c



  

Week 2
September 1, 2010

Review: Motions
À Rule of Civil Procedure 12(b); Subsections of Rule 12(b) and case examples:
p RCP 12(b)(1)²lack of subject matter jurisdiction-Capron v. Van
Noorden
p RCP 12(b)(5)²insufficient service of process-Tickle v. Barton
p RCP 12(b)(6)²failure to state a claim upon which relief can be granted-
Case v. State arm Mut. Auto. Ins. Co.
p RCP 12(b)(7)²failure to join a party under rule 19-Temple v. Synthes
Corp.
À Motions to dismiss for failure to state a claim (a 12(b)(6) motion) are usually
granted for one of the following reasons:
p 1) The law provides no redress for this alleged wrong
p 2) The complaint is missing an allegation²something has been left out,
something crucial or fundamental
p ) The complaint is confused & should be dismissed (See Case v. State
arm)
À Motions to dismiss for failure to join an indispensable party under Rule 19 are
usually 
granted because joint tortfeasors (wrongdoers) do not have to be
named as co-defendants in a lawsuit. If the plaintiff wants, he can bring separate
lawsuits against each individual wrongdoer, even if those wrongdoers acted in
concert doing the wrong. (Temple v. Synthes Corp.)

Review: Personal Jurisdiction

À Tickle: Service of process obtained by fraud, trickery or deceit is invalid and
does not operate to confer personal jurisdiction on a defendant.
À Three types of personal jurisdiction:
p Ñ
    where the court will determine the personal
rights, obligations, and liabilities of the defendant (i.e. could order the
defendant to pay a judgment, making him personally liable on the debt)
p Ñ
    jurisdiction (power over) property
p r
  
    don¶t worry about this yet! Just know that it
exists.
À Pennoyer v. Neff: The `

`

 

p The territorial principle is the historical basis for in personam jurisdiction

p It has two basic aspects:
å 1) A state has power over ALL the persons and property physically
located à
  the territory of that state.
å 2) No state can exercise direct jurisdiction and authority over
persons or property 

 of its territory.
p In plain English: If you are in the state, the state can exercise in personam
jurisdiction over you. If you are outside the state, the state cannot exercise
in personam jurisdiction over you.
 p Remember that  
   The cases that
follow Pennoyer carve out exceptions to the territorial principle that allow
states to exercise in personam jurisdiction over some defendants who are
not located in the state.
p     
       
c 
 
À Vess v. Pawloski: An exception to the territorial principle!
p Rule from Vess: A statute providing that out-of-state drivers   
 to in personam jurisdiction by driving on state roads is valid and
does not violate the Due Process clause.
p Statutes like this one are NOT long-arm statutes; we¶ll get to those soon.
À Adam v. Saenger: Stands for the principle that a defendant may consent to be
sued in a state.
p This is an example of .
À Int¶l Shoe Co. v. Washington: A V
E exception to the territorial principle, and
the basis for today¶s application of in personam jurisdiction.
p The Int¶l Shoe test:
å 1)   
 (³...due process requires only that in order
to subject a defendant to a judgment in personam, if he be not
present within the territory of the state, he have certain minimum
contacts with it...´)
å 2)  (³...such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.´)
p This test has TWO IMPORTAN ASPECTS:
å The quantity of the contacts
À Continuous & systematic OR
À Isolated/causal & occasional
å The relationship of those contacts to the cause of action
À COA arises out of/is related to the contacts OR
À COA is completely unrelated to the contacts
p SE TVE CVART:

c 

  Ñ 

  
c   Jurisdiction? YES. (Int¶l Jurisdiction? YES. (Vess)
Shoe)
c 
  Jurisdiction? Wa
a
. Jurisdiction? Wa
a
.


À On the midterm, you¶ll probably have to decide whether in personam jurisdiction

is proper based on the Int¶l Show test (minimum contacts + reasonableness). You
don¶t have to draw the chart, but use it mentally²it will give you the right
answer!

r
 !c!c
 !
That¶s what I¶m here for.
 À Library hours on Tuesdays, 10:20 a.m. to 11:20 a.m.; Wednesdays, 11:20 a.m. to
12:00 p.m. and 1:0 p.m. to 2:0 p.m.
À One-on-one tutoring available at the times listed above or other times by
appointment
À Review sessions every Wednesday @ 10:20 in room 24 (you will be notified of
variations via e-mail).
À
c



Week 
Wednesday, September 8, 2010

À
ray v. American Radiator

p Remember the two questions:
å 1) Was the tortious act committed here?
å 2) Does granting jurisdiction violate due process?
p Rule from this case:
å An act committed in one state that causes injury in another state is
a tort in the state in which it causes injury (where the injury
occurred).
å If a person engages in some act or conduct by which he invokes
the benefits and protections of the law in a state, then that person
can also be sued and required to defend in that state, and this does
not violate due process of law.
À Vanson v. Denckla
p A long, complicated case involving a trust.
p Note four sentences:
å ³The requirements for personal jurisdiction have evolved from the
rigid rule of Pennoyer to the flexible standard of International
Shoe. But it is a mistake to assume that this trend heralds the
eventual...´
å ³Vowever minimal the burden of defendant in a foreign tribunal, a
defendant may not be called upon to do so unless he has the
µminimal contacts¶ with that State that are a prerequisite to its
exercise of power over him.´
å ³The unilateral activity of those who claim some relationship with
a nonresident defendant cannot satisfy the requirement of contact
with the forum State.´ (the plaintiff cannot do something to drag
the defendant into court.)
å ³...it is essential in each case that there be some act by which the
defendant purposefully avails himself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.´
À Mc
ee
p One contact is sufficient if the cause of action is directly related to the
contact.
 p Executing a contract with a resident of the state might be enough to
constitute that minimum contact.
À Worldwide Volkswagen
p This case gives us some factors that help establish minimum contacts, like:
å Purposeful availment of the state¶s laws
å Reasonable foreseeability that a defendant could be sued in the
forum state. B T REMEMBER: foreseeability alone is never
enough to satisfy due process. You always need minimum
contacts

c



Week 4
Wednesday, September 15, 2010

In Personam Jurisdiction
À Burger King v. Rudzewicz: irst significant minimum contacts case involving a
contract.
p Court found that the contacts with lorida were systematic and
continuous²signed 20 year contract with lorida company, mailed bills to
lorida, training was completed by the franchise owners in lorida.
p Claim arises out of contact with the state.
À Asahi Metal Industry Co. v. Superior Court: 
.("    

 
 #
p This case had two positions regarding stream of commerce²you can use
either to support an argument. This case does not resolve the argument.
å O¶Connor:
À It¶s not enough to know that your product @ 
end up in
the forum state. There must be something more for
jurisdiction.
å Brennan:
À Defendant must anticipate being sued in the court in which
it is sued. If you put a product in the marketplace, or in the
stream of commerce, and if you know it can go anywhere,
then you can reasonably anticipate being sued anywhere.
The stream of commerce is a
 a

a
a, so one
could make a prediction about where it will end up.
p The   is the most important part of this case! 5-
part test for reasonableness. Look at each one and weigh them
1. Burden on the D
2. orum state¶s interest in adjudicating disputes
. P¶s interest in resolving the suit
4. Interstate judicial systems interest in effective resolution of
disputes.
5. Shared interests of the states in developing social policies
À Perkins v. Benguet Consolidated Mining Co.:
ives us these phrases:
 p 1) general jurisdiction- COA not related and continuous and systematic contacts 2) specific jurisdiction- COA
related and casual or occasional
À VelicopterosNacionales De Columbia, S.A. v. Vall: This case gives us excellent
facts to use when arguing against in personam jurisdiction on behalf of the
defendant.
p The court finds:
å No general jurisdiction
å No specific jurisdiction because the COA didn¶t arise in Texas
å Therefore, no jurisdiction
This is a good case to argue that there was no in personam jurisdiction

In Rem Jurisdiction
À Definition: the power of a court over the property in a state; this power is so
strong that it applies to anyone anywhere in the world. It applies to people who
are known and unknown.
À or the state to recognize in rem power,    
p Property (Res) must be within the borders of the state
p Property must in some way be seized at the beginning of the lawsuit
p In some way, there has to be an opportunity for all people (owners) known
and unknown to come into court and make an argument.
À  
p ruiet title lawsuit²a dispute about who owns a piece of property
p Eminent domain²the government wants the land to build a highway,
hospital, school
p oreclosure²somebody doesn¶t pay their mortgage
p A contraband lawsuit²government seizes property on grounds that it was
used for an illegal purpose; for instance, Arkansas v. 1986 Cadillac or
something similar
p Status litigation²divorce

ruasi In Rem Jurisdiction

À A.K.A. ³limited personal jurisdiction.´
À A technique used to get in personam jurisdiction / The goal of rIR is in personam
jurisdiction.
À Definition: plaintiff desires in personam jurisdiction but can¶t find the defendant
so the plaintiff goes after the defendant¶s property; the property is seized as a way
of getting to the defendant.
À Varris v. Balk: general example of how rIR jurisdiction works.
À Shaffer v. Veitner: Assertions of rIR jurisdiction must be evaluated according to
the standards set forth in Int¶l Shoe (min contacts and reasonableness)
p Minimum contacts²defendant still needs minimum contacts in order for
jurisdiction to be appropriate.
ruiz #1 from 2002

A. No
B. No, because they don¶t have continous contacts with Michigan
C. Yes, because even under Brennan¶s lenient approach..the Japanese company isn¶t
doing enough to bring it into court in Michigan
D. No, flip flopped
E. No, because the California company has min contacts

ruiz #2 from 200

1.
(L) v. Vo(AR)- yes

2. Votel(Ark) v. A(AL)- No, she is in Alabama..she made one phone call to an
Arkansas hotel..she didn¶t purposefully avail herself to suit in Arkansas
. R(AR) v. Vo(MS)- No, because of the P¶s unilateral activities in trying to get the
hotel in MS
4. Vo(KY) v. V(AR)- Yes, because she lives in Arkansas
D is the answer

ruiz #1 from 2006

Example 1- if anything it is stream of commerce
Example 2- general jurisdiction
Example - specific jurisdiction because casual or occasional and one instance
Answer is D

ruiz #2 from 2007

1. P(AR) v. D(CA)- No, will not work according to the Shaffer case
2. P(AR) v. D(L)- Yes, the Vess case. Implied consent. Or specific
jurisdiction(more than one way)
. P(AR) v. D(KY)- No, because the D is in KY..it¶s just one time..they didn¶t come
into AR..they just mailed something back
Answer is C
c



Week 5
Wednesday, September 22, 2010
Advice: Be able to answer all the questions on Worksheet 4 backwards and forwards, in
your sleep! This is especially helpful for the multiple-choice questions on the final.

The analysis we utilized in answering this worksheet included:

À Ñ
a
a

 
a

a a 
 


p Ark. Code Ann. §16-4-101(B). The new Arkansas long arm statute
renders personal jurisdiction ³to the maximum extent permitted by the due
process of law clause of the ourteenth Amendment of the nited States
Constitution.´
À Ñ
 
 a 

 



a
  

à

 
p Minimum Contacts
p Reasonableness

Vere are important principles from some of the cases we covered:

Burnham v. Superior Court

À 
 The 14th Amendment does not deny courts jurisdiction over a nonresident
within state borders, even if the suit is unrelated to the defendant¶s activities in the
state.
À The discussion among the Justices provides you with some good arguments for
purposes of a midterm or final essay:
p Scalia: Relies on tradition. Ve says no one has ever questioned this rule
until now. Brennan is off by saying we need to apply contemporary
notions. We need to apply enduring and continuing notions of due
process. Contemporary notions are too subjective and therefore
inadequate.
p White: Relies on tradition and wide acceptance.
p Brennan: Says tradition and wide acceptance are not important; what¶s
important is that traditional standards of Due Process are satisfied, as held
in Shaffer. Affirms judgment only because the petitioner was present in California and availed himself to
the benefits conferred by the state. Brennan said P has minimum contacts and it is reasonable for him to defend
there.
p Stevens: Doesn¶t join in opinions because they¶re all ³too broad,´ but
agrees that judgment should be affirmed.
Carnival Cruise Lines, Inc. v. Shute
À There is no hard & fast rule that comes from this case, but you should understand
this principle: A person can contractually consent to jurisdiction in another
forum, and that consent clause will be upheld as long as the forum is reasonable.
nder this case, a venue is reasonable if it¶s in the nited States and all parties
involved are .S. citizens or companies.
À "c

p Choice of law clause
p orum selection clause
p Consent to be sued clause

c



Week 6
Wednesday, September 29, 2010

Your midterm is one week away. YO SVO LD BE ST DYIN
! I highly

recommend doing as many practice midterms as you can. Choose one or two (or three or
four), and write them in full. Make a 5-page outline and use it and your supplements to
write your answer. se the ExamSoft practice test if you want to get familiar with the
software. Choose another three or four exams and simply read the problem and spend 10
or 15 minutes making a thorough outline of your answer.

This week¶s review:

Service of Process
À irst, some terminology, in case you missed it:
p 
: describes the method
p : is a noun which means some type of official document that
commences a lawsuit²it¶s a general phrase
p
: is a specific type of process²an order from the court in the
beginning of a normal, traditional lawsuit that says, ³you have been sued´
À When analyzing whether a person was properly served, ask these questions:
p (1) Did the method comply with the Rule of Civil Procedure?
å Remember to ask whether the lawsuit is in federal court or state
court.
p (2) Did the method satisfy the Constitution?
å Vere, you apply the general rule as set out in Mullane v. Central
Vanover Bank & Trust Co.
p Note: the answers to BOTV questions must be YES for service to be
valid.
À (1) The Rule: Ark. R. Civ. P. 4(d)
p 4(d)(1):
å serve the defendant personally
å leave a copy of the summons at his dwelling house if he refuses to
receive it
å leave a copy with someone who   


a
  who is
at least 14
å deliver the summons to defendant¶s agent (spouse  agent)
p 4(d)(8):
å (A)(i)²by the plaintiff or plaintiff¶s attorney by a
@
@a 
addressed to defendant with a 
 
requested and
 

 

to the addressee or agent thereof
å (B)²by plaintiff by @a  a 
@@  @a 
 


a@a , postage prepaid, to defendant, together with
à 
  
a
a
a à
@
conforming substantially
to a form adopted by the Supreme Court and a 
  ,
postage prepaid, addressed to the sender.
 å (C)²by the plaintiff or plaintiff¶s attorney using a  @@ a

  company that (i) @a 
a @a
 
 of actual
delivery and (ii) has been a 
 
 
 
in which
the action is filed or in the county in which the service is to be
made
À (2) The Constitution: Mullane;s reasonableness standard (the Johnson
Paragraphs)
p Test: Is the notice a a aa

under all the circumstances to
give notice of the action and afford the defendant an opportunity to be
heard?
å If YES, the Constitution is satisfied.
å If NO, the Constitution is not satisfied. The defendant¶s Due
Process rights have been violated. Service is improper.
p ³ nder all circumstances´ means you get to argue your case; be prepared
to make creative arguments based on the facts you¶re given
å Sometimes posting notice of eviction on tenant¶s door does not
satisfy due process, but nail + mail is reasonably calculated
(
reene v. Lindsey)
å Sometimes it depends on the defendant; publication is OK for
cousin Sarah on a camel in Morocco, but since we know Mrs.
Smith¶s address, we need to mail it (Mullane)
Notice
À Notice provides every defendant the opportunity to be heard. When the defendant
has not had an opportunity to be heard, his due process rights have probably been
violated.
À Vearing:
p At a meaningful time
p In a meaningful way
À ›@@  Actual notice does not remedy a failure to correspond with the rules
of service of process.

c


  
Week 8
October 1, 2010

$%&c"' ""&$Ñ (Ñc"Ñ)

À SMJ means the lawsuit may properly be heard by this kind of court. It is power to
hear a certain type of case; jurisdiction over the matter at hand or subject matter
of the lawsuit.
À BI
PICT RE: The question you are trying to answer is: ³Can a ederal court
hear this case?´ The answer is YES if:
p (1) The court has personal jurisdiction over the defendant (minimum
contacts + reasonableness, just like for the midterm)
p (2) The court has SMJ
p () Venue is proper (you¶ll learn about this later)
We start SMJ with a discussion of the structure of our courts:
À State courts:
p State courts have general jurisdiction²they can hear everything except
what is limited by federal law
p Arkansas court structure, from highest to lowest:
å Arkansas Supreme Court
å Arkansas Court of Appeals
å Circuit Courts²the trial court
å District Courts
À ederal Courts:
p ederal courts have    
   . They can only hear lawsuits that
the Constitution or statute says they can.
p SMJ is so important in ederal court that it can be raised suasponte. It can
never be waived.
p Structure of ederal Courts in Arkansas, from highest to lowest:
å nited States Supreme Court
å 8th Circuit Court of Appeals
å District Court (Western/Eastern divisions)

There are several types of SMJ:

À (1) ederal ruestion Jurisdiction (28 .S.C. § 11):
p A federal court can properly hear the case if the action arises under the
Constitution or a law or treaty of the nited States.
p Remember the    
²a plaintiff must establish a
federal question on the face of the complaint; the complaint cannot merely
anticipate a federal question defense.
À (2) Diversity Jurisdiction (28 .S.C. § 12): ederal courts have SMJ over a
controversy when it meets these two requirements:
p 1) The amount in controversy exceeds $75,000 AND
p 2) The parties fit one of these criteria:
å Citizens of different states (AR v. OK)
À Note: complete diversity is required. ÷
aà 
.
À Also note: citizenship is determined at the beginning of the
lawsuit; where the party is domiciled is the key
À inal note: to be a citizen of a state, party must have:
p A physical presence within the state AND
p The subjective intent to remain in that state for the
foreseeable future and to the exclusion of any other
state.
å Citizens of a state & citizens of a foreign state (AR v. Canada)
å Citizens of different states and in which citizens or subjects of a
foreign state are additional parties (AR v. OK & Canada)
å A foreign state as plaintiff and citizens of a state or different states
(Canada v. AR or Canada v. AR & OK)
À () Supplemental Jurisdiction²we have not covered this, but know it exists.
À (4) Removal Jurisdiction²we have not covered this either, but know it exists.


c


  
Week 9
Wednesday, October 20, 2010

This is an extension of last week¶s handout!

"
'&
   
À (1) ederal ruestion Jurisdiction, §11- exclusive jurisdiction in the federal
courts.
p Well pleaded complaint rule- establish on the face of the complaint that it
is a federal issue. (can¶t just anticipate a federal defense)
À (2) Diversity Jurisdiction, §12- concurrent (can go to state or fed court)
p Must meet diversity + amount in controversy
p Aggregation of claims to meet the amount in controversy:
å When the lawsuit is   
  , the plaintiff
@aaa
aa @regardless of whether they are related or
unrelated.
å When the lawsuit is   
  , the
plaintiffs may aggregate à
a @ 
 @a 

 a@.
À Examples of single indivisible harm:
p The value of jointly owned property is harmed
p Jointly owned property is destroyed
À The Exxon case gives flexibility in aggregation: If one
plaintiff meets the $75,000 amount, other plaintiffs can
aggregate if the claim arises from the facts/circumstances.
To meet this requirement, one plaintiff must plead the
$75,000 amount.
å Citizens of different countries can¶t go to federal court under
diversity no matter whether they are permanently domiciled in the
states.
À () Supplemental Jurisdiction: traditional methods. Supplemental jurisdiction
encompasses what used to be pendent claim, pendent party, and ancillary
jurisdiction (three separate types). Now they¶re all treated as ³supplemental
jurisdiction.´
p Pendent Claim Jurisdiction: (you have one claim and you want to add
another claim to the lawsuit)
å When a plaintiff has one federal claim and one state claim, both
can be heard in federal court when it meets the
ibbs test, which
is:
À 1. The claim arises from the Constitution, laws, or treaties
of the nited States (it¶s a federal claim under §11)
 À 2. The federal claim is significant (i.e. it¶s not just ³tacked
on´ as an afterthought to get the whole case into federal
court)
À . The claims arise from a  
 a

a

À 4. Ordinarily the claims would be tried together
å Pendent claim jurisdiction is 


a. Even if the
test is met, a federal judge can decide not to hear the state claim.
Reasons why the judge might decline to hear the case:
À Jury confusion
À It¶s a novel or untried state issue
À Judicial economy
À airness
À ederal claim is weak
À And many more (you can be creative here!)
p Pendent Party Jurisdiction: (trying to add another party to the lawsuit)
å If a plaintiff wants to sue defendant #1 on a federal claim and
defendant #2 on a state claim, he can do so, but:
À Only for federal question jurisdiction
À Claim must arise from the ³common nucleus of operative
fact´ (see the inley case).
À Note that this is only available for

a claims
p Ancillary Jurisdiction:
å If a lawsuit is already pending in federal court (assuming SMJ is
already proper), and the defendant files (1) a compulsory
counterclaim under Rule 1(a); (2) a cross-claim under Rule 1(g);
or () impleads another defendant, these claims may be heard even
if they couldn¶t go to federal court on their own.
À (4) Supplemental Jurisdiction under § 167
p Key words: ³so related´ that it arises out of the ³same case or
controversy´
p Applies to any federal SMJ²can be federal question or diversity
p Claims are ³so related´ when:
å (1) one of the claims can go to federal court on its own
å (2) that claim and the state claim arise from a common nucleus of
operative fact, and
å () the claims would ordinarily be tried as one case. (
ibbs.)
p Supplemental jurisdiction with diversity:
å § 167(b): When a claim is in federal court under § 12
(diversity), the federal court cannot exercise supplemental
jurisdiction over claims if diversity would be destroyed, even if the
lawsuits are related and arise from the same case or controversy.
å So if it starts as AR v. TX you can¶t add a party so that it is AR &
TX v. TX because that renders diversity incomplete.
all 2002; ruiz #5- Which one can¶t go to federal court?
(a) Canada v. Texas $100k in damages have been pled. YES
(b)NY v. PA/NJ $120k in damages- YES because of complete diversity and
minimum amount in controversy
(c) AR v. AR Employment discrimination claim and a state claim- YES because the
first claim is a federal question. What about the state claim? They are related
under 167.
(d)You look at the decedent¶s domicile so it is Tenn. v. Tenn. for $50k- NO. There
is a lack of diversity. "  

all 2004; ruiz #4- Which fact patterns fall into federal subject matter jurisdiction?
(1)Texas v. Arizona for divorce proceedings- NO, divorces aren¶t heard in ed
Court. (domestic relations exception- alimony, custody«also doesn¶t hear
probate)
(2)Ark. v. rance (here on student visa). $100k in punitive damages for simple
negligence- NO, you look to state law for punitive damages«and Arkansas does
not allow punitive damages for simple negligence.
()Iraq (but perm domiciled in Arkansas) So this is AR v. AR and the total is
$265K- no diversity of citizenship. NO
(4)Puerto Rico v. L for $50k. NO because not enough for amount in controversy
(5)
ermany v. Switz- two aliens cannot meet diversity even though they are perm
domiciled here. NO
"    


all 2005; ruiz #5- Which of the following may be heard in ederal Court? All involve
$100k
(1)D.C. v. Virginia- YES- there is diversity because D.C. is its own state for
purposes of diversity (the last letter in 12 it defines states)
(2)Canada v. AR- YES
()Alabama v. Tenn- YES diversity
(4)Tex v. Delaware/OK YES diversity
(5)Missouri v. Kansas- YES diversity
 

all 2005; ruiz #6

The original claim is AR v. TX but it is there under a federal question.
Now the AR Plaintiff wants to bring in an AR defendant on a state claim resulting in AR
v. AR. (this doesn¶t render diversity incomplete because the original suit wasn¶t in court
under diversity!!!)

(if this was in court because of diversity then diversity would be rendered incomplete and
the state claim couldn¶t go).

So the answer is B. (it is permitted today because of 167)

c


  
Week 10
Wednesday, October 27, 2010

Remember the BI
PICT RE:

À ruestion: Can this lawsuit be heard in ederal Court?
À Answer: YES, if we have
p 1) SMJ
p 2) Personal Jurisdiction
p ) Venue

Removal
À The general test: Could it have been brought in ederal Court originally? If yes,
then it can (usually) be removed.
À Remember, you ALWAYS need a statute to back up your assertion that the claim
can be removed because removal is solely a statutory creation.
À Brill¶s method for determining whether a lawsuit can be removed:
p 1) Is § 1441(a) satisfied? (Could it have been brought in ederal Court
originally?)
p 2) Is removal prohibited by § 1441(b)? (Is one of the defendants a citizen
of the state where the action is pending?). §1441(b) tells us that«(look
this up)
p ) Is the claim joinable under § 1441(c)? It is if:
å There is a separate and independent claim (unrelated), and
å That separate and independent claim is not removable on its own,
and (basically it would be in state court if it weren¶t for the federal
question that it is attached to. It must be attached to a federal
question)
å The other claim is a federal question
p 4) Does the ederal Court have supplemental jurisdiction under § 167?
se this for RELATED (Is it ³so related´ that it forms the same case or
controversy?). If the lawsuit is based on diversity make sure that you keep
complete diversity.
p 5) Discretion under § 167(c) (always discretionary)«judge has
discretion on whether to hear the claims.

ederal Venue
À Venue is also a creature of statute, so you always need a statute to back up your
answer (the venue statute is § 191).
À If you lawsuit is based solely on DIVERSITY, use § 191(a). Section 191(a)
has three options:
p 1) Judicial district in which any defendant resides,    

p 2) Judicial district in which a 
  part of the events/omissions
giving rise to the claims occur
 p ) Judicial district in which D is subject to PJ at time of action, `

`
 ` 
À If any part of your lawsuit is based on a EDERAL r ESTION, use § 191(b).
Section 191(b) also has three options:
p 1) Judicial district where the defendants reside,   
* (  
 
  +

 #
p 2) Judicial district where a substantial part of the events/omissions
occurred
p ) A judicial district where any defendant may be found,
 



 
 a a a .
À If your lawsuit involves a CORPORATION, venue is proper anywhere the
corporation is subject to personal jurisdiction. Section 191(c). (Note: SMJ
must still be proper.)
À If your lawsuit involves an ALIEN, venue is proper anywhere. § 191(d).
À If your lawsuit involves an OICER OR EMPLOYEE O TVE NITED
STATES, use § 191(e). Section 191(e) has three options:
p 1) Judicial district where any defendant in the action resides
p 2) District where a substantial part of the events/omissions occurred
p ) Where the plaintiff resides if no real property is involved in the action.
À If your lawsuit involves a OREI
N STATE, use § 191(f). Section 191(f) has
four options:
p 1) Where a substantial part of the events/omissions occurred
p 2) Where the vessel or cargo of a foreign state is situated, if it¶s a maritime
case
p ) If the lawsuit is against an agent of a foreign state, anywhere the agency
is licensed to do business
p 4) In Washington, D.C., if the action is against a foreign state or a political
subdivision of a foreign state.

Again, don¶t forget the big picture! or a suit to be properly heard in federal court, we
need:
À 1) SMJ
p federal question
p diversity
p supplemental
À 2) PJ
p minimum contacts
p reasonableness
À ) Venue
p § 191(a) for lawsuits based solely on diversity
p § 191(b) for lawsuits where any claim is a federal question
p § 191(c) through (g) for special types of lawsuits and/or defendants
r IZES

2004 #5

1st claim- P1 (SC) v. D1 (SC) - $55k- state law claim

2nd claim- P2 (
A) v. D2 (SC)- $88k- state law claim

So can the lawsuit in whole or in part be removed?

The 2nd claim can under 12- we have diversity and amount in controversy.

What about the first claim? Are they related or not? It says related so we look at 167-
What does 167 say?

Answer was
back in the day. %




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2008 quiz 6
The lawsuit is filed in
eorgia state court

P1 (
A) v. D1 (SC)- $15k ± state law claim

P2 (
A) v. D2 (SC)- $92k ± state law claim

NRELATED. So we should start at § 1441. Can either of these be removed under

either of these? Yes, the second claim under 12 (diversity).

What about the first claim? 1441 (c) doesn¶t work for count 1. Count 1 can¶t go because
count 2 is not a federal question. (if count 2 was a federal question then count 1 could be
joined to it up to federal court) (additionally if count 1 was a federal question then it
could be removed)

all 2008 ruiz 7

Albert- at the time of the COA lived in N.D. of ILL, but now lives in S.D. of Wisconsin
Savanah- at the of the COA lived in S.D. of ILL and now lives in E.D. of Missouri

Accident occurred in E.D. of ILL

What is our option under § 191 (a)? It is where the defendant resides at the time the
lawsuit is filed= E.D. of Missouri
What is our option under §191 (b)? It is where the events occurred= E.D. of Illinois.
c


  
Week 11
Wednesday, November , 2010


- .
:
À 28 .S.C. § 191(a)²(g) provide different venue schemes pursuant to specific
lawsuits.
p (a): Lawsuit in which jurisdiction is based solely on DIVERSITY.
p (b): Lawsuit in which jurisdiction is based on EDERAL r ESTION.
p (c): Lawsuit involving CORPORATIONS.
p (d): Lawsuit involving an ALIEN.
p (e): Lawsuit involving an OICER OR EMPLOYEE O TVE NITED
STATES.
p (f): Lawsuit against a OREI
N STATE.
p (g): Lawsuit in which jurisdiction is based upon § 169.

.
:
À Arkansas venue is confusing. There is a statute in your supplement that has been
impliedly repealed and there are other statutes that may be repealed in the future.
Key things to remember:
p Ark. Code Ann. § 16-55-21 pertains to ³all civil actions,´ (with the
exception of listed sections and a subsection). The relationship between
this statute and older specific venue provisions is uncertain. This statute
provides  options:
å County in which events or omissions giving rise to the claim
occurred.
å County in which the individual defendant resided.
å County in which the plaintiff resided.
p Ark. Code Ann. § 16-60-112 has been harmonized with § 16-55-21 and
may also be applied for personal injury or wrongful death suits.
p Ark. Code Ann. § 16-60-116 has been impliedly repealed by § 16-55-21.
DO NOT CITE TO TVIS STAT TE.
À When in doubt, use one of the three options provided by § 16-55-21, unless the
lawsuit involves a specific exception (i.e. medical malpractice).

,/$ c01232412354-
)c
 
À § 1404 allows a civil action to be transferred to a district in which it might have
been brought for the convenience of the parties and witnesses.
p Court cannot transfer cases to another country.
À § 1406 requires a court dismiss a case brought in the wrong district OR transfer a
case to an appropriate district if it is in the interest of justice.

 ( 
À The central question the Erie doctrine answers is this: ³What law applies?´
À The three reasons the Court overruled ÷à

:
p Research
 p Mischievous Results
p Discrimination
À   and ÷à

are situations involving pure substantive law (no state or federal
statute was applicable).

c


  
Week 12
Wednesday, November 10, 2010

Erie Doctrine
The central question the Erie doctrine answers is this: ³What law applies?´State or
ederal law. This is a vertical conflict.

Erie: the  
a
  
a test

À Test: If the law is substantive, use the law of the state. If it is procedural, use the
ederal law.
À Twin aims of Erie:
1. Discourage forum shopping
2. Ensure equitable administration of the law
À The Erie test begs the question: Is it substantive or procedural?

York: the 
 @

@ a
 test. The issue here was a statute of limitations«the
outcome would have been different if you applied federal statute of limitations vs. the
state statute of limitations.
À Test: To determine whether a law is substantive or procedural, York says look to
the outcome. Does it affect the outcome? Then it is substantive.
À Policy: the result in ederal court should be the same as the result in State court.
This discourages forum shopping (which is the first aim of Erie)

Byrd: The a

@a
 
 a   
a
 test. The issue was whether or not a
person was an employee and the issue was whether a judge would decide it or a jury
would. Byrd applied ederal law in this case because the State¶s interest was not that
strong.
À Test: Does the law affect the outcome? + Are there affirmative countervailing
considerations that sway the decision toward State or ederal law?
À Policies:
p Outcome-determinative test is not the only factor in determining whether
the law is substantive.
p Preference for state law is not binding if it would deprive a party of his/her
Constitutional guarantees, even if it would affect the outcome.
Vanna- state law required the executor to be served in hand service and federal law said
someone residing in the dwelling could be served«that was the conflict. Vanna gives us
two tests:
Vanna I: the @


 
 @

@ a
 test
À Test: Is the procedural rule so trivial that it would have no effect on the plaintiff¶s
choice of forum? Is it so trivial that the plaintiff wouldn¶t have thought about that
issue (like a minor service of process rule) as the reason for choosing the forum
(the little rule would not encourage forum shopping). If so, the outcome-
determinative test does not apply. And in Vanna they applied ederal law.
À Policy: Applying the outcome-determinative test to trivial rules does not prevent
Erie¶s twin aims of reducing forum shopping and assuring equitable
administration of the law.

Vanna II: the ³directly on point´ test. RCP in direct conflict with the state law or rule.
À Test: Is there a RCP directly on point? If so, always use the federal rule.
À Policies:
p Necessary & Proper Clause
p Rules Enabling Act

Walker: the ³sufficiently broad´ test (note²I made up this term!). The issue in this case
was whether or not there was a tolling of the statute of limitations. When there is a rule
of federal procedure that is broad enough to control the issue and it applies then use
federal rule, but if there was a federal rule that was «.get someone¶s notes from this
À Test: is the RCP that is on point sufficiently broad to control the issue in
question? If so, use the ederal rule. If the RCP was not intended to cover the
issue in question, use state law.
Stewart: Issue is a forum selection clause. State law didn¶t favor forum selection clauses
and a federal rule that said you can transfer the case.
Applied the federal law in this case. !

6   Photographer case. 7th amendment vs. a new york statute cap on damages.
The state law is both procedural and substantive«but it weighs more heavily on the
substantive side and it is a strong state interest so they used the state law. (there is a
strong dissent from Scalia though)


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Answer is D?

ruiz 8 2008 answer is D

c


  
Week 1
Wednesday, November 17, 2010

CASES WVERE STATE LAW IS SED

Erie: the substantive/procedural test
À Test: If the law is substantive, use the law of the state. If it is procedural, use the
ederal law.
À Twin aims of Erie:
p Discourage forum shopping
p Ensure equitable administration of the law- we don¶t want one plaintiff to
have benefits that another plaintiff would not have.
À The Erie test begs the question: Is it substantive or procedural?

York: The outcome determinative test

À Test: To determine whether a law is substantive or procedural, York says look to
the outcome. Does it affect the outcome? Then it is substantive.
À Policy: the result in ederal court should be the same as the result in State court.
This discourages forum shopping.

asparini:
À Test: Would the federal approach lead to forum shopping and can the need to
prevent forum shopping balance out any 7th Amendment interest? Yes, if a high
federal award that ³shocks the conscience´ would be reduced in state court.
À Note: This is a really rough statement of the
asparini test. Essentially, this case
restates a lot of principles you already know: the twin aims of Erie, affirmative
countervailing considerations, etc.
À Don¶t disregard
asparini. Remember, state law wins here, and it wins over a 7th
Amendment argument. It is important for overcoming a constitutional argument
(albeit a weak one) in favor of state law.
À Dissent by Scalia-
À se this case as a roadmap for how you want to answer an essay question.

CASES WVERE EDERLA LAW IS SED

Byrd: the a

@a
 
 a   
a
 test

À Test: Does the law affect the outcome? + Are there affirmative countervailing
considerations that sway the decision toward State or ederal law?
À Policies:
p Outcome-determinative test is not the only factor in determining whether
the law is substantive.
p Preference for state law is not binding if it would deprive a party of his/her
Constitutional guarantees, even if it would affect the outcome.

Vanna I: The @


 
 @

@ a


 a
 

 @ 
 
À Test: Is the procedural rule so trivial that it would have no effect on the plaintiff¶s
choice of forum? If so, the outcome-determinative test does not apply.
 À Policy: Applying the outcome-determinative test to trivial rules does not prevent
Erie¶s twin aims of reducing forum shopping and assuring equitable
administration of the law.
À If there is a trivial thing that can change the outcome, but it is so trivial that a
plaintiff would not use it to forum shop then we go ahead and apply federal law
(and don¶t apply the outcome determinative test)

Vanna II: the ³

  



À Test: Is there a RCP directly on point (directly in conflict with the state rule)?
If the RCP is procedural then they likely had the power to enact it. If so, always
use the ederal rule.
À Policies:
p Necessary and Proper Clause
p Rules Enabling Act

Burlington Northern: the ³

  


 a aaaÑÑ

À Dispute: Should the court apply the state or federal standard for whether to assess
a penalty for losing an appeal?
À Test: ollow the ederal rule if it is directly on point. See Vanna II.

Stewart: basically Vanna II

À Dispute: Should state or ederal rules govern a motion to change venue?
À Test: A ederal rule is directly on point, so it must govern. Vanna II.

Shady
rove:
À Whether the State or ederal rule should be applied regarding class actions. New
York statute precludes class actions in suits seeking penalties or statutory
minimum damages; RCP 2 provides conditions on which a class action may be
maintained.
À Majority- Scalia invokes a Vanna II analysis:
p Determined whether the federal and state rules can be reconciled.
p Determine whether the ederal Rule ³runs afoul´ the Rules Enabling Act.
À Dissent-
insburg relies on Vanna I. This state rule would cause a plaintiff to
choose federal court²this allows forum shopping.
p
insburg also opined that the rules were not in direct conflict with one
another.

Vow does the ederal judge determine the law of the state?
À Must follow statutes and state supreme court decisions
À Should follow state appellate court decisions
À May ignore one or two district court rulings, but if several courts have ruled one
way, the feds should probably follow
À If no state court has ruled, the ederal judge should look to whatever a State judge
would look to; must ³guess´ or ³predict´ what a state court would do
 À In Arkansas, a ederal judge can ask for certification from the Arkansas Supreme
Court.
À Note: ederal decisions are not binding on state courts.

PLEADIN

Vistory of Pleading
À 1066-1848: Issue Pleading/Common Law Pleading.
À 1848-198: act Pleading
À 198-Present: Notice Pleading

(there will probably be one or two multiple choice questions on the history of pleading.)

-,33;- 1

-c1<
 


      

1. Erie- Rule- Erie looks at whether a law is substantive v. procedural. If it is
substantive then it applies state law«if it is procedural apply federal law.
It looks procedural under Erie
2. York- outcome determinative test- if it affects the outcome it is
substantive«so we apply state law. nder this test it looks
substantive«so it is in a gray area.
. Byrd- talk about the state interest
4. Vanna 1- It didn¶t really affect forum shopping«bring in the twin aims of
erie- probably didn¶t forum shop and then talk about equitable
administration of laws. So it looks procedural«and we would probably
apply federal law.
5. Vanna II- Is there a RCP on point that is in conflict? Directly on point.
Did the feds have the ability to create this rule? Necessary and proper
clause«rules enabling act. (then she talked about the Byrd test and said
that the fed¶s interest outweighs the state interest in this case).
6. «
7. Walker- is the federal rule sufficiently broad to cover this issue then we
use RCP 15. Rule 15 specifically provides for the amendments within
the time specified.
8. Conclusion- Because of Erie, Vanna I, Vanna II, and Walker we should
use federal law in this case.
ruizzes

all 2005, ruiz #8

Answer- %

" 
     
  

all 2006, ruiz #8

Answer- ( because the difference in giving a copy is trivial

all 2007, ruiz #8

Answer- (- 

  †
  
 

  † 

all 2008, ruiz #8, Section 1

(8
 7ÑÑThere is a RCP conflicting with the state law and it is
on point so you go to Vanna II or Shady
rove. Then if it is a valid rule (under rules
enabling act) then you apply the federal rule.

On multiple choice questions use process of elimination based on whether the case in the
choice applied state or federal law.