Determining Minimum Contacts & Federal Question Jurisdiction in Civil Lawsuits, Summaries of Civil procedure

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D. A. Dittfurth,

Civil procedure

Personal Jurisdiction: the power to bring a person or thing into a court’s adjudicative process. Step 0: Is there a traditional basis for establishing PJ - presence and consent?

1. Is the person a resident of the forum state? [ Pennoyer, Miliken ] 2. Was the person served within the forum state? [ Burnham]
2. Did the person consent to jurisdiction (via contract, appearing in court no specially, or failing to contest it) [ Carnival Cruise ] Step 1: If the answer is no, then determine whether GJ or SJ can be found using minimum contacts Authority: is PJ available under state long arm statute OR federal statute? [4(k)(2)/14AM or 5AM] a. If Max Statute – means that it makes the scope of its authorization equivalent to what is permitted under the federal DPC and go directly into DPC analysis b. If gap between statute and “to the max,” are you able to attach D’s property for quasi in rem? [ Shaffer ]
3. Due Process: does PJ conform under either 14AM or 5AM? [5AM nationwide contacts] a. General Jurisdiction: if the harm does not arise from the Δ ’s contacts with the forum i. Substantial, continuous and systematic contacts? [ International Shoe / Goodyear / Daimler ] 1. Businesses: “At home” in the jurisdiction? [ Daimler ] a. Where they are incorporated and b. Contacts are so continuous and systematic so as to render it at home =PPB [ Daimler ] i. PPB = headquarters ii. Nerve-center test iii. This can only be ONE place 2. Individual: a. Where they are domicile b. Intend to stay ii. Reasonableness (not always considered; just say if court found…) b. Specific Jurisdiction i. PART 1: Minimum contacts: originally relied on the nature, quality, and circumstances of the party’s activities in the forum state [ International Shoe ] 1. Cause of Action: where did the cause of action arise? 2. Activities in the Forum State a. Systematic and Continuous = general b. Sporadic = specific c. Direct vs. indirect d. Dangerous? 3. Purposeful Availment: has D purposefully availed itself of the benefits and protections of the forum’s laws? [ Hanson and WWV ] a. Stream of commerce: the flow of goods and services that unknowingly bring those goods and services into unforeseen forums i. Merely placing an item in the stream of commerce is not sufficient ii. Placing an item in the stream of commerce, coupled with some other act that shows the intent to serve state is sufficient. [ Asahi and McIntyre ] 4. Foreseeability: could D foresee or expect being haled into court? [WWV] a. There must be more than mere foreseeability that D could be sued in the forum b. National advertising provides foreseeability that D can be hauled into any of the 50 state courts not enough for MC 5. Initiate: did D initiate contact with forum state? a. Unilateral contacts are typically insufficient ii. PART 2: Fair Play and Substantial Justice Reasonableness [ Asahi 5 factor test]
4. Δ ’s burden [relative cost to D – how much is it a pain for the Δ to travel to forum to defend?]

3. Statutory Test : Does the compliant allege elements of a federal cause of action, or provide embedded federal question within state law claim? [§1331] a. Well-Pleaded Compliant: Has P pleaded elements to state a federal cause of action on the fact of his compliant? [Mottley] i. D’s pleaded defenses don’t count [ Mottley ] or counterclaim b. Exception: if not on face of well-pleaded compliant, is there an embedded federal question inside of a state law claim that is: [ Grable ] i. Does the state-law claim necessarily raise a stated federal issue? ii. Is the federal issue actually disputed? iii. Is the federal issue substantial?
4. Private right of action?
5. Other factors not dispositive a. Whether π are part of a class for whose special benefit statute was passed b. Whether there is evidence of a legislative intent to create a private right c. Whether a federal cause of action would further the underlying purpose d. Whether the subject of the statute is one not traditionally relegated to state law iv. Can the federal court entertain the suit without disturbing any congressionally approved balance of state and federal judicial responsibilities?
6. Shoshone Mining : is the case unusual enough that it will not cause a structural shift and influx of cases? c. If the federal statue does not create a private cause of action, points to lack of substantiality. [ Merrell Dow ] i. Federal right of action is sufficient but not necessary to federal question Diversity Jurisdiction - §1332 (134)
7. Complete Diversity: is there any π from the same state as the Δ? (§1332A, Strawbridge ) a. Is each party a (i) citizen of different states and (ii) the United States? [ Dred Scott ] i. Residence (“true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom…”) = (1) domicile and (2) intent to remain [ Mas ]
8. Much establish new domicile to change old one [ Mas v. Perry ]
9. How long does person intend to remain? ii. Corporations are citizens of both (1) state of incorporation and (2) principal place of business (§1332C1)
10. PPB = Nerve Center/headquarters: state from which corporation’s high-level officers direct, control, and coordinate the cooperation’s activities [ Hertz Corp v. Friend ] b. Citizenship is most likely established by where an individual life, or is registered to vote, or has been issued a driver’s license, or has a checking account, then where she last lived with her parents.
11. Amount in Controversy: does the value of the claim exceed $75,000? (§1332a) a. Aggregation: i. Single π can aggregate all claims against single Δ ii. Multiple π sue a single Δ, they can meet the amount in controversy by aggregating only the value of claims are common and indivisible (cannot for “separate and distinct” claims) [ Allapattah ]
12. To aggregate claims of several π’s the π’s must have a common and undivided interest iii. Single π can aggregate against multi Δ only when jointly liable Supplemental Jurisdiction - §
13. Does the case present a substantial claim over which federal SMJ can be exercised, under either “arising under” or diversity? (§1331, §1332) a. §1367a creates presumption that federal courts can exercise supplemental jurisdiction unless otherwise proscribed by federal statute

2. Does the state-law claim share a “common nucleus of operative fact,” such that they arise out of the same case or controversy as provided in Article III §2? [ Gibbs , 1367a] a. When two theories of recovery arise from the same nucleus of common operative fact it makes sense to plead both cases under 1 scenario [ Gibbs ] i. Jurisdiction is based on cases and controversies, not recovery ii. Same facts? Same witnesses? Same legal status of parties? Convenience?
3. If up on diversity, would supplemental jurisdiction destroy complete diversity? [§1367b] a. Cannot exercise supplemental jurisdiction over pendent parties or ancillary claims if it would destroy diversity [ Kroger, Aldinger , §1367b] i. Ex: P cannot join parties when joinder of the parties under the rules would defeat diversity. 1. BUT- if a different party joins another party then the lawsuit will stay in federal court 2. If you need to prevent diversity jurisdiction – can state that the court will not allow P to make any claims against C. b. Pendent parties do not need to meet AIC [ Allapattah ]
4. Would federal court choose to decline jurisdiction based on novel/complex state law issues, state claim predominates, the valid original claim has been dismissed or exceptional circumstances? [§1367c]
5. POLICY: judicial economy, keep federal law in federal court Removal Jurisdiction - §
6. First – Would federal court have original jurisdiction over the claim? (§1446) a. Analyze – diversity jurisdiction b. Analyze – federal question jurisdiction i. Removal Jurisdiction is present for the most part only if the federal court could have jurisdiction to entertain the claim had the π brought the case to the federal court.
7. Is hometown D removing to hometown district? (§1446b): there is no diversity removal from state courts in the Δ home state a. The purpose of diversity-based removal is to cure hometown prejudice, and a Δ could not claimed to be prejudiced by local sentiment in its home state
8. Did all Δ s consent to removal? (§1446) Venue and Forum Choice - § 1391 and §1404 and §
9. Proper Venue (§1391) and Motion to Transfer (§1404) a. § 1391 applies when cases are founded solely on diversity i. Are the π and Δ s completely diverse? ii. Does the π meet the amount- in-controversy? b. Venue is proper wherever (1) a Δ resides, (2) transaction occurred, or (3) court otherwise has personal jurisdiction (§1391) i. Are all the Δ s in a single state? If yes, then you can have venue in a federal district in any one of those places where Δ resides. ii. If no, then look at the states where Δ s are and ask where the biggest part of the injury or event occurred? iii. If that does not work, then get venue wherever you can get personal jurisdiction over a Δ iv. *if none of these works, you may also look to where a substantial part of the property lays c. Would a different venue that has original jurisdiction be more convenient, based one evidence and witnesses? (§1404 and § 1406) i. Did the π file in district court that has 1391 venue and jurisdiction? [§1404]
10. If YES, then nothing changes about applicable law [ Van Duesen ] a. Convenience of parties b. Convenience of witnesses c. Interest of justice: access to witnesses, forum, docket congestion, speed of trial

d. Gasperini : Ginsberg uses outcome affective, she seems to use the Hanna dicta, but then she cites Byrd favorably, precisely what this test means is somewhat unclear i. Basically, run the Hanna dicta [Twin Aims Test] and if it is outweighed by a countervailing federal interest ii. Can you accommodate state-federal? [ Gasperini ]

1. Run the Hanna Dicta test and see if it is outweighed by countervailing federal interest 2. Apply Twin Aims then apply Byrd
2. NOTES: a. If we read the federal rule narrowly to avoid conflict, the standard could be with same between federal and state law [ Ginsberg in Gasperini ] i. Thus, there is no conflict and it does not matter which is applied b. Only read the federal rule as its plain language and cannot read it narrowly, apparently there is a conflict between applicable state and federal law. [ Scalia in Gasperini ] Ascertaining State Law
3. Federal courts must apply the conflict-of-law rules of the state in which they sit. [ Klaxon ] a. In diversity, transferor court laws apply [ Van Duesen ]
4. POLICY: prevent forum shopping, BUT hurts uniformity across federal system Federal Common Law
5. Should we invoke federal common law? a. Is there a uniquely federal interest and significant conflict between federal policy and the operation of state law? [ Boyle ] b. Is there a gap between existing authority? [ Clearfield ] c. Would the application of state law frustrate federal policy? [ Boyle ]
6. What should the federal common law rule be? [ Clearfield ] a. How can we preserve uniformity in system? [ Clearfield ] b. Does the relevant state law frustrate federal policy? [ Clearfield ] i. If so, must create federal rule [ Kimbell, Boyle ] c. Would federal rule disrupt existing state commercial relationships? i. If yes, and no federal interest, apply state rule [ BofA v. Parnell ]
7. NOTE: if federal common law rule applies, federal law applies federal subject matter jurisdiction Federal Law in State Courts/Reverse Erie
8. Presume state courts can hear a federal claim unless otherwise barred from doing so.
9. Does state rule conflict with federal law? [ Dice ] a. State courts adjudicating federal claims must allow jury trials [ Dice ] Pleadings Compliant – Rule 8A
10. Grounds for SMJ?
11. Short/Plain statement of the claim a. Under Conley , the compliant should not be dismissed for failure to state a claim unless it appears beyond doubt that the π can prove no set of facts that would entitle him to relief.
12. Demand for relief sought Motion to Dismiss (12B): challenging the sufficiency of the π’s compliant
13. 12B: dismiss for lack of (1) SMJ, (2) PJ, defect in (3) mechanics or (4) quality of service of process, (5) improper venue, (6) failure to state a legally cognizable claim, (7) indispensable party
14. 12B6: If all possible inferences are drawn in favor of nonmovant, does compliant state a legally recognizable claim? [ Conley , “retired” by Twombly ]: test for a compliant to survive 12(b)(6) motion

a. Δ must plead facts (allege) supporting a plausible claim; [ Twiqbal ] i. Step 1: strip out conclusory statements: see if that sets forth plausible claim of relief

1. Line up statements on a continuum a. Conclusory: D injured me by driving negligently b. Not Conclusory: D was driving 75 mph in a 25mph without a rearview mirror ii. Step 2: based on what is left, determine if the remaining compliant sets forth a claim for relief that is plausible
2. Not more likely than not, something less than that
3. In situations where there is a showing of agreement or conspiracy, there has to be something that shows that a malign scenario is more likely than begnin. a. Some piece of evidence that the relevant actors are doing something other than behaving in their normal scenario. b. Factual allegations as true; fraud or mistake allegations needs more facts
4. Are the allegations in the compliant facially plausible, such that they push it across line from “conceivable to plausible?” Or is it conclusory? [ Twombly , Iqbal ] a. How great are inferences that need to be drawn? b. How does substantive law interact with proof? (parallel conduct) c. Will discovery pose huge burdens? Could careful case management prevent them? [ Twombly ] Answer: respond to allegations, assert affirmative defenses, or make counterclaims
5. Has Δ denied or admitted (a) each claim or (b) generally denied all claims? (8B)
6. Has Δ fairly responded to the substance of the allegation? (8B2) a. Has Δ done more than restate the compliant in the negative? b. Has Δ denied but not answered?
7. Has Δ responded with all affirmative defenses he intends to raise? (8C) Counterclaim
8. Does Δ ’s compliant against P arise out of the “same transaction or occurrence?” (RULE 13) a. If YES compulsory, NOT permissive
9. Does the Δ ’s compliant against P state unrelated claims to the opposing party’s claim a. Permissive another other claims against the π other than claims that are from the same transaction or occurrence
10. Is a party reaching out and sue a party who is on the same side of the V? [claim against a co party] a. YES cross claim (13G) Amendments
11. Did π amend before a response filed, or within 21 days? [RULE 15A] a. π has right to amend once within 21 days after Δ serves first Rule 12 response b. Δ has right to amend once within 21 days after serving her answer c. Is a response required for the answer (the amended pleading)? i. No if admit or deny allegations or assert defenses ii. Yes if court orders reply, or the answer actually sues someone
12. Does the amendment: [RULE 15C] a. (1) Relate back to a claim or defense that could have been asserted from the same transaction? OR b. (2) Does it incorporate a Δ who knew or should’ve known that the compliant targeted him? i. Cannot get around statute of limitations Discovery: Motion to Compel
13. Scope [26(b)(1)]: Does the discovery request relate to a claim or defense? a. Does it appear reasonably calculated to lead to the discovery of admissible evidence? b. Would P need to discuss the stuff in her compliant?
14. Is tangible thing protected by Attorney Client Privilege? [26(b)(5)]

2. Is there SMJ? a. FQJ FQJ 1331 b. Diversity i. Is there complete diversity between the named parties and one claim at 75k? [ Allapattah ] ii. CAFA 1332D
3. Is any class member a diverse citizen from any Δ?
4. Does adding all the claims together exceed 5 million?
5. Are there at least 100 members?
6. Prerequisites: Does the class satisfy numerosity, commonality, typicality, adequate representation? [RULE 23A] a. Numerosity: is class large enough such that joinder is impractical (40+)? i. <25 probably not b. Commonality: do members share common issue of law or fact? c. Typicality: does class representation sufficiently share common issue, such that he’s typical? i. Does claim arise out of same events? Will class representation and members utilize same legal arguments establishing liability? ii. Look to how lawsuit will play out d. Adequate Representation: will rep(s) fairly and adequately represent the interests of all classes? i. Could it be said absent π had his day in court, no due process concern? [ Hansberry ]
7. Once a court finds 23A, the court must then determine which of the three primary sorts of class action is to be created: The party seeking class certification must show that the case falls within one of the three types: [23B] a. Limited Fund Action (mandatory, cannot opt out) i. When individual pursuit of claims as a practical matter, would be dispositive of the interests of other members not parties to the individual adjudications ii. Allows claimants to protect their own interests by directly seeking unified distribution of insufficient assets. b. Injunctive/Declaratory Relief (mandatory/cannot opt out/92) i. When a defendant is alleged to have acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate. ii. Applies only when a single injunction or declaratory judgment would provide relief to each member of the class [ Walmart ] c. Damage Class Action (mandatory notice, right to opt out) i. Permits certification upon a determination that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating.” Preclusion Claim Preclusion/Res Judicata
8. Is there a (1) judgment on the merits, (2) involving same two parties or those in privity involving (3) same transaction or occurrence? [ Mathews v. York Racing ]
9. If not a party, do one of the exceptions to mutuality apply? Virtual Rep = no good [ Taylor v. Sturgell ] a. Class Actions. (procedural protections) b. Privity. (legal relationship) c. Agreement to be Bound. (orally, perhaps by detrimental reliance) d. Assumed Control. e. Relitigation by Proxy. f. Special Statutory Schemes (bankruptcy, in rem actions) Issue Preclusion/Collateral Estoppel
10. Issue (1) actually litigated [Cromwell] and (2) necessary to the judgment [Rios] (3) on the merits? a. Identity of issues: the issue in F2 proceeding must be the issue in F1 proceeding b. Actually Litigated

i. Reasonable to produce all info in prior litigation? ii. Passage of time affect issue. iii. Foreseeable that issue would arise again? c. Actually Decided: On the merits: final judgment, or dismissed on statute of limitations? d. Necessary to the Judgment: are there alternative grounds for judgment?

2. Mutuality: was estopped party a party to the prior judgment? [ Martin v. Wilks ] a. Defensive: was the π party to the prior judgment? [ Blonder-Tongue ] i. POLICY: “shield,” prevent the gaming table, incent the sideline sitters b. Offensive Nonmutual Issue Preclusion i. 4 Requirements for Offensive Non-Mutual Issue Preclusion 1. Whether F2 person C was a strategic sideliner in F
3. Amount in controversy in F1 nominal (how much money is at stake)
4. Whether there are multiple inconsistent prior judgments
5. Whether there are meaningful procedural differences between what is available in F2 and F1 for Δ to defend ii. Collateral estoppel is not allowed when the π: [ Parklane ]
6. Could have easily joined the suit OR
7. It would be unfair to apply the judgment against the Δ because: a. Lack of incentives to vigorously defend issue in prior suit b. Inconsistent judgments (public wants consistency, unfair to D, gaming table) c. New procedural opportunities available in current suit that were not available in prior suit (favorability of forum)
8. Do any of non-party exceptions apply? [ Taylor ]
9. Most questions may be resolved by just asking a. Whether the party against whom preclusion is sough has had a chance to press his claim or defense in some prior proceeding? i. No preclusion will not be permitted 1. Absent some direct privity between the party and a losing party in a prior case No Preclusion Allowed

• F1: A v. B o A win an issue
• F2: A v. C o C can argue the same issue, because she was not in the court the first time.
• F1: A v. B o B wins issue
• F2: C v. B o B is not shield; C may argue the issue o Perhaps C can do a better job than A