BROAD QUESTION - Did Court screw up or is it Due Process violation of life, liberty and property?Does court have power over this jurisdiction? Subject Matter Jurisdiction"what type of case does a particular court have the power to hear?"e.g. divorce cases heard in divorce courtSTATE COURT

can hear any case in that state (the forum state)FEDERAL COURT

limited jurisdictioncases heard under federal subject matter jurisdiction

diversitythose involving a federal questione.g. Constitutional or statutory issue

  

1. PERSONAL JURISDICTION "Power" Theory of Personal Jurisdiction (PP 680-700) Assuming we have subject matter jurisdiction…. PERSONAL JURISDICTION - ct's power to exercise authority over D; Where relationship b/t P's COA arises out of D's contact w/ forum state*No relationship b/t COA and property, unlikely there will be personal jurisdiction w/in the state

a. 784 This argument doesn't ignore the fact that the presence of property in a state may bear on the existence of jurisdiction by providing contacts among the forum state, the defendant, and the litigation.

what person can be brought before this court?the power of a court to enter a final judgment that has the full force of the law behind it

a court's "territory"2 Constitutional Bases

Due process clause (Amendment XIV)validity of judgments rendered against non-residents without personal service of process upon them and their enforcement have been resisted on the ground that proceedings in a court to determine rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law

Article IV (1)Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

 FEDERAL v. STATEAnalysis - 2-step analysis: PERSONAL JURISDICTION IN FEDERAL COURTFFEDERALRule 4. Summons

(k) Territorial Limits of Effective Service.(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

Statutory jurisdiction - State's Long Arm Statute (Burger King)Service of summons establishes PJ over df if:

Rule 4(k)(1)(A)"court of general jurisdiction"refers to subject matter jurisdiction

What case is this court allowed to hear?"any old state court"

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

Rule 14/19 - w/in 100 miles of closet courthouse w/o submitting self to minimum contacts standard as long as parties are joined under 14/19

"bulge" jurisdictionwithin 100 miles from where summons was issued

even if across state line, but not more than 100 miles(C) when authorized by a federal statute.

by federal statute(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

PJ over a foreign df with contacts , but not minimum contacts, within the forum state is establishedLoophole provision

Applies to intl D - claim MUST be based on federal lawNo state can exercise jurisdiction over the intl D

(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and

creates one state out of the 50 states, such that the contacts of the df in all the states suffices for minimum contact, BUT

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

MUST be consistent with U.S. Constitution and laws  

STATELONG ARM STATUTES

a. Does long arm statute cover this situation?TYPES

a. STATUTORY - COA comes w/in forum state's long arm statute If so, then:FL - lists circumstances where it applies - go through sections to argue applicability

(1) Specific(2) General

b. CONSTITUTIONAL - Exercise of personal jurisdiction comports w/ due process (OK/CA)Statute says court is authorized to exercise jurisdiction to the extent of US Constitution -Rule 4(k)

2. Assuming situation is covered (also argue Constitutional standing) 14th Amendment - Due Process Clause

Whether exercise of jurisdiction over party comports w/ Due Process clause?Note: Argue Due Process violation because of improper venue

 Gray v. American Radiator & Standard Sanitary Corp. (1961) P 714

FACTSPhyllis Gray (Plaintiff) was injured when a water heater exploded. This took place in Cook County, Illinois. Subsequently, Plaintiff brought suit in Illinois against both Titan Valve Manufacturing Company (Titan) of Cleveland, OH. and American Radiator & Standard Sanitary Corporation (Defendant). The suit alleged that the safety valve had been negligently constructed for use in the water heater.

RULE OF LAW

In a products liability action, a defendant who sells products that he knows will be used within a given forum may be required to defend an action within that forum state, if the product sold in fact causes injuries within the state.

Gray v. American Radiator FL Long Arm Statute  

West's Florida Statutes Annotated CurrentnessTitle VI. Civil Practice and Procedure (Chapters 45-89) (Refs & Annos) Chapter 48. Process and Service of Process (Refs & Annos) 48.193. Acts subjecting person to jurisdiction of courts of state (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: 

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. (b) Committing a tortious act within this state. (c) Owning, using, possessing, or holding a mortgage or other lien on any real property within this state. (d) Contracting to insure any person, property, or risk located within this state at the time of contracting. (e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage. (f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either: 

1. The defendant was engaged in solicitation or service activities within this state; or 2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.

 (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state. (h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.

 

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity. (3) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state. (4) If a defendant in his or her pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff's claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff may by amendment assert against the defendant. (5) Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereinafter provided by law.  

TWO-STEP ANALYSIS IN DETERMINING WHETHER LONG ARM STATUTE IS APPLICABLE [ Cf. Long arm statute handout (1/26/10)]

1. Does the defendant's action fit a part of the applicable long arm statute?interpret meaning of terms (e.g. based on state case law) to determine if df action applies under long arm statute (Shoe)

2. If so, is the court's exercise of personal jurisdiction over the defendant constitutional under the due process clause of the Fourteenth Amendment?

THUS, court has specific jurisdiction over defendant, and personal jurisdiction is constitutional under 14th Amendment

 Pennoyer (df/ ant) v. Neff (PL/ ee) FACTS

This case arises from the initial action taken by J.H. Mitchell against Neff in Oregon, for the alleged nonpayment of legal fees. A default judgment was entered against Neff, a nonresident of Oregon, after notice by publication. The second action is a suit by Neff (Plaintiff) to recover possession of a tract of land, which Pennoyer (Defendant) acquired under a sheriff's deed, made upon sale of property on execution issued upon a judgment recovered against Neff in the prior action. After filing the initial suit, Mitchell submitted an affidavit that stated that Neff was a resident of the State of California. As a result of that affidavit, the Circuit Court of the United States for the District of Oregon allowed Mitchell to serve notice to Neff by publication once a week for six weeks in a paper of general circulation in Multnomah County, Oregon. After publication, Mitchell's Judgment by Default was entered against Neff. As a consequence, Neff's land, which was located in Oregon, was sold to Pennoyer at a sheriff's sale.

2 Lawsuits1. Mitchell v. Neff

OR state courtunpaid legal fees by Neff to Mitchelldefault judgment entered for Neff's failure to appearjudgment executed on the land

2. Neff v. PennoyerFederal courtejectment claim by Neff after judgment in first suit

Statutory basis for allowing substituted service in this caseCode of Oregon

provides for such service (by publication) when an action is brought against a non-resident and absent defendant, who has property within the state.

"an illegitimate assumption of power"ct. states this is any attempt to exercise authority beyond the limits of the State

Circuit ct.found judgment against Neff in original suit was invalid due to defects in the affidavit used to prove service by publication

because it came from the editor of paper, and statute calls for affidavit of "printer, his foreman, or his principal clerk"this ct. held judgment against Neff invalid; App. Ct. found affidavit of editor sufficient

State App. Ct.found judgment against Neff was invalid for lack of personal service of process on himpremises in controversy could not be subjected to payment of demand of resident creditor except by proceeding in rem

by direct proceeding against the property for that purposeSUPREME COURT

Lower ct. decision was affirmed, but for reasons given by App. ct., aboveThese decisions are sound under: Two principles of public law of the independent States1) that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory2) that no State can exercise direct jurisdiction and authority over persons or property outside its territory

3 methods for a court to properly exercise jurisdiction over a person before it under Pennoyer v. Neff

1) Personal service in-state, OR2) Attach the property at the time of filinge.g. posting a lien3) Voluntarily appearing"special" or "limited" appearanceException to this methodwhen the suit involves a "thing"

in rem jurisdictione.g. a divorce

RULE OF LAWThe substituted service of process by publication, where actions are brought against non-residents in connection with process against the person for commencing the action, is effectual only where the action is in the nature of a proceeding in rem.

 WAYS TO ESTABLISH JURISDICTIONSERVICE OF PROCESS

1. JURISDICTION IN PERSONAM - makes D personally liable"against a person"

where the object of the action is to determine the personal rights and obligations of the defendantconstructive (substituted) service upon a non-resident is ineffectual for any purpose

most common type of jurisdictionaffects an individual up to the value of the damagesNOTE: for further explanation, Cf. P 688.1. Personal service of process (direct) on D in the forum's state

Notice v. Jurisdiction - BOTH are neededCan have notice but no jurisdiction and jurisdiction but no notice

1. State can req co to appoint agent to receive service of notice p. 700 - Corp are fictional entities

1. States enacted comprehensive reqs that all corps engaging in business w/in their borders register and appoint agents for service of process

Many statutes provide that corp which engaged in business but did not register would be deemed impliedly to have consented to service on a state official

2. Doctrine of corporate presence - corp was present wherever it engaged in a suff amt of activities and it would therefore be served like a natural person who was present JURISDICTION OVER CORPORATE DEFENDANTSOld law

a corporation could be sued in the state in which it was incorporated

New law1) all corporations engaging in business within their borders MUST register and appoint agents for service of process

if no agent in the forum state is named by the corporation, the Secretary of State will serve as agent under Pennoyer v. Neff

2) Doctrine of Corporate Presencea corporation is present wherever it engages in a sufficient amount of activity, and could therefore be served like a natural person who was presentcontinuous and substantial commercial activity is necessary to constitute presence

 Personal Jurisdiction: Service Within the Forum (PP 799-811)BURNHAM (df/ pet) v. SUPERIOR COURT (resp) (1990) P 799Mrs. Burnham (CA) v. Mr. Burnham (NJ)JUSTICES

Chief Justice and Kennedy, J. join Scalia, J. in his opinionWhite, J joins in I, II-A, II-B, and II-C

FACTSDennis Burnham married Francie Burnham in West Virginia in 1976. In 1977, the couple moved to New Jersey, where their two children were born. In 1987, the couple decided to separate. Mrs. Burnham (Respondent) intended to move to California, so they agreed that she would retain custody of the two children. Shortly before Mrs. Burnham was to move to California, she and Mr. Burnham (Petitioner) agreed that she would file for divorce on the grounds of "irreconcilable differences." After the Petitioner and his wife agreed to divorce, Mr. Burnham filed a Petition for Divorce in New Jersey based on grounds of "desertion." However, Petitioner did not obtain the issuance of a summons nor did he attempt to serve her with process. Mrs. Burnham was not successful in convincing Mr. Burnham to heed their prior agreement. Therefore, in 1988, Mrs. Burnham filed suit for divorce in California. In January, 1988, Petitioner visited San Francisco, California as part of a business trip and to visit his children. While in San Francisco, Petitioner was served with a copy of Mrs. Burnham's divorce petition. Petitioner sought relief in the California state courts, asserting that the Due Process Clause of the Fourteenth Amendment prohibited California courts from obtaining jurisdiction over him because he lacked "minimum contacts" with the state. His only contacts with the state were a few short visits to conduct business and to visit his children. The Superior Court denied his Motion to Quash, and the Court of Appeals of California denied his Petition for Writ of Mandamus. The court held that physical presence in the state when service is obtained is sufficient personal jurisdiction. Mr. Burnham contacts within CA

visited his childrenbusinesshis wife and children were therethis was her doing, however

ISSUEWhether the Due Process Clause of the Fourteenth Amendment prevents jurisdiction of a state over a nonresident, who was served with process while temporarily present in that state, for an action, which is totally unrelated to his activities in that state (i.e. transient jurisdiction)?

II-Aassertion of PJ is consistent with Due Process if PJ does not violate "traditional notions of fair play and substantial justice." Int'l Shoewhether Due Process requires similar connection between litigation and df contacts with the State when df is physically present in the State at the time he is served

Bit remains the practice of all the States and the federal govt. that in-state personal service on an individual is sufficient to confer personal jurisdiction, if one disregards the few erroneous opinions since 1978 that render the practice unconstitutional. (what a douche!)

Cdf contends that his presence in the forum is no longer sufficient to establish personal jurisdictionScalia states that jurisdiction based on physical presence alone constitutes due process because it defines the standard of "traditional notions of fair play and substantial justice."

since it is traditional, it is due processD

df strongest argument relies on Shafferthat a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the StateBUT, Shaffer, like Shoe, involved jurisdiction over an absent defendantShoe confined its minimum contacts requirements to defendants that were not present within the territory of the forum

nothing in Shaffer expands the requirementIII

contemporary notions of due process applicable to PJ are the "traditional notions of fair play and substantial justice." concurrence (Brennan) proposes standard of contemporary justice requires more:

measures state court jurisdiction not only against traditional doctrines in this country, including current state court practice, but against each Justice's subjective assessment of what is fair and justsubjectivity and inadequacy of this approach becomes apparent when concurrence tries to explain why assertion of jurisdiction in present case meets its standard of continuing-American-tradition-plus-innate-fairnessit is traditional because it is due process

nothing the ct. says today can prevent individual States from limiting or abandoning the in-state basis of jurisdiction

BUT, States have declined to adopt such limitationHOLDING

App. Ct. judgment affirmedRULE OF LAW

Jurisdiction can be exercised over an individual through his presence in the forum state. This is true even if the individual is a non-resident of the forum state, who came to the forum state only briefly. Personal jurisdiction within the forum may be obtained as long as service was made upon the individual while he was within the forum state. MAYBE, according to Hata (Cf. infra)

CONCURRENCE(Brennan, J.) II

by visiting the forum State, transient df avails himself of significant benefits provided by the statewithout transient jurisdiction, an asymmetry would arise:a transient would have the full benefit of the power of the forum State's courts as a PL while retaining immunity from their authority as a df

IN ENGLISH:Transient jurisdiction MAY or MAY NOT be found constitutional, because a slight majority in this case found it to be constitutional.NOTE: Transient jurisdiction applies to individuals only, not corporations

 Burnham v. Superior Court - Family law dispute - married in NJ. W moved to Ca w/ custody. W files in CA for irreconciliable differences. As long as she meets residency in CA, can file for dissolution. For any $ order, needs to have CA assert jurisdiction over H. W waits for H to come to CA on business and be served with process. State courts tend to want to exercise jurisdiction over non-resident

SCALIA - this is the way we've always allowed jurisdiction => OKBRENNAN - All assertions must be subject to min contacts std - CA jur over H was OK but elaborate justificationEnjoying police protection, etc.

RULE - Service of process in the forum state is gen always constitutionalKeeps door open for unusual situation, it might be unfair and unreas to subject D to min contacts std

2. JURISDICTION IN REM - focuses on property - service by publication - AT THE TIME LAWSUIT IS FILED

"against a thing"where the object of the action is to reach and dispose of property in the State, by enforcing a contract or a lien respecting the same, to partition it among different owners, or, when the public is a party, to appropriate it for public purposesubstituted service by publication is sufficient to inform the party of the object of proceedings

affects an individual only to the extent of of the value of his propertyAttaches D's prop in state (putting something on title)EVERY state has an attachment statute i.e. adding lien as security

a. Quasi in rem i. Type 1 - actions in the nature of rem (more common)

( action in the nature of rem ) against only known individuals with an interest in the propertya direct relationship between the PL claim and the propertye.g. a suit for ejectment

Prop is the subject of suit, direct connectiona. Smith v. Jones - suit is about prop at issueb. Ex Bank sues Owners for foreclosure (action pertaining to ppl's

interests in prop)ii. Type 2 - attachment jurisdiction

( quasi in rem ) no relationship between the PL claim and the property

PL has a statutory reason for claim as to why the property can be attachede.g. breach of K claim by Mitchell in original suit in Pennoyer

Attachment jurisdiction (Pennoyer) - overturned by Shaffer1. Mitchell v. Neff - didn't attach at beginning

a. Prop had nothing to do with suit which was for unpaid atty fees

DOCTRINE OF FRAUDULENT INDUCEMENT (INTO THE FORUM)invalidates service where PL has lured df into the jurisdiction with falsehoodslimits ability of PL to invoke the power of a distant state through subterfugeHarris (df/ debtor) v. Balk (PL/ creditor)

Lawsuit 1Epstein, resident of MD, had a claim of over $300 against Balk (NC)writ of garnishment issued by MD ct. at request of Epstein also garnished a $180 debt that Harris (NC) owed BalkHarris paid Epstein $180 in MD

Lawsuit 2upon returning to NC, Balk sued Harris for $180 debtBalk argued MD court had no jurisdiction over HarrisNC lower ct.

ordered Harris to pay Balk $180NC Supreme Ct.

held NC had to enforce MD judgment; MD judgment was validWhich method did the court use to exercise jurisdiction?

2) attaching property at the time of the filingin this case, the money was attached

"situs of the debt"obligation of the debtor to pay his debt accompanies him wherever he goes

RULE OF LAWIt is the duty of the garnishee to give notice to his own creditor, so that the creditor may have the opportunity to defend himself against the claim of the person suing out the attachment

Harris v. Balk 

2. Pure in rem (rare) - ct purporting to settlean action on a piece of property "as against the entire world"e.g. the govt. seeks to condemn an office buildingthus extinguishing everyone's title in the property (as against the entire world)i. Action to quiet title, govt condemning prop, proceedings to close an

estate1. US v. $13,460 (rem-thing) in US currency

a. Trying to claim no one has further interest in the prop but the US

NOTE: for further explanation of true in rem, quasi in rem: Type I (in the nature of rem), and quasi in rem: Type II (quasi in rem), Cf. P 689. 

iii. VOLUNARY APPEARANCE BY DEFENDANT1. Special appearance ≠ voluntary appearance, state doesn't assuming jurisdiction

a. Special appearance to contest jurisdiction, NOT on merits of caseb. Direct attack

 Hess v. PawloskiPL (MA) sued df (PA) in Massachusetts for personal injuries sustained in auto accident in MA.Jurisdiction in this case

based on MA statute providing that acceptance by a non-resident of the "privilege" of operating motor vehicle in that state "shall be deemed equivalent to an appointment by such non-resident... upon whom may be served all lawful processes in any action proceeding against him, growing out of any accident in which said non-resident may be involved while operating a motor vehicle in MA."BUT, notice sent outside the state to a non-resident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff

in advance of the operation of a motor vehicle on its highways by a non-resident, the State may require the non-resident to appoint one of its officials as his agent on whom process may be served

RULE OF LAWThe use of the highway by a non-resident is the equivalent of the appointment of the registrar as agent on whom process may be served. The difference between the formal and implied appointment is not substantial, so far as concerns the application of the due process clause of the 14th Amendment.

Hess v. Pawloski PENNOYER PRINCIPLES - only points that are GOOD LAW, overturned by Shaffer v. Heitner

i. Judgment that is void when entered is void foreverii. If one ct enters judgment against D w/o proper personal jurisdiction and winner tries to

enforce elsewhere, other state doesn't have to enforce1. Normally ALL states MUST give full faith and credit unless forum state lacked

jurisdiction2. CAVEAT - Direct v. Collateral Attack

a. COLLATERAL ATTACK - argument against jurisdiction after 1st judgment was enteredHYPO - Neff defaults, goes into 2nd case to enforce in CA, waived when he didn't bring it up in the 1st trial, can only raise personal jurisdiction

ii. DIRECT ATTACK - argument against juridiction made on lawsuit1. i.e. 12(b)(2) mtn

iii. If court enters judgment w/o personal jurisdiction, it is a Due Process violation HYPO

P v. D, personal injuryDism'd for lack of personal jurisdiction

P v. D, personal injury, diff stateDismissal for lack of jur - not on merits

Can only make collateral attack if D defaultedDirected atttack w/ direct appeal

 Whether exercise of jurisdiction over party comports to Due Process?CASE LAW - TWO PART QUESTIONNATURE AND EXTENT OF CONTACTS W/ FORUM STATE1. "MINIMUM CONTACTS STANDARD"2. PURPOSE of minimum contacts std (Fair and Reasonable Factors):

a. Inconvenience/ burden to Db. Sovereigntyc. P's interest in convenience and effective relief

d. Forum state's interest in adjudicating disputee. Interstate judicial system - effective resolution of controversy

2 suits in 2 diff places - not efficient => OK6. Substantial social policies 

1. MINIMUM CONTACT STANDARDRELATIONSHIP b/t P's COA and D's CONTACTS w/in D's FORUM STATEDefines difference b/t Specific and General Jurisdiction

McGee - GA example => one contact is sufficientINTERNATIONAL SHOE CO. (df/ app) v. STATE OF WASHINGTON (PL/ resp) (1945) P. 700

FACTSdf corporation registered in MO with 15 salesmen in WAdf failed to pay taxes for Unemployment Compensation Fund in WAService of Process by PL

sent notice to df office in MO, ANDpersonally served notice to one of the salesmen in WA as an agent of the corporation

df argued salesman was NOT an agent of the corporation within the state of WAits activities within the state of WA did not constitute sufficient "presence" in the forum state

THUS, court would have no jurisdiction over dfviolation of Fourteenth Amendment due process clause

THUS, federal issue = U.S. Supreme Ct.MINIMUM CONTACTS RULE OF LAW (P. 703)

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." (Stone, J.) PURPOSEFUL AVAILMENT REQUIREMENT OF MINIMUM CONTACTS RULE

defendant's exercise of privilege of conducting activities in the forum state, and enjoying the benefits and protections of its laws, gives rise to obligations that arise out of activities within the state

703 - SC => Def of presence - Presence in the state in this sense has never been doubted when the activities of the corp there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given

Taxes based on employees within stateLiability - failure to pay taxes

703 - Minimum contacts std - Now that that the capias ad respondendum (service by sheriff who took D to ct to ensure appearance) has given way to personal service of summons or other form of notice, due process requires only that in order to subj D to a judgment in personam, if he be not present w/in territory of forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

 McGee v. Int'l Life Ins. Co. (1957) P 707In the context of personal jurisdiction, today many commercial transactions touch two or more states and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a state where he engages in economic activity.  

  SPECIFIC JURISDICTION (1-2 applies to every case)When there is a strong relationship b/t P's COA and D's contact w/in forum stateTraditional Formulation - presence w/in the State 

1. PURPOSEFUL AVAILMENT v. Unilateral Activitya. PURPOSEFUL AVAILAMENT - D purposefully availed itself to forum state's

jurisdiction through purposeful contactsEnjoying the benefits and protections of the forum state's lawi.e. doing business in the state

 WORLD-WIDE VOLKSWAGEN CORP. (pet.) V. WOODSON (resp.) (1980) P 720 [C.O.A. = PRODUCTS LIABILITY]FACTS

Harry and Kay Robinson (Respondents) brought an action in Oklahoma against the World-Wide Volkswagen Corporation (World-Wide) and Seaway under a product liability theory. The Respondents purchased a new Audi from Seaway Volkswagen in Massena, New York, in 1976. They moved from New York, where they had resided at the time of purchasing their automobile, to Arizona. As they traveled through Oklahoma, another vehicle struck the Respondents' car in the rear, causing a fire, which severely burned Kay Robinson and her two children. World-Wide VW and Seaway were added as defendants by Audi and VW to destroy diversity with the Robinsons

World-Wide is incorporated in New York and has its principal office there. Seaway is a retail distributor for World-Wide, which is incorporated in New York, and has its principal office there.

ISSUE

Whether the Due Process Clause of the Fourteenth Amendment is violated when an Oklahoma court exercises in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products liability action, when the Defendant's only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma?

PROCEDUREDistrict Court

The Respondents subsequently brought a product liability action in the District Court for Creek County, Oklahoma against Audi, Volkswagen, and petitioners World-Wide Volkswagen( regional distributor) and Seaway (retail dealer).Robinsons v. Audi + Volkswagen + World-Wide VW + SeawayWorld-Wide and Seaway entered special appearances in district ct. to challenge the court's jurisdiction over themPetitioners were denied m/ reconsideration by District Judge Woodson (resp.)

Supreme Court of OklahomaPetitioners (World-Wide VW and Seaway) then sought a writ of prohibition in the Supreme Ct. of Oklahoma to restrain Woodson from exercising in personam jurisdiction over thembecause World-Wide had no minimum contacts with the State of OK, the actions of the district judge were in violation of their rights under the Due Process ClauseSupreme Ct. of OK denied writ, holding pers. jurisdiction over petitioners was authorized under OK "long-arm" statuteCourt's rationaleproduct being sold and distributed by petitioners is so mobile that petitioners can foresee its possible use in OK

Supreme Court of the U.S. (White, J.)reverses appellate ct. decision; grants certiorari to consider due process issueNOT reviewing OK Supr. Ct's application of Oklahoma's own long arm statute, but determining if it can exercise personal jurisdiction over defendants constitutionally under the due process clause (?)minimum contacts standard under the Fourteenth Amendment (due process)burden is on the defendant to show that maintenance of the suit offends traditional notions of fair play and justice

burden is considered in light of ( as applied to W-WVW) : 1. forum state's interest in adjudicating the dispute (McGee)OK court interested in adjudicating dispute because of severe tragedy2. plaintiff's interest in obtaining convenient and effective relief (Kulko)due to their injuries, plaintiffs can obtain most convenient relief in OK3. interstate judicial system's interest in obtaining efficient resolutionmore efficient to try one case in OK, as opposed to 2 separate cases in OK and NY4. substantial social policymanufacturers may make safer products at the fear of products liability actions

SO, based on factors considered in establishing defendant's burden, court should be able to easily establish personal jurisdiction over defendant.

Why not?sovereignty of the state

THUS, the due process clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Shoe

petitioners' foreseeability of the use of their product in OklahomaThere is no evidence that World-Wide or Seaway does any business in Oklahoma."foreseeability" alone has never been a sufficient benchmark for personal jurisdiction under the due process clause

it is not the mere likelihood that a product will find it's way into the forum State, but that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court thereAudi and VW did not object to jurisdiction"Stream of Commerce" Theory

Court does not exceed its jurisdiction under the Due Process Clause of the 14th Amendment if the corporation delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state

Dissents• Justice Marshall: Certain industries, such as the automotive industry, do not lend themselves to being structures as to avoid suit in foreign jurisdictions. • Justice Brennan: The majority accepts the fact that states may exercise jurisdiction over a distributor that indirectly delivers its products into the stream of commerce knowing that the goods will be used in the forum state. Justice Brennan does not understand how the majority differentiates

e.g. of Rule 4(k)(1)(A) as applied to this caseif this case is brought in federal district court in Oklahoma, the court would look to the OK long-arm statute to determine its jurisdiction based on a court of general jurisdiction in Oklahoma

World-Wide VW v. WoodsonWorld Wide Volkswagen the rest of the story.docGENERAL JURISDICTIONexists where claim is unrelated to defendant's contacts within the forumpermits all claims, of whatever origin, to be asserted against the defendantSPECIFIC JURISDICTIONexists where the claim arises out of or is related to the defendant's contacts within the forumthe defendant's ability to foresee being haled into court in the forum (Cf. foreseeability above) 

2. UNILATERAL ACTIVITY - activity by P caused COA, not D (opposite of purposeful availment)a. Hansen v. Denckla - unilateral activity

i.e. food poisoning from bad burger from GA then drove to FL, cannot sue Burger King in FL because no jurisdiction due to P's unilateral activity

 

2. FORESEEABILITY - Foreseeable that D will be subject to suit in that forum state's ct in the event of suit

a. STREAM OF COMMERCE (Product liability)a. WWV - Ct => no contacts on OK; D didn't foresee suit in LK

ASAHI METAL INDUSTRY CO. (df/ ant) v. SUPERIOR COURT (PL/ ee) (1987) P 756 [C.O.A.= PRODUCTS LIABILITY]Zurcher v. Cheng Shin v. Asahi(CA) (Taiwan/tires) (Japan/valves)FACTS

In 1978, Gary Zurcher, a resident of the State of California, was injured when the rear tire of his Honda motorcycle exploded while he was driving on the freeway in California. Zurcher filed suit in California state court against Cheng Shin Rubber Company, a Taiwanese company that manufactured the tube used in the tire. Consequently, Cheng Shin filed a cross-complaint against Asahi Metal Industry Company, a Japanese company that supplied tube valve assemblies to Cheng Shin. Cheng Shin submitted an affidavit of its purchasing manager, which asserted that Asahi was aware that its valve assemblies would, ultimately, be used in products that were sold in California. Asahi filed writ of prohibition, and motion to quash (equivalent to 12(b)(2) m/ dismiss for lack of PJ) to challenge CA jurisdiction

affidavits of Asahi president, stating he never contemplated being haled into ct in CA, attached to motion

ISSUEWhether knowledge by a defendant of the fact that a product manufactured by it will be eventually sold in a forum state might not be enough to satisfy minimum contacts analysis?

RULE OF LAWNormally, if a non-resident defendant manufactures a product that it knows will be eventually sold in the forum state, this fact alone will be enough to satisfy minimum contacts under International Shoe. However, if this is the only contact that exists, it might be unreasonable to make the defendant manufacturer defend in the forum state. To hold otherwise would violate the Fourteenth Amendment's due process guarantees.

Superior Ct. of CAapplies "stream of commerce" theory from W-WVW in interpreting the Due Process Clause

court's exercise of PJ based on no more than the df act of placing the product in the stream of commerce

U.S. Supreme Court STEP 1: PURPOSEFUL MINIMUM CONTACTS WITHIN FORUM STATE

(O'Connor, J)different interpretation of W-WVW "stream of commerce" language

requires the action of the df to be more purposefully directed at the forum state than merely placing product in stream of commercedf awareness that stream of commerce may or may not sweep product into forum state does not convert the mere act of placing the product into the stream

into an act purposefully directed toward the forum state

THUS, exercise of PJ over Asahi by Superior Ct. of CA exceeds limits of Due Process(Plurality Opinion)Supreme Ct. of CA application of "stream of commerce" theory from W-WVW

court's exercise of PJ based on no more than the df act of placing the product in the stream of commerce

THUS, exercise of PJ over Asahi by Superior Ct. of CA DOES NOT exceed limits of Due Process

STEP 2: REASONABLENESS AND FAIRNESSDepends on:1. burden on the defendant

burden in this case is "severe" for having to defend in a foreign legal system

2. forum state's interest in adjudicating the dispute (McGee)

interests of the forum in CA assertion of jurisdiction are slight

3. plaintiff's interest in obtaining convenient and effective relief (Kulko)

interests of the PL in CA assertion of jurisdiction are slight

4. interstate judicial system's interest in obtaining efficient resolution

re: claim for indemnification asserted by Cheng Shin (tire-maker who bought Asahi tube valves) against Asahi"Cheng-Shin has not demonstrated that it is more convenient to litigate its claim in California rather than Taiwan or Japan"since Asahi is not a CA resident, CA's legitimate interests in dispute have diminished

5. substantial social policyfederal interest in its foreign relations policies will best be served by an inquiry into the reasonableness of the assertion of jurisdiction, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the PL or forum state

Justices concurring in partagreed with STEP 2THUS, step 2 is majority opiniondisagreed with O'Connor's interpretation of "stream of commerce" theory in STEP 1, creating a plurality opinionwanted to apply Superior Ct. of CA interpretationO'Connor's opinion in step 1 is not binding due to plurality opinion

justices could not come to a majority decision in interpreting stream of commerce theory to est. purposeful minimum contacts

1. O'Connor - plurality => req more than putting it in stream of commerce

Mere awareness is NOT enough (II.A) - MUST having something additional - marketing, advertisements

Speaking for 4 justices + herself - speaking for PLURALITY, NOT majority

ONLY has persuasive effect2. Brennan plurality => not binding - 21st Cent - easy to put in

stream of commerce; enough for purposeful availment3. Stevens dissent - consider dangerousness of product, qty of

product in forum state2. EFFECTS TEST (Torts) - ONLY on int torts - Effect on victim - focal point

of harmTortious conduct aimed at someone w/in forum state with substantial effects to constitute a contact1. Whether D did something in state that affects forum stateLIBEL1. Cf. Keeton v. Hustler P 738

regular monthly sales of thousands of magazines cannot. . . be characterized as isolated, random, or fortuitous

2. Calder (df/ pet.) v. Jones (PL/ resp.) (1984) P 736 [C.O.A. = LIBEL]FACTS

Shirley Jones sued the Nat'l Enquirer (a FL corporation) for libel in CA state court

newspaper did not raise objection to jurisdictionJones also sued Calder (editor) and South (story reporter)

both were FL residents and objected to jurisdictionJones v. National Enquirer + Calder + SouthNat'l Enquirer did not object to jurisdiction

Supreme CourtDEFENDANT'S CONTACTS

upheld jurisdiction under minimum contacts rule required to meet due process clause of Fourteenth Amendment"The Effects" TestCA is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in CA based on the "effects" of their FL conduct in CA.

the effects created the contactslimited to intentional torts

brunt of harm suffered based on petitioners' intentional, and allegedly tortious, actions expressly aimed at CA

petitioners must have reasonably foreseen being haled into court in CASPECIFIC JURISDICTION (Cf. above)

the effects of an alleged intentional tort are to be assessed as part of the analysis of the defendant's relevant contacts within the forum

Fl wrote article in Fl but knew it affected Ca resident the most in CA

3. PROPERTY As Contact - Prop itself MUST have contact w/in statea. Shaffer v. Heitner - If D owns prop in forum state, it's not enough for

jurisdictionOverruled Pennoyer

PRESENCE OF DEFENDANT'S PROPERTY IN THE FORUM AS A "CONTACT"SHAFFER (df/ ant) v, HEITNER (PL/ ee) (1977) P 781 [C.O.A. = stockholder's derivative action]

Heitner (AZ) v. Greyhound (DE) + officers and directors (AZ)Greyhound did not challenge jurisdiction, since suit brought in DE

FACTSHeitner (Appellee), a nonresident of Delaware, was the owner of one share of stock in the Greyhound Corp., a business incorporation under the laws of Delaware, with its principal place of business in Phoenix, Arizona. On May 22, 1974, Appellee filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Delaware, and named as defendants both Greyhound and twenty-eight present or former directors of either Greyhound Corp. or Greyhound Lines, Inc.(Greyhound), the subsidiary corporation. Appellee alleged that the individual defendants had violated their duty to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit and for a large fine in a criminal contempt action. All of the activities in these suits took place in Oregon. Simultaneously with his complaint, Appellee filed a Motion for an Order of Sequestration of the Delaware property of the individual defendants, pursuant to Delaware state statute. The sequestration order was signed the day it was filed and, as a result, caused approximately 82,000 shares of Greyhound common stock to be seized. The court held that the stock was located in Delaware, so it was subject to seizure in Delaware. The twenty-one defendants affected by the seizure, filed a Motion to Quash Service of Process and to Vacate the Sequestration Order. They contended that the seizure was a violation of due process, there were not sufficient minimum contacts to sustain Delaware's jurisdiction under International Shoe, and the stocks were not capable of being seized in Delaware. The Court of Chancery denied these motions. The Supreme Court of Delaware affirmed this judgment.

ISSUEWhether a statute that allows a court of that state to take quasi in rem jurisdiction of a lawsuit by sequestering any property of the defendants that happens to be located within that forum state is constitutionalstatutory DE situs of the stocks provided a sufficient basis for the exercise of quasi in rem jurisdiction by a DE court

Quasi in rem: Type II ( quasi in rem ) no relationship between the PL claim and the propertyPL has a statutory reason for claim as to why the property can be attachedtraditionally based on attachment of property present in jurisdiction, not on contacts between defendant and the StateAdverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court.

"minimum contacts" standard from Shoe would not affect many types of actions brought in rem"For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These cases where the property now serves as the basis for the state court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction." (Marshall, J.)

Whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam.Property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action.the primary rationale for attaching property to adjudicate claims over which the State would have no jurisdiction is that a wrongdoer "should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit." Restatement § 66.

HOWEVER, attachment in a federal court is not enough to exercise jurisdiction

must look to the State's attachment laws to determine if jurisdiction is proper"[W]hen the claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction."(Marshall, J.)

HOLDINGAll assertions of state-court jurisdiction must be evaluated according to the standards of traditional notions of fair play and justice set forth in International Shoe and its progeny.

State of DE substantial interest in supervising mgmt of a DE corporation

Heitner argues DE courts must have jurisdiction over corporate fiduciaries to protect this interestthis argument undercut by DE legislature asserting its interest based on df presence of property in the State, NOT on df status as corporate fiduciary

RULE OF LAWQuasi in rem jurisdiction over a defendant cannot be exercised unless that defendant had such minimum contacts with the forum state that in personum jurisdiction could be exercised over him.

CONCLUSION (Marshall, J.)It is appropriate for DE law to govern the obligations of appellants to Greyhound and its stockholdersBUT, it does not demonstrate that appellants have "purposefully availed themselves of the privilege of conducting activities within the forum state."Appellants have had nothing to do with the state of DE, and had no reason to expect to be haled into court therejudgment of DE Supreme Ct. is reversed.

CONCURRINGPowell, J.ct. can avoid the uncertainty of the Int'l Shoe standard without significant costs to traditional notions of fair play and substantial justice by applying quasi in rem jurisdiction over real property onlyStevens, J.concerned about the reach of fair notice to df in future actionsBrennan, J.Concurring in part

agrees with ct's application of minimum-contacts standard from Int'l Shoe

Dissenting in part"as a general rule, a State forum has jurisdiction to adjudicate a shareholder derivative action centering on the conduct and policies of the directors and officers of a corporation chartered by that State."

IN ENGLISH:If the defendant's minimum contacts have been established by the standard set in International Shoe, then quasi in rem: Type II jurisdiction may be established ONLY under the forum State's statutes regarding attachment of property.

 Enough to seize during pending case, but not enough to make a decisionRel b/t COA and property1. It's ok as long as property is attached at beginning of case and is

quasi in rem2. Minimum contacts w/ quasi in remKulko - notecase

RULE - if allow personal jurisdiction, will negatively affect parents from entering into amicable agrmt

4. CONTRACT As Contacta. BURGER KING CORP. (PL/ ant) (FL) v. RUDZEWICZ (df/ ee) (MI)

(1985) P 743 [C.O.A.= BREACH OF K/ trademark infringement]FACTS/ PROCEDURE

When Defendant failed to timely provide the royalty payments per the franchise agreement, Plaintiff brought a diversity action in Florida. Plaintiff served the Defendant in Michigan under the Florida Long-Arm Statute. Plaintiff alleged that Defendant had breached their franchise obligations, requesting damages and injunctive relief. Defendant claimed that since he was a Michigan resident, and Plaintiff's claim did not arise in Florida, the district court lacked personal jurisdiction over him.

However, the district court held that it did have personal jurisdiction over Defendant, pursuant to its long arm statute, which extends to any person, whether or not a resident of the state, who breaches a contract in the state by failing to perform required acts pursuant to the contract. The district court entered judgment for the Plaintiff. The United States Court of Appeals for the Eleventh Circuit reversed, holding that jurisdiction in Florida would violate fundamental fairness under the due process clause.

State of FL long-arm statuteextends jurisdiction to any person person who breaches a contract in this state by failing to perform acts required by the K to be performed in this state, so long as the cause of action arises from the alleged contractual breach

ISSUEWhether this exercise of long-arm jurisdiction offended traditional conceptions of fair play and substantial justice e=mbodied in the Due Process Clause of the Fourteenth Amendment.

District ct.denied df 12(b)(2) m/ dismiss for lack of personal jurisdiction after 3-day bench trial, entered judgment for BK for $228,875, and ordered df to cease operation of restaurantdf settled trademark infringement aspectsfound BK made no misrepresentations, that df was experienced businessman, and that at no time did df act under economic duress or disadvantage imposed by BK

STANDARDSDue Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some assurance as to where the conduct will and will not render them liable to suit (W-WVW)

this fair warning requirement is satisfied if the defendant has purposefully directed his activities at residents of the forum (Keeton v. Hustler)

foreseeabilityit is not the mere likelihood that a product will find it's way into the forum State, but that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there (W-WVW)

purposeful availmentso long as a commercial actor's efforts are purposefully directed towards the residents of another State, ct rejects notion that absence of physical contacts can defeat personal jurisdiction there

11th Circuit ct.held for df

Supreme Court (Brennan, J.)DEFENDANT'S CONTACTS

payments to FL headquarters of BKMacShara (df partner) trained at BKU in Miami20 year contract with FL corporation for $1, 000, 000; FL law appliesnegotiations with FL corporationequipment purchased in FL

District ct's conclusion that the assertion of personal jurisdiction over df in FL for his alleged breach of K did not offend due process

JUSTICE BRENNAN'S 2 STEP ANALYSIS FOR ESTABLISHING PJ OVER DEFENDANT1) Purposeful minimum contacts within the forum state

prior negotiations and contemplated future consequences

df deliberately reached out beyond MI and negotiated with a FL corporation for purchase of a long-term franchise and the benefits that would derive from affiliation with nationwide organizationquality and nature of his relationship to PL cannot be viewed as random, fortuitous, or attenuateddf caused foreseeable injury to PLTHUS, it was presumptively reasonable for df to be called into court in FL

terms of the K and parties actual course of dealingdf learned during negotiations that MI office was powerless to resolve disputes and could only channel their communications to Miamidf and PL carried on continuous course of direct communicationfranchise agreement"choice of law designation does not require that all suits concerning this agreement be filed in FL"

choice of law analysis, which focuses on all elements of a transaction, and not simply on df conduct, is distinct from minimum contacts jurisdictional analysis, which focuses on df purposeful connection to forum

2) Reasonableness and Fairness 1. forum state's interest in adjudicating the dispute (McGee)2. plaintiff's interest in obtaining convenient and effective relief (Kulko)3. interstate judicial system's interest in obtaining efficient resolution4. substantial social policyOn the other hand, where a df who purposefully directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.

through means short of finding jurisdiction unconstitutional

HOLDINGPlaintiff can maintain an action against the Defendant within Florida. Although no true physical ties to the Florida exist, the dispute grew directly out of a contract that had a substantial connection with the state.

DISSENT (Stevens, J. and White, J.)

There is unfairness in any decision that forces a franchisee to defend an action in the forum state chosen by its franchisor. Furthermore, the only business that was contracted by the Defendant in Florida involved submission of royalty payments.

What is the significance of this case when we have a breach of K in a PJ case?

The defendant's "contact" with the forum state was entering into the contract with the plaintiff/ resident of the forum state.NOTE: falls under specific jurisdiction (Cf. jurisdiction quadrant chart supra)

Will I always be subject to PJ in the state of the person with whom I have a K?

where a df who purposefully directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.e.g. inability to travel for health reasonsin such case, prior negotiations and contemplated future consequences, along with the terms of the K and the parties' actual course of dealing must be evaluated to determine whether the defendant purposefully established minimum contacts within the forum

 K in forum state not enough to get specific jurisdictionLook at terms, length, negotiations, anticipated performance to establish jur

5. INTERNET As Contact - depends on the situationSLIDING SCALE ANALYSISPJ on the Internet/ Property in the Forum as a Contact/ Choice of Law(PP 766-799)PJ ON THE INTERNETPavlovich (df/ pet.) v. Superior Court (PL/ resp) (2002) P 766 [C.O.A = misappropriation of trade secrets]

FACTSdf posted DVD decryption ("DeCSS") on his website, enabling public to circumvent PL technology ("CSS") contained on the DVDs. PL, a CA corporation, sues df in CA state ct. df lives and works in TX, and has no contacts with CA (other than the effect of his cyber-actions). df moved to quash service of process based on lack of personal jurisdiction in CA. Court of Appeal found CA had jurisdiction, and df appeals.DVD CCA contends Calder "effects test" is sufficient to confer jurisdiction

Trial ct.DVD Copy Control Ass'n, Inc. (real party in interest) + Superior Court of Santa Clara County v. PavlovichPL complaint sought injunctive reliefdf filed m/ quash service of process, contending CA lacked jurisdictionPL contended jurisdiction was proper

because df "misappropriated trade secrets knowing such actions would adversely impact an array of substantial CA business enterprises"citing Calder v. Jones, ct. denies motion

Supreme Ct. of CAtrial court's exercise of jurisdiction over df was impropermerely asserting that a df knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction. . . PL must show that df expressly aimed its tortious conduct at the forumciting Calder v. Jones SLIDING SCALE ANALYSIS FOR SCOPE OF PJ BASED SOLELY ON INTERNET USE1. situations where a df clearly does business over the internet

PJ is proper2. interactive websites where a user can exchange information with the host computer

exercise of jurisdiction determined by examining level of interactivity and commercial nature of exchange of information that occurs on the website

3. situations where a df has simply posted info on a website which is accessible to users in foreign jurisdictions

PJ is impropera passive website that makes information available to those interested in it is not grounds for exercise of PJ

THUS, Pavlovich's alleged conduct was not an act purposefully directed toward the forum state

 ISSUE

Whether df knowledge that his tortious conduct may harm certain industries centered in California (motion picture, computer, and consumer electronics industries) is sufficient to establish express aiming at California

HOLDINGThis knowledge, by itself, cannot establish purposeful availment under the effects test.

RULE OF LAWIn order for a state to exercise specific jurisdiction over a foreign defendant, it must show that the defendant has minimum contacts related to the claim such that fair play is not offended.

APPLYING THE EFFECTS TEST1. because nothing suggests that Pavlovich encouraged website visitors to use DeCSS to illegally pirate copyrighted motion pictures, his mere awareness that they might do so does not show purposeful availment2. Pavlovich's tortious conduct had a foreseeable effect in CA, but mere foreseeability is not enough for jurisdictionotherwise, the commission of any intentional tort affecting industries in CA would subject a df to jurisdiction in CATHUS: defendant's knowledge of industry-wide effects in the forum state, in conjunction with other evidence of express aiming at the forum state establishes personal availment under the effects test.

NARROWING THE INTERPRETATION OF THE EFFECTS TESTct. will not exercise jurisdiction over a df because he should have known that his conduct may harm, not a CA plaintiff, but industries associated with that plaintiff

such a broad interpretation would effectively eliminate the purposeful availment requirement in the intentional tort contextHOWEVER, such tortious conduct is undoubtedly relevant to any determination of PJTHUS, this knowledge, alone, is insufficient to establish express aiming at the forum state as required by the effects test

DISSENTdf intentional act was "expressly aimed" at California

GENERAL JURISDICTION (PP 811-819)D's contacts are continuous and systematic but there's no relationship b/t COA P is suing on and those contactsNo strong relationship b/t P's COA and D's contacts w/in forum stateContinuous and Systematic Test

Compare and contrast # of contacts 

HELICOPTEROS NACIONALES DE COLOMBIA, S.A. (df/ pet) v. HALL (PL/ resp) (1984) P 811ONLY SC case that is relatively modern that addresses gen jur

Hall (family of decedents) v. Consorcio/WSH (employer) + Bell (manufacturer) + Helicopteros Nacionales de Colombia (pilot)

$1,000,000 jury trial 

FACTSPetitioner, a Colombian corporation, entered into a K to provide helicopter transportation for Consorcio/WSH, the alter ego of a joint venture that had its headquarters in Houston, Tex., during the Consorcio's construction of a pipeline in Peru for a Peruvian state-owned oil company. Petitioner has no place of business in Texas and never has been licensed to do business there. Its only contacts with the State consisted of sending its CEO to Houston to negotiate the K with Consorcio, accepting into its New York bank account checks drawn by Consorcio on a Texas bank, purchasing helicopters, equipment, and training services from a Texas manufacturer, and sending personnel to that manufacturer's facilities for training. After a helicopter owned by petitioner crashed in Peru, resulting in the death of respondents' decedents--United States citizens who were employed by Consorcio--respondents instituted wrongful-death actions in a Texas state court against Consorcio/WSH, Bell Helicopter Co. (the Texas manufacturer), and petitioner.Helicopteros Nacionales contacts within forum State (TX)

president met with Consorcio in Houston re: K for helicopter servicepurchased helicopter that crashed from Bellpilot that crashed helicopter trained in TXpayment to Helicopteros Nacionales made from TX bank

GENERAL JURISDICTIONexists where claim is unrelated to defendant's contacts within the forumpermits all claims, of whatever origin, to be asserted against the defendantmay be used when contacts are continuous and systematic

SPECIFIC JURISDICTIONexists where the claim arises out of or is related to the defendant's contacts within the forumthe defendant's ability to foresee being haled into court in the forum (Cf. foreseeability above)

NOTE: General jurisdiction is a backup if specific jurisdiction is denied first.IN ENGLISH (DIPSHIT MOVE IN THIS CASE):

Plaintiff conceded specific jurisdiction, and brought claim under general jurisdiction.usually, a plaintiff makes complaint under both

THUS, Helicopteros Nacionales' contacts within the forum state were NOT continuous and systematic, to satisfy general jurisdiction

 1. FAIRNESS AND REASONABLENESS FACTORS (Worldwide) - speaking for 8 Justices incl O'Connor

Applies to:

1. SPECIFIC2. GENERALNOTE: 5 Standards for Reasonableness and Fairness in est. Minimum Contacts from W-WVW, Asahi apply to both general and specific juris. REASONABLENESS AND FAIRNESS FACTORSDepends on:

1. burden on the defendant2. forum state's interest in adjudicating the dispute (McGee)

McGee - hints that ct says if P can't sue in home state, P won't sue at all3. plaintiff's interest in obtaining convenient and effective relief (Kulko)

If P resides in state, state ALWAYS has interest in its citizens OR Asahi4. interstate judicial system's interest in obtaining efficient resolution5. substantial social policy

P's COA - if court doesn't allow, how might it impact social policy DISTINGUISHING - Relationship b/t D's contacts w/ forum and P's COA

No relationship => GeneralRelationship => Specific

Contacts are continuous and systematicPerkins - ct did uphold gen jur over company in OH

Co incorporated in OH, availing themselves to jurRosenberg Keeton - both gen/pers jur - cont/systematic activity

If you do conclude that D's activity is continuous and systematic enough and find no relationship, MUST use same factors for reasonableness test as for specific jurisdiction 

 LITIGATING JURISDICTION/ CONSENT TO SUIT IN A FORUM, (PP 819-825) Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) Waiving and Preserving Certain Defenses.(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or(B) failing to either:(i) make it by motion under this rule; or(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

 Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions(b) Failure to Comply with a Court Order.

(2) Sanctions in the District Where the Action Is Pending.(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;(iii) striking pleadings in whole or in part;(iv) staying further proceedings until the order is obeyed;(v) dismissing the action or proceeding in whole or in part;(vi) rendering a default judgment against the disobedient party; or(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

 WAYS TO CHALLENGE JURISDICTION1. Motion to dismiss for lack of personal jur (12b2)2. Filed answer w/ mtn to dismiss3. Default - Rule 55

 CONSENT TO SUIT IN A FORUMWAYS TO CONSENT TO SUIT IN A FORUM1. D appears in ct to defend and fails to challenge jurisdiction (Voluntary Appearance)2. Consent

1. Waiver2. Forum Selection Clauses in Contractsparties entered into K w/ cl - if any dispute arises, agrmt that states place of excl jursidiction

Like saying #1 - but more directlyNormally enforceableSupreme Court consistently upholds forum selection clauses to establish jurisdictiontrumps otherwise valid jurisdictionCf. Carnival Cruise Lines, Inc. v. Shute P 825The Shutes purchased passage on a 7 day cruise with petitioner’s ship.  Shutes paid the fare to the agent, who forwarded payment to Petitioner’s HQ in Miami. Petitioner then prepared tickets and sent them to Shutes in the State of WA.  Each ticket contained an admonition “subject to conditions on contract on last pages.”  On those pages under the terms and conditions of passage acceptance of the ticket was acceptance to FL as the State where all suits would be brought to the exclusion of all other States. 

3. Consent to service of process in the State (through an agent)D assigns agrmt that appoints someone to receive process - Szuhkent p. 823

D - farmers entered into equipment lease w/ P, provided that said farmers appointed agent to receive service of process in NYPennoyer - can appt someone for service of proces

4. By the use of State proceduresleaving yourself open to countersuitConsent by use of court procedures - Adam v. Saenger p. 8241. Filing complaint is subjecting self to state's jurisdiction

5. "Opt-out" clause in class actions1. Not often - unnamed P in class action

a. Rule 23(b)(3) - damages actionb. Cf. Phillips Petroleum Co. v. Shutts

class members may sit back and allow litigation to run its course, knowing that there are safeguards provided for their protectionBy not opting out of action, consenting to jurisdiction

3. Rule 23(b)(1-2) doesn't have opt-out opportunity - open question at Supreme level

Federal ct - whether you get ability for oral argument is on the ctFL => presumption - Judge decides mtn on briefs and specifically ask for oral agrmt

Oral arg at TC levelDiff from Appellate Ct - MORE formal

6. Discovery SanctionsCf. Insurance Corporation of Ireland, Ltd. (df/ pet) v. Compagnie des Bauxites de Guinee (PL/ resp) P 819defendant/ insurance company moved for summary judgment in its answer to plaintiff's complaintTHUS, defendant availed itself subject to forum State court's jurisdiction

CBG (PA) v. Ins. Corp of IrelandBought business interruption ins from Irish CoDownside - can't defend on the meritsCBG would've had to take Ireland for ct to use

CBG => MSJ based on lack of personal jurisdictionHow to determine jurisdiction => jurisdictional discovery

If responding to motion to dismiss, MUST undergo jurisdictional discovery

What did CBG ask for? ALL business interruption ins policies in PANot McGee v. Intl Life OR trying to show general jurisdiction

Sanctions include finding of particular fact in violation of discovery rulesICI - trying to decide whether judge has jurisdiction over ICI to order participating in discovery

SC => waived right by defaultCommitted by filing mtn => concede to jurisdiction

Finding personal jurisdiction can be found through discovery sanctions  JURISDICTIONAL REVIEW (aka Finding Personal Jurisdiction) I. "Easy" waysII. Minimum Contacts

A. Statutory authority of a particular court1. Federal courtRule 4(k)(1)(A)

whatever long-arm statute of the court in which I sit applies, that is the one I will use2. State courtthe forum State's long-arm statute

B. Constitutional authority - 14th Amendment Due Process Clause (Shoe)SPECIFIC JURISDICTION1. ∆ contacts with the forum state

a. relationship between defendant's contacts with the forum State and plaintiff's cause of action

if none exists = general jurisdictionCf. Helicopteros Nacionales

b. ∆ purposeful availment in creating those contacts vs. unilateral activity of someone other than ∆c. reasonable foreseeability that someone would be haled into court under this COAd. Stream of Commerce theory

Effects test/ intentional tortsCf. JonesProperty as a contactCf. Schaffer; HarrisContract alone is NOT enoughmust analyze the terms of the KCf. Burger King; McGee

2. Reasonableness and Fairness ( W-WVW ) a. burden on ∆ to litigate in the forum state (Asahi)

b. forum state's interest in litigating the dispute (McGee)c. π interest in obtaining convenient and effective relief (W-WVW)d. interstate judicial system's interest in obtaining an efficient resolutione. shared interests of the States in substantive social policies (Kulko)

GENERAL JURISDICTION1. ∆ continuous and systematic contacts with the forum state2. Reasonableness and Fairness ( W-WVW )

a. burden on ∆ to litigate in the forum state (Asahi)b. forum state's interest in litigating the dispute (McGee)c. π interest in obtaining convenient and effective relief (W-WVW)d. interstate judicial system's interest in obtaining an efficient resolutione. shared interests of the States in substantive social policies (Kulko)

NOTE: Analyze specific jurisdiction first. If it cannot be established, then analyze general jurisdiction.

 35. VENUE

 NOTICEConstitutional - Notice and Opportunity to be heard

Rule 4 - Due Process - life, liberty, and propertyMAIN CASEMullane (ant) v. Central Hanover Bank and Trust Co. (ee) P 825

FACTSIn March, 1947, Appellee filed a petition for the settlement of its first accounting, thus foreclosing any beneficiary from bringing an action for negligent management of the trust fund for the period covered by the settlement. In compliance with state law, Appellee published notice of the action on four occasions, listing the name and address of the trust company, the name and date of creation of the common trust fund, and a list of all included funds. The names of the beneficiaries were not included in the advertisements. Further, Appellee did not attempt any other method of personal service upon the beneficiaries, either resident or non-resident. Counsel for the beneficiaries (Appellant) made an appearance to object to the lack of personal jurisdiction. The United States Court of Appeals of New York overruled the objections that the statutory notice contravenes the requirements of the Fourteenth Amendment. only notice given to Mullane by bank re: decree extinguishing rights of beneficiaries to sue the bank was by publication in newspaperunder the Due Process Clause, Mullane would lose propertyct. held this did not satisfy Due ProcessRULE OF LAWIn addition to the Fourteenth Amendment's requirement prohibiting jurisdiction over any defendant who lacks minimum contacts with the forum state, due process also requires that a reasonable method be used to notify the defendant of a pending lawsuit so that he may have an opportunity to appear and be heard. Due process requires that the notice be reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Due Process does NOT require or guarantee that notice be received.Alternative means of service if personal service impracticableFundamental rule

notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance

1) in some instances, notice may be reinforced by steps likely to attract the parties' attention to proceeding2) notice reasonably certain to reach most of those interested in objecting is likely to safeguard interests of all, since any objection sustained would inure to the benefit of all

 Notice met statutory guidelines but NOT Due Process

Bank - trustee, administers trust - normally gave first-class mail submissions of incomeYearly pitch as good trustee - notice by publication under statuteMullane - appointed to represent beneficiaries; successfully argued that it didn't meet notice req under Due Process1. If Bank allowed court approval => Bank gets fee as trustees2. Final judgment would prevent beneficiaries from brining case in the future

 SC => reasonableness, sliding scale standard

Due Process p.826 - Notice and Opportunity to be heardMullane - could've mailed to beneficiariesReasonableness on type of notice given

If there is statutory means, discusses publication => Constitutional questionRule 4 => constitutional basis

Broken down by type of D you're trying to serviceParticular subdivisions under type 

Statutory - each state has its own process of giving notice, constructed to satisfy jurisdiction under Constitutional standard

Constitutional - notice and opportunity to be heardPersonal service - not req'd in every suit i.e. mail noticeD doesn't have to receive notice - focus on P's actions

w/ some circumstances - publication okRule 4. Summons

(a) Contents; Amendments.(1) Contents. A summons must:(A) name the court and the parties;(B) be directed to the defendant;(C) state the name and address of the plaintiff's attorney or--if unrepresented--of the plaintiff;(D) state the time within which the defendant must appear and defend;(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;(F) be signed by the clerk; and(G) bear the court's seal.(2) Amendments. The court may permit a summons to be amended. (b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons--or a copy of a summons that is addressed to multiple defendants--must be issued for each defendant to be served. (c) Service.(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. (d) Waiving Service.(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:(i) to the individual defendant; or(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;(B) name the court where the complaint was filed;(C) be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form;(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;(E) state the date when the request is sent;(F) give the defendant a reasonable time of at least 30 days after the request was sent--or at least 60 days if sent to the defendant outside any judicial district of the United States--to return the waiver; and(G) be sent by first-class mail or other reliable means.(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:(A) the expenses later incurred in making service; and(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent--or until 90 days after it was sent to the defendant outside any judicial district of the United States.(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue. (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by:(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or(2) doing any of the following:(A) delivering a copy of the summons and of the complaint to the individual personally;(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not within any judicial district of the United States:(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;(B) as the foreign authority directs in response to a letter rogatory or letter of request; or(C) unless prohibited by the foreign country's law, by:(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or(3) by other means not prohibited by international agreement, as the court orders. (g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3). (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:(1) in a judicial district of the United States:(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). (i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.(1) United States. To serve the United States, a party must:(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk--or(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee. (j) Serving a Foreign, State, or Local Government.(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant. (k) Territorial Limits of Effective Service.(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or(C) when authorized by a federal statute.(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and(B) exercising jurisdiction is consistent with the United States Constitution and laws. (l) Proving Service.(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended. (m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). (n) Asserting Jurisdiction over Property or Assets.(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant's assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

 MANNER OF SERVING PROCESSan exercise of the court's power through summons, which directs df to file or answerCf. FRCP 4/ p 829 in CB VENUEplace of trialCompletely guided by statute

Federal Courtin which judicial district do I file?28 U.S.C. § 1391. Venue generally

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.Only basis for DIVERSITY

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.Other bases for subject matterOne or the other to be metNever use (a)(3) or (b)(3) unless there is no other basis for jurisdiction

(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

NOT a definition of where a corporation resides1391(a)(1), (b)(1) - tells you that venue is proper in any judicial district where any D resides Residing for corp defined under 3191(c)

(d) An alien may be sued in any district.State Court

in which county do I file?use the applicable state statute

Motion to dismiss for improper venue - 12(b)(3) motion MUST be made during pre-answer motion/ answer or it is LOST (use it or lose it)

 Bates (PL/ant) v. C & S Adjusters, Inc. (df/ee) (1992) P 831

FACTSPhillip E. Bates (Plaintiff) commenced this action in the District Court for the Western District of New York following receipt of a collection notice from C & S Adjusters, Incorporated (Defendant). Plaintiff alleged a violation of the Fair Debit Collection Practices Act. Plaintiff had incurred the debt in question while he was a resident of the Western District of Pennsylvania. The creditor also had its principal place of business in that district. The creditor referred the matter to Defendant, a local agency, which transacted no business in New York. After Defendant mailed a collection notice to Plaintiff in Pennsylvania, the postal service forwarded the notice to Plaintiff at a new address in New York. Defendant filed a Motion to Dismiss for Improper Venue, which was granted by the District Court for the Western District of New York.

Injury (of Due Process violation) happens when notice was rec'd

Former version of 28 USC § 1391Amendment (1990) - substantial part of eventsThere can be MORE THAN ONE district that appliesSubstantial part - improper notice in NY

Personal Jurisdiction and Proper Venue but Court can still transfer case to different court or dismiss

Venue was proper under 28 US.C. 1391(b)(2)(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situatedfederal questionallows an action to be brought in a judicial district in which a substantial part of events or omissions giving rise to claim occurred

RULE OF LAWThe statutory standard for venue focuses not on whether a defendant (creditor) has made a deliberate contact with the venue, but on the location where the events occurred.

HOLDINGVenue was proper under 28 U.S.C.A. § 1391(b)(2) because a substantial part of the events giving rise to Plaintiff's claim occurred in the Western District of New York. Here, the collection notice is located in New York. Therefore, venue in New York is proper. The United States Court of Appeals for the Second Circuit reversed and remanded the case.  

 

Where P filed suit

Where D wants suit Rule/ Law governing

1. State ct Another state ct or foreign ct

Forum non conveniens - no mechanism available hwereby state ct can transfer, only dismiss it

2. Fed ct Another fed ct 1404(a), 1406(a), 1631, 1407

3. Fed ct Foreign ct Forum non conveniens - dis'dIf there is a foreign court that is more convenient, 12(b)(6) for forum non conveniens

Final judgment is NOT on the merits

4. State ct Fed ct Removal

 TRANSFER - CANNOT transfer for forum non conveniens

Can ONLY transfer to another federal courtCANNOT transfer to state court or foreign nation

Only remedy is case to be dismissed and refiled into other court as a NEW CASE VENUE STATUTES FEDERAL COURT TO FEDERAL COURT1. § 1404. Change of venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 

2. § 1406. Cure or waiver of defects (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 

3. § 1631. Transfer to cure want of jurisdiction Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 

4. § 1407. Multidistrict litigation (a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded.(b) Such coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges to whom such actions are assigned by the judicial panel on multidistrict litigation. For this purpose, upon request of the panel, a circuit judge or a district judge may be designated and assigned temporarily for service in the transferee district by the Chief Justice of the United States or the chief judge of the circuit, as may be required, in accordance with the provisions of chapter 13 of this title. With the consent of the transferee district court, such actions may be assigned by the panel to a judge or judges of such district. The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.(c) Proceedings for the transfer of an action under this section may be initiated by--

(i) the judicial panel on multidistrict litigation upon its own initiative, or(ii) motion filed with the panel by a party in any action in which transfer for coordinated or consolidated pretrial proceedings under this section may be appropriate. A copy of such motion shall be filed in the district court in which the moving party's action is pending.The panel shall give notice to the parties in all actions in which transfers for coordinated or consolidated pretrial proceedings are contemplated, and such notice shall specify the time and place of any hearing to determine whether such transfer shall be made. Orders of the panel to set a hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed in the office of the clerk of the district court in which a transfer hearing is to be or has been held. The panel's order of transfer shall be based upon a record of such hearing at which material evidence may be offered by any party to an action pending in any district that would be affected by the proceedings under this section, and shall be supported by findings of fact and conclusions of law based upon such record. Orders of transfer and such other orders as the panel may make thereafter shall be filed in the office of the clerk of the district court of the transferee district and shall be effective when thus filed. The clerk of the transferee district court shall forthwith transmit a certified copy of the panel's order to transfer to the clerk of the district court from which the action is being transferred. An order denying transfer shall be filed in each district wherein there is a case pending in which the motion for transfer has been made.

(d) The judicial panel on multidistrict litigation shall consist of seven circuit and district judges designated from time to time by the Chief Justice of the United States, no two of whom shall be

from the same circuit. The concurrence of four members shall be necessary to any action by the panel.(e) No proceedings for review of any order of the panel may be permitted except by extraordinary writ pursuant to the provisions of title 28, section 1651, United States Code. Petitions for an extraordinary writ to review an order of the panel to set a transfer hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed only in the court of appeals having jurisdiction over the district in which a hearing is to be or has been held. Petitions for an extraordinary writ to review an order to transfer or orders subsequent to transfer shall be filed only in the court of appeals having jurisdiction over the transferee district. There shall be no appeal or review of an order of the panel denying a motion to transfer for consolidated or coordinated proceedings.(f) The panel may prescribe rules for the conduct of its business not inconsistent with Acts of Congress and the Federal Rules of Civil Procedure.(g) Nothing in this section shall apply to any action in which the United States is a complainant arising under the antitrust laws. “Antitrust laws” as used herein include those acts referred to in the Act of October 15, 1914, as amended (38 Stat. 730; 15 U.S.C. 12), and also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a, and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52 Stat. 116, 117; 15 U.S.C. 56); but shall not include section 4A of the Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 15a).(h) Notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel on multidistrict litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act.

 STATE COURT TO FEDERAL COURT§ 1441. Actions removable generally

REMOVAL - QUASI-VENUE STATUTE(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

Case can be removed by D when P could've brought suit into federal ct to begin with

Used to have to petition to removeNOW => file notice of removal

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

NOTES:Subsection (a)

in the case of multiple defendants, all defendants must agree to removal ("defendant or defendants")

Subsection (b)in cases based solely on diversity, "shall be removable ONLY if no party in interest joined and served as a defendant is a citizen of the state where the action is brought."

Cf. Notice of Removal Handout; Problems P 915NOT "motion" for removal; no motion necessary

FOR EXAM: APPLIES ONLY TO DIVERSITY (§ 1332) AND FEDERAL QUESTION (§ 1331)Fact pattern presented will probably be a Subject Matter Jurisdiction hypo where the Plaintiff moves to "remand"

if m/ is GRANTED = NO REMOVALif m/ is DENIED = case is REMOVED

 28 USC § 1446. Procedure for removal (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. 28 USC § 1447. Procedure after removal generally(a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.(b) It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court.(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.(e) If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.RATIONALE FOR REMOVALthat defendants as well as plaintiffs should have the option to choose federal court cases within the fed jurisdiction 28 USC 1441(a) provides that removal juris. should be available to df, "for the district and division" where the PL brought the original action, only in cases that PL could have commenced in federal ct.

df may allege any facts necessary to demonstrate grounds for removalException

28 USC 1441(b) provides that if a df is sued in his home state, he may not remove on basis of diversity

General removal statute (1441) applies to cases, not claimsentire suit is removed, including both the specific claim that gave rise to removal, but any related claims fed. ct. has power to hear under supplemental juris.PROCEDURE FOR REMOVALState ct. complaint and answer will be filed with notice of removal under 28 USC 1446(a)must be filed within 30 days of receiving plaintiff's pleading in the state suit

once notice is filed and state ct. is notified, state ct. loses control of case automatically under 28 USC 1447(d)

if df has not properly followed procedural requirements, PL may make m/ remand the case back to state ct. under 28 USC 1447(c)

remand motion must be made within 30 days after removal, or objection is waived REMOVAL1. Everything about diversity and federal question jurisdiction - only difference is that subject

matter jurisdiction of district ct of US 1. Add layer of analysis - Is this case something that could've been filed into court by P?

a. If so, generally so, D can remove ita. Where do you file notice for removal?b. When to file?

How does D know where to file?If P filed in fed district ct, meet reqmt for fed subject matterBases for fed jur

§ 1331 - federal question § 1332 - diversity of citizenship

2. ONLY EXC - in div case, D is citizen of state where action was brought, then idea is that D is citizen of home state, no prejudicea. 1441(b)b. Can't destroy div by switching ctsc. Once case properly removed, then case can be transferred to any fed dist ct

under 1404(a)2. Various procedural reqmts set forth in stat - 1441, 1446, 1447

a. Jur pt - sameb. Mottley - say they filed in st ct originally, if RR tried to remove to fed ct, oh this is a

case arising under fed law under1331, would get kicked out same as P would get kicked out bc can't base fed subj matt jur on an anticipated fed defense to be raised by D

 **All Ds served MUST join in removal

CANNOT unilaterally remove1. Motion to Remand

If P wants to challenge removal => P files mtn to remandIf basis for technical violation, must be made within 30 days of notice for removal§ 1447 (c) mtn for reman

2. Motion to dismiss - 12(b)(1)-(2)D wants to challenge juridictionIf removal for lack of jurisdiction, can be raised ANYTIME

 AFTER REMOVAL TO FED. CT.PROCEDURAL TO REMOVEcase proceeds in fed. ct. under FRCP 81(c)(2). Removed Actions.Rule 81(c) Removed Actions.(1) Applicability.These rules apply to a civil action after it is removed from a state court.

(2) Further Pleading.After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:

(A) 21 days after receiving—through service or otherwise—a copy of the initial pleading stating the claim for relief;

Sm # of states don't req that P serve complaint with summonsNormally, both serve with summons and complaint

(B) 21 days after being served with the summons for an initial pleading on file at the time of service; or(C) 7 days after the notice of removal is filed.

 fed ct. may order parties to file discovery materials and other filings from state ct. under 28 USC § 1446(a) (maybe § 1447(b))Other applicable statutes ( Cf. P 918-919) : 28 U.S.C. 1441(e)

removal provisions for multi-party, multi-forum situations where minimal diversity is met, and litigation from accident resulting in death of 75 ppl

28 U.S.C. 1453Class Action Fairness Act

removal of state law class actions where minimal diversity is met and AIC is more than $5,000,000

 Pleading std applies to notice of removal

Look to complaint on well-pleaded complaint rule to see if removal is justifiable D needs to supplement and explain why there is federal jurisdiction for removal 

P v. D1 + D2IL DE, MD Bahamas P cannot file in MD state ct IL - not removable bc no complete diversity jurIf in MD st ct, D can hopefully enjoy less out-of-state bias 

FEDERAL COURT TO FOREIGN NATION OR STATE COURT TO STATE COURT/ FOREIGN NATIONFORUM NON CONVENIENSA. PROPER WHEN ALL ARE MET: A. JURISDICTIONB. VENUEC. NOTICE Forum Non Conveniens (PP 837-849) A. APPLICATION

1. FEDERAL COURT/ STATE COURT TO FOREIGN NATIONPIPER AIRCRAFT CO. (df/ pet) v. REYNO (PL/ resp) (1981) P 837Reyno (PL) v. Piper (df) + Hartzell (df)FACTS

In July 1976 a small commercial aircraft crashed in Scotland, killing the pilot and five passengers instantly. The aircraft was manufactured in Pennsylvania by Piper Aircraft Co., and the propellers were manufactured in Ohio by Hartzell Propeller, Inc. The aircraft was registered in Great Britain, owned by Air Navigation and Trading Co., Ltd. (Air Navigation), and operated by McDonald Aviation, Ltd. (McDonald). After reviewing the crash, the British Department of Trade determined that there was no evidence of defective equipment. In 1977, a

California probate court appointed Gaynell Reyno as administratrix of the estates of the five passengers (Plaintiff). Plaintiff filed wrongful death actions against both Piper and Hartzell (Defendants) in the Superior Court of California, claiming negligence and strict liability. Air Navigation, McDonald, and the estate of the pilot were not parties to this case, because Plaintiff had already filed a case against them in the United Kingdom. Plaintiff admitted that this suit was filed in the United States, because its laws regarding liability, capacity to sue, and damages were more favorable to Plaintiff. Scotland did not recognize strict liability actions, and only allowed wrongful death actions to be brought by decedent's relatives. After the suit was removed to the United States District Court for the Central District of California, Piper filed a Motion to Transfer the action to the United States District Court for the Middle District of Pennsylvania. Hartzel moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer. The district court quashed service on Hartzel, and transferred the case to Pennsylvania. Service was then properly obtained on Hartzel. In May, 1978, after transfer to Pennsylvania, both Piper and Hartzell moved to dismiss based upon forum non conveniens. The district court granted those motions, but on appeal, based upon the test in Gulf Oil v. Gilbert. The United States Court of Appeals for the Third Circuit reversed and remanded, stating that dismissal is never appropriate when the law of the alternative forum is less favorable to the plaintiff. Supreme Court reverses App. Ct. decision, since the decision of the district court complies with the standard established in Gulf Oil v. Gilbert. The proper standard for determining whether an action will be dismissed for forum non conveniens was established in Gulf Oil v. Gilbert. The court of appeals improperly considered the difference in substantive law between the two forums, when making its decision regarding forum non conveniens.

RULE OF LAWWhen an alternative forum has jurisdiction to hear a case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of proportion to the plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case for forum non conveniens. Gulf Oil Corp. v. Gilbert.

ANALYSIS∆ Piper moved to change venue under § 1404(a)

Under what standard?where dist. ct. may transfer to any other dist. ct. where action may have been brought based on PJ and Venue:

Venueof a defendant that is a corporation under § 1391(c) - Piper + Hartzell

PJPiper's specific jurisdiction based on minimum contactsPiper located in PAHartzell's specific jurisdiction based on its stream of commerce into PA∆ Hartzell moved to change venue under § 1406(a), claiming PJ was improper

THUS both ∆s moved to dismiss on the ground of forum non conveniens Gilbert v. Gulf Oil cases - MEMORIZE FACTORSBalancing test - considerations made

PRIVATE INTEREST FACTORS AFFECTING THE CONVENIENCE OF LITIGANTS (Cf. note 6, P 839)

1. relative ease of access to sources of proofwhere the relevant evidence is located

2. availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesseswhen witnesses are located beyond the reach of compulsory process, requiring extensive investigation by defendants would defeat the purpose of the motionaffidavits describing evidentiary problems may bolster defendants motion3. possibility of a view of the premises, if a view would be appropriate to the action4. all other practical problems that make trial of a case easy, expeditious and inexpensiveforcing a defendant to rely on subsequent actions for indemnity or contributions because of trial in plaintiff's forum would be burdensome, but not unfairA. Joinder of other parties of interestB. Implead as 3rd party complaint - can't be done abroad

 NOTE: burdensome = supports dismissal on grounds of forum non conveniens

 PUBLIC FACTORSPUBLIC INTEREST FACTORS AFFECTING THE CONVENIENCE OF THE FORUM (Cf. note 6, P 839)

1. administrative difficulties flowing from court congestion2. local interest in having localized controversies decided at home3. interest in having trial of a diversity case in a forum that is at home with the law that must govern the actionChoice of Law analysis

if two or more sets of laws apply to different defendants, the result would be too confusing to a jurylack of familiarity of foreign law may be confusing to the courta forum's interest in the litigation must be sufficient

4. the avoidance of unnecessary problems in Choice of Law rulesCf. application of Choice of Law rule by transferor under § 1404(a)/ transferee under §§ 1406(a) and 1631, above5. unfairness of burdening citizens in an unrelated forum with jury duty

 Fed ct will apply choice of law rules in st where case sitsFed ct => fed ct

Presumption of 1404(a) - jurisdiction and venue proper in orig ctChoice of law => transferred to transferee state2 choice of laws apply to 2 diff DScotland => Scottish citizens diedUS => Am made products

2. STATE COURT TO STATE COURT REVIEW OF WHAT ∆ CAN USE TO AFFECT VENUEWhere ∆ files suit Where ∆ wants the suit Doctrine used by ∆ to move the suitState court another state ct, or a foreign ct Forum non conveniensFederal court another federal court §§ 1404(a); 1406(a); 1631Federal court foreign court (another country) Forum non conveniensState court federal court Removal 28 U.S.C. § 1404. Change of venue(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.Transferor's Choice of Law rule applies

jurisdiction and venue in original court was proper28 U.S.C. § 1406. Cure or waiver of defects

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.Transferee's Choice of Law rule applies

π did not file suit in the proper districtsince π fucked up by not filing in proper jurisdiction, ct does not allow that π to bring his chosen ct's law with him.

28 U.S.C. § 1631. Transfer to cure want of jurisdictionWhenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.Transferee's Choice of Law rule applies

π did not file suit in the proper districtsince π fucked up by not filing in proper jurisdiction, ct does not allow that π to bring his chosen ct's law with him.

forum non conveniens The doctrine that an appropriate forum — even though competent under the law — may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place  

61. SUBJECT MATTER JURISDICTION "What type of case does a particular court have the power to hear?"unlike PJ, SJ NEVER waived during the course of a case; parties cannot confer this type of jurisdiction on a court that does not have itTYPES OF CASES COURTS CAN HEARJurisdiction set up through statutes, bounds of Constitution1. LIMITED - court whose jurisdiction is limited by statutory provisions

MUST have reason to get into federal court2. GENERAL - court that has statutory power to hear any kind of cases

Like 4(k)(1) - federal court looks at state's long-arm statuteState court in that court has jurisdiction to hear ANY type of case, unless it belongs in a specialized court

3. CONCURRENT - case that could be brought in federal court but if statute allows concurrent jurisdiction, it can be heard in state courts also

Fed law - 42 USC §1983 - can be brought into state court also even though it's a federal law

4. EXCLUSIVE - when federal statutes reserves jurisdiction to federal courts, case CANNOT be heard in state court

i.e. Antitrust cases TWO WAYS TO GET ORIGINAL JURISDICTION1. DIVERSITY JURISDICTION

Some are the same terms as personal jurisdiction but different meaningIf question asking about court's subject matter jurisdiction pending in federal district court, DO NOT WORRY about ConstitutionRule 3 has better coverage than 1331, 1332, and 1441

A civil action is commenced by filing a complaint with the court.  1. Rules in Statute, SC case law

2. REAL policy - to prevent against prejudice against non-state residentsPolicy to include federal diversity jur - guard against perceived prejudice against out-of-state parties or against foreigners

Home-towning - home game advantageiii. Citizens from different states

1. Outsider is supposedly protected from degree of prejudice by filing in federal court rather than state court

iv. CORPORATIONS 

8(a)(1) - short plain statement of grounds for jurisdictionForms 7 - statemtn of jurisdiction

7(a) - diversity of citizenship Problem #11P v. Umbrella + D.CorpPA UT, TX DE, PA DE, PA

 Hertz Corp. (df) v. Friend, et al. (PL) 2009 TWEN

π Friend (CA) + π Nhieu (CA) + πs unnamed class members v. ∆ Hertz Corp. (incorporated in NJ/ principal place of business = CA?; NJ?)

NOTE: case law states citizenship of a class is based on the citizenship of the named partiesnamed πs are from CAHertz' principle place of businessexecutive offices ("nerve center") located in NJlargest business operations in CA

ISSUEWhere the defendant's nerve center is in one state (NJ) and the majority of their operations/ business is conducted in another state (CA), is the nerve center the determinant factor in establishing a principal place of business for diversity jurisdiction under 28 USC § 1332(c)(1)?

RULE28 USC § 1332(c)(1)(c) For the purposes of this section and section 1441 of this title--

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated AND of the State where it has its principal place of business

HOLDINGYes. A corporation's "nerve center," typically found at its corporate headquarters, is its principal place of business.

 What about citizenship of unnamed class members?

No - ONLY look to citizenship of named parties DIRECT ACTIONLook at citizenship of ins co and the insured bc of possibility of collusion in destroying diversity

Injured party sues party itself with insurer in background paying claim but not named a party

DE has highly developed law of corporations § 1332(c) - one of states of citizenship - incorp'd and place of business

Only applies w/ direct actions where insurer is not named party due to contract with liability insLiability ins - ins against claims against you where you would be liable

 Problem #12 Posey v. Delivery Corp - diversity existsLP DE, TXOK, AKw/ respect of partnerships, of what state are partners citizens of? Kramer v. PanamaTXPhony assignment bc Haitian corp had claims to collect 

v. LIMITATIONS1. COMPLETE DIVERSITY RULE

1. Statute itself doesn't say that2. Can't be party who is citizen of same state on both sides of V

MUST have complete diversity of citizenship P1 + P2 v. D1 + D2FL GA FL AL - some diversity but not complete diversity Strawbridge v. CurtisComplete diversity - not in § 1332 (a) but old standing interpretationMinimum diversity - 2 Ds from SAME state doesn't destroy diversity - diversity on both sides of V

iii. Exxon - we don't have original jurisdiction in this case - 1332(a)2. MINIMAL DIVERSITY - 1332(d) - CAFA

1. P altogether cannot aggregate claims, clajming more than $5mil1. As long as one D is different from other D2. Unless in CAFA section, 1332 means regular diversity

 CLASS ACTION FAIRNESS ACT

Codified in § 1332 (d)§ 1453 rules when removing for subject matter jur based on class actions

Not given class action certification - scrutinyCongress wanted more class actions to be brought in federal ct w/ belief that fed ct would be stricter 

"Regular Diversity" CAFA

1. Complete diversity Minimal diversity § 1332(d)If any P different from any D => minimal => within Constitutional limits

2. No aggregation of claims by sep PP1(40) P2 (50) ≠ 90 (fails)

$5,000,000 and allows aggregation of claimsNot difficult if you incl punitive times

3. No D can be citizen of forum st where action was filed for action to be removed - § 1441(b)

Citizenship of D irrelevant - § 1453 (b)

4. One year limit in diversity case - § 1446(b)

No time limit on removability - § 1453(b)

5. All Ds must unanimously join Any D can unilaterally remove case - §

in and agree for removal 1453 (b)

6. Remand order to state ct is normally NOT appealable - § 1447(d)GEN RULE - if D removes and ct decides case should be remanded, normally can't be done

Remand order can be appealed within 7 days of remand order at app. Ct's discretion - § 1453(c)(1)

 Class action in st ct dwindling bc any case can about get into fed ct

Definiteive exc to jur under CADaIntent to exc clear

 Westerfield v. Independent ProcessingWesterfield + MO residents v. Independent + ProvidentMO MO CA 56 loans 3891 loans (primary D) Not removal under normal diversity of citizneshipMinimal diversity, exceeds $5milP move to remand on § 1332(d)(4) § 1332(d)(4)(B) - 2/3+ members and primary D are citizens of state

Provident is primary D + resident of CAIND - 56 laonsProv - 3891 loans

 All P class members citizens of MO

Is Ind someone from whom significant relief is req'd? Counts1-2 => class 1 against Ind3-4 => class 2 against Prov Person seeking to get into fed ct initially bears burden to show fed jur

Exc applicability - has burden to prove thatIf there is doubt, ruling against person w/ burden

TC - applied wrong std of proof Discretionary decline of jur§ 1332(d)(3) - less than 2/3

If more than 2/3 => mandatory § 1332(d)(4) § 1453. Removal of class actions (a) Definitions.--In this section, the terms “class”, “class action”, “class certification order”, and “class member” shall have the meanings given such terms under section 1332(d)(1).(b) In general.--A class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation undersection 1446(b) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.(c) Review of remand orders.--

(1) In general.--Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.(2) Time period for judgment.--If the court of appeals accepts an appeal under paragraph (1), the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under paragraph (3).(3) Extension of time period.--The court of appeals may grant an extension of the 60-day period described in paragraph (2) if--

(A) all parties to the proceeding agree to such extension, for any period of time; or(B) such extension is for good cause shown and in the interests of justice, for a period not to exceed 10 days.

(4) Denial of appeal.--If a final judgment on the appeal under paragraph (1) is not issued before the end of the period described in paragraph (2), including any extension under paragraph (3), the appeal shall be denied.

(d) Exception.--This section shall not apply to any class action that solely involves--(1) a claim concerning a covered security as defined under section 16(f)(3) of the Securities Act of 1933 (15 U.S.C. 78p(f)(3) [FN1]) and section 28(f)(5)(E) of the Securities Exchange Act of 1934 (15 U.S.C. 78bb(f)(5)(E));(2) a claim that relates to the internal affairs or governance of a corporation or other form of business enterprise and arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized; or(3) a claim that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder). 

3. AMOUNT IN CONTROVERSYSTATUTORYAmt in controversy - limits not granted by Constitution

Mas (PL) v. Perry (df) 1974 P 851Jean (FRA) and Judy (LA?; MS?) Mas v. Perry (LA)NOTE: Under FRCP 12(h)(3)

court MUST dismiss action if it determines at any time that it lacks subj. matter jurisdiction

Establishing a "citizen of a State" under § 13321. must be a citizen of the United States2. must be domiciled in that Statea) resident of that Stateb) intent to remain indefinitely in that State

Establishing adequacy of "amount in controversy"1. Plaintiff's claim must be made in good faith2. Defendant is unable to show, to a legal certainty, that the plaintiff could NEVER possibly recover up to the amount in controversyif ∆ can show π could never possibly recover up to jurisdictional amount ($75,000), then § 1332(b) applies:

"district court may deny costs to, and impose costs on, the plaintiff"

NOTE: "costs" do NOT include attorney's fees 

St. Paul Mercury - p. 853

It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of the plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction

Easy to go backward, P doesn't have to prove amt with legal certaintyUnder governing law, even though their claim of amt of controversy, doesn't need legal certainty

Place of domicile - MUST be a US citizen, live in US state with the intent to remain permanently

Place of his true, fixed, and permanent home and principal establishment, and to which he has intention of returning whenever he is absent therefrom

Change of domicile may be effected ONLY by a combination of TWO elements:1. Taking up residence in a different domicile2. Intent to remain there If Mr. Mas was a French citizen - new provision or amendment

An alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

Prov didn't exist at time of Mas v. Perry - if existed, outcome would be differentMr Mas would be a citizen of LA, losing diversity of citizenship

 EXCEPTIONAnkenbrandt v. Richards - p. 860SC => Domestic Relations excluded from diversity jurisdiction (EXCEPTION)Domestic relations exception relates to CORE issues of divorce law1. Child Support2. Alimony3. Property divisionState court experts in divorce law 

EXCEPTION TO EXCEPTION 1. Tort claim liability - has federal jurisdiction

NOT a core issue of divorce and can meet amt in controversy 2. Probate court - traditionally exercised by state courts

Facially diversity jurisdiction cases but NOT 

STATUTORY LIMIT OF THE COURT'S SUBJECT MATTER JURISDICTION UNDER DIVERSITY§ 1332. Diversity of citizenship; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between--

(1) citizens of different States;(2) citizens of a State and citizens or subjects of a foreign state;(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

(c) For the purposes of this section and section 1441 of this title--(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.NOTE: Hertz Corp. v. Friend, et al. 2009

ruling a corporation's principal place of business is its nerve center(e) The word “States”, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.§ 1332 requires complete diversity, unless otherwise specified in a statute

CONSTITUTIONAL LIMIT OF THE COURT'S SUBJECT MATTER JURISDICTION UNDER DIVERSITY

if not in the list in Art. III § 2, the case is NOT PROPER constitutionally under subject matter jurisdictionSets forth parameters of jurisdiction of federal courtsConstitution Art. III § 2

Section 2, Clause 1. Jurisdiction of CourtsSection 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.Section 2, Clause 2. Supreme Court, Original and Appellate JurisdictionIn all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.Section 2, Clause 3. Criminal Trial by JuryThe Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Constitution requires only minimum diversity 

 2. FEDERAL QUESTION JURISDICTION PP 864-888

28 U.S.C. § 1331. Federal questionThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 

 PROGRESSION OF SUBJECT MATTER JURISDICTION BASED ON A FEDERAL QUESTION (§ 1331)π claim "creates" a COA --> Mottley (1908)

vindication of a right under state law turns on some construction of federal law --> Smith (1921)

non-compliance with a federal regulation constituting negligence is "not sufficiently substantial" to support arising-under jurisdiction --> Merrell Dow (1986)a claim recognized by state law that turns on an embedded federal issue that IS sufficiently substantial to support arising-under jurisdiction based on the 4 standards set by the ct.--> Grable (2005) Standards established by Grable for whether a state claim should appear in fed. ct. under § 1331

1. whether the fed law is actually disputed or contested2. whether the issue is substantial3. whether the government has an interest in having this COA heard in a federal forum4. maintaining the balance of power between federal and state judicial powers

 WELL PLEADED COMPLAINT RULE - can't create federal jurisdiction by raising federal defensei. SC - P's claim itself has to be referred to and rely on federal law in order for case to arise

under federal law for purposes of 1331ii. Issue of Federal law must arise in P's complaint

Could be a docket limitation mechanism and looked at filing of complaintCourt needs to be able to determine jurisdiction at the time of filing of complaintP's COA doesn't invoke federal law

Court brings 12(b)(1) itself - Subject matter jurisdiction NEVER waived§ 1331 - 99% of all federal question cases

MOST claims of federal law are based in federal lawRARE situations => P's COA based on state law

There is some effect on federal law that is enough to make it "arise from federal law" alleged under § 1331State law COA - federal issue incorporated within state claim

P cannot anticipate that D is going to bring up federal defense that involves federal issue if P herself relies on state law

There are other bases for federal subject matter jurisdictionMOST important when US govt is a partyNo diversityP doesn't rely on federal law

Might still have case that falls under 1331 arising federal law if it's a case like Grable

 Provides that federal district court has subject matter jurisdiction when there is a claim arising from federal law

1. Federal Constitutional LawArt. III, § 2 - outer limits of federal courts w/ respect to federal questionThe judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Language - cases that arise under federal lawUnlike Constitutional/ Statutory provision

2. Federal Statute Statutory => § 1331 reads like Constitution§ 1331. Federal questionThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Statutory grant didn't occur until 1875State courts were being resistant to fedeal lawOriginal grant of federal jurisdiction - amt in controversy - amt no longer exists

3. Federal Rule i.e. FRCP4. Ordinance of Agency

 KEY QUESTION - When does a case arise under Federal Law?Louisville & Nashville R.R. (df/ appellant) v. Mottley (PL/ appellee) P 865MAJOR limitation on language of statute 

π Mottley (KY) v. ∆ RR (KY) 

FACTSMr. and Mrs. Mottley (Appellees) are domiciliaries of the State of Kentucky and brought suit in the Circuit Court for the Western District of Kentucky against Louisville & Nashville R.R. (Defendant), a railroad company and citizen of Kentucky. Appellees, while passengers on the railroad, were injured by Defendant's alleged negligence. The Appellees sought specific performance of a contract entered into between themselves and Appellant. The contract originally provided that, in consideration for the Appellees releasing the Appellant from all claims resulting from injuries received during an accident, the Appellant would provide free passage for life on its rail lines. Although the contract was honored for approximately thirty-six years, the Appellant, in 1907, refused to issue new tickets. The appellant based its decision upon an act of Congress, which forbid the granting of free passes or transportation.

πs COAbreach of K

∆s responsefiled demurrer (m/ dismiss) for failure to state a claim under FRCP 12(b)(1)did NOT file m/ dismiss for lack of jurisdiction

Jurisdictional History

Fed Cir. Ct.overruled demurrer/ judgment for π∆ appealsFed. Supr. Ct.court itself moved to dismiss for lack of jurisdiction (to remove to state circuit ct.) No Constitutional application for breach of K as COA in fed. ct.State Cir. Ct.judgment for π∆ appealsState Supr. Ct.had proper jurisdiction to hear this appeal of this COA

RULE OF LAW28 U.S.C. § 1331. Federal questionThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.Well-pleaded complaint ruleThe federal question must appear as part of the plaintiff's cause of action as set out in a well-pleaded complaint.

HOLDINGIt is not enough that the Appellant allege some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution, or other federal statute. The federal question allegation must be on the face of Appellee's well-pleaded complaint. In the case before the court, the Appellees attempt to assert that an anticipated defense to their complaint will be barred by the United States Constitution. This, as the court held, is not enough to sustain federal question jurisdiction

 KY SC has federal jurisdiction. Why?

Dispositive federal questionBreath of SC's jurisdictional provisions, when case goes through federal system, original district court idn't haveKYSC hearing from § 28 US 1257

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. As long as highest court of state has federal question, final court will hear case

….Court deprives its appellate jurisdiction…final state court judgment 

 HIERARCHY OF FEDERAL STATUTEHierarchy of application of § 1331i. Express private right of action (MOST CASES)

28 USC § 1331 appliescause of action "arises under" federal law

i. Typical stat that says employers should not discrminate for race, age, genderii. Says expressly in stat …and ppl who are discriminated against have right to sue

their employeeii. Implied private right of action by Congress (if there is no "express")

Factors that ct will consider in determining whether statute provides implied COA

28 USC § 1331would NOT be applied if any of the following 4 standards are shown:1. πs are not part of the class for whose special benefit the statute was passed2. The indicia of legislative intent reveals no congressional purpose to provide a cause of action3. a federal COA would not further the underlying purposes of the legislative scheme4. The respondents' COA is a subject traditionally relegated to state law

 Employers should not discr employees for race, age, gendera. Doesn't mention whether anyone can sueb. Will try to use stat under pvt rihgt of action under 1331 and ct decides if

Congress mean to give P's pvtt right of action to sue for violation of statutei. YES, there is pvt right of action => 1331

c. No pvt right of actionIf there is no implied private right of action, or parties' concede such, then there is no federal question (LEAST CASES)1. No express right of action and either ct has held that there is no implied pvt right

of action or parties concede there is no implied pvt right of action but is STILL some part of other state law Grable & Sons Metal Products, Inc. (PL/ pet) v. Darue Engineering & Manufacturing (df/ resp) 2005 P 873

FACTSIn 94, the IRS seized real property belonging to Grable to satisfy a delinquent tax debt. The IRS gave notice by certified mail as required by Title 26 USC § 6335; and this would become the foundation for the claim. The IRS sold the property to Darue, after notification of Grable. And after Grable did not exercise its statutory right to redeem the property after 180 days, it was sold. Five years later, Grable brought a quiet title action in state court (MI?) claiming that Darue’s title was invalid because the IRS had notified Grable incorrectly. Grable claimed that the statute, §6335(a) required that written notice be given by the secretary to the owner or left at his usual abode. Grable argued that certified mail didn’t count.Darue removed the case to federal court after Grable brought the original claim to state court. Darue filed that the complaint raised a federal question, because the claim of title depended on the interpretation of the notice statute in the federal tax law. The District Court declined to remand the case, as plaintiff requested, for even though the federal claim of Grable’s wasn’t enough to win, it could keep fed. Jurisdiction for the case. The court granted summary judgment for the defendant, explaining that sufficient compliance with the statute was enough, they didn’t have to hand deliver the notice. The court of appeals for the Sixth Circuit affirmed. The Supreme court only granted cert to review the jurisdictional issue. The question for the Supreme Ct was whether Merrell Dow always required a federal cause of action as a condition for exercising federal question jurisdiction.

ISSUES1) Whether the holding in Merrell Dow v. Thompson (that a title claim DOES raise an issue of federal law that must be resolved, thereby implicating a federal interest) ALWAYS requires a federal cause of action for exercising fed. question jurisdiction.NO. Merrell didn’t make a bright line rule, it left discretion to the judges. It showed that other remedies were available to THIS π in state ct. If federal labeling without an arising under claim could get in, then

any federal standard w/o a federal claim could get in, thereby opening the floodgates.2) Whether a state-law claim necessarily raises a stated federal issue (under § 1331), actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.MAYBE. Federal forum's ability to hear an embedded issue could only be evaluated after considering the "welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system."

Standards established by this court for whether a state claim should appear in fed. ct. under § 1331

1. whether the fed law is actually disputed or contested2. whether the issue is substantial3. whether the government has an interest in having this COA heard in a federal forum4. maintaining the balance of power between federal and state judicial powers

Why this ct held in favor of Grable:there was no other forum available to provide a remedy, for the rare state quiet title claim under federal law, except in federal court

EXAM ANALYSIS POINTFact pattern will have a state law COA that violates a federal statuteOTHER RULES UNDER SUBJECT MATTER JURISDICTION28 USC § 1359. Parties collusively joined or made

A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.

U.S.C. Const. Art. III § 1Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

 1. Smith v. KC Title p. 880

P - bond holder - KC title - shareholderCOA - breach of fiduciary dutyBonds under federal statute allowing issuance of bondsSmith - issuance is unconstitutional

Necessary to decide whether federal statute was ConstitutionalCt didn’t consider facts bc law hadn't developed

Arises only under Statute"Federal ingredient" that allows federal question jurisdictionConstitutional grant - broader set forth in Osborne

2. Osborne v. Bank of United States p. 888Congress could grant the federal court jurisdiction over a "whole case" so long as a federal issue was an "ingredient in the original cause" asserted

Statute more limited than Constitutional 

Merell Dow P had one of its 6 state law claims, which was negligence per se

Bc you violated statute, state law => neg per seFDCA - products shall not be labeled in a deceptive way, subject to suit by P injured by deceptive product

Doesn't give right of actionWhether Congress intended on an implied right of actionDepends on judge

Confusion after Merell - Does it mean that when a court finds no implied COA, you can't have claim under §1331?

Grable => Yes, can still have federal question jurisdiction ESSENTIAL ELEMENTS p. 8761. State law claim necessarily raises federal law

§ 1331 - "arising under federal law"Holmes - Am. Well Works

Look at whether it's a federal or state claim and it ends there - cts never agreed with Holmes

2. Actually disputedMoore v. Chesapeake p. 880If Chesapeake had shown to have violated particular federal statute, state law cannot raise assumption of risk as a defense

Not Moore's negligence under state lawLike Mottley - anticipated federal defense

Federal issue not embedded in state issue Fed issue MUST be disputed

In contrast, claims to land in West set up through federal govt - title issues go towards fed govt - federal ingredient

Has to be in case NOW3. Federal issue is substantial

Govt has a strong interest in tax issues - MOST important federal issue

4. No disturbance of federal/state judicial responsibilityMOST difficult to applyIf ct decides to grant federal question jurisdiction, does it open floodgates to litigation?

YES - ct will probably step backCongress has not created private rights of action for P

Less inferenceMerrell - neg per seIf that were deemed to arise under federal law, tons of cases from state court would flock to federal ctGrable - quiet title action

Almost never brought into federal ctCOA based on federal IRC is extremely unlikely - important considerationCt allowed bc it would not carry great precedence bc quiet title action

  

EXPRESSED v. IMPLIED RIGHTS OF ACTION

EXPRESSED IMPLIED

a.k.a expressed COA Statute itself doesn't indicate whether P has right to sue on that statute

i.e. If US Congress passed § 1983, any person whose Constitutional rights violated by state

↓ ↓ YES NO

official, can sue in federal ct => § 1331 ↓ ↓ § 1331 Whether its arising from federal law is more complicated

  SUPPLEMENTAL JURISDICTIONAL "Federal claim" "Non-federal claim"

Arising under fed law Arising under state law

Claim that culd've been brought into fed dist ct originally and there is fed subj matt jur standing on its own

If you looked at it alone, there would be no federal subj matt jurisdiction

If you can get everything in case under 1331/1332, don't need supplemental jur

If looking on its own, no fed subj matt jur to analyze 1367

 Cf. Supplemental Jurisdiction HandoutUsed as a backup, if original (subject matter) jurisdiction cannot be satisfied"Once we are validly in a federal district court, how can we bring in other parts of this case without affecting jurisdiction?" CONSTITUTIONAL BOUNDS OF SUPP. JURIS.U.S.C.A. Const. Art. III § 2

Section 2, Clause 1. Jurisdiction of CourtsSection 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.Section 2, Clause 2. Supreme Court, Original and Appellate JurisdictionIn all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.Section 2, Clause 3. Criminal Trial by JuryThe Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 STATUTORY BOUNDS OF SUPP. JURIS.1. 1367 (a) - GEN RULE

§ 1367 - Supplemental jurisdiction ANALYSIS GENERAL INQUIRY1. Congress referencing Constitutional limits under Art 3 and recognizing Gibbs case (same

case or controversy - does case arise from common nucleus of fact)Does non-federal claim arise from "common nucleus of material fact"?

§ 1367 (a) - federal and state claim must be part of the same "case or controversy" within Art. IIIALWAYS start at subsection (a)

1. If so, go on => If case solely founded on diversity jur under 1332, then (b) has certain exc to (a)

Do claims meet 1367(a)?Considerations - Would you normally try both claims in same proceeding?

Narrow construction based on case law and legislation/ Constitutional language is too broadExcept as provided by subsection (b)

Wouldn't apply to Gibbs1. If bringing in new supplemental claim would be inconsistent with

jurisdictional reqmt under 1332Is 1367(b) applicable?

§ 1367 (b) - Civil action where courts have original jurisdiction found solely on § 1332 (diversity citizenship)

1. Something about claim trying ot bring in supplementally, wouldn't make it in fed ct on its own

2. MUST know JOINDER RULESi. Rule 14. Third-Party Practice

(a) When a Defending Party May Bring in a Third Party.(1) Timing of the Summons and Complaint.A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave it if files the third-party complaint more than 14 days after serving its original answer.(2) Third-Party Defendant's Claims and Defenses.The person served with the summons and third-party complaint—the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff's claim under Rule 23;(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3) Plaintiff's Claims Against a Third-Party Defendant.The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).(4) Motion to Strike, Sever, or Try Separately.Any party may move to strike the third-party's claim, to sever it, or to try it separately.(5) Third-Party Defendant's Claim Against a Nonparty.A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.(6) Third-Party Complaint In Rem.If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the

“summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.(b) When a Plaintiff May Bring in a Third Party.When a counterclaim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.(c) Admiralty or Maritime Claim.(1) Scope of Impleader.If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third party defendant who may be wholly or partly liable—either to the plaintiff or to the third-party plaintiff—for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.(2) Defending Against a Demand for Judgment for the Plaintiff.The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff. 

2. Rule 19. Required Joinder of Parties (a) Persons Required to Be Joined if Feasible.(1) Required Party.A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

(2) Joinder by Court Order.If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.(3) Venue.If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.(b) When Joinder Is Not Feasible.If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;(B) shaping the relief; or(C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.(c) Pleading the Reasons for Nonjoinder.When asserting a claim for relief, a party must state:(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and(2) the reasons for not joining that person.(d) Exception for Class Actions.This rule is subject to Rule 23. 

iii. Rule 20. Permissive Joinder Of Parties (a) Persons Who May Join or Be Joined(1) Plaintiffs.Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants.Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all defendants will arise in the action.

(3) Extent of Relief.Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.(b) Protective Measures.The court may issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. 

iv. Rule 24. Intervention (a) Intervention of RightUpon timely motion, the court must permit anyone to intervene who:(1) is given an unconditional right to intervene by a federal statute; or(2) claims an interest relating to the property or transaction which is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless the existing parties adequately represent that interest.(b) Permissive Intervention

(1) In General.On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency.On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice.In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.(c) Notice and Pleading RequiredA motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. 

c. Even if we do meet (a), made it through (b) w/o getting kicked out, still look at (c) for various reasons even if would be jur proper, discretionary reasons ct may decline to exercise suppl jur

Can Ct decline jurisdiction via 1367(c)?§ 1367 (c) - Gives court discretion to decline jurisdiction

i. If you don't see anything in facts that implicate one of these discretionary declines - nothing in facts indicate it would be appropriate for cts to exercise

ii. If no, done but on exam - continuePendent/Ancillary - NONECases - do know as leg history

 LEGISLATIVE HISTORYFed ct of limited subj matter jurisdiction - litigation complicatedFrequently point of case that would easily have federal jurisdiction over claim (diversity/ fed question)P has non-federal claim arising out of same transaction/ occurrence that wouldn't stand on its own in federal courtFirst TWO cases decided before § 1367

Pendent jur Obsolete by § 1367 Supplemental Jurisdiction

Ancillary jur =============>  

 United Mine Workers (df) v. Gibbs (PL) 1966 P 888

Gibbs (TN) v. UMW (citizenship of the union based on every member; some from TN)NO diversity

COA #1Gibbs sued under Labor Management Relations Act (LMRA) § 303 which authorizes recovery for losses suffered as a result of an unlawful secondary boycott∆ had caused coal mine to fire Gibbs

COA #2 TN state law claim for tortious interference with a K

STANDARDS FOR PENDANT JURISDICTION1. all PL claims must arise out of the same nucleus of facts2. it must "make sense" to exercise jurisdiction, dependent upon:

whether the state law claim predominates;whether the federal court would have to decide sensitive issues of state law;whether a jury would be confused by hearing the claims together; andwhether the federal issues may be resolved early, leaving only state claims to be decided.NOTE: Predecessor to 1367(c)

COMPULSORY COUNTERCLAIM, JOINDER, INTERVENTION OKPermissive counterclaim NOT OK 

Aldinger (PL) v. Howard (df 1) P 891PL brought action against df and other individual dfs for dismissal from her county job under 42 USC § 1983PL also asserted a state claim against Spokane County (df 2)§ 1983 bars federal civil rights claims against countiesStandard for "PENDENT" element 1 is MET

BUT, No statutory grant of jurisdiction over pendent party claim for element 2 Owen Equipment (df) v. Kroger (PL) P 890

PL (IA) sued OK Public Power District (NE) (df) in diversity under 1332df then impleaded Owen (NE and IA) 3Pd), who was not diverse from either party, under FRCP 14(a)Extending ancillary jurisdiction to this claim would be inconsistent with requirement of complete diversity under 1332

Kroger could not have sued OPPD and Owen together originally, so she could not do the same after Owen was brought in as 3Pd

COMPULSORY COUNTERCLAIM, JOINDER, INTERVENTION, IMPLEADER OK, only with COMPLETE DIVERSITY

Permissive counterclaim NOT OKStandard for "PENDENT" element 1 is MET

BUT, No statutory grant of jurisdiction over pendent party claim for element 2 Finley v. US p. 893, n.2Finley's H killed in plane crashFTCA - exclusive jurisdiction to federal ct, allowed concurrent jurisdiction Finley v. FAA + State Ds(CA) (CA) state law 

FTCA exclusiveSC ended era of judge-made pendant party and ancillary jurisdiction, holding that the absence of a statutory underpinning was fatal to exercise of jur over claims by P against non-diverse parties added to litigation

Ct => no federal statute that allows federal ct to exercise jurisdiction over state Ds§ 1367 (a) - common nucleus => same plane crash

Last sentence meant to allow joinder of different parties§ 1367 (b) - jurisdiction not based solely on diversity

Would come out different today Zahn v. Intl PaperUnnamed classClass action under diversity statuteMUST be showby P that each unnamed party meets amt in controversy JOINDER

Under FRCP, is there a rule which will allow joinder?If yes, is there original jurisdiction over the claim? If no original jurisdiction, is there supplemental jurisdiction?  P v. D1 + D2 v. TPD 

13(a)-(b) 13(g) 14(a)Add unrelated claims under 18(a) Mr. X

Rule 19 OR Rule 24 (mtn for intervention)Class actions for Rule 23

Exxon MobilCase no 1 - Allapath + class (of Exxon deals) v. Exxon

COA - overcharging for fuel schemeIssue - Allapath meets $ in controversy; other party P don'tSupreme Tribe of Benttur establishes diversity of named class member applies to diversity std for entire classCt allows party members on R. 23 class actions

Case no 2 - Rosario v. Star-KistsCOA - injuryIssue - injured meets $ in controversy; family doesn'tCt does NOT allow family on R.20 permissive joinder

 Majority Analysis

"Original jurisdiction over civil action"1367(b) strictly read doesn't cut out supplemental jurisdiction in Rosario (only applies to D joined via R.20)

 § 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

GEN RULE(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--

(1) the claim raises a novel or complex issue of State law,(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,(3) the district court has dismissed all claims over which it has original jurisdiction, or(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal

of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.(e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

 CHOICE OF LAWWhichever court has established its jurisdiction over a cause of action, that court will apply its own Choice of Law rule.2-PART PROCESS - after establishing personal jurisdiction then...A. CHOICE OF LAW rule (Restatement - place where there is the strongest relationship to transaction)

Ct always applies its own Choice of Law rulesWhat is the state's choice of law to choose choice of law rules?

B. SUBSTANTIVE LAW THREE LEVELSCONSTITUTIONAL LIMITATIONS

this standard is less demanding than minimum contacts standard for personal jurisdictionLikely that a state which has constitutional basis for exercising jurisdiction would generally be able constitutionally to apply its own law as well if its choice of law analysis points in that direction (as it usually does)

A. Choice between different states' governing laws - STD ERIE ANALYSISi. If we have a transaction or some event that involves from ppl from more than one state,

frequent problem of which state's law applies to this disputeii. Generally laws of diff state are pretty similar but significant differences

iii. EX - K case1. Negotiations in TN, signed in FL2. Dispute - ct action in TN/FL - which K law to follow

iv. Every state has adopted Choice of Law rule 1. State the ct is sitting in is always going to apply that state's own choice of law rule

a. Forum ct - TN => apply TN choice of law rulev. 2 TYPES OF CHOICE OF LAW RULES A STATE MAY APPLY:

1. Restatement 2d, Conflicts of Laws - MOST POPULARcalls for application of the law of the state that is most significantly related to the occurrence and its partiesFactors considered to identify the state that is most significantly relateda) needs of the interstate and international systems,b) relevant policies of the forum,c) relevant policies of other interested states and the relative interests in those states in the determination of the particular issue,d) protection of justified expectations,e) basic policies underlying the field of law,f) certainty, predictability, and uniformity of result, andg) ease in the determination and application of the law to be appliedNOTE: applies only to matters of substance, not procedureA. Law of place with the most significant relationship to the transaction is the

rule that appliesB. Reform of Lex Loci

i. TN ct => Rest => TN subst law of KB. Lex Loci Rule - OUTDATED

calls for the application of the laws of the state where the contract was signeda. Law of the place where it happenedb. Benefit is that it's pretty definite, no gray areasc. Drawback - very arbitrary

i. K - law of place where K was executed whose laws govern transactionsii. TN => Lex loci => signed in FL => FL law of K applies

b. Federal district ct - 2072i. Klaxon Co. v. Stentor Electric Manufacturing Co. 1941 P 945 (notecase)

"The conflict of laws rule to be applied by the federal court in a particular state must conform to those prevailing in that state's courts."

a court's choice of law rule may have a substantive effectCourts continue to adhere to Klaxon

 b. Fed ct sitting in diversity, includes state's choice of law rulec. Dist ct in TN will apply TN's choice of law rule (lex loci), same conclusion that fed dist ct

applies FL law of KC. Transfer of venue

1404(a)i. Transferor ct - move to transfer to S.D. Fla - transferee

1. Fed dist ct of TN - transferor caseii. Proper in orig ct to be transferred in transferee ct

iii. P originally filed in place proper procedurally, whatever choice of law rule attached to transferor ct and transfers with case to transferee ct

1406(a) - assumes that venue in orig ct was improper jurisdictionally or venue-wisei. Inappropriate ct dose NOT get benefit of having orig ct's choice of law rule move with it to

proper ctii. FL's chocie of law rule

1. Rest - most sig rel to transaction governs => TN => FL fed dist ct will apply TN's subst K law to dispute

 ERIE DOCTRINE (PP 924-935)28 USC § 1652. State laws as rules of decisionThe laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.Born of the Rules of Decision Act of 1789

The laws of the several states, except where the Constitution or treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.

When the fed. court has judicial power to hear the case, even though there is no federal legislative power to create the governing law:What law should be applied to this situation?

question addressed in Erie and SwiftSwift (PL) v. Tyson (df) 1842 P 924FACTS

Plaintiff sued in federal district court in New York to enforce a bill of exchange (a check written by Tyson to Norton). Defendant argued that the federal court was required to apply prior New York decisions to the present case. Defendant based his argument on the language behind the Rules of Decision Act. Norton owed money to Swift; Norton endorses check to Swift; Swift unable to collect

Tyson argues Swift cannot collect on endorsement of a check from another pre-existing debt, under NY case lawNY State decisions

pre-existing debt does NOT equal valid considerationπ wins

Federal commercial lawpre-existing debt DOES equal valid consideration

∆ winsTWO possible applicable laws governing transaction:i. Holder in due course (person accepts instrument w/o knowing defect)

Cannot accept bill of exchange in place of previous debt

Law - cannot collectii. Gen law - Holder can collect on past bill of collection - current law nowCt applied "gen common law" => Swift collected on noteSC => state statute - Rules of Decision Act

RULE OF LAWFederal courts exercising jurisdiction predicated upon the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the state as declared by its highest court. The federal court is free to exercise an independent judgment as to what the common law of the state is, or should be.

FORUM SHOPPING AS A RESULT OF SWIFT As a result of the decision in this case, plaintiffs were effectively able to "forum shop" between state courts and federal district courts within the same state in order to determine which would be more favorable to their case. This case was overturned by Erie.

allows nonresident plaintiffs of the state where the federal court sits to discriminate against resident defendants of the forum state.

Story, J state law (as applied to a diversity of jurisdiction case in federal ct.) = Statutes of that state + the local construction of those Statutes thereof ; and rights and titles to real estate

e.g. rights and titles to things having a permanent localityNOT "in the decisions of local tribunals"

a court does not make the law, but merely finds or declares the lawBastardization of the law applied by Story in Swift

Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.FACTSThe Brown and Yellow Cab Company, a Kentucky corporation, sought to create a business association with the Louisville and Nashville Railroad, where Brown and Yellow would have a monopoly on soliciting passengers of the railroad, effectively eliminating the competition, the Black and White Cab Co. Black and White sued, and the KY Supr. Ct. found that such an agreement was illegal under Kentucky common law. Brown and Yellow dissolved itself, reincorporated in Tennessee, and executed the same exact business agreement with Louisville there.HOLDING

The Federal Court upheld the agreement, citing Swift v. Tyson (41 U.S. 1 (1842), and arguing that under general Federal common law, the agreement was valid.

The Court didn't care whether the agreement would be legal under Kentucky law or Tennessee law, they only considered whether it would be legal under Federal common law.NOTE: If Brown and Yellow had brought suit in a Kentucky State court, then Kentucky common law would have applied and the agreement would not have been upheld.If there is no federal law that applies, the state law of the state in which that court sits will apply.

 Erie Railroad Co. (df) v. Tompkins (PL) 1938 P 925Tompkins (PA) v. Erie (NY)COA

negligenceFACTS

Harry J. Tompkins (Plaintiff), a citizen of Pennsylvania, was injured while walking on a well-worn footpath that runs along the railroad tracks. A train operated by the Erie Railroad Company (Defendant) was passing along the railroad tracks, when an open door on the train hit Plaintiff and injured him. Defendant is a New York company. If Plaintiff had filed a negligence action in Pennsylvania, he probably would have lost because, under PA law, as declared by its highest court (according to df), he was a trespasser and, as a result, the Defendant would have been liable only for gross, as opposed to ordinary negligence. However, Plaintiff filed his suit in the Southern New York federal court. PL contends there is no statute of

the state (PA) on the subject. By filing in federal district court, Plaintiff hoped that the court would follow the prior decision in Swift v. Tyson, ignoring the state common law and requiring him to establish ordinary negligence, as opposed to gross negligence by the Defendant. The district court applied "general law" and awarded Plaintiff $30,000.00 in damages. The court of appeals affirmed this decision on the same grounds. Supr. Ct. majority reverses and remands. PA state decisions

RR not liable to trespassers unless its negligence is wanton and willfulFederal general common law

RR liable to licensee for negligenceGeneral Law held to include (as defined by Brandeis, J):

obligations under Ks entered into and to be performed within the stateliability for torts committed within the state upon residents or property located therethe right to exemplary punitive damages

ISSUEWhether the law of the state, declared by its Legislature in a statute or by its highest court in a decision, is a matter of federal concern.

RULE OF LAWA federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including that state's conflict of law rules. However, the federal courts should apply federal procedural law in diversity cases.

HOLDINGThe Court concluded that the application of the rule in Swift had invaded rights, which were specifically reserved for the states by the United States Constitution. The effect of the decision in Erie is to require federal courts to apply state law on substantive issues, which includes judge-made common law as well as state statutes. As a result, Pennsylvania law must be followed in this case, which required that Defendant refrain from willful or wanton injury. This case was remanded to PA fed. ct., applying PA state law, for further proceedings in conformance with this opinion.

Unconstitutionality in Swift declared by Brandeis decision authorized judges to make the law in areas in which the federal govt. has no delegated powers.

because no applicable Constitutional or Legislative law had been made yetAccording to Story, J, judges should merely declare the law.

Butler, J and Reed, J base their dissents on this unconstitutionality decree.state that judges making the law is merely erroneous; NOT unconstitutional

Reasons to overturn Swift statutoryconstitutionalitypolicy reasons

RESULT OF ERIE Positivism in the Law

judges ability to create law with the legislature and the Constitutioninstead of Natural Lawlaw created by Constitution and legislature alone

ERIE AND THE PROCEDURAL LAW OF THE STATENOTE: (1938) - FRCP promulgated; Erie decidedGuaranty Trust Co. (df/pet) v. York (PL/resp) 1945 P 935

COAbreach of fiduciary dutyclaim in equity; not common law (Cf. 7th Amendment)THUS, Erie applies in equity cases

FACTSIn May 1930, Guaranty Trust Company (Petitioner) was named as trustee for some of the noteholders of the Van Sweringen Corporation (Van Sweringen). In October 1930, Petitioner loaned to corporations affiliated with Van Sweringen. When Van Sweingen began having financial problems, Petitioner agreed to purchase notes for 50% of face

value of the note ($500) and twenty shares of Van Sweringen stock for each $1000.00 note. Offer remained open until 12/15/1931. In 1934, York (Respondent) received as a gift $6000.00 worth of the notes from a donor who had not accepted Petitioner's offer. In April 1940, three accepting noteholders brought a diversity suit alleging that Petitioner had breached its fiduciary duties, allegeing fraud and misrepresentation. Respondent's application to intervene in this suit was denied, and summary judgment affirmed for petitioner. Hackner v. Morgan. After respondent's dismissal from Hackner, she began present proceedings on 1/22/1942. Petitioner filed a Motion for Summary Judgment in the district court, due to the fact, that the New York statute of limitations had run. The district court granted this motion upon authority of Hackner. The United States Court of Appeals for the Second Circuit reversed this decision when it held that in a suit brought in equity in federal district court, that court could apply laches doctrine (did not have to follow the New York statute of limitations even though jurisdiction was based on diversity, if it was unreasonable and prejudicial to the defendant). The Supreme Court of the United States reversed and remandedYork v. Guaranty Trust Co. 1942 borne out of:Hackner v. Morgan 1940

COA = fraudDue Process Clause:

York tried to intervene under FRCP 24 in Hackner suit = deniedYork had right to bring suit after being denied intervention and judgment in HacknerYork brought suit as a Class Action under FRCP 23

NY State lawNY SOL = 5 years

Federal lawlaches doctrinedid not have to follow the New York SOL, even though jurisdiction was based on diversity, if it was unreasonable and prejudicial to the defendant

RULE OF LAWWhen there is diversity jurisdiction, the federal court should use the outcome-determinative test to ensure that the outcome of the federal court's application of law would not be different than the outcome if the state had tried the case. In this case, the federal court sitting with diversity jurisdiction must follow a state statute of limitations. "Outcome-determinative" TestThe outcome of the litigation in the federal court should be substantially the same as it would be if tried in the state court. To be followed in cases involving diversity jurisdictionResults of the Test

A party should not be able to manipulate the state and federal court systems solely to bring a claim in federal court that would, otherwise, be defeated by a statute of limitations if brought in state court. This test is designed to prevent forum shopping between federal and state courts. The state's interest in controlling the outcome is very important as it seeks to protect its citizens. Alternatively, the federal interest is relatively weak, and there is very little to be gained from uniformity between federal districts.

Substantive vs. Procedural Standard in majority of cases today SUBSTANTIVE LAW PRINCIPLE

Erie (1938)Rules of Decision Act § 1652

PROCEDURAL LAW PRINCIPLEFRCP (1938)Rules of Enabling Act § 2072

NOTE: Frankfurter, J did not support this delineation to his opinion in YorkRATIONALES FOR ERIE

1. statutory interpretation of § 1652 (RDA) - Swift2. constitutional (federalist) issue of court's ability to make or decide law - Erie3. forum shopping/ inequity - York

outcome of a litigation should be substantially the same in federal ct as if tried in State ct.Cf. 3 note cases that applied York decision P 941 FRCP STRIKES BACK28 U.S.C. § 2072. Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

 Byrd v. Blue Ridge Rural Electric Cooperative, Inc. 1958 P 947

FACTSByrd (Petitioner), a resident of North Carolina, filed a diversity suit in the District Court for the Western District of South Carolina for injuries allegedly caused by the negligence of Blue Ridge Rural Electric Cooperative, Inc.'s (Respondent), a South Carolina corporation. Petitioner was a lineman in a construction crew of a contractor who had contracted to build power lines for the Respondent. Petitioner was injured while connecting power lines during the course of his employment. The Respondent offered, as an affirmative defense, that the Plaintiff had the status of a statutory employee under the South Carolina Workmen's Compensation Act (Act). Therefore, he was barred from suing Respondent at law, so he had to settle for statutory compensation benefits as the sole remedy. At trial, the jury returned a verdict for Petitioner. However, the United States Court of Appeals for the Fourth Circuit reversed, and directed judgment for the Respondent. Respondent urged the Supreme Court of the United States to follow the decision rendered by the Supreme Court of South Carolina in Adams v. Davison-Paxon Co., when the court found that it was for the judge, not the jury to decide whether a business owner was a statutory employer. Supreme Court of the United States reversed the decision of the court of appeals and remanded for further proceedings consistent with its opinion.

ISSUEWhether the "outcome-determinative test" as established by the court in Guaranty Trust Co. should apply to the decision of whether to try an issue before a judge or a jury?

HOLDINGThe likelihood of a different result is not so strong as to require the federal court practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome

RULEThere are varying degrees of the Guaranty Trust Co. "outcome-determinative test." The fact that the decision of which law, federal or state, to apply will should be outcome-determinative is not conclusive.

Test established by this court to determine issue before a JUDGE or a JURYWhether the state rule (case) is bound with the rights of the State Statute that its application in Federal Court is required.Whether the litigation would come out differently in Fed. and State Cts, if the Fed. Ct. failed to apply a particular rule.(Fed.) - Jury decides if an employee(State) - no jury/judge decides if an employee under workers comp.Whether the issue of immunity is decided by a judge or a jury.Whether the Fed. interest asserted is more or less important than the interest in preserving uniformity of result with the State Ct.

Applying ERIE's balance between the State and Federal interests.(1) States - not having its policies undermined in diversity cases.(2) Federal Cts - administering justice in accord with the Federal principal.(3) Federalism (Federal interest) - not having the outcome of the case turn exclusively on the forum in which the case was brought.

THE BYRD CHART State law bound with substantive rights/ \/ \YES _by mere form or mode _ (procedure)| |apply Is it outcome determinative? (York case)state law. / \YES NO| |are there then apply Fed. Law.countervailingFed. considerations?

Hanna (PL/pet) v. Plumer (df/resp) 1965 P 953FACTS

Hanna (Petitioner), a citizen of Ohio, filed a complaint in District Court for the District of Massachusetts, claiming damages in excess of $10,000 for injuries resulting from an auto accident in South Carolina, allegedly caused by the negligence of Louise Plumer Osgood, a resident of Massachusetts, and deceased at time of filing. Husband/executor was named Respondent On February 8, 1963, service was made by leaving copies of the summons and complaint with Respondent's wife at his residence in compliance with Rule 4(d)(1) of the Federal Rules of Civil Procedure. Respondent answered on February 28, 1963, alleging that an action could not be maintained because it was brought in violation of Massachusetts General Laws Chapter 197, Section 9. The district court granted Respondent's Motion for Summary Judgment and the United States Court of Appeals for the First Circuit affirmed. The Supreme Court of the United States reversed the decision of the court of appeals.

ISSUEWhether, in a civil action when the jurisdiction of the district court is based upon diversity of citizenship between the parties, the Rules Enabling Act (28 USC § 2072) allows service of process to be made in the manner prescribed by state law or that set forth in Rule 4(d)(1) of the Federal Rules of Civil Procedure?

ANALYSISFederal ruleFRCP 4(e)(2)

various delivery methods, including but not limited to personal serviceState lawPersonal service on df within 1 year SOLIs there a FRCP that governs this situation?/ \

YES NO FRCP 4(e)(2) Rules of Decision Act ( _RDA _) 28 U.S.C. § 1652 [aka: "True" Erie analysis]I |28 USC § 2072 Outcome determinative? (York)| - Forum shopping(1) Is the rule w/in REA? YES - Inequitable Administration(2) Does 2072(b) abridge, enlarge * when the PL is deciding whether to file in State or Fed Ct.or modify a State substantive right? NO * non-substantial, trivial variations.(3) Does the rule transgress other

constitutional bounds? If (1) YES, but if (2) NO; then apply Fed. Rule.

RULEIn a diversity action, federal courts are to determine adequacy of service under Rule 4(d)(1) of the Federal Rules of Civil Procedure.

HOLDINGThe Court stated that Rule 4(d)(1) was designed to govern service of process in diversity actions. In addition, Rule 4(d)(1) is in harmony with the Rules Enabling Act, since it is largely procedural in nature. Further, Rule 4(d)(1) applies to the matter before the court because it specifies the allowable method of service in a federal matter. As a result, the rule shall take precedence over any divergent state statute or rule, even if application of the rule will produce a different outcome than had the state rule been followed in the first instance.

 Hanna - Does federal rule answer question in dispute?

NO - Ginsburg YES - Scalia - DISSENT

§ 1652 - Rules of Decision Act § 2072 - Rules Enabling Act

No federal rule that answers question in dispute, no conflict 59 is not specific enough to govern Interpret FRCP w/ sensitivity to important

state interestReflection of fear of jury verdicts are unreasonably highNY purpose (substantive) to limit P's recovery

=> Changes name to Outcome-Affective TestTwin aims of Erie - to prevent:1. Forum shopping

Difference in federal and state law => rather go to federal court

2. Inequitable administration of law 

Procedural - R. 59 controlsDoesn't even reach Erie question

2 conflicting standardsScalia - not every ct uses "shocks the conscious standard" - not much of a diff b/t stds

 1st issue - Did 7th Amendment make it unconstitutional for AC to review? 7th Amendment, §2 - Re-Examination Clause

AC can review TC's denial of mtn but has to apply fed std => "abuse of discretion"Trying to avoid forum shoppingMakes difference if it had to go up onto appeal 

 Burlington Northern Railroad Co. v. Woods notecase P. 968

Fed. ruleFed. R. App. P. 38awards just damages and single or double costs if appeal was frivolous

State lawAla. mandatory affirmance penaltyawards 10% of amount of judgment ($300K) if appeal was frivolous

Conflict?Supr. Ct. holds that Fed rule allows for possibility of less than 10% penalty; whereas Ala. state law does notTHUS, the Fed. Rule controls.

 

Walker v. Armco Steel Corp. notecase P. 974Fed. rule

FRCP 3 (SOL tolled upon filing complaint)State law

SOL tolled upon service of process upon defendantANALYSIS

Is there a FRCP that covers this situation? (Hanna Analysis)/ \

YES NO FRCP 3 Rules of Decision Act ( _RDA _) 28 U.S.C. § 1652 [aka: "True" Erie analysis]I |

28 USC § 2072 Outcome determinative? (York) YES (see (3) in YES column)| - Forum shopping

(1) Is the rule w/in REA? YES - Inequitable Administration(2) Does 2072(b) abridge, enlarge * when the PL is deciding whether to file in State or Fed Ct.or modify a State substantive right? YES * non-substantial, trivial variations.(3) Does the rule transgress other constitutional bounds? YES. (Supr. Ct. holds FRCP 3 governs timing requirements, but does not affect state SOLs) If (1) YES, and if (2) YES; then GO TO NO and apply State law Stewart Organization, Inc. v. Ricoh Corp. notecase P. 966

Fed. rule28 U.S.C. 1404(a). Change of Venue. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

State lawunfavorable towards Forum selection clause

ANALYSISIs the statute sufficiently broad to control the issue before the court?1404(a) is sufficiently broad to control. The statute covers if the ct. finds the statute represents a "valid exercise of Congress' authority under the Constitution."

 THE PENDULUM SWINGS (A LITTLE)Gasperini (PL) v. Center for Humanities, Inc. (df) 1996 P 977

FACTSWilliam Gasperini (Petitioner), a journalist for CBS News and the Christian Science Monitor, reported events within Central America during a seven year period from 1984 through 1990. During this time, Petitioner took over five thousand slide transparencies of war zones, political leaders and daily life in Central America. In 1990, Petitioner agreed to supply his original transparencies to the Center for Humanities, Inc. (Respondent), for use in an educational video entitled "Conflict in Central America." Petitioner selected three hundred transparencies for use in making the video. However, despite the fact that the Respondent agreed to return the transparencies, when the project was complete, the transparencies could not be located. New York state law provides that appellate courts are empowered to review the size of jury verdicts and to order new trials when the jury's award deviates materially from what would be reasonable compensation. Alternatively, the Seventh Amendment provides that the right of trial by jury shall be preserved, and no fact tried by a jury, shall otherwise be re-examined in any court of the United StatesPetitioner filed suit in the United States District Court for the Southern District of New York, under diversity jurisdiction, alleging several state-law claims for relief, including breach of contract, conversion and negligence. After trial, the jury

awarded Petitioner, $450,000. The Respondent moved for a new trial, in part on the grounds of excessiveness in the jury award. The United States Court of Appeals for the Second Circuit vacated the jury award and ordered a new trial, unless Petitoner agreed to an award of $100,000.

ISSUEWhether New York state law regarding reasonable compensation can be given effect without detriment to the Seventh Amendment, in an action based on New York law, tried in federal court under diversity of citizenship jurisdiction.YES

RULEJust as the Erie principle precludes a federal court from giving a state-created claim longer life than the claim would have had in state court, so too does Erie preclude recovery in federal court, which is significantly larger than the recovery that would have been allowed in state court.

ANALYSISπ, seeking compensatory damages, was awarded $450K at trial by the jury∆ did not deny liability; moved for new trial, due to a verdict for excessive damages (Cf. Remittitur), under FRCP 59.Federal standard

Whether damages awarded by the jury would "shock the conscience" of the court

NY state standardWhether damages awarded by the jury "deviate materially" from what is considered "reasonable compensation"more stringent than federal standard = easier for ∆ to get remittitur

THEREFORE, does an FRCP apply/ govern/ or conflict directly with state law? Ginsberg, J. (MAJORITY)

There is NO substantive standard in FRCP 59.THUS, the court should use the standard set by the state on a procedural issue.

Scalia, J. (DISSENT)If there is a consistent federal interpretation of the state law, and Congress has not amended it, then it is presumed that Congress agrees to the standard set by the federal courts.

THUS, the federal standard of "shock the conscience" is implicit in FRCP 59.

 DOES AN FRCP APPLY/ GOVERN/ CONFLICT DIRECTLY WITH STATE LAW?/ \

YES NO Rules Enabling Act (REA) § 2072(b) Rules of Decision Act (RDA) § 1652 [aka: "True" Erie analysis]

 ( Scalia dissent) ( Ginsberg Majority )

1) Is the Rule w/in REA? "OUTCOME- AFFECTIVE"2) Does 2072(b) abridge, enlarge - without this test, a non-resident π would choose Federal court or modify a State substantive right? - prevents discrimination of in-state citizens by non-residents by forum shopping3) Does the Rule transgress other - same as "outcome determinative," but under a different name nowConstitutional bounds? - (Byrd, Erie, and York analysis)

NOTE: Supr. Ct. MAJORITY'S VIEW of preventing "abuse of discretion" by the Appellate Court:Appellate Court CANNOT review the standard set by Trial court's application of state law

Procedural ProgressionFederal District Court

in reviewing the jury's verdict, the court MUST apply the state statutory standard if the FRCP conflicts directly with itIn this case:

application of NY statutory standard creates award of damages that "deviate materially" from the FRCP broad standard

Federal Appellate CourtCANNOT review the jury verdict at trial, UNLESSThere has been an "abuse of discretion" by the trial court

What the hell is THE POINT?The outcome determinative test is still applied, but it's just called "outcome affective" now

Shady Grove Orthopedic Assoc. (PL/pet) v. Allstate Insurance Co. (df/resp) 2010 TWENISSUE

Does the Federal Rule at issue answer the question before the court?NOTE: Overriding issue in any Erie case28 U.S.C. § 1332. Diversity of citizenship; amount in controversy; costs

(d)(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which--

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

§ 1332 allows:a class action if there is MINIMUM DIVERSITY, and AIC of more than $5M∆ to remove a class action to Federal Ct.

CONFLICTState lawN.Y. Civ. Prac. Law § 901(b)

precludes a suit that seeks to recover a "penalty" from proceeding as a class action

Federal RuleFRCP 23. Class Actions.

defines the scope of class actions; BUT is it substantive?ANALYSIS

Trial and Appellate Courtsapplied § 901(b):

by not allowing case to proceed as a Class Action, PL claim had an AIC of about $500 (less than $5M required AIC)

Supreme Court5-4 MAJORITY:

allowed claim to proceed as a class action AND reaffirmed outcome-affective analysis in Gasperini (though not applicable here)

SPLIT b/w MAJORITY & DISSENT; Whether the FRCP answers the question before the court?

aka: Is the Fed Rule sufficiently broad to control the issue, thereby leaving NO ROOM for appllication of state law?

/ \YES NO

Rules Enabling Act (REA) § 2072(a) Rules of Decision Act (RDA) § 1652 [aka: "True" Erie analysis]

( Scalia, Stevens, Majority) ( Ginsberg dissent ) He collapses issue down to 2072(a) "OUTCOME- AFFECTIVE"- Whether the Fed. Rule: - without this test, a non-resident π would choose Federal court "REALLY REGULATES PROCEDURE” - prevents discr. of in-state citizens by non-residents by forum shopping Scalia basically ignores effect of 2072(b) - (Byrd, Erie, and York analysis)

What the hell is THE POINT?Same decision reached by Scalia's Majority and Stevens' concurrence. Scalia just had to apply his convoluted, clusterfuck analysis... fuck Scalia.IN EXAM ANALYSIS, MUST APPLY BOTH the 2072(a) ANALYSIS (HANNA) AND 2072(b) ANALYSIS (SHADY GROVE) underYES

NUTSHELLIf YES:

§ 2072 analysisHanna/ Shady Grove = Federal Rule (FRCP) will trump state law.

if NO:§ 1652 ("True" Erie) analysis

Byrd, Erie, and York = prevent FORUM-SHOPPING through OUTCOME-AFFECTIVE analysis

Progression of case law answering whether FRCP is sufficiently broad to control the issue 

Shady Grove - Does FRCP answer Q in dispute?

NO - Ginsburg (3 Justices)   YES - Scalia (5 Justices)

Asks is federal ruleOutcome-AffectiveIf P asked to choose, which would be chosen?Obviously fed ct bc it cannot be brought into state court↓State law applieso Looked at legislative

history - NY trying to reduce class action suits

o Rule 23 narrowly interpreted w/ sensitivity to state's attempt to reduce class actions

↓↓↓↓↓↓↓↓↓↓↓↓↓↓↓

Rule 23 governsSets criteria => certificationNo room for §901(b) as a precondition

Cohen case - 23.1Stockholder derivative suitDoesn't mention that bond must be postedNJ - stat - P to post

To prevent one stockholder to hold corp hostage

Forum shopping would result"Maintains" => option of PRule 23 govern

  Stevens thinks should be separate questionsStill room for application of §2072(b)

4 Justices - only Plurality <=Stevens drops outDoes it comply w/ REA § 2072?(a),(b) - both answered by Sibbach Scalia's dissent loses StevensIf "really regulates procedure" => w/in REA Fast track to apply federal rule

 Identify federal rule that should be applied

Fed "rule"If fed rule within federal Constitution - always trumps

Levels of hierarchy:o Fed Const > stateo Fed state passed directly by Congress > state

Same type of question begins analysis

If statute related to something procedural => Necessary and Proper clause3. Fed rule (i.e. FRCP/FRAP/FRBP) w/in delegation of authority of federal cts from

Constitution promulgated into FRCPYes - w/in §2072 => Constitutional

4. Federal practice, custom, not embodied in a rule/statute"True Erie" practice

i.e. York - custom of fed ct to apply Lachesi.e. Byrd case - general preference for factual questions to be answered by jury => fed practiceFed ct operates on calendar system

Once we decide fed ct will apply state lawIssue - What is that law? (not crystal clear)

  Does Federal law answer Q?

NO YES

Gasperini - FRCP 59 Shady Grove - FRCP 23

Ragan - FRCP 3 Hanna - FRCP 4(e)(2), now 4(d)

Cohen - FRCP 23.1 (then 23) Sibbach - FRCP 35

Erie - no fed C/L for torts Stewart - 28 USC §1404(a)

York - only fed "rule" was an equitable doctrine of laches

Burlington-Northern - FRAP 38

Byrd - only fed "rule" was practice of preferring juries to decide disputed fact issues

 

   ANALYSIS IN AN ERIE CASE1. Fed district ct - usually almost always diversity

FQ - 1. Fed statute 2. Supplemental jurisdiction - state law count

Case otherwise governed by state law, you're going to not both1. State law - oddball that doesn't apply but someone pops up and tries to apply it2. Fed law

Competing state and federal rules that aren't clearly substantive and clearly proceduralClearly subst => ErieClearly proc => FRCP

 Ragan p.937St rule - process served to stop S/L from running

P brought suit in time but didn't effectuate service on D in time before S/L ranP - FRCP Rule 4 governed, providing civil case initiated and caused S/L to stop runningD - state law

FRCP - Rule 3 - commence at filing of ctSC => Fed ct must go w/ state rule

Rule 3 doesn't cover issue, it's a housekeeping rule, doesn't mention S/L => § 1652Rule 3 didn't apply - mechanical hwo to start an action

Person who wants st ct wins 

 

Woods v. Interstate RealtySt - door closing statute - corp not registered to do business in state then don't have opportunity to bring case into fed ctFed - no such thing, anyone can sue=> different outcome => st rule applies Cohen v. Beneficial Life CaseCohen - stockholderDerviative action in NJ - like Shaffer v. Heitner

If you own one share, can file actionNJ - statutorily, shareholder who owns less than certain # of shares must post bond to bring derivative actionFed - Rule 23.1 - reqmts but doesn't req bondTEST

St => dism'd w/o bondFed => Ok

Different outcome => State law applies  Does FRCP cover this situation?

NO YES

§ 1652 - Rules of Decision Act § 2072 - Rules Enabling Act

Erie => RDA Didn't use bc FRCP didn't exist yet

Erie & York - Laches v. State C/L

 

Outcome Determinative Test - Guaranty Trust v. York1. Evaluate in terms of twin aims of Erie

1. Discouraging forum shopping2. Avoiding inequitable administration

of lawIf we apply fed rule instead of st law, would it substantially affect outcome of the case?

2. Focusing on substantial variation in federal and state law

3. Ct says let's look at choice of fed and state law ex ante (before it subsides), not ex poste (not after it has had its delegatory effect)

Would lack of fed law discriminate against party?

Byrd - countervailing federal considerationPrefer question of fact tried by jury

1. Does rule in question fall within § 2072? (Is REA sufficiently broad enough to include? Did SC go beyond its authority?)

Decides if rule falls within REA - whether it really regulates procedure

Sibbach - "really regulates procedure"The test must be whether a rule really regulates procedure,-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.  

2. Is rule in question constitutional?Falls within Necessary and Proper clause

FRCP never held to be outside of REA 

  Is there a federal statute or FRCP/FRAP, etc. that answers the question in dispute (i.e. conflicts) with state law such that both the fed and state law cannot be applied?

NO §1652 => stronger argument YES §2072

8(a)(3) too broad to govern↓

8(a)(3) 8(a)(3) - you only state demand for relief

"True Erie problem"

Outcome-Affective/ Determinative

15(a) PA stat - here's how you state demand for relief Still allows punitive but is directing Seemingly addressed to pleading

If fed ct were to apply fed rule instead of state, would P be more likely to choose fed ct over st ct bc outcome would be different? Twin aims of Erie to prevent: 1. Forum shopping 2. Inequitable administration of the law

26(b)(1)But doesn't really answer problem

Is 8(a)(3) within delegation of REA §2072? Does it "really regulate procedure"? Yes. Clearly procedural => pleading

If person w/ diversity of citizenship would they be unfairly discriminated bc they couldn't purposefully avail themselves to jurisdiction?

May be more than one fed rule that conflicts

Constitutional Test - Was rule w/in Congressional auth? Is rule rationally capable of being classified as procedural? Yes.

If fed ct were to apply 8(a)(3) v. tort reform statute, would P be more likely to choose fed over state bc outcome would be different? YES - less work

  §2072 is valid and can be applied=> conflicting state law trumped by fed law=> apply 8(a)(3)

=> Byrd - affirmative countervailing federal interest (some int that trumps Outcome-Determinative test)1. Gasperini - concern about

federal division of authority b/t fed district ct and Appellate level reviewing ability

2. Division b/t judge and jury3. Fed civil procedure should be

applied uniformly governing fed ct - basically REJ'D bc proves too much

   

Would it really change the outcome?No - you'll have the evidence eventuallyYes - punitive $ puts more weight to settle

   

  PRECLUSIVE EFFECTS ON JUDGMENTPreclusive Effects of Judgment COLLATERAL ESTOPPEL (Issue Preclusion)prohibits re-litigation of issues already decided in previous litigationbackup to res judicata

use when the claims are different, but the issues are the sameRES JUDICATA (Claim Preclusion)prohibits re-litigation of a claim already decided in previous litigationMerger

if PL wins: claim is said to be merged into the judgmentclaim is extinguished and replaced by judgment

Barif df wins: PL claim is barred by the adverse judgment

no further suit can be brought on that claimPRECLUSIVE EFFECTS OF JUDGMENT (MERGER AND BAR) APPLY ONLY WHEN:

1. The second claim is based on the same claim or cause of action, AND2. Parties to the suit are the same, or are in privity, AND3. Determination of the first action is a final, valid judgment "on the merits"

 RECURRING SITUATIONS1. Installment K2. Child custody - divorce

Dad => mtn to modify custodyNot barred by RJ bc claim not from the same transaction

New facts after divorce - not same claimChild custody ALWAYS subject to modification

3. Taxes - each year for tax returns is a separate transaction for res judicata  1. CLAIM PRECLUSION/ RES JUDICATA - go through first then issue preclusion

1. Elements in Restatement2. ELEMENTS

Usually applies to PCan happen with respect to DMerger - if P wins, can't come back and sue for more things under same claim

1. Two cases involving the same "claim" - § 24Transactional Test Don't want to split COA - modern trend: bring any and every theory in the same actionOperates as monolithic stone wall

Reqmt met => precludes you from claim you brought and also any theory you could've brought but didn't think so

Rules are liberal but once there is a judgment and time for appeal has passed, finality of the judgment and conservation and resources come into playDon't want to countenance equitable exceptions bc it would undercut res judicata

 Manego (PL) v. Orleans Board of Trade (df) 1985 P 1097

FACTSIn late 1978 and early 1979, Manego (Plaintiff) applied to the Orleans Board of Selectmen for entertainment and liquor licenses for a disco, which he wanted to build on a vacant lot. The lot was located in a commercial district a few hundred feet from an ice skating rink that was owned by Cape Cod Five Cents Savings Bank (Bank). The Bank opposed Plaintiff's application and, eventually, the Orleans Board of Selectmen denied Plaintiff's applications for both the liquor and amusement licenses. The Bank had plans of its own to offer live music, roller-skating, and dancing at the rink. Plaintiff brought a lawsuit in federal district court naming the Board of Selectmen, the Bank and David Willard (Willard), the vice president of the bank as Defendants, claiming they had conspired to deny him entertainment and liquor licenses because of his race. The district court dismissed the state law claims for failure to state a cause of action and granted the

Defendants' Motion for Summary Judgment as to the remaining claims.Plaintiff then brought another lawsuit, this time against the Bank, Willard and the Orleans Board of Trade alleged antitrust violations under the Sherman Antitrust Act. Willard and the Bank moved for summary judgment on the grounds that the new claims were barred by the doctrine of res judicata. The district court held that the facts forming Plaintiff's claim of antitrust violations were the same as those which formed the basis of his earlier civil rights claims and that they were, therefore, barred by the final judgment against Plaintiff on the civil rights claims.

RULEUnder the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. This bar is limited, however, to cases arising out of the same cause of action or claim.

ISSUEIs Plaintiff barred from bringing a second lawsuit involving some of the defendants in a prior action, when the claims are based upon the same facts as those that formed the basis for the first suit?

HOLDINGYes. Since each alleged conspiracy had the same practical end, keeping Plaintiff from operating the disco, and each used essentially the same means, denial of the licenses, the difference in motive for the conspiracy did not create separate transactions. As a result, Plaintiff's antitrust claim is barred by res judicata as to the Bank and Willard

ANALYSISSuit #1

π ∆s Claim Court Result Manego Bd. of Selectman/Willard/Bank racial discrim. Fed. Dist. Ct. ∆ granted summ judg due to πs lack of evidence" " " Fed. App. Ct. affirmed

Suit #2π ∆s Claim Court Result Manego Bd. of Trade/Willard/Bank violated Sherman Anti-Trust Fed. Dist. Ct. ∆ granted SJ due to res judicata (transactional) " " " Fed App. Ct. affirmed

The court adopted a transactional definition of the underlying claim or cause of action.

same evidence was used by the PL in both claims 

Choice of law issues can arise when in state courtSeparate claim if violation was of a separate rightState's choice of law has its own res judicataFederal ct follows Restatement => §§ 18-19

↓

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

1.   Manego Selectman Fed Racial   MSJ

BankWillard

discr under § 1981

granted to D

2.   Manego BankWillardTrade (claim against each D is separate)

Fed Sherman Act

Can join claims under 18(a)

   

  

 2. Parties to two suits are the same or in "privity" w/ a party from the former

suit1. If parties not same or in privity, NOT claim preclusion => issue

preclusion2. Rule 17(a). Real Party in Interest

(1) Designation in General.An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:

(A) an executor;(B) an administrator;(C) a guardian;(D) a bailee;(E) a trustee of an express trust;(F) a party with whom or in whose name a contract has been made for another's benefit; and(G) a party authorized by statute.

 Martino v. McDonald => §22

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

1.   McD Martino Fed Breach of franchise agrmt

  Consent judgment

2.   Martino McD Fed Anti-competitive of franchise agrmt violates anti-trust law

<= Sherman Act

 

 Consent judgment - b4 Martino answered, parties entered into consent judgment giving McD the right to take over

W/ ct's blessing of settlement agrmtIf violates, will be held in contempt of court order

 

Compulsory counterclaim - §22Should've brought claim in 1st case13(a) didn't apply13(a)(1) - if D goes and files answer

Martino never filed an answer => settled§22(2)(b) - ct blessed judgment that D violated agrmt

2nd suit would nullify 1st judgment HYPO

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

1.   McD Martino State Breach of franchise agrmt

  Jury trial, verdict for McD - judgment for P

2.   Martino McD Fed Personal injury to Martino by Mcd's thugs

   

 If state had no compulsory counterclaim rule, as long as state court followed C/L idea - nullifying rights on 1st actionII - no compulsory counterclaim

Will rights in 1st suit be impaired by 2nd suit? Martino allowed to proceed

  

3. First suit ended in a valid, final judgment on merits On merits other than issues i.e. jurisdiction - venue, personal jurisdiction, subj matter jurisdiction Rinehart v. Locke

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

I Rinehart Police officers

Fed 4th Amendment violation - no probably cause

  12(b)(6) based on failure to allege no probable cause => no appeal, no leave to amend

II Rinehart Police officers

       

 

 Rinehart - judgment on merits unless ct says otherwise - "w/o prejudice"

Rehnquist bars both fed and st claims on artful pleadingBlackman - gets it right - everything part of same claim whether or not it was explicitly mentioned1. Statement of res judicata wrong2. Overall holding proper - dind't pursue every avenue to obtain a

reversalExclusive - fed antitrust claims - state lawCan only be brought into fed ct if supplemental or diversityI. St - state claim

II. Fed - fed claimTechnically an exception w/ § 26(1)(c)

 Some courts will say should've filed in fed ct first but won't bar by res judicataFinal judgment on the merits?Semtek 41(b) 

iii. Full faith and credit clause embodies some of the choice of law doctrine1. Req one state ct give full faith and judgment to another st ct2. Along with that judgment of a aprticular state ct is wrapped up that state's RJ rules

iv. 1738 - enacted to tell fed cts to do the same thing when interpreting preclusive effect of st ct judgment1. Fed ct when being called upon to see an earlier st ct judgment precludes a judgment,

wil llook at preclusion law of that state2. Marese case - said that gen rule and a fed ct can never give a state ct judgment more

preclusive effect than the st ct itself could givea. If st itself would not cut off somebody, fed ct can'tb. Some situations, fed ct MAY give less than preclusive

i. Not sure when there is an EXC to 1738 but theoretically it's out therev. If first fed ct entered judgment, fed ct sitting in 1331 (fed Q) then fed ct gen follow Rest and

SC case law, normally dealing with Rest when fed ct judgment when case based on fed law arising under fed Q jur

vi. When sitting in div, tricky1. Semtek

Scalia => True Erie analysis bc 41(b) doesn't govern => Outcome Determinative Test All ct interpreting res judicata effect of fed ct judgment sitting in diversity must apply res judicata law of ct its sitting in

MD - supposed to look at CA lawSC => rem'd to MC ct to make proper analysis of st governing law of res judicata Byrd - consider whether major fed int might be impinged by state law

Ex - if fed ct sitting in diversity had dismissed caes against P or intered default judgment on discovery violation, in order to protect ct's integrity to protect against sanctions, might be able to fashion its own rules of fed C/L rule to of res judicata (possibility), otherwise look to fed ct which it sits

When you may be able to override scheme - akin to Byrd 

In GEN - ct later deciding preclusive effect of fed ct judmgent, will try to apply preclusion law of the state in which fed ct sati. Fed dist ct - DE - (div)

ii. State ct - MD (called upon to determine preclusive effect of judgment)

CT - in gen, st ct in MD would apply DE st law of preclusion to determine preclusive effect of that judgment

Even may not be complete endCould say state of De follows Rest of Judgment making its RJ decisions

Aware of complexity of systemRecognition as to WHY Restatement of Judgments is being applied rather than some other law of RJ 

 2. COLLATERAL ESTOPPEL/ ISSUE PRECLUSION

ELEMENTS1. Same issue in both cases2. Issue was actually litigated in first action3. Issue was actually decided in 1st action4. Issue was essential to the judgment in 1st action Handout

Prob Suit P(s) D(s) Court Claim(s) brought Issue(s) [for issue preclusion]

Result

1.   I Pond Drug Fed Goods sold Did orig party pay?

Judgment for P 

  II Drug Pond Fed Breach of warranty on same goods

   

               

§ 22 - Compulsory Counterclaim - fed ct => FRCP13(a) - Does claim arise out of same transaction or occurrence? YesDon't need to go further than claim preclusion => barred by claim preclusion

 

Prob Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

2.   I A E   Goods sold Jan 1

A fraud Judgment for P 

  II A E   Goods sold Jun 1

   

a. No - bc suit b/t Jan and Jun, not in the same claimb. Issue

1. Fraud in both2. Only defense3. Verdict for A - couldn't have found for A if ruled there was fraud4. Essential

c. Issue preclusion - Was it actually decided?Nothing in 1st suit about impossibility - NOT precluded

 

Prob Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

3a I A E Fed Installment K #1

S/F Judgment for D 

  II A E Fed Installment K #2

S/F  

3b I A E Fed Inst K #1 S/F Judgment for D

  II A E Fed Inst K #2 Mutual Mistake  

3c I A E Fed Inst K #1 S/F Gen Verdict for P

  II A E Fed Inst K #2 Mutual Mistake  

3d I A E Fed Inst K #1 S/F Gen verdict for D

  II A E Fed Inst K #2 Mutual Mistake  

a. S/F is a legal issueWouldn't have found for A if judge ruled unenforceable

b. Not decided in first case- not barred in 1st casec. Installment K - depends on when you bring suit

Can't raise - issue precluded - not enforceable 

AFFECTS ISSUE PRECLUSIONGENERAL VERDICT - doesn't explain reasoningHow do you know it was decided? Verdict for D - diff category for issue preclusion

P D

Offer/acc/cons S/F

Breach M/M

Damages  

 Verdict for P - by logic, P must prove factors and that D couldn’t proveVerdict for D - only has to disprove P's claims SPECIFIC VERDICT - certain key questions are asked of jury regarding liablityJury not coming out w/ bottom lineJudge takes specific verdict and enters gen verdict on spec verdict SPECIFIC w/ InterrogatoriesSee reasoning more in-depth

a. Barred - jury must've found in favor for DMore hairy when verdict for D

 

Prob Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

d.   I A E No CC P.I for A E neg? For E 

  II E A   P.I for E A neg?  

Contributory negligenceClaim is really diff - not same claimIssueRestatement Commentary - same issue given an ultimate meaning?Was E negligent? Judge could've found ofr E bc he wasn’t neg or A wasDon't know if actually decided => § 29  Hardy v. John-Mansville

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

I Borel 6 mfr [JM] Fed P.I asbesthos   Judgment for P 

II Hardy Same D (not all) [JM]

       

 New P trying to sue D for same claims as old P2nd suit incl same D but not all

If w/in new D #7, #7 cannot be collaterally estopped bc it would violate due process IssueCT => jury must've found that products were unreas dangerous, therefore duty to warnJury not specific about when mfr knew prod dangerous and when there was duty to warnIssue preclusion NOT allowed Sunnen - BOTH Claim AND Issue Preclusion IssuesTried to assign income to wife while still having control over her accts

Suit P(s) D(s) Issue(s) [for issue preclusion]

Result

I IRS Sunnen 1928 K: tax ability of income payments 1928-31

Judgment for DSunnen wins, makes other similar Ks like the 1928 K

II IRS Sunnen 1. 1928 K: payments after 1931

2. Payments under, after 1928

<= seems like it should be barred by claim preclusion

 Claim PreclusionEach year, tax obligations1. @ time IRS brought suit, IRS couldn't raise bc in future2. Every tax year is a separate claim even if exactly the same circumstances

NO claim preclusion => Issue PreclusionCT rejects - IRS not barred as to issue preclusion(2) ct relies on formality

K after 1928 similar but it was diff - same issue

Not determinedRemoves issue preclusion to (2)

(1) problematicEssential issue - Did Mrs. Sunnen's assignment of income constitute a violation?EXC to normal operation of issue preclusion

CT - as time goes on, change in substantial law, unfair to other taxpayers that Sunnen enjoys tax benefit

Disparty b/t Sunnen and other taxpayersRest => Exc under §22(2)

Although issue litigated and determined, re-litigation in subseq act…1. Legal issue as matter of law - not reqmt that it'd be an issue of fact, can be issue of law2. 2 actions involved 2 claims substantially related3. To avoid inequitable administration of law

  

Was issue essential to judgment?Judgment for D issued(separate but equal)1. P contri neg <= essential to judgment in 2nd suit?

Rest => Neither finding essential to judgmentOther courts disregard and consider both essential, therefore, either barred

2. D not eng  

PRIVITY - legal relationship that provides that another person is considered same partyi. Applies in issue and claim

Little v. Blue Goose

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

I BG Dr Justice of Peace

Bus damages

Neg Judgment for BG of $139 

II DR BG City ct Pers injury    

 BG => barred from res judicataWhy doesn't § 22 bar frm 2nd suit bc its counterclaim?

Case in Justice of Peace, no rule for CCPossible limit on subj matt jurRule of ct prob prevents

 Claim preclusion => privity - legal relationship

Mrs if Dr's executrixBG => issue preclusion

 Defensei. Dr was neg

ii. BG not negImplicit in 1st suit serves to decide neg

Contr neg defense not available to willful negNecessary to make proof of willful neg Harsh operation - could've appealed => barred in 2nd suit

ii. Taylor v Sturgell1. Situation where ct upheld privity where party bound to judgment of another2. Rejected virtual rep - amorphous concept

iii. Should know law NOT in Restatement Taylor v. Sturgell - wanted specs submitted to FAA and wanted to refurbish old plane to fly

Suit P(s) D(s) Court Claim(s) brought Issue(s) [for issue preclusion]

Result

I Herrick FAA 4. Wyo FOIA - fed statute Is it trade secret?

SJ for FAA - Trade secret exc properly appliedAC => aff'd 

II Taylor (Pres of org)

FAA 4. D.Ct FOIA allows going to TC for review of agency holding

  D.ct => barred by claim preclusion

 Tc relied on Doctrine of Virtual RepresentationLike Hansbury v. LeeFundamental idea - each have right to day in ct

EXC develoepd - Rest beyond § 42 VIRTUAL REPRESENTATION - SC not willing to go off of 6 broad categories to due process rule1. “[a] person who agrees to be bound by the determination of issues in an action between

others is bound in accordance with the terms of his agreement.”  dismissing certain defendants from a suit based on a stipulation “that each of said defendants ... will be bound by a final judgment of this Court” on a specified issue

Agree whatever judgment in test casesBinding on everyone else under issue preclusion

2. nonparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§ 43-44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.”

May be subst legal relationshipProp relationships tend to fall within this section

3. we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit.   (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, and suits brought by   trustees, guardians, and other fiduciaries

Nonparty bound by judgment bc adequate rep - on behalf of stronger person§42 - trustee, lawyer, executor, guardianship, conservator (legal relationships)§23 - rep of a class who is deisnged

4. a nonparty is bound by a judgment if she “assume[d] control” over the litigation in which that judgment was rendered. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation.

If she assumed control over litigation in which judgment is rendered

Montana v. UsUS req'd Kor to sue Montana and lostThen US tried to bring suit in its own nameSC barred bc "technically" had its day in court

5. a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment.

Relitgating by party6. in certain circumstances a special statutory scheme may “expressly foreclos[e] successive

litigation by nonlitigants ... if the scheme is otherwise consistent with due process.”   Examples of such schemes include bankruptcy and probate proceedings, and   quo warranto   actions or other suits that, “under [the governing] law, [may] be brought only on behalf of the public at large,”

Stat schemeEx - bankruptcyCt takes debtor's assets and discharges

 GINSBURG - doesn't think there needs to be 7th exc

=> RJ bc it avoids unnecessary litigationRules out based on parties' concessions, 4/6 has no grounds

2nd suit - Was Taylor adequately represented in Herrick's case? ADEQUATE REPRESENTATION1. Interest of nonparty and so-called rep aligned AND

Ex. Where this isn't met => HansberyHerrick and Taylor's interests aligned

2. (a) special procedures in 1st case that there were employed to protect interests of nonparties; OR

(b) parties in 1st suit understand they are acting of representative capacity of unnamed parties AND

3. Non party has to have rec'd notice of 1st suit (Ct never addressed) Notice of 1st suit in damages claim only in 23(b)(3)

 23(b)(1)-(2) - not absolute, req'd in case of due processCT rej adequate rep as applied to Taylor

Only exc to due process => precluded bc nonparty brought suit prior to adjudicationCT rem'd to lower ct - Did Herrick get Taylor to act as agent

a. 1179 The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion described in this opinion  Fed Q suit decided by fed ctRJ developed by C/L of Fed Sc Richards v. Jefferson Cty

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

I Bedingfield+ cty taxpayers

Jefferson Cty

AL state

Enjoin occupational

AL constitution For D, tax upheld

tax  

II Richards + non-fed employees

Jefferson Cty

AL state

Enjoin occupational tax

Fed and AL constitution

 

 SC = no indication that 1st P acting in rep capacity and 2nd P had no notice of 1st suit=> violation of due process to bind to judgment of 1st suit  

MUTUALITY - when you do not have privityParties not in privityIf in privity, same person even though 2 diff entities=> Mutuality of PreclusionOnly applies to issue preclusionParklane - propriety of use of offensive collateral estoppel MUTUALITY OF ESTOPPELAssumed parties are the sameNow, diff party involved against 1 common party

If enough of a relationship, then maybe diff party subject to preclusionIf not, due process consideration and binding to prior judgment is a possible due process violation 

NON-MUTUALITY FOUR EXHAUSTIVE SITUATIONS where you can see non-mutuality of parties Situation A

Suit P(s) D(s) Court Claim(s) brought

Issue(s) [for issue preclusion]

Result

I P1↕ not same

D   Same Same Judgment for DP1 loses

II P2 D   Same Same Due process violation to prclude P1 unless exceptions in Sturgell met

 Assume all elements of claim/ issue preclusion have been metD will try to argue P2 barredGen Rule - If hold P2 to adverse judgment to P1, due process violation if bound since not named=> 6 exceptions Currie Ex

P-1 v. Train P-1 loses

P-2 P-2 loses

P-3 P-3 loses

….  

P-25 v. Train Judgment for P-25

P-26….  

P-50  

 Unfairness f resultCan collaterally estopp from litigating against claim for negligence IRS

P-1 v. IRSTax that P-1 argues is illegal

P-1 wins - tax illegal

P-2 v. IRS  

Same issue, D should be estopped from relitigatingConsideration - legal environment is changing, govt has duty to act in public's best interest, if new P allowed to use against govt, govt would have to appeal every decision - too much pressure

Offensive estoppel not going to happen against US govtUS v. Mendoza - INS

 

Problems Suit P(s) D(s) Court Issue(s) [for issue preclusion]

Result

1-2 I Pia 

Dart WCC Is Pia C/L wife? Judgment for D-Dart 

  II Pia Truck Fed Same  

             

3 I Pia Dart Fed a. C/L wife?b. Dart neg?

Gen verdict for Dart - could've won under either grounds so don't know which issue was decided

  II Pia Truck   C/L wife  

             

4 I Pia Dart↕

Fed 1. C/L wife?2. Dart neg?

Gen verdict for Pia

  II Pia Truck   C/L wife  

             

5-6 I Pia Dart Fed   Gen verdict for Pia

  II Ryan Dart      

 Reasoning for Parklane applies to both defensive and offensive estoppel - EXC in § 28