CIV PRO 1 ATTACK OUTLINE
JURIDICTION ANALYSIS
1st = ANY OF THE THREE EXCEPTIONS APPLY?
1. Service in state
Scalia = if service of process in state then don’t need to establish M/C
Brennan = still need to show M/C – you can meet this by showing D was in that state while served
2. Consent
3. Waiver
If you have ANY of the exceptions = don’t need to worry about the long arm statute or M/C
If you have NO exceptions = go to statutory authorization
2nd = Look to LONG ARM STATUTE
(1) Non-limiting (state chooses to exercise the full power given by the constitution)? If YES = go through min. contacts analysis
(2) Limiting (states choose to reduce their rights provided by the constitution to specific acts)?
Specific acts? If NO = NO PJ – Done
Specific acts? If YES = 2 prong test = (1) is statute met? AND (2) does it comply with due process? = go onto min. contacts analysis to determine if the 2nd prong is met (min. contacts satisfies the due process/constitutional)
Int’l Shoes = state can assert JD over a non-resident D if he has minimum contacts with forum state so long as notions of FP & SJ are not violated
3rd = PURPOSEFUL AVAILMENT – Determine if MINIMUM CONTACTS exists
(1) Is there purposeful contacts of D with forum state (purposeful availment)?
· If none = no PJ
· If yes = is the contact direct or stream of commerce? O’Connor vs. Brennan – doing business in state or corporate presence
PURPOSEFUL AVAILMENT – 4 ways = “CCSE” (Hanson case)
1. CONDUCTING ACTIVITIES in forum
2. CONTRACTING with persons in forum
3. SOC
4. EFFECTS TEST (D must know his activities would effect P’s activities in forum)
WW = SOC
1. O’Connor – SOC + “PLUS” – need to show there were actual efforts to serve that market “MEAD”
1. DESIGNING a product in forum
2. ADVERTISING in forum
3. ESTABLISHING channels for providing regular advice to customers in forum
4. MARKETING product through distributor who agrees to serve as sales agent in forum
2. Brennan – SOC – believes awareness alone is enough to establish you have purposefully availed yourself of that state
4th = PREDICTABILITY (how predictable/foreseeable is it to D that he’d be sued in forum state?)
General jurisdiction = substantial, systematic & continuous contacts (all claims)
If NO or not sure = go to specific jurisdiction
If YES = establishes min. contacts
Specific jurisdiction = (1) claim arises out of OR (2) relates to contacts
If NO = no jurisdiction
If YES = establishes min. contacts
5th = REASONABLENESS – once you’ve established min. contacts under SPECIFIC jurisdiction, then consider the REASONABLENESS of exercising jurisdiction (WW & Asahi)
REASONABLENESS = FAIR PLAY & SUBSTANTIAL JUSTICE ANALYSIS – “BS-PIS”
(1) BURDEN on D – burden on D in litigating in forum state
(2) STATE’S INTEREST in adjudicating dispute – state has interest in protecting its citizens – note, general JD stops at state’s borders
(3) P’S INTEREST in obtaining effective & efficient relief – P best served by litigating in home state? Can obtain relief in another state?
(4) INTERSTATE judicial system interest in most efficient & economical resolution of conflict – considers where the parties are located, where witnesses are & where case could be mores efficiently litigated
(5) SHARED interest of the states in furthering fundamental substantial social policy – whether the application of law by forum state would offend social policy of another state
SUBJECT MATTER JURISDICTION ANALYSIS
1. Federal question claim – section 1331
“Arises Under”
Constitution, laws, treaties of US
Well Pleaded Rule (is federal component substantial?)
– Creation Test (state law = state has JD – federal law = federal courts have JD)
– “Substantial” = federal claims must be “substantial” (must be an essential part of the component of complaint)
2. Diversity – section 1332
A) Citizenship of Parties
At the time of filing
Rule of complete diversity
1. Individual – citizenship = domicile
Domicile = (a) Reside in state AND
(b) Intent to remain there indefinitely
-Intent = subjective (what did she say her intent was) and
e corporation resides
a(2)/b(2) = judicial district where substantial portion of events giving rise to claim occurred
a(3)/b(3) = only use this subsection if venue under a(1)/b(1) and a(2)/b(2) are not available
a(3) = where any D would be subject to PJ (DIVERSITY)
b(3) = where any D may be found (FED Q.)
———————————————————————————————————————————
Even if Ds in different districts as long as in same state, venue proper in either district (a1/b1)
a(3) available when Ds from different states OR portion of claim having occurred overseas
When it comes to corporations – do MC analysis for each district to determine if D has sufficient MC to determine if subject to PJ in that district
**MAKE SURE WHEN YOU TALK ABOUT VENUE, YOU TALK IN DISTRICTS!!
TRANSFER & FORUM NON CONVENIENS =
Discretionary doctrines to decline to exercise the JD they do have and to send it to another court b/c it would be more convenient
Difference?
FNC – used to change judicial system (one state court to another state court)
Transfer – change courts within a single judicial district to another – just changing courthouse
Piper case – presumption that P’s choice is strongest & should not be disturbed is when it is FILED IN THEIR HOME STATE – extremely rare for a court to grant FNC if P has chosen a home forum
1406(a) authorizes federal courts to make an interstate venue transfer rather than dismiss the case to a court where action may have been brought
1404(a) Transfer for convenience – can only transfer where there is proper PJ, SMJ & Venue
Convenience of the parties
Convenience of the witnesses
In the interest of justice (the standard) – key factor is access to proof
