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Civil Procedure I
Rutgers University, Newark School of Law
Askin, Frank

ASKIN_CIVPRO_SPRING_2011

CHOOSING A PROPER COURT
PERSONAL JURISDICTION
The court lacks subject matter jurisdiction based on diversity of citizenship under 28 USC 1332(a) because the parties are both citizens of Minnesota.
The D may be sued in the state on this claim under the minimum contacts test because it has purposely conducted activities there, and the claim arises out of this purposeful contact.
Satisfying a provision of a long-arm statute is NOT an alternative to satisfying constitutional due process analysis. In every case, a state statute must authorize the court to exercise personal jurisdiction over the D. But – also in every case – it must be constitutional for the court to do so. It’s not an either/or proposition; the court must always have both statutory authority to exercise jurisdiction, and it must be constitutionally proper for the court to exercise that authority as well. One with the other will not do.
A special appearance (or a motion to dismiss in a state that follows the Federal Rules Model), allows the D to avoid litigating the merits in the forum state without risking a default judgment that might be enforced in that state or some other state where D has property.
The D has waived his objection to personal jurisdiction by appearing and defending on the merits without raising his jurisdictional challenge. In states that follow the special appearance rule, the D waives her jurisdictional objection unless she raises it immediately, before pleading to the merits. The states that follow the federal approach similarly provide that objections to personal jurisdiction are waived unless raised by motion before answering or in the initial answer to the complaint. Rule 12(g)(2), (h)(1).
The Full Faith and Credit Clause prevents it from re-examining issues that have been settled – even by default – in another state’s courts.
The rendering court must have jurisdiction not only under the minimum contacts standard of International Shoe but also under the applicable long-arm statute.
Once D claims lack of personal jurisdiction and loses then also loses on the merits, she can appeal the jurisdiction claim again.
Rendering court v. enforcement court
Direct attack v. collateral attack
TRADITIONAL GENERAL JURISDICTION
1.       D was served process in the forum
2.       D agent was served with process in the forum
3.       D is domiciled in the forum
4.       D consents to jurisdiction
FEDERAL QUESTION AND FEDERAL CASES
Federal question trumps diversity. If the case is federal question then don’t need diversity. If only diversity but not federal question then need to look at amount in controversy and personal jurisdiction.
Well pleaded complaint
A P can sue in federal court if his case falls into any category of federal subject matter jurisdiction; he doesn’t have to sue under federal law AND be diverse from the D.
The general principle is that cases within the jurisdiction of the federal  courts may also be brought in the state courts; the state and federal courts have “concurrent jurisdiction” over such cases. However, under 1338(a), patent, plant variety and copy-right cases make federal court jurisdiction exclusive.
Under Mottley, the court assesses jurisdiction based solely on the claim asserted by the P.
DIVERSITY JURISDICTION
The existence of diversity does not substitute for personal jurisdiction; diversity is a separate requirement for a separate purpose.
AMOUNT IN CONTROVERSY
D may aggregate any claims against a single D to reach the required jurisdictional amount of $75,000.
D may aggregate any claims against a single D to reach the required jurisdictional amount even if the two claims are totally unrelated.
D cannot aggregate claims against separate Ds
Ds cannot aggregate claims against single D
Must look separately at each P’s claim against D – if meets $75K then allows additional Ps to bootstrap on where one P satisfies the amount requirement – the additional claim, arising from the same events qualifies for supplemental jurisdiction.
If the damages being sought are ridiculous such as $75K for a toe injury, then does not meet amount in controversy.
The rule gives the P every benefit of the doubt. If looking at the pleading facts, it appears that the P MIGHT recover more than $75K, the requirement is met. It is only where it is clear to a legal certainty that the plaintiff definitely will NOT recover that much on the claim he has asserted that the court dismisses for failure to meet the monetary threshold.
PERSONAL AND SUBJECT MATTER JURISDICTION COMPARED
Under Rule 4(k)(1)(A) – the federal courts first looks to the statutes or court rules governing personal jurisdiction in the state where the federal court sits.
General jurisdiction – if you get into an accident in in MI but you are from NJ general jurisdiction could try you in NJ from general jurisdiction – can try you in NJ for any claim b/c you are from NJ
specific jurisdiction – can bring you to trial based on a specific event that arose from an act within that state – get into car accident in MI so you can be tried in MI
Personal jurisdiction is deemed a privilege of the D, which will be waived if she fails to assert it. A court that lacks personal jurisdiction may still hear the case if the D does not object. Rule 12(b)(2), (g)(1), (h)(1).
Rule 12(h)(3)
Even if federal court case you still need to have jurisdiction over the D.
REMOVAL
D cannot remove if they are from the same state as the forum state
If it could have been a federal case (federal question) then doesn’t matter if D is from same state of claim – can remove
The removal statute 1446(b) provides removal in cases where the original claim was a state claim but later amended to a federal question claim.
1447(e) – adding an additional D and removal
If P wants to avoid federal court he may ask for less than $75K to avoid removal to the federal court and essentially “buy” state court.
If the P brings a state claim against D and D counterclaims with a Fed Q the original P cannot remove because 1441(a) authorizes D or Ds to be able to remove not the P.
1441(f) – provides that the federal court acquires jurisdiction on removal even if the state court where the case was brought lacked the power to hear it – if P claims a state claim AND a federal question then it can be removed to federal court because of the fed Q and there would be supplemental jurisdiction over the state claim.
1446(a) – when there is diversity but no amount in controversy, the D can include in his notice to removal any further allegations that are necessary to demonstrate his right to remove such as alleging that the P’s claim might support damages in excess of

s
(2) you may lay venue in any district where a substantial part of the claim arose  
TRANSFER OF VENUE
Going from one court to another court in the same judicial system. Can only transfer within the same judicial system – transfer from fed to fed trial court. This is different from removal.
The original fed court is the transferor and the other federal court is the transferee – from MN (transferor) to CO (transferee).
THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PERSONAL JURISDICTION UNDER THE DEFENDANT. Must be true without waiver. Independently true. Cannot waive personal jurisdiction or venue.
1404(a) – applies when the transferor is a proper venue – may transfer based on convenience and the interest of justice. We’re in a proper venue but the other court is the center of gravity and makes more sense to move it to another venue (PUBLIC OR PRIVATE factors are used to determine center of gravity).
1406(a) – applies when the transferor is an improper venue – the court can dismiss or transfer – so if the case is filed is not in proper venue then court can dismiss or transfer
FORUM NON CONVENIENCE
This is where a court dismisses b/c there is another court that is more appropriate. Rather than transfer we will dismiss. We dismiss b/c transfer is not possible. Dismiss b/c the other court (center of gravity) is in a different judicial system. Often in a foreign country.
ERIE DOCTRINE
ERIE DOCTRINE
Generally comes up in diversity cases
In federal court under diversity jurisdiction
There is a particular issue that the federal judge must decide – in deciding that issue does the fed judge have to use state law? – or is she free to ignore state law?
ERIE black letter – the fed ct in diversity cases must apply state substantive law – RDA 1652 – and by the 10th amendment – fed govt cannot invade powers of state govt – fed ct must follow state substantive law in diversity cases
What is substantive – it is the elements of the claim are pure substance and fed ct must apply state law
First question: is there a federal directive on point?
What if not clearly substantive – starting point is Hannah v. plumer – there are 2 doctrine – under hanna is there some federal directive (statute or some federal rule) that applies here for this issue that directly conflicts with state law – if yes, then federal directive wins and trumps state law and will apply as long as fed directive is valid
How do we know if fed directive is valid – if FRCP then test validity under rules enabling act (207.2)
What happens if no federal directive on point – then does the fed judge have to apply state law or ignore it? Follow black letter above.
Determine substantive