DuVivier_Civ_Pro_Fall_2011
PERSONAL JURISD
1) Motions filed before an answer to argue PJ
a) 12(b)(2) – I do NOT waive my right to contest PJ OR Special appearance (STATE CT ONLY) OR collateral attack (STATE CT ONLY – ignore & lose by default judgment & then file a new case but can’t argue substance)
b) If 12(b)(2) is NOT filed before an answer, right to contest PJ is waived under 12(h)(1)
2) Ways to get PJ
a) Present in state
i) Pennoyer (PJ = no) – “historically, under Pennoyer, the D must be present in the state”
(1) If you’re in the state, we have PJ.
(2) If you have property in the state, we have in rem juris.
(3) If you’re not a resident but are in the state & served in the state, we have PJ.
b) Property in state (quasi no longer valid)
i) Shaffer (PJ = no) (MODERN) – Sequestered Greyhound stock
(1) Quasi-in-rem violates DP; Minimum contacts apply to in rem cases, too
ii) Harris (PJ = yes) – no longer valid (HISTORICALLY) – orig quasi in rem case
(1) Quasi-in-rem jurisd: attached property was only a basis for obtaining jurisd over D
c) Transient
i) Burnham (PJ = yes) – NY divorcee visiting children in CA
(1) Service of process w/in state may be sufficient for PJ w/o requiring additional DP analysis
ii) Grace (PJ = yes) – service while in plane
(1) Presence of person in Arkansas airspace is sufficient
d) Consent
i) Implied (voluntary)
(1) Adam
(a) Voluntary subjection to ct – non-res P’s, by filing their claims w/a ct, have consented to jusid for any claims that may be filed against them w/in the same proceeding
(2) Hess (PJ = yes) – Car accident in Mass; D from PA
(a) Implied consent to designate a MA agent for service of process (therefore PJ through service in forum state) through the act of driving a car in MA – consent through a statute
ii) Express
(1) Carnival Cruise (PJ = yes) – forum selection clause(consent PLUS exclusion of all other cts)
(a) Express consent through forum selection clause
e) Long-arm statutes
i) They determine, as a matter of state statutory law, whether the ct has juris over D; 2-prong test
(1) Enumerated statute?
(2) No? Then, does state exercise to fullest extent of DPC? (explicit, or interpreted by cts as such)
(3) If not enumerated, test collapses into 1-prong
ii) NY § 302 – enumerated…if D not engaged in conduct under LAS, no PJ even if would be constitutional
iii) RI § 9-5-33(a) – NOT enumerated…asserts PJ to fullest extent of Const.
f) Notice/service
i) Rules – 4 (summons), 12(b)(4) (dismiss for insuff process), 12(b)(5) (dismiss for insuff service of process)
ii) Mullane (PJ = no) – newspaper notice for trust fund members
(1) Notice must be reasonably calc’d under all circumstances to afford opportunity to object
g) General jurisd (PJ in a state based on contacts w/no relation to claim)
i) Domiciled
(1) Milliken ( PJ = yes)
(a) Domicile in state alone is sufficient; Domicile = residence + intent to stay
ii) Systematic & continuous contacts
(1) Perkins (Gen PJ = yes) – prez for Phillipine co did primary biz activities in OH
(a) Business activities were systematic & continuous
(b) PPOB or HQ in a state = PJ
iii) Quality & nature of contacts
(1) Helicopteros (Gen PJ = no) – Int’l corp purchased plane from TX (crashed)
(a) Mere purchases, even if occurring at regular intervals, are not enough to warrant a state’s assertion of PJ over a nonresident corp in a cause of action not related to those purchases
(b) Contacts must be sufficiently substantial & of such nature to justify PJ
iv) Internet cases
(1) Inset (PJ = yes) – Internet domain name dispute (10,000 users)
(a) Advertising on the internet constitutes the purposeful doing of business in a state b/c the advertisement is continuously available to any internet user (BROAD APPLIC).
(2) Zippo (PJ = yes) – Internet domain name dispute b/t Zippo lighters (CA) & Zippo manuf (PA)
(a) “Sliding scale approach” – knowing/repeated online trans to a state v. passive website, mid ground cases determined by lvl of interactivity & commercial nature of exchange of info that occurs on the site
(3) Young (PJ = no) – Online CT newspaper accused of libel in article against VA prison warden
(a) Calder test used – CT articles weren’t directed at VA; PJ ok if directed electronic activity into state, manifested intent to do biz there, & activity creates harm in the state
h) Specific jurisd
i) Int’l Shoe (PJ = yes) – Shoe co doing business in WA where no PPOB
(1) MODERN PJ – Minimum contacts + traditional notions of FPSJ
ii) Purposeful availment
(1) McGee (PJ = yes) – CA purchaser of life insurance from AZ/TX
(a) Ins co purposefully availed itself to the benefits & protections of CA law
(2) Hanson (PJ = no) – aunts (Trust setup in DE, then moved to FL & changed trustees; P args decision not binding)
(a) Unilateral activity of P cannot satisfy the requirement of contact w/ the forum state (varies w/ the quality & nature of the D’s activity)
(3) Kulko (PJ = no) – Divorce (hubby in NY, wife in CA)
(a) Unilateral contacts not enough; no purposeful avail just by his family moving there; personal activity v. business activity (BK Case)
iii) Calder (PJ = yes) – Enquirer (FL) sued for libel against CA D
(1) “effects test”, 2 prongs
(a) Harm directed at state of CA & resident of CA
(b) Harm result in that state
iv) WWVW (PJ = no) – NY res purchased car from NY dealer, crashed in OK
(1) Reasonably foreseeable to be haled into ct – D didn’t purpose. avail itself to conductg biz in OK (NOT foreseeable)
v) BK (PJ = yes) – BK (FL) franchise in MI fails & stops paying BK royalties
(1) K alone not sufficient for PJ, future consequences have to be analyzed – “contract plus” test
(2) Sliding scale b/t minimum contacts & FPSJ
(3) Choice of law clause – disputes determined in accordance w/ the law of a said jurisd
vi) Asahi (PJ = no) – Product liability case filed in CA w/cross-complaint for indemnification from Asahi in Japan
(1) 5 reasonableness factors
(a) Burden on D
(b) Interest of forum state in adjudicating claim
(c) P’s interest in obtaining convenient & effective relief
(d) Interstate judicial efficiency
(e) Substantial social policy
(2) SOC-plus test (O’Connor) – 4 factors
(a) Designing product for that state
(b) Advertising in the state
(c) Providing regular advice to customers in that state
(d) Marketing the product through distributor who agrees to sell to that state
(3) SOC test (Brennan – concur) – product directed into state & getting econ benefit, can’t surprise to be haled into ct
SUBJECT MATTER JURISD Fed courts are COURTS OF LIMITED JURISDICTION
1) Diversity jurisd (28 U.S.C. § 1332)
a) Diversity of citizenship
i) Mas v. Perry (SMJ = yes) – 2 way mirror; MI res wife & France res hubby
(1) Citizenship = domicile
ii) Strawbridge v. Curtiss
(1) “Complete diversity” – No party on one side may be a citizen of the same state as a party on the other side
(a) Not req’d by the Constitution
(2) Minimal diversity is allowed by the Constitution § 1335, § 1369, § 1332(d)
iii) Time of filing rule – DOC Must be determined at time of filing
(1) Exception = if complete diversity initially lacking, it can be subsequently cured by the dismissal of a non-essential party that originally destroyed the complete diversity
iv) Burden of proof – upon party invoking fed jurisd; challenge is upon party invoking challenge
v) Collusive joinder not prohibited – manipulate citizenship of parties to create diversity improperly/collusively
vi) Determining citizenship:
(1) Individuals – can only have ONE location
(2) Corporations – can have 2…PPOB & state of incorp
(a) Determination of PPOB is the “nerve center test” – where the HQ is
(b) If fedly incorporated, no specific state of incorporation
(3) Unincorporated associations (i.e. LLP’s, unions, etc.) – entity takes on citizenship of all members
(4) Legal representatives, class actions – citizenship of decedent or dependent, citizenship of NAMED parties
b) Alienage
P(va) v. D(ny)
Yes
1332a1
P(va) v. alien
Yes
1332a2
alien v. D(ny)
Yes
ch there is already juris gets dismissed
(4) Compelling reasons (catch all)
b) Constitutional standard (US Const. Art III)
i) United Mine Workers of America v. Gibbs – union mine workers laid off; traitor union man
(1) State & fed claims must derive from a common nucleus of operative fact, & doctrine of discretion is used
c) Pendent & Ancillary jurisd after Gibbs (pre §1367)
i) Aldinger v. Howard (H) – statute (42 USC § 1983) specifically barred claims against counties
(1) silence creates presumption of pendent party SMJ (if the statute hadn’t specifically barred claims against counties, SMJ could have been asserted)
ii) Owen Equipment & Erection Co v. Kroger – complaint amended to assert state law claim against non-diverse third party
(1) CAN’T circumvent diversity of citizenship – no SMJ when P amends complaint this way (added under R14)
iii) Finley v. US – tort claims against US & state gov’t (overturned by §1367)
(1) No pendent SMJ unless Congress affirmatively authorizes it (opposite of silence presumption in Aldinger)
d) Modern SJ doctrine
i) 28 U.S.C. § 1367 – passed in 1990
(1) Exxon Mobil v. Allapattah – R23 P’s are not excluded
(2) Ortega v. Star-Kist Foods – R20 P’s are not excluded
(a) § 1367 unambiguously allows assertion of SJ over claims that don’t meet AIC as long as the ct has original jurisd over the claims of AT LEAST ONE person
ii) Contaminating effects
(1) Non-diverse parties contaminate DOC under 1332
(2) Parties not meeting AIC don’t contaminate AIC under 1332 if 1 party already meets the reqmt
5) Removal (28 U.S.C. § 1441) – state to fed only by D’s
a) General standards
i) §1441(a) – P files in state ct but could have originally filed in fed ct based on 1331 or 1332 (well pleaded complaint rule); removed to fed ct in same district as state ct
(1) Go through regular SMJ analysis
(2) If removed, a separate venue analysis isn’t necessary
ii) § 1441(b) – limits on removability
(1) Orig jurisd on §1331 – removable regardless of citizenship of parties
(2) Other (i.e. §1332) – removable only if no D is a citizen of the forum state
iii) §1441(c) – permits any claim coupled w/a 1331 claim to be removed along w/the fed claim
(1) **if an action that includes separate & independent claims under §1441(c) is removed to fed ct, the PROPER course is for the fed ct to remand the unrelated state law claims to state ct (Bergquist v. Mann Bracken)
iv) Cannot manipulate to affect removability (Sham defendant, Post-removal of fed issues)
v) Hays v. Bryan Cave – convicted criminal sues lawyers for malpractice (state law)
(1) P would have needed a fed ques in original complaint. Can’t find it in defense
b) Additional claims
i) No removal based on claims by non-P’s – D’s claims (defenses) cannot be used to determine removability
c) Removal & Remand procedures (§ 1446-1448)
i) § 1446 – notice of removal must be filed w/in 30 days of service of complaint/amendment
(1) Diversity case, the time limit is 1 year from orig filing
(2) Notice of removal is NOT a waiver of challenge to PJ
ii) §1447 – motion to remand w/in 30 days of removal
iii) Appeals
(1) P may appeal to fed COA the denial of P’s motion for remand, but only AFTER A FINAL JUDGMENT
(2) D may NOT appeal if fed ct remands b/c of lack of SMJ or defect in removal procedure (i.e. fed ct never had juris)