<p>Common law in personam jurisdiction: -consent: contract/agent within state that will accept service/consent to service (waive 12 (b) (2)) -doing business--level of activity is sufficient so that presence is satisfied -presence Presence when: -continuous/systematic + related to the suit being brought--# of transactions/business arrangements -not sporadic/isolated -single activity + related -physically present in state (even if only for a day @ time of service)</p><p>Citizenship--of an individual--domicile (place where person intends to return) --of a corporation--state where incorporated AND state of principal place of business (can be arguable--can lead to a “fight”)</p><p>Pennoyer--1) presence (domicile/citizen of state/physically present) 2) consent--to come before courts in a jurisdiction 3) citizenship * state has sovereignty over all those within * </p><p>If common law in personam does not apply, next look for long arm statute:</p><p>-Does long arm statute reach D? -look at legislative intent -strict interpretation -the claim must arise from the act enumerated in the long arm statute and must occur in state where long arm statute is located if statute says “arising from”</p><p>-often statute will say in a claim that “arose from the state”--look to make sure!</p><p>-if statute says “doing business”--this carries sense of purposeful availment-- enough so that corporation/business/entity satisfies as being present in state</p><p>-if statute says “transaction of business”--one contract could be enough -can be interpreted narrowly: to apply only in cases where D has ongoing commercial activity and permanent employees in state</p><p>-could be interpreted broadly: to apply whenever the D enters into a single business transaction with an in-state party</p><p>-this is one area where a “fight” could occur between P and D</p><p>Transacting business--one contract can be enough; generally no purposeful availment</p><p>Doing business--term of art; level of activity is great enough to count as presence; infers purposeful availment </p><p>-if statute says “commit’s a tortious act”--make sure to argue could mean act committed in state where something was manufactured or where consequences manifest and injured party resides -intent of legislature is crucial-</p><p>-Gray v. American Radiator--LA statute read “tortious act within this state” court determined that this applied where consequences of the tort ended up happening; therefore statute applied where component that caused injury was manufactured outside state because the purpose of the legislature was to allow jurisdiction for an out of state D who’s “tortious act caused injury within the state” </p><p>-Feathers v. McLucas--court read the plain language of LA statute that read “commit’s a tortious act within the state” as needing the tortious act, not just the injury to occur within the state; therefore the court ruled that the plain meaning of the statute, by not saying, “commit’s a tortious act outside the state, with injuries within” would not hold manufacturer liable for negligently making a component part outside of the state</p><p>* some courts have said, such as NY if the D purposefully avails himself to the state where the injury occurs, and could reasonably be expected to be hailed into court there, that is sufficient to cover the LA statute where the negligent manufacturing occurred outside the state *</p><p>* must make sure claim that is covered under long arm statute is subject of lawsuit!!!</p><p>Constitutional test for p/j</p><p>1) territorialist approach--minimum contacts -level of activity of D in forum state -nature of contacts/relatedness to forum -advertising (evidence of D reaching out to forum)/contracts/exchange of $ -purposeful availment to forum (protection of laws) -expectation that product would be in forum; D foresee being haled into court? -is difficult when contacts are telephone calls/emails/faxes -for internet: where a user can exchange information with the host computer the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Website; in Zippo the court found that p/j could be found where D had 3,000 subscribers to a pay-to-read newsletter (those 3,000 represented 2% of total subscribers)</p><p>2) reasonableness factors -can help sway up or down (Burger King) </p><p>1) forum’s interest in allowing p/j 2) P’s interest in allowing p/j 3) notion that we want convenient litigation 4) fundamental social policy--is this a “nananay booby” situation 5) D’s interest </p><p>International shoe--set out test of minimum contacts that can be sufficient for p/j as long as “traditional notions of fair play and substantial justice” are upheld </p><p>McGee--court found that CA (forum state) had enough interest in allowing its citizens to bring suit against an out of state defendant when issues dealing with defendant arise in forum state; court looks at reasonableness factors as potentially important; these reasonableness factors were determinative; D was out of state and was trying to be brought in (D was outside of forum state but was doing business within the forum state the whole time--purposefully availed himself of forum state) Hanson v Denckla--Donner set up trust in DE, moved to FL; died in FL; beneficiaries wanted to sue in FL arguing over corpus of trust; court found no jurisdiction in FL because Donner acted unilaterally by moving to FL, her placement in that state had nothing to do with the trust--Donner did not purposefully avail herself of FL laws; reasonableness factors not deciding (territorialists win); D was in state where p/j was lawful but unilaterally moved changing state to FL (person never did business with D in state they unilaterally moved to, thus D never purposefully availed themselves of state person moved to) </p><p>World Wide Volkswagen--court found no p/j when P (NY) bought car from D and unilaterally exposed D’s product in OK; court found that minimum contacts were necessary to find p/j that would allow D to go to court in OK; P argued that it was foreseeable that a car could end up in OK (or any state for that matter); court held that foreseeability was not enough, D must have enough minimum contacts so that he can “reasonably be expected to be haled into court” in forum state; court found no p/j for D; dissent: D derives substantial benefits from having OK highways available for its customers in the use of automobiles (broad interpretation which argues that D should be subject to p/j)</p><p>Burger King--D franchised a BK in MI; defaulted on payments and BK who was headquartered in FL, initiated action in FL; D argued there was no p/j over him in FL; franchise contract said all matters would be dealt with in FL; all actions of D’s business occurred in MI, however payment was sent to FL; D had to be trained in FL; p/j is fair to assert as long as it does not make litigation “so gravely difficult and inconvenient” that a party is at a “severe disadvantage” in comparison to opponent; reasonableness factors have some place in determining p/j</p><p>Asahi--stream of commerce; court split; O’Connor: foreseeability of an item entering forum after being placed into stream of commerce is not enough to satisfy minimum contacts; D must purposefully direct product towards a forum state (advertising, establishing channels to provide service, market through agent); 4 other justices believe minimum contacts to be met, after placing a good into stream of commerce, simply knowing that product enters forum is enough especially where high quantity (no need for purposeful availment); all court members agree that reasonableness factors hold that D should not be subject to p/j; for one thing, D is a foreign corporation, all documents would need to be converted into English; only issue is an indemnity issue between D and Taiwanese company </p><p>Burnham--Scalia wrote opinion; rejects reasonableness; all justices agree that transient jurisdiction where D is present within borders of state should be allowed to be served; D should be subject to p/j in a state he visits because he has full benefit of bringing action as a P in that jurisdiction; Scalia does not go into minimum contacts analysis because he says Pennoyer test is satisfied…Brennan believes that territorialist/reasonableness should always be used together even when physical presence in state (Brennan would say it is unfair if person is in state for only 1 day and is served) </p><p>Scalia--territorialist; only believes minimum contacts (territorialism) should be used if presence is lacking…Scalia believes that Pennoyer is best way to determine p/j</p><p>Brennan--believes every situation must have territorialist/reasonableness applied </p><p>Objections to p/j</p><p>Direct Attack -in either situation D must raise defense to p/j immediately or it is lost </p><p>1) D’s first option is to appear in the original action at the beginning of the suit and object to the court’s exercise of jurisdiction -in some states D must file a special appearance which allows him to appear before the court at the beginning of the action for the purpose of challenging its power to exercise p/j</p><p>-if D makes any argument or objection as to the merits; the court will take it as a defense and conclude that she has waived her p/j objection</p><p>2) D may file 12 (b) (2) motion before filing answer; D may also raise other objections at this time, w/o waiving the objection to p/j (different than “special appearance”)</p><p>* in deciding on D’s objection to p/j court can either: a) find for D (dismiss on grounds of no jurisdiction) or b) deny D and proceed with action</p><p>Collateral attack</p><p>-D can choose to ignore the suit filed against him entirely -this choice is risky because court will probably enter default judgment for P in absence of D making an appearance</p><p>Why collateral attack? -after default judgment has been entered against D, he challenges jurisdiction in the enforcement action (in his home state) rather than directly in the original suit; enforcing court (D’s home state) may decide if rendering court had jurisdiction, if it did not, will refuse enforcement of default judgment; if it did, it must enforce judgment</p><p>Risky: after default is entered, D can no longer make an argument on the merits; he is hoping that the enforcing court will find no p/j; if enforcing state finds p/j valid, they MUST enforce judgment rendered at rendering court (where D received default judgment)</p><p>-either way determination of D‘s p/j is same hope is that enforcing court will be more sympathetic to D’s objection of p/j</p><p>-D cannot challenge p/j in enforcement action if already did in original action (collateral estoppel)</p><p>Subject Matter Jurisdiction defined in Article 3 section 2 of Constitution -authorizes cases allowed to be heard in federal courts</p><p>-must fit into one of the two: 1) federal question or 2) diversity of citizenship</p><p>-defense: 12 (b) (1) which can be raised at any time </p><p>-MUST HAVE SMJ OVER EACH CLAIM!!!</p><p>Federal Question -trick is to determine which claims count as “arising under” federal law Mottley Rule: although 1331 grants jurisdiction like article 3 s. 2 courts have interpreted much more narrowly</p><p>Well pleaded complaint rule-look only at P’s complaint to determine if cause of action is based on a federal question; not sufficient to rely on a D’s probable answer that would rely on federal issue</p><p>-well pleaded complaint rule: the court is able to determine at the outset whether it has jurisdiction based on the claims P asserted w/o waiting for D’s answer </p><p>How to determine if well pleaded complaint rule is met? </p><p>The Holmes “creation test”: if a suit arises “under the law that creates the cause of action” then it is satisfied as a federal question</p><p>Diversity Jurisdiction</p><p>-between citizens of different states AND amount in controversy must be greater than $75 k</p><p>-look at P side of “v.” and D side…if same state appears on both sides of the “v” then NO DIVERSITY!!! </p><p>-looking at citizenship of parties -P in a diversity case may seek recovery on any claim including state claims </p><p>Meaning of citizenship for parties -Citizen of the state where domiciled; domicile is established by these factors: 1) presence in state 2) intent to make that permanent home -can only be citizen of one state at a time; person can only have one domicile; every person has a domicile -keep old domicile until you establish a new one</p><p>Meaning of citizenship for corporations -found in statute 1332 (c) -corporation is citizen of: -state in which it is incorporated AND -state where the corporation has its principle place of business (PPB)</p><p>PPB is determined by: 1) “muscle test”--place where day to day activities take place; the place where the average citizen would think PPB</p><p>2) “nerve center”--if no clear day-to-day; where decisions/ideas for company are made total activities test--look at nerve center and muscle center…will use nerve center unless all of the activity is in one state </p><p>Citizenship of unions/fraternities: any state where an active member is domiciled Amount in Controversy requirement -as long as amount in controversy is greater than $75,000 it is satisfied; P need not recover more than $75 K -if judge can determine to a “legal certainty” that P could only be awarded less, then the amount in controversy is not satisfied</p><p>Supplemental Jurisdiction</p><p>-if a claim does not meet SMJ, it must have supplemental jurisdiction </p><p>1367 (a)--when federal court has SMJ based on a federal question: -shall have supplemental jurisdiction over all other claims that are related to other claims to form the same case (come from the same common nucleus of operative fact (essentially STOO) -shall allow claims that are added by joinder/intervention of other parties</p><p>1367 (b)--when federal court has SMJ based on diversity: -courts DO NOT have supplemental jurisdiction over claims BY PLAINTIFFS against persons made parties under Rule 14, 19, 20, or 24 or when P’s propose to be joined under Rule 19 where such claims would be inconsistent with the jurisdictional requirements of diversity</p><p>Aldinger--P brought action under a federal statute; also asserted a state law claim against another D in same action (Rule 20); example of pendent jurisdiction--assert one permissible claim and add another impermissible claim to a different D; court did not allow despite second claim being part of same case in which there was an original permissible claim saying there was no SMJ because claim could not be brought against county govt.</p><p>Kroger--diversity action; D impleaded O-a corporation; O was not diverse from either original party (incorporated in state that P was from/PPB in state where D was from); P then sought to bring a claim under Rule 14 against O (third party D); court said no ancillary jurisdiction because there was not complete diversity between parties; the court held that D could bring his claim against O (third party D) even though it violated SMJ by allowing a party from the same state as P in; court reasoned that a defending party’s claim should be allowed, P had the choice to sue both parties at once in state court</p><p>Finley--pendent party jurisdiction; P filed a lawsuit against the US (satisfies SMJ); P also brought claim against a non-diverse party that arose out of the same “common nucleus of fact”; court said couldn’t do it because 1346 (b) (dealing with actions against the US) would not allow it</p><p>Venue</p><p>-exactly which federal court do we go to? SMJ tells us we can go to federal court; venue tell us EXACTLY which federal court we can go to </p><p>-venue rules are meant to further restrict the places where the P may choose to bring suit, to assure that rights are tried in a place that bears sensible relationship to the claims asserted or to the parties to the action</p><p>-improper venue is filed by D using 12 (b) (3)…a waivable defense -waived if not raised in answer or if motion is made and not included in motion 28 USC 1391 (a) governs venue in diversity cases</p><p>(b) governs venue in all other cases (civil action wherein jurisdiction is not founded solely on diversity of citizenship)</p><p>A (1) and b (1) (if all D’s reside in same state) </p><p>-both (a) (1) and (b) (1) authorize venue in a judicial district where any D resides, if they all reside in one state </p><p>-if you are from NJ and want to sue A from Eastern district of VA and B from Western district of VA; can sue in either Eastern or Western since both Ds from same state (VA)</p><p>-could not sue in Southern district of VA in this case since neither D is from that district (even though from same state)</p><p>-term “resides” in (a) (1) and (b) (1) equates to an individual’s “residence” for venue purposes with domicile -person is deemed to reside in the district that person lives [ focus on district ]</p><p>A (2) and b (2) (if D’s reside in different states) </p><p>-the current language in 1391 (a) (2) and (b) (2) has ‘where-the-claim-arose’ formula</p><p>-venue is proper in a judicial district in which “a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of property that is the subject of the action is situated”</p><p>-this will usually authorize venue for a particular suit in several districts -Ex. Product liabilities case--this language would likely authorize venue for a particular suit in several districts (district where product manufactured and product where injury occurred)</p><p>-purpose of this venue provision is to assure a relation between the underlying events that are litigated and the place where the case is tried; such a relation will exist where significant events involved in the case took place</p><p>Fallback provisions (a) (3) and (b) (3)</p><p>(a) (3)-- authorizes venue in a “judicial district in which any D is subject to personal /j at the time the action is commenced, if there is no district in which the action may otherwise be brought”</p><p>(b) (3) --authorizes venue in a “judicial district in which any D may be found, if there is no district in which the action may otherwise be brought”</p><p>* for our purposes treat (a) (3) and (b) (3) the same</p><p>Ex. P1 (NY) P2 (MN) D1 (NJ) D2 (FL) claim arose in Quebec…here we have diversity so we would be using 1391 (a); D’s are not from same state so we cannot use (a) (1); (a) (2) won’t work because claim arose outside of United States; (a) (3) will need to be used, action could be brought in either NJ, FL (because statute says where “any defendant” can be found) or NY/MN if can satisfy personal jurisdiction (in 1391 statute as well) </p><p>Venue involving corporations 1391 (c) -when you have personal jurisdiction you have venue for a corporation -corporation shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to p/j if that district were a separate state </p><p>Change of venue </p><p>1404 (a) provides for geographic transfer from one district court within the federal system to another in a different state or district</p><p>Forum non conveniens -used after 12 (b) (2) and (3) have not worked -says court is a proper forum but 1) is very inconvenient AND 2) there is a much more convenient forum </p><p>When determining if he should allow, the judge looks at: 1) public interest factors--waste of public funds because would be delayed/expensive</p><p>2) private factors--specific to case where are documents/witnesses </p><p>-cannot challenge a forum non conveniens because law of alternative forum would be less advantageous to your interests (Piper Aircraft) </p><p>* mostly used by D; however, can be used by P--P will file in a state where SOL has not run and then file 1404 and have changed </p><p>Removal</p><p>-allows D after P has filed claim in state court to “second guess” the choice by “removing” some types of cases from state to federal court</p><p>-once removed the case becomes a federal case, and the state court loses jurisdiction over it</p><p>Rationale: D’s should have choice to have case within federal jurisdiction heard in federal court </p><p>Procedure for removal -1446: D must file a notice of removal in appropriate federal district court along with all pleadings/process/and other papers from the state action -often D must show all facts necessary to demonstrate the grounds for removing the suit</p><p>-must be filed within 30 days of receiving P’s pleading in state suit</p><p>-once notice is filed in federal court and state court is notified; state court can do no more, it loses control of case automatically When is removal available for D? -available only in cases where P could have commenced in federal court 1441 (a)</p><p>However, some cases are not removable even though P could have brought them in federal court originally: -1441 (b) a diversity case is only removable if “none of the parties in interest properly joined and served as defendants is a citizen of the State in which action is brought”</p><p>-Ex. A (FL) sues B (CA) on a tort claim in state court in CA; B cannot remove from state court to federal court because A sued in CA; even though action could have been brought in federal court initially (assuming amount in controversy in excess of $75 K)</p><p>-1441 (f) even if P erroneously filed a claim in state court that only a federal court could hear, such as a patent case, the federal court is not precluded from hearing the case simply because the state court lacked jurisdiction over it </p><p>Where can D remove to? -only from state to federal -cannot remove to a federal court in another state or even in another district in the same state</p><p>1441 (a)--can remove to: “the federal district court for the district and division embracing the place where such action is pending (in the state court)”</p><p>-must be removed to that federal district court even if that fed. Dist court would not have been proper had the case been brought there initially (under 1391 venue rules)</p><p>Ex. Say there are 4 federal district courts in NJ; -if claim is filed in Camden county; D can only remove to federal district court in Camden County</p><p>-thus removal only partially displaces P’s choice of forum--in same area at least, even if federal instead of state court- </p><p>What must be removed?</p><p>-when D removes; the entire suit follows; neither party can dissect a single case and send only parts of it to the federal forum</p><p>-after removed, federal rules apply to procedure</p><p>-any motions/filings/discovery is transferred from the state to the federal court -federal judge can modify an order that has been transferred pursuant to 1450</p><p>P can challenge removal -in federal court can file to remand back to state court because: fed court lacks SMJ, or P failed to comply with removal procedure (such as failure of all Ds to join in removal notice/after 30 days) -must make remand motion within 30 days of removal or it is WAIVED (although SMJ defense is always available) </p>