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Jurisdictional Rules and Considerations in Federal Courts, Study notes of Civil procedure

Albany Law SchoolCivil procedure

Various rules and considerations regarding jurisdiction in federal courts, including the erie doctrine, federal common law, removal, personal jurisdiction, and res judicata. It also discusses the impact of state and federal laws on these matters, as well as the use of certification and abstention. The document further explores the application of the full faith and credit act and rule 60 in different scenarios.

Typology: Study notes

2021/2022

Uploaded on 01/27/2024

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Message #1 to the user: I used this document as an outline, but it is really much more detailed
than a traditional outline. It probably serves better as an aide to note taking and studying than as
a basis for your own outline. If you’ve also looked at older outlines available from the SBA, you
might notice some striking similarities between my outline and those from years past. That is no
coincidence. I made this outline by supplementing an older one with my own class notes, notes
from friends, and other outlines online. As a result, it is very comprehensive - maybe too
comprehensive - and also pretty reliable. I highly recommend that in some way you make your
own outline; either by supplementing an existing one or starting from scratch.
Message #2 to the user: Buy Glannon’s for Civ Pro now. Trust me, you’re gonna buy it
anyway so better to have it now than to wait until right before the exam. It is by far the most
useful hornbook for 1L’s. Even if Rochelle tells you not to get it, look around her office … she
has it too. And read it as you go along, you will get more out of class and you’ll know where to
look when your studying for finals.
Message #3 to the user: If you really want to get a handle on Erie, read the entire case line
several times over. This is one area where a flow chart will really help (and Glannon’s will
oversimplify some of the issues).
I Justiciability
A. Issue must be Justiciable
1) no wagers, hypothetical and political questions are better for the people to decide. Issue
must come up in an actual case or controversy in order to be justiciable
a) Cudahy v. Quirk (1969)
i) Facts: Quirk challenged the Jaycees, offering to give them $1000 if four glasses of
fluoridated water each day didn’t cause disorders, or if the Jaycees find that Quirk has
misrepresented the matter. Jaycees demand $1000 for misrepresenting the issue.
Quirk refused to give.
(1) Jaycees sue seeking
(a) That Quirk did misrepresent
(b) a court finding that fluoridated water can’t cause disorders
(c) judgment of $1000.
(2) Verdict for P, then appealed.
b) Holding: Court threw case out because not justiciable (court brought this issue up sua
sponte (on its own) according to rule 12h3. (lack of justiciability is a 12b grounds for
dismissal
c) Message:
i) Courts will not decide wagers because against public policy. (wants to deter wagers
and deciding them would encourage them).
ii) Courts will not decide political questions—they are best left to the voters or other
branches of gov. !!! (Also, these types of questions would open FLOODGATES.
iii) Courts are looking for the best parties with the best records—someone who has
been injured by fluoridated water should bring this case. (case or controversy)
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Download Jurisdictional Rules and Considerations in Federal Courts and more Study notes Civil procedure in PDF only on Docsity!

Message #1 to the user: I used this document as an outline, but it is really much more detailed than a traditional outline. It probably serves better as an aide to note taking and studying than as a basis for your own outline. If you’ve also looked at older outlines available from the SBA, you might notice some striking similarities between my outline and those from years past. That is no coincidence. I made this outline by supplementing an older one with my own class notes, notes from friends, and other outlines online. As a result, it is very comprehensive - maybe too comprehensive - and also pretty reliable. I highly recommend that in some way you make your own outline; either by supplementing an existing one or starting from scratch. Message #2 to the user: Buy Glannon’s for Civ Pro now. Trust me, you’re gonna buy it anyway so better to have it now than to wait until right before the exam. It is by far the most useful hornbook for 1L’s. Even if Rochelle tells you not to get it, look around her office … she has it too. And read it as you go along, you will get more out of class and you’ll know where to look when your studying for finals. Message #3 to the user: If you really want to get a handle on Erie, read the entire case line several times over. This is one area where a flow chart will really help (and Glannon’s will oversimplify some of the issues).

I Justiciability

A. Issue must be Justiciable

  1. no wagers, hypothetical and political questions are better for the people to decide. Issue must come up in an actual case or controversy in order to be justiciable a) Cudahy v. Quirk (1969) i) Facts: Quirk challenged the Jaycees, offering to give them $1000 if four glasses of fluoridated water each day didn’t cause disorders, or if the Jaycees find that Quirk has misrepresented the matter. Jaycees demand $1000 for misrepresenting the issue. Quirk refused to give. (1) Jaycees sue seeking (a) That Quirk did misrepresent (b) a court finding that fluoridated water can’t cause disorders (c) judgment of $1000. (2) Verdict for P, then appealed. b) Holding: Court threw case out because not justiciable (court brought this issue up sua sponte (on its own) according to rule 12h3. (lack of justiciability is a 12b grounds for dismissal c) Message: i) Courts will not decide wagers because against public policy. (wants to deter wagers and deciding them would encourage them). ii) Courts will not decide political questions—they are best left to the voters or other branches of gov. !!! (Also, these types of questions would open FLOODGATES. iii) Courts are looking for the best parties with the best records—someone who has been injured by fluoridated water should bring this case. (case or controversy)
  1. Courts will not decide political questions that should be left to the legislature. It would be a constitutional violation of Separation of powers Court doesn’t want to step on legislature’s Toes. a) Orlando v. Laird (1971) i) Facts: Orlando sues Secretary of Defense and others claiming that they exceeded their constitutional authority by drafting them when Congress had not formally declared war. Court finds that evidence shows that Congress supported the war effort —the lack of a formal declaration was a policy decision. Congress should decide how war should be declared. WPA can’t give courts power to decide if the constitution doesn’t. ii) Message: Courts will not step on the toes of congress and tell Congress how it must behave. That is a political question for the legislatures to decide. (1) Congress has a duty of mutual participation in a war (a) that is judicially manageable (2) But no provision for how congress must participate (a) not judicially manageable B. The issue must come up in an actual case or controversy
  2. Constitution does not allow federal courts to give advisory opinions. US is adversarial, and only people with specific interests in actual cases will give the issue its best airing C. Plaintiff must have Standing to bring suit
  3. Must have direct injury, standing is search for best plaintiff a) Holding: Damage to Excello does not spring directly from the ordinance b) Message: i) Every decision has a ripple effect on the economy, only the most direct victim with the most particularized injury should bring suit (1) Because we need to limit liability (2) Because we want the best P’s for Stare decisis ii) Also, Federal court doesn’t want to tell the City of Chicago what to do D. Timing
  4. Mootness: If decision won’t affect the rights of the litigants, court won’t hear it because the plaintiff doesn’t have enough riding on the decision to make the best argument. a) Defunis v. Odegaard (1974) i) Message: Court wants best plaintiff—since Defunis will have his degree anyway, he won’t fight as hard. (1) Perhaps Defunis will only make the sexy constitutional argument
  5. Exceptions to mootness: a) Voluntary cessation

II Subject Matter Jurisdiction

Diversity

1. General

  1. Burden to show SMJ is on the P
  2. Dismissal must happen whenever during the proceeding a deficiency in SMJ is noticed a) Rule 12(b)(1): dismissal for lack of SMJ
  3. Rule 12(h)(3): parties or the court can always object to lack of SMJ
  4. Collateral attack only allowed when the first action was a default judgment
  5. Reasons to keep diversity around: a) Bias b) Unified National Jurisprudence (all the courts should have a little knowledge in all areas) c) keep lawyers moving between systems d) efficiency of one place to hear certain claims (don’t want to burden state courts with mass torts, etc. that are national issues) e) keeps aliens out of state court f) you’d be stuck with all the problems anyway because of §
  6. Arguments against it: a) Ease the federal docket b) Magistrates are deciding cases c) Bias isn’t relevant anymore
  7. Two Requirements: diversity and amount in controversy

2. Diversity

A. Diversity § 1332—Fed. Court has power to hear cases between citizens of different states. this echoes a constitutional provision which permits diversity, but doesn’t require it -thus diversity could be abolished (if people were smarter) Two Requirements: maximum diversity and amount in controversy § 1332 requires maximum diversity 1) Strawbridge v. Curtiss

a) Holding/Message: At least one party must be a US citizen or permanent resident, and both parties must be domiciliaries of different states (must be present with intent to remain). b) Rationale: § 1332 is for preventing bias. If there’s no maximum diversity, there should be no bias, and the court wants to reduce the caseload. c) The courts have interpreted Marshall’s decision in Strawbridge to be an interpretation of the act of Congress rather then Article III - this has allowed minimum diversity to be avoided in some situations.

  1. § 1332 (a)(2) and (a)(3): A foreign citizen does not destroy diversity
  2. § 1332 (c) (2): legal represntative (and other nominal parties) are ignored for diversity purposes
  3. § 1335 –Interpleader- only requires minimum diversity a) one defendant must pay off many plaintiffs—plaintiffs don’t all have to be diverse from def. or other plaintiffs. b) Amt. in controversy must be over $500 A single transaction can affect people from many states. c) Rationale: The need to consolidate litigation into one place—more fair for insurance company and more efficient gives rise to requirement for only minimum diversity. (Defendant must be diverse from at least one of the plaintiffs.) i) State Farm v. Tashire - Federal Interpleader Actions Operate on Minimum Diversity (1) Facts: Greyhound Bus and Pickup truck get into accident. The driver of the bus sues the truck driver. The truck driver has one insurance policy which pays out $20,000. If bus driver sues first he will get the full payout and the passengers will be in the cold. This could lead to a dozen law suits over one $20,000 policy, π will be multiply vexed. B. Determination of citizenship
  4. Assessed b y the date when the action is commenced
  5. Domiciles a) Stateless: One party must be a US citizen or permanent resident. Expats. and stateless can’t be sued in federal court b) Aliens: SMJ exist if there is a dispute between a citizen of a state and aliens (or foreign countries) i) No SMJ in disputes purely between aliens ii) Resident alien: not treated like a foreigner, deemed a citizen of whatever state he’s domiciled in iii) Policy: we want the federal courts to be hearing cases that truly involve issues of foreign policy c) Insurance companies (1332(c)) Insurance Cos are residents of a) principal place of business, b) state of incorporation. C) citizen of a state where insured person is domiciled

(i) But the federal court should be able to control its own docket b) A good way to avoid defeating diversity with Unincorporated Associations is to file as a class action C. Real Party in Interest (Rule 17(a)) § 1359: “a district court shall not have jurisdiction over a civil action in which any party, by assignment or otherwise, has been improperly or collusively joined to invoke jurisdiction” 1) Assignment of Claims is improper and collusive under § 1359 if done solely for the purpose of creating jurisdiction a) Kramer(TX) v. Carribean Mills (Haiti) i) Facts: dispute is between Panama finance and Carribean Mills. Panama can’t sue in diversity or alienage so it assigned its claim to Kramer for $1. ii) Holding/message: Court brings up collusive (fraudulent) joinder sua sponte and dismisses the case (§ 1359). Court can raise all SMJ issues sua sponte at any time. (12h3) 2) Can’t defeat diversity by failing to name indispensable parties (Rule 19) a) When is a party necessary and when is he indisspensible? § 1359 is about creating jurisdiction, not defeating it 3) § 1359 (and no other statute) does not prohibit improper or collusive joinder of a co- plaintiff to defeat removal i) e.g. assigning a fraction of your claim to a non-diverse party b) But the modern trend is to not allow this 4) Removal may not be defeated by the plaintiffs joinder as a defendant of a party against whom no bona fide claim exist a) Rose v. Giamatti i) Giamatti wants to remove to federal court but can’t because of lack of diversity. Giamatti claims fraudulent joinder (§ 1359) and says that ML and Cin Reds are not real parties of interest (17a) ii) Cincinnati Reds and MLB are fraudulently joined. Giamatti can remove. D. Amount in Controversy ($75,000)  Rule 11—sanctions people for making fraudulent claims. The claim must be not less than $75,000 to a legal certainty

  1. Interest is not included
  2. Proof not required, only some possibility that $75,000 is in question a) D must prove to a “legal certainty” that the claim is really for less i) State law is consulted in determining “legal certainty”
  1. Eventual Recovery is Irrelevant (if the D won’t be able to pay $75,000 that doesn’t defeat diversity)
  2. Some courts asses the amount by the Plaintiffs point of view only (how much the claim is worth to him) but other courts will look assert jurisdiction if either parties interest meets $75,
  3. When the case is removed, courts are much less suspicious of the whether the amount is valid
  4. The Plaintiff is the master of the complaint, so he can defeat removal by claiming less than $75,
  5. Aggregating claims: a single P can do it to satisfy the $75,
  6. Aggregation by multiple P’s when one P meets $75, a) Zahn v. International Paper (1973): suggests that all P’s must meet the amount in non-class actions as well as in class actions i) Facts: Class action suit against International Paper for polluting lake near property of plaintiffs. Rule 23 allows a group to represent a larger class if a) the numbers of the class are so numerous that it is impossible to join them all, b) commonality of claim of reps. To class, c) claim is typical of whole class, and the case is for adequate protection of whole class. Zahn and a few others meet amt. in controversy but those who don’t are excluded. ii) Message/Holding: Claims of different parties cannot be aggregated. Only parties that meet the amount in controversy can be included in the class action in federal court. If no party meets, class action fails. Here, Zahn met but many others didn’t. (1) This defeats the point of a class action and threatens judicial efficiency. b) Zahn probably may be overruled by § 1367. See Finley 9) Aggregation by Multiple P’s when no P meets $75,000 on his own a) Snyder v. Harris—Need at least one party who meets amt. in controversy i) Facts: A group tried to bring a class action, but no party had a claim above amt. in controversy. Case thrown out. ii) Message: Zahn and Snyder kills most federal class actions. iii) Rationale/Policy: Courts might not like class actions because they turn courts into mini legislatures. Class actions are individual trials to protect individuals. Laws are supposed to protect the masses. b) Aggregation Rule : A party can aggregate two related claims against same person, maybe against 2 dif. people, but can’t aggregate 2 dif people’s claims. c) Possible exception: when the P’s have a “common and undivided interest” i) But it’s not very clear what a “common and undivided interest” is
  7. Counter claims aggregation when a state court action is removed: a) P can never remove b) D can not remove if a permissive counter claim aggregates to push the amount over the limit c) But some courts let D remove if it’s a compulsory counter claim i) Horton: the claim didn’t meet the amount, but the counter claim did court would not dismiss

ii) Holding: Same as Motley. Federal issue only comes up in defense. Can’t anticipate defense—minimum case is a state claim so fed court throws it out. The right to sue comes from the state, the federal law only says that’s ok. (1) The right or immunity must be such that it will be supported if given one construction and defeated if given another iii) Problem: by looking only at WPC, we eliminate some cases that have important federal components and let in some cases where the fed. question is really not so important. c) Solution to the problem: 1257---if the highest court of any state makes a decision regarding the validity of a statute or treaty, you can appeal to the US SC. Enacted in 1948 so doesn’t apply here.

  1. Smith v. Kansas City Title & Trust (1920)  substantial resolution of federal law is good enough, it must be very important (constitutional) to the federal government a) Facts: Smith wants to enjoin D from investing in Bonds he says are created by unconstitutional acts of congress i) The Bond act is federal, but it’s Missouri law that allows shareholders to enjoin corporate boards from making illegal investments b) Holding: There is arising under jurisdiction i) “a case [arises under[ whenever its correct decision depends on the construction of [the constitution or law of the United States]” (1) this sites an open question of federal law and affects the general public c) Holmes Dissent: It is the suit, not a question of the suit that must arise under the laws of the United States d) Substanitallity Test: D says “we can invest in those bonds”, P says “no you can’t because the federal bond act is unconstitutional” e) Constitutional Impact: If a state court had found the bond unconstitutional, it was surely going to make its way to SC review
  2. If the case does not necessarily depend on the fed claim AND congress did not want an implied right of action, looks like the state’s concern a) Merrell Dow(OH) v. Thompson (Scotland) (1986) i) Facts: Thompsons and Mctavishes (from Canada and Scotland) use bendectin and claim that it causes birth defects. They sue for negligence, breach of warranty, SL, fraud, and gross negligence (state tort claims) and breach of FDCA (fed claim). They sue MD in Ohio State court. Party can only remove in diversity when defendant is not sued at home, and MD is at home so it can’t remove. MD tries to remove by saying there is a federal issue at play. (and a private right of action should be implied.) ii) Holding: Dismissed under 12(b)(1): The FDCA was one available criterion for determining whether Merrell Dow was negligent, but the cause of action does not depend on a federal question. (1) Dreyfuss: This is a federal question, but since there is no private right, it is not redressable, it should have been dismissed under 12b6 (failure to state a claim on which relief can be granted).

(2) BUT, the court might be saying that the question of whether there should be an implied private right of action is not a substantial enough question to be heard under § 1331—this seems to limit Motley’s WPC. iii) The vast majority of cases brought under 1331 are those in which federal law creates a federal cause of action (1) Some cases however meet the arising under standard when the vindication of a right under state law necessarily turned on a federal question: (a) When there is no private right of action, the presence of a claimed violation is insufficient for federal question (i) The (b) State courts are smart enough to review federal statues without messing up uniform interpretation (i) And 1257 says the SC can always review state court decisions (c) The novelty of the FDCA action is insufficient to trigger arising under iv) Test: D’s say “we don’t owe you money for your injuries”, P’s say “you were negligent”  that’s not a federal claim

  1. 4 part test for determining implied right of action (Cort v. Ash) (1) specially intended to protect that plaintiff (2) legislative history, congressional intent for right of action (3) does a federal cause of action further the underlying purpose of the statute (4) is this area mainly state or federal?
  2. For Declaratory Judgment to be heard in fed. court, the fast forwarded and unscramble what the coercive action would be a) Franchise Tax Board v. CLTV (1983) i) Facts: CA sues CLTV for CA taxes. CLTV says that ERISA governs in retirement account administrations and so it doesn’t have to pay. Franchise tax board takes claim for taxes to court to get the money. CLTV claims ERISA as a defense and therefore tries to remove. Claim when ripe is CA v. CLTV—this is a state claim and there is no federal question (even though ERISA is a federal statute.) ii) Message: Declaratory Judgments don’t change arising under rules. Even Declaratory Judgments must pass the WPC rule. Unclear if Horton permission to look in counterclaim for fed. question applies. iii) Nominal Amount: if CLTV had paid a nominal amount of the tax and then sued in Federal court to get it back, that claim would be proper under 1331 iv) You can’t put words in the D’s mouth
  3. federal question in counter claim does not allow removal a) Oklahoma Tax Board
  4. If the P’s claim is clearly based on federal law, it qualifies for federal question jurisdiction even if it is invalid on its merits a) This should be dismissed for failure to state a claim on which relief may be granted (12(b)(6)), not for lack of SMJ (12(b)(1)) b) This has implications for supplemental jurisdiction

3. Supplemental Jurisdiciton § 1367 and Removal

 Allows a plaintiff to bring both a state and federal claim in fed. court when the claims are related (pendant) or when defendant has a state counter-claim against the plaintiff (ancillary.) it’s al about fairness and efficiency There still must be Personal Jurisdiction!!! Pendent Jurisdiction: the P asserting a jurisdictionally proper claim against a non-diverse party and adding on a related state claim (rule 18(a))

  1. The claims must arise from a common nucleus of operative fact a) Gibbs v. United Mine Workers (1966) i) Holding: Fed. ct still had federal jurisdiction over related state claims (pendant jurisdiction established), even when federal claim is dismissed. (1) For pendant jurisdiction, must have common nucleus of facts. ii) Reasoning: congress gives power to hear a “case”, this court is just re-defining what “case” means iii) Policy: judicial economy, convenience, and fairness to the litigants Ancillary Jurisdiction: This involves related counterclaims asserted by the D or other additional parties after the initial complaint (rule 13(a)).
  2. Accepted for litigants in a defensive posture a) Moore v. NY Cotton Exchange (1926) i) Facts: Moore sues Cotton under fed anti-trust law. Cotton counter claims under state law that Moore has misused info provided him by the Cotton Exchange. Both claims hinge on same facts. State claim hinges on federal claim so can be heard in fed. court. ii) Message: Common nucleus of operative facts is key. iii) What’s Good: (1) The claims are logically linked so we should hear them together (2) The counter Claim provides D a remedy if P prevails on his claim (3) Efficiency iv) What’s Bad (1) It confuses the jury
  3. Not allowed for Plaintiffs a) Kroger (IA) v. OPPD (NE)+Owen (IA) i) Facts: Crane hits power-line and electrocutes Kroger (IA). Kroger sues OPPD (city agency) (NE). OPPD impleads (Rule 14) Owen (IANE). Case gets dismissed against OPPD (because it’s really Owen’s fault). Kroger amends the complaint and sues Owen alone. Owen was thought to be NE resident, but turns out to be from IA. Now no diversity. Fed. court throws out the claim because there is no diversity. ii) Holding/Message: A plaintiff cannot make a claim against an impleaded, non diverse party. (Kroger thought he’d get into fed. court if he sued OPPD and didn’t sue Owen! We can’t let people do indirectly what they can’t do directly.)

iii) Other issues: This case is superceded by § 1367. Kroger can’t assert a claim against a Rule 14 impleaded party who is non-diverse, but Owen can cross-claim against Kroger (for CN or something). Can Kroger than counter-claim against Owen’s cross claim? Yes, but not according to a strict reading of 1367. (also, this is allowed Moore v. Cotton) Finley Restriction: Pendant Party Jurisdiction

  1. Can’t use pendent jurisdiction for a state claim over a 3rd^ party if there is no federal claim against that party (when the state claim has a common nucleus with a federal claim against another D) a) Finley v. San Diego Gas and Power (CA) and US Gov. (1989) (post Gibbs and Moore) i) Facts: Finley and son were flying and hit an electrical line. They want to sue SD Gas and Electric and SD City, who are responsible for the runway lights, for negligence regarding the lights. It turns out, the US gov is resp. for the lights (FAA) so they must sue in Fed. court. Issue is whether or not the non diverse parties with state claims (v. SD Gas and SD municipality) can be heard in Fed. court. The claims are all connected. ii) Holding: No. State claims must be heard in State court, regardless of how connected they are (1) Unless congress explicitly authorizes the claim to be heard (which it didn’t in this case)
  2. § 1367 (1990) a) 1367 (a): Grants SJ to district courts over all claims so related to claims within original jurisdiction that they form part of the same case or controversy under article III (basically the same as the Gibbs test) i) This overturns Finley and allows ‘pendant party’ jurisdiction (1) 1367 has no language requiring congress’ explicit authorization (2) The last sentence “such supplemental jurisdiction shall include joinder or intervention of additional parties”  legislative history indicates this sentence was expressly designed to overturn Finley Exceptions b) 1367 (b)  when jurisdiction is based on diversity (1332) i) Additional claims by P against the D are allowed ii) Additonal claims by the D against anyone are allowed, including: (1) Rule 13(a): compulsory counter claims (2) Rule 13(h): additional parties to compulsory counter claims (3) Rule 13(g): cross claims (4) Rule 14: impleader iii) But claims by P against new parties aren’t allowed: (1) Rule 14 : impleaded defendant (a) 14(a) is for D bringing in 3rd^ party, 14 (b) is for P bringing in 3rd^ party (2) Rule19(a) necessary parties and 19(b) indispensable parties (3) Rule 20: permissively joined co- defendants (not co- plaintiffs ) (a) The section doesn’t exclude co- plaintiffs thus they are apparently allowed

IV Personal Jurisdiction

In Personam Jurisdiction

1. General

  1. Objections/ Defenses to PJ a) Special Appearance i) If you make a special appearance and loose, most courts allow you to defend on the merits without loosing your right to appeal PJ b) If Special appearance isn’t allowed i) Interlocutory Appeal: allowed in some jurisdiction ii) Defend on the merits: forfeits right to appeal PJ iii) Appeal: Default on the merits and place all you eggs in an appeal over PJ c) Made under 12 (b) (2) (federal substitute for special appearance) i) Must be made in a motion or in the answer ii) Waived if you assert any other rule 12 defenses iii) Can be made to object to IPJ or IRJ d) Collateral Attack (1) Can be made in another forum, but only if original action is defaulted on (never defended on the merits) (double check this) (2) This is because of Full Faith and Credit which prevents other states from re- examining issues already settled (3) Can be used to attack PJ, IR, and Subject Matter. Also can be used to claim extrinsic fraud e) Fraud: D can only claim fraudulent inducement into the jurisdiction i) Fraud is not a defense if the person was already in the state but tricked into service f) Immunity: i) Witnesses ii) Defendants (1) Especially when the suits are related and D is making a special appearance (2) Not for criminal D’s iii) Diplomatic (see Karadzic) iv) Not for Plaintiffs
  2. There are two requirements which must be met a) Substantive Due Process i) The Court must have the power to act over the individual or property (1) Imposed by 14th^ amendment b) Procedural Due Process i) Adequate Notice and opportunity to be heard (1) Also imposed by 14th^ amendment
  3. Obtaining Jurisdiction (satisfying substantive due process)

a) Three types of jurisdiction over the parties i) In Personam (1) Must also have minimum contacts ii) In Rem iii) Quasi In Rem (type I and type II) (1) Must also have minimum contacts b) Minimum contacts i) Needed for In Personam and Quasi In Rem ii) Must take actions that were purposefully directed at the forum state c) Reasonableness i) Jurisdiction also has to be reasonable (or can be reasonable in lieu of no contacts): court will consider issues of “fair play and substantial justice” (1) In some cases, even when there is minimum contacts, making a party defend still violates due process

  1. Serving the party (satisfying procedural due process) a) A D can not be served outside the Forum state unless it is done in accordance with a state’s Long Arm Statute i) The long arm must apply to D and be constitutional (1) Application is usually a matter of interpretation (of legislative intent) (a) Many long arms specifically cover out of state acts with in-state consequences (b) Those that do not explicitly cover can still be interpreted to do so
  2. Continuing Jurisdiction a) Once jurisdiction over the parties is gained, it continues during the entire litigation

2. In Personam Jurisdiction

There are many bases for jurisdiction over an individual

  1. Presence: mere presence in a state satisfies in personam (unless there is immunity) a) The state’s power only extends to it’s border i) Pennoyer v. Neff: “the power of every tribunal is necessarily restricted by the territorial limits of the state in which it is established” ii) originally the chief (and really the only) basis for power b) Service Must be made while individual is within the State i) Burnham v. Superior Court (1990) (1) Facts: Burnham went to CA on business but also went to se his children served by wife for divorce (2) The majority thought service while in the forum state is always sufficient, and never violates notions of “fair play” (a) The other justices seemed to think presence will almost always suffice, but there might be occasional instances where presence does lead to great unfairness (what types of occasions???)
  1. Residence: some states allow it, the supreme court has not yet ruled whether this violates due process a) Argument for: it’s not so inconvenient b) Argument Against: no responsibilities of citizenship, and a P could just get you with presence if you are a resident
  2. Citizenship: Not enough for PJ a) Blackmer contradicts this, but Blackmer is NEVER the right answer
  3. Consent Jurisdiction: Jurisdiction can be exercised by virtue of a parties consent, even if he has no contacts with the forum
  4. Appearance Jurisdiction: Appearance before a tribunal establishes jurisdiction a) Appearance: Appearance before a tribunal establishes jurisdiction i) Adam (TX) v. Saenger (CA) (1) Facts: Saenger sues Adam in CA. Adam counterclaims and wins. Adam goes to TX to enforce the judgment. Sanger says first judgment was invalid because as a TX domiciliary, CA had no PJ over him. (2) Holding: Sanger loses. Once he submitted himself to CA authority by appearance there, he submitted himself to CA law, and jurisdiction is established. Even mailing of a response to a complaint establishes presence. (when there is no special appearance rule) ii) Special Appearance Exception: Special appearance for 12b2 dismissal—if appear specially to contest personal jurisdiction you preserve right to appeal and don’t submit to personal jurisdiction. Federal permission for Special Appearance is evidence that it’s probably not allowed to collaterally attack PJ in federal court. USE IT OR LOSE IT. (1) York v. TX —no constitutional right to special appearance. Not every state has special appearance iii) Limited Appearance Exception: relevant to in rem jurisdiction cases. A person can come in to contest the value of the property that has been attached in an in rem or quasi in rem case without submitting to personal jurisdiction. b) Forum Selection and Contractual Consent to PJ i) Bremen v. Zapata (1) Facts: Contractual provision to adjudicate in England. Court upholds the provision (2) Message: forum selection clauses will be upheld if K is enforceable. ii) Carnival Cruise (FL) v Shute (WA): selection upheald even with a pretty big disparity in bargaining power (1) Message: When two rules conflict (contract v. Washington State long arm statute) the contract trumps!!!!! Companies can contract for forum selection (2) Rationale: If companies can’t contract to litigate in one places, costs of litigation can be sky high and consumers lose

iii) To evaluate the enforceability look at unconscionability etc. and compare facts with carnival c) Cognitive note: confers consent to PJ, waives right to notice and appearance, and allows for judgment to be entered i) Analyzed strictly by courts: must be made knowingly and voluntarily

  1. Implied Consent a) Hess (MA) v. Pawlowski (PA) (1) Message: Implied consent is fine in this case. (it’s application is constitutional.) Still need notice of the law suit! (2) Is there an appropriate long arm statute here? Is it’s application constitutional? (a) there is no real consent going on in these cases. What’s really happening is that there’s a quid pro quo going on. So why not make that the rule?...[See Intl. Shoe ] b) Kane v. NJ when you enter state you make actual contract with agent that he will accept process for you (actual consent). c) Used even when neither P nor D are residents of forum, and even when D lends his car d) Modern trend is to reject implied consent e) Flexner v. Farson  Implied consent doesn’t apply to corporations i) Since states can’t kick out a non-resident corporation, its presence or behavior cannot necessarily be used to deduce consent. Constitution guarantees every citizen the right to do business in any state.

ii) Rationale: In Flexner, nothing remotely like actual consent is really going on. Also,

it’s not in a state’s interest if people can automatically consent away their state’s interest in them. We don’t want people to shop around for the most favorable jurisdiction by relying on implied consent.

  1. In State Tortious Acts: many states allow PJ for this under their long arm. Meets minimum contacts.
  2. Out of State Tortious Acts with in State Consequences (see discussion on corporations) a) Rest, Conflict of Laws, 377: in law the place of a wrong is where the last event takes palce which is necessary to rendor the actor liable b) Other States (NY don’t adhere to this i) Gray ii) WW Volkswagan iii) Hilton c) It’s always about purposeful availment
  3. Internet
  4. Libel a) Look to where the injury occurred and where D could expect the injury to occur b) Keaton v. Hustler: the injury arose out of activity in NH