Local rules can’t conflict w/ FRCP, but check to see if they “allow party to request…”
I. Personal Jurisdiction (Territorial Jurisdiction): In what states can the P sue the D? WHAT STATE????
Ct. either has power over the D herself or her property
IP: Best, over person
IR: Dispute is “Who owns this property?”
QIR: Dispute is about nothing really to do w/ property ownership. K dispute, etc. etc. etc.
Due Process Clause = OUTER BOUNDARY of PJ
A. PJ caselaw
1. Gen. PJ: requires “continuous and systematic” contacts (Perkins, Heli.)
D can be sued in forum on claim that arose anywhere in the world!
EX: if CA has Gen PJ, D can be sued on claim arising in China
There is Gen J if D’s ties are continuous and systematic
a. Corp: Definitely where incorporated & princ. place biz
b. Person: Place of Domicile
2. Sp. PJ: requires claim must arise through connection w/ forum
EX: if CA has Spec. PJ, can be sued on claim that arose in CA
3. Constitutional Analysis (Due Process) – burden on D to show unconstitutional
a. Ct. has physical power over things w/in boundaries Pennoyer
1. D served w/ process while in forum (tag J)
2. D’s agent served w/in forum
3. D domiciled in forum (gives Gen. PJ)
4. D consents to PJ
b. Implied Consent: Non-resident Motorist Statute (agent appointed by operation of law) Hess
c. Min. contacts & PJ does not offend trad. notions of fair play & substantial justice. Int’l Shoe
i. Leads to expansion of PJ
ii. Clear now that we can get PJ even if D is not served w/in forum
iii. Shoe never says it overrules Pennoyer (keep old too!)
iv. Seems to have 2 parts: Contact & Fairness
d. Sufficient contact McGee (TX Co. sued over its only ins. K in CA)
1. D reached out to CA (solicited K from CA) see Hanson
2. P’s claim arose from D’s contact w/ CA (RELATEDNESS)
3. Emphasized CA’s interest (protect CA’s citizens)
e. Unilateral Contacts Hanson (DE trustee is D, P does biz herself w/ Decedent in FL)
1. No contact b/c no “purposeful availment”/didn’t reach out to FL, she came to him
f. Purposeful Availment: WWVW (NY fam. drives through OK, die. PJ over biz’s only doing work in NE? NO.)
1. No purposeful availment b/c never reached out to OK
2. But wait! Foreseeable car would go to OK. NOPE. Only by unilateral activity of P!!!
3. Foreseeability relevant, but only to extent that they would get SUED in OK.
g. Effects Test Calder v. Jones (can have contact w/ forum even w/o entering if cause effect in forum)
1. Shooting gun hype: purposeful effect, that is also injurious or wrongful
2. WWVW: Unilateral will overcome
3. Intentional torts almost always pass test (mail fraud, etc.)
h. Contact & Fairness Burger King SEE ANALYSIS SECTION BELOW
1. MUST have a relevant contact b4 even looking at fairness. (fairness ain’t enough!)
2. Contact was easy b/c of K and much other contact
3. SCOTUS: burden on D to show forum unconstitutional, not just inconvenient. Must show that so gravely inconvenient that you’re at a severe disadvantage in the litigation.
i. Foreseeability – To be sued, not that product would get into state WWVW
i. Stream of Commerce Asahi I make valves in state A. Ship to guy in state B. Guy sells widget in C, D, & E, but I didn’t send them there! Is there relevant contact w/ E? NO ANSWER, but two schools of thought:
1. Reasonable anticipation: Contact if I put product in stream & reasonably anticipate it’ll get to C, D, or E
2. Contact PLUS: need PLUS (intent or purpose to serve C,D, or E. (advertising, cust service, etc.)), otherwise it’s unilateral contact
EXAM: If an Asahi case, need to know whether jurisdiction uses IIA (purposeful direction test), IIB (5 factor test), or if it uses IIA but cabined only to international P’s and D’s.
j. Tag J: Burnham NJ D served in CA. Claim irrelevant to activities in CA. So question becomes, does service of process still give Gen. J (Pennoyer) or do we have only Spec. J (Int. Shoe) NO ANS., 2 diff. ideas:
a. Traditional basis lives by itself—service of process gives Gen. J (Scalia)
b. Must use Int. Shoe (Brennan) but still purposeful availment b/c in city so protected by CA laws
SLIPPERY SLOPE: if 3 days, why not 1 day? what about 15 minutes? what about 5 seconds?
k. (1st Amdmt): No bearing on PJ Keeton v. Hustler & Calder v. Jones
“We reject that the First Amendment may defeat J otherwise proper under the Due Process Clause”
B. Challenging PJ: Special appearance (then) direct appeal; or if previous default use collateral attack
1. Special Appearance/12(b)3
No evidentiary hearing req’d! P must simply show prima facie PJ to overcome a 12(b)3
2. Collateral Attack
If a D fails to appear, a default judgment will be entered against him per FRCP 55, and D can then collaterally attack the Court 1’s PJ by arguing that Court 2 doesn’t have to give FFC to Court 1’s decision because it lacked PJ
1) if D specially appears and loses PJ, can’t collaterally attack, but can appeal
2) if D generally appears in court, can’t collaterally attack. Waiver
FFC Argument: 1) No PJ in Ct. 1; 2) Judgment void; 3) Judgment invalid; 4) Judgment therefore shouldn’t be credited
C. Analysis of PJ
~Statutory analysis: Various ways F. Dist. Cts. can get PJ IS THERE PJ DUE TO A STATUTE?
1. Use long arm statutes FRCP 4(e): “to the extent allowed by state law” (read: Long-arm statute!)
Broad Statute (CA)
Laundry List statute (IL): Cts. can disagree on interpretation of statute.
BUT: Was tort committed in state B? Negligent manufacture in st. A, not B v. P injured in st. B. Gray
2. Service as if a state court FRCP 4(k)1(a):
a. Can serve process throughout entire state
b. Can only serve outside state if a state court could
3. Bulge rule FRCP 4(k)1b
a. Can reach w/in 100 mi of courthouse to ADD FRCP 14 & 19 parties only
b. Only works for joinder under FRCP 14 & 19
4. Interpleader FRCP 4(k)1c & 28 USC 1335
5. Anything a US statute allows FRCP 4(k)1d
6. Implied Consent Statutes: Hess
7. IR & QIR: 1: Attachment Statute “state can take stuff belonging to or claimed to belong to D”
a. In rem through seizure of property FRCP 4(n)1
b. Seizure of assets in a district as provided by law in the state where the district court is located FRCP 4(n)2
~Constututional Analysis: IS EXERCISE OF PJ CONSTITUTIONAL?
EXAM: all cases post Shaffer are collapsed to Int’l Shoe & progeny. IP=IR=QIR. IT’S ALL THE SAME
IP – personal, use Int’l Shoe
QIR – intangible property (debt, obligation, etc.), use Int’l Shoe
IR – real property (rare if ever. must be based on property, such as trespass, OR admiralty—seizure of ship)
1st Test: Traditional basis? May be enough, but may still have to check Int. Shoe
1. D served w/ process while in forum
2. D’s agent served w/in forum
3. D domiciled in forum (gives Gen. PJ)
4. D consents to PJ
2nd Test: Int. Shoe & progeny
1. Contact—must be relevant contact btw D & Forum b4 fairness matters
a. purposeful availment: reaching out to forum (avoid Unilateral Activity)
Note: suing someone in that forum is purposeful availment, UNLESS you’ve dismissed the action before you get sued
Note: If you walk into a state but leave before getting served w/ process, you’re immune
Note: absent K or tort allegations based on them, sending communications is not sufficient
b. foreseeability: foreseeable D would get sued in this forum, not just that product would get there
1) litigation out of in-state activities;
2) purposeful direction of those activities Burger King
Do not parse the activities. Go w/ first “but for” activity (boxing match not subsequent nonpmt)
2. Fairness (5 factor test)
a. Inconvenience for D & Witnesses (must be so burdensome that unconstitutional. Burger King)
b. State’s interest McGee (want to provide forum for our people)
c. P’s interest (home, doesn’t want to travel, etc.)
d. Legal system’s interest in efficiency
e. Interstate interest in shared substantive policies
3. Relatedness (only if no continuous/systematic, so that you can get at least for Spec J.)
a. Does P’s claim arise from D’s contact w/ forum?
b. May make up for small amt of contact McGee
II. NOTICE: FRCP 4
1. Process consists of:
(a) Summons (notice of suit) FRCP 4(a) &(b) says what goes in summons
(b) Copy of Complaint
2. Service can be made by anyone over age 18. FRCP 4(c)2
3. How do you serve an individual? FRCP 4(e)
a. 3 choices FRCP 4(e)2
1. personal service—tag jurisdiction, anywhere in state
2. substituted service—not serving D but another.
gainst different D’s
b. Multiple Plaintiffs
i. May aggregate claims if “joint and common interest” in Subj. Matter (shareholders/joint owners)
ii. May aggregate claims if have suffered a single indivisible harm
iii. May then aggregate punitive dmgs and costs
iv. May NOT aggregate separate and distinct claims
4. Specific Performance
a. P viewpoint rule – value based on what worth to P
b. Party seeking J rule – value based on what worth to D (usually)
c. Either/Or Position – value based on either party
B Federal Question Jurisdiction FQJ—28 USC 1331
Burden upon party invoking FSJ to prove FSJ Rayfield
1. Express Right of Action–“Arising Under” test
a. Constitution: Civil Rights (concurrent) TITLE 42
b. F. Law: Bankruptcy (excl.); Interpleader, Comm. Reg., Antitrust, Patents, Civ. Rights TITLE 42 (concurrent)
c. Treaty
d. F. Common Law – areas implicating
i. rights and obligations of US
ii. int’l. relations & disputes implicating US rltns w/ foreign nations.
iii. Can’t use state b/c of F. sovereignty, intimacy w/ foreigners, and international nature
e. Pre-emption – Even if claim only states state law, FQJ if F. Law would trump state law in those circumstances
f. Cases where US is a party
g. Cases affecting ambassadors, other public ministers, and consuls
h. Admiralty and Maritime jurisdiction
i. Congressionally chartered entities (American Red Cross, etc.) ßrelies heavily on original ingredient theory
2. Original Ingredient theory: If case based even in part on F. law, then FSMJ Osborn v. the Bank
3. Frankfurter Test: vindication of some right under state law necessarily turns on an interp./constr. of F. law
4. Implied Rights of Action: (4 part test) Cort v. Ash Burden on P
a) Is P a member of class for whose benefit statute was made?
b) Is there evidence of a legislative intent to create/deny a private remedy?
c) Is it consistent w/ legislative scheme to imply a private remedy?
d) Is the cause of action one traditionally relegated to state law?
EX: discrimination, traditionally federal so unlikely inconsistent with state law
EXCEPTION: just b/c state based c/a alleges violation of F law doesn’t mean you get FSMJ Merrel Dow
Well Pleaded Complaint Rule: Is P enforcing a federal right? Louisville & Nashville v. Mottley
1. Look only at the complaint (ignore answer/ctrclaim). MUST BE ALLEGED ON FACE OF THE COMPLAINT
2. In complaint, look only to P’s claim itself (ignore anticipation of defenses, rebuttals, etc.)
Motley (lifetime pass on railroad, Congress passes law (fed. law!) that RR’s can’t honor free passes. 1st say “you’re breaching K!”, 2nd say “that new law does not apply!” 2nd isn’t sufficient to get FQJ.)
Exception: “complete pre-emption”: Court can decide that there’s a F. Law preempting claims even if not pled
1) congressional intent; 2) displacement of st. claim w/ f claim; 3) similarity to ERISA or LMRA
Artful Pleading Rule: P can’t mask claims based on F law to avoid FSMJ. Burden of proof on D Bright v. Bechtel Petro
C. Supp. J (cross claims, counter claims, etc. etc.) 28 USC 1367 Scotus hated Supp. J—Aldinger & Finley
Need FSMJ for each & every claim
1. Pendent Claim = same T/O under Article III. Piggy back. Gibbs; 28 USC 1367(a)
a. “one constitutional case.” = Common nucleus of operative facts. If use same evidence, then passes test
