule of Unanimity: All defendants who have been served with process must join the removal 4. The 30 days starts anew with each newly served defendant v. Remand: when federal court kicks case back to state if removal improper d. Venue which federal court is the right court? Which district?

i. Plaintiffs choices on venue- 2 choices 1. In any district where ALL defendants reside a. If all defendants reside in the forum state then you can lay venue where anyone of them resides i. A human being resides where domiciled ii. A business (LLC, Corp, Partner) resides in all districts subject to pers. jurisdiction in this case b. You can lay venue in any district that the claim arose (negotiated 2. Transfer of venue- transferring within the same judicial system (eg. Federal to federal) a. The transferee must be a proper venue and must have personal jurisdiction over the defendant- not waivable b. Transferor is a proper venue, can transfer on the basis of convenience and substantial justice c. Consider Public and Private Factors- where is the center of gravity? i. Witnesses located ii. Evidence is located d. Transferor is an improper venue- 2 choices i. Court may dismiss ii. Transfer in the interest of justice 3. Forum non conveniens- One court dismisses because there is another court that is more appropriate a. We dismiss because transfer is impossible, because the other court is a different judicial system so the best you can do is dismiss and let the parties re-file in the other system b. The other court must be adequate and available ii. Erie Doctrine- what law do we apply in federal diversity cases? If Federal judge must decide a state substantive issue must the federal judge follow state law? a. Rules of Decision Act: In diversity cases federal courts must apply state substantive law b. 10th Amendment: Const. Requirement: Federal govt can not invade powers that are reserved for the states c. Factors: If FRCP on point Federal law applies i. Is there a federal directive on point? Eg. FRCP 1. If yes- then the federal law applies 2. Rules Enabling Act- never been violated a. An FRCP is valid if it does not modify substantive rights ii. Test of substantial law: 1. Outcome determinative (eg. statute of limitations) 2. Balance the interests (federal court interest and state court interest) 3. Twin Aims of Erie- if the federal judge ignores the state law will it cause parties to flock to federal court, unfair to state citizens who cannot access the same forum shopping a. Avoid Forum Shopping

b. Avoid Inequitable Administration of the Law 2. Joinder

3. Personal Jurisdiction Outline- Jurisdiction over the Person (in personam jurisdiction) a. Defendant not present/not served while present in forum i. Power 1. Long-arm statute a. Types of long arm statutes i. Single act statutes (Illinois Gray) ii. Statutes where JOP okay up to limits of due process (California/Rhode Island) b. Long arm statutes in federal court federal district courts, with modest exceptions not pertinent here, apply the long arm statute of the state in which the district court is located (FRCP 4(k)(A)(1)). ii. Due Process 1. General standard -- International Shoe test -- minimum contacts such that maintenance of the suit in the forum does not offend traditional notions of fair play and substantial justice (mc/fpsj standard) ii. types/bases of in personam jurisdiction a. specific jurisdiction (concerning claims related to or arising out of forum activities) (International Shoe, Gray, W-W Volkswagen, Burger King, Asahi, Nicastro) b. minimum contacts c. purposeful availment d. in stream of commerce cases, a severely-divided Supreme Court in Nicastro enunciated three tests, none of which commanded a majority of the Justicess: (1) stream of commerce plus something more (targeting), (2) (2) stream of commerce and (3) regular course/flow of business into forum or stream of commerce plus targeting (lower courts district courts and Courts of Appeals will apply test number (3) since it is the opinion in Nicastro based on the narrowest grounds). --fairness/reasonable factors ---burden on the defendant ---the interests of the forum state ---plaintiffs interest in obtaining relief ---intrastate judicial systems interest in obtaining most efficient resolution of the controversy (availability of alternative forum or fora)

---shared interest of the several states in furthering fundamental substantive social policies Note: although these fpsj factors clearly remain part of the specific jurisdiction analysis in nonstream of commerce cases (such as W-WV and Burger King), unclear after Nicastro in stream of commerce cases whether court will go back to doing as it did in Asahi and analyze these factors separately after finding (or not finding) sufficient minimum contacts or analyze fairness through the lens of minimum contacts/ purposeful availment. -General jurisdiction (concerning claims that are either related or arise out of or are not related to/do not arise out of forum activities) (Goodyear, citing Perkins and Helicopteros) General jurisdiction over a defendant will lie in a forum where defendant has continuous and systematic contacts with the forum such that she/he or it is at home there. Those circumstances will include: --Domicile in the forum (for individual defendants) (service may be in or out of forum) --Incorporation or principal place of business (for corporate defendants) (service will invariably be in forum) --Not entirely clear after Goodyear whether continuous and systematic businessparticularly salesin a forum, without either incorporation or principal place of business for corporations or domicile for individuals, remains sufficient for general jurisdiction --Supreme Court In Goodyear (and Nicastro) stated that general jurisdiction over a defendant may occur in two additional circumstances: --where defendant explicitly consents to personal jurisdiction in a forum (see below) --where defendant is served while present in a forum (see below) 2. Notice B. Defendant present/served while present in the forum (transient jurisdiction) 1. Power (1) Territoriality and Tradition (Pennoyer)? or (2) mc/fpsj (International Shoe)? (see Burnham case at p. 180) 2. Notice

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