Civil Procedure 6th Ed., 2004 - Yeazell - Prof. Jerry Kang

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    School: Georgetown University Law Center

    Course: Civil Procedure

    Year: Spring, 2005

    Professor: Jerry Kang thText: Civil Procedure (6 Ed., 2004) Text Authors: Yeazell


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    I. Personal Jurisdiction (PJ)In what states can the π sue the Δ?

    A. In personam—power over the Δ herself

    i. General: Δ can be sued in that forum on a claim that arose anywhere in the


    1. If the Δ has continuous and systematic or substantial ties with the forum

    that Δ is subject to general jurisdiction

    a. Domicile in the forum

    b. Corporation is incorporated in the forum

    ii. Specific: the Δ is being sued on a claim that arises from activities in the forum

    1. discreet and insular contact (car accident)claim arises out of and

    related to the contact with the forum

Coastal Video Communications v. Starwell (1999): copyright infringement; Δ based in CA but sold

    videos and advertised in VA; copyright violation did not arise out of contact with VAis there specific or general jurisdiction in VA? Court says it needs more information about the extent of the Δ’s contact with the forum state in order to determine whether they are subject to general or specific jurisdiction.

    iii. Constitutional test:

Pennoyer v. Neff (1877): the state has power over people and property inside its boundaries; very

    physical determination; gives us the traditional basis of in personam jurisdiction

    1. Traditional bases of in personam PJ:

    a. Presence: If the Δ is served with process in the forum it gives the

    forum general in personam jurisdiction

    b. Agent: Service of process on the Δ’s agent in the forum creates

    general jurisdiction

    c. Domicile: Δ is domiciled in the forum gives general jursidiction

    d. Consent: Δ consents to specific jurisdiction

Carnival Cruise Lines, Inc. v. Shute (1991): adhesion contract term requiring passengers to consent

    to suit in FL; court held that you can waive your constitutional protections and that minimum contacts are not necessary when there is consent; efficiency argument to prevent cruise line from

    defending in whatever state passengers are from (cost passed on to consumer)


    i. In terms of fairness the cruise line is better able to afford distant defense

    ii. Purposeful availmentdid the cruise line advertise in the Δ’s home state?

    iii. Unconscionabilityunequal bargaining power in adhesion contracts

    2. ―Minimum Contacts‖ and ―Traditional Notions of Fair Play‖

International Shoe Co. v. Washington (1945): company based in St. Louis had salesmen in

    Washington and Washington wanted a contribution from corporation to state unemployment fund; Page 2 of 35

    company claimed no personal jurisdiction; SC found personal jurisdiction over non-resident corporate Δ where the Δ has ―such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice‖. Factors in assessing minimum contacts:

    1. presence in the state

    2. systematic and continuous activities within the state

    3. enjoys the benefits and protections of state laws

    4. whether it is reasonable to expect the Δ to defend itself in that state

    a. More flexible than Pennoyer

    b. It is clear that you can serve process outside the forum state so

    long as he has such minimum contacts… etc.

    c. Two part assessment (1) contacts (2) fairness

    d. Did not overrule Pennoyer—test if the Δ is not present in the

    forum (implying that presence in the forum when served is still


    3. ―Relatedness‖ and ―Purposeful Availment‖ (sufficiency of contacts)

    a. Π’s claim was related to contact with forum (contacts create

    specific jurisdiction)

McGee v. International Life (1957): TX insurance company sued in CA; only had one contract in

    CA but the court said that was enough because (1) Δ solicited that business (2) court noticed that the

    π’s claim arose from the Δ’s contact with the forum, call ―relatedness‖ (3) state’s interest in

    protecting its citizens from out of state companies

    b. Π’s contact with forum must be purposeful availment of the


    Hanson v. Denckle (1958): PA woman has a trust fund with a DE bank before she moves to FL; she dies and the question is, does FL have jurisdiction over that DE bank? NObecause that bank had no relevant contact with FL; contact must result from Δ’s ―purposeful availment‖ of that forum and not based on unilateral action of a party

    4. ―Foreseeability‖

    a. A π has purposefully availed himself of a forum when it is

    foreseeable that he could be haled into court there as a result

    of the contact.

    Worldwide Volkswagen v. Woodson (1980): family lives in NY and is moving to AZ; they buy a car in NY, got in accident in OK that car was defective; there was jurisdiction over Volkswagen

    nationally but is there jurisdiction in OK over the regional distributor and the NY retailer?NO; because there is no relevant contact or ―purposeful availment‖ because the Δ’s took the car to OK

    i. Isn’t is foreseeable that the car would get to OK? Court

    says foreseeability is relevant but only foreseeability that

    the Δ could get sued in that forum. Page 3 of 35

Asahi Metal Industry v. Superior Court (1987): victim of motorcycle accident brought suit in CA

    court against Taiwanese tire-tube maker who cross-claimed against a Japanese manufacturer of the

    tube valve assembly. When a company puts a product into the stream of commerce with the expectation that it will reach the forum state are minimum contacts satisfied? no majority opinion so two theories emerge

    ? O’Connor approach (decision): We need more than just a reasonable anticipation that a

    product will reach the forum state; we need that plus the intent to serve the forum state

    (advertise, customer phone line, distributors)

    ? Brennan approach: It is a contact if you put the product in the stream and could reasonably

    anticipate that it would get to a state

    5. The ―effect‖ test:

    a. Jones v. Calder (1984): you don’t have to actually step into the

    forum if you can reasonably expect to have an effect in the

    forum which would expose you to lawsuit (defamation in


Pavlovich v. Superior Court (2002): website gave info to decrypt data stored on DVDs to permit

    copying copyrighted materials; (limiting Calder) a passive website that only makes information

    available is not grounds for personal jurisdiction even if harm in the forum is foreseeable; exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information.

    6. The Fairness requirement of Due Process

    a. High burden placed on Δ to show forum is unfair

Burger King Corp. v. Rudzewicz (1985): two franchisees of a BK store in MI are sued for breaching

    the franchise agreement in FL; Δs claim it is too burdensome to defend in FL and it violates due

    process; court says there is jurisdiction in FL because the Δs should have anticipated when they

    entered into the franchise agreement that they would have to defend in FL. Factors: (1) convenience to Δ (2) effective relief for π (3) forum state interest (4) sister state interest (5) efficiency

    i. There are two parts to International Shoe test (1) contact

    (2) fairness

    ii. You must have a relevant contact before we even are

    concerned with fairness

    iii. The burden is on the Δ to show that the forum is

    unconstitutionally unfair and it’s a high burden—so

    gravely inconvenient that you are at a severe

    disadvantage in the litigation (due process does not

    promise the most convenient forum)

    7. Reaffirming Pennoyer

    Burnham v. Superior Court (1990): NJ Δ sued in CA on a claim that arose in NJ (general jurisdiction); Δ served while in the state of CA briefly; does CA have general jurisdiction? Questions Page 4 of 35

whether presence when served is still enough or do we need minimum contacts? All agreed CA had

    general jurisdiction but no majority reasoning.

    ? Scalia approach (decision): presence when you’re served is enough by itself based on

    historical pedigree of Pennoyer

    ? Brennan approach: we need minimum contactsfinds minimum contacts because he was in

    CA and while he was there he purposefully availed himself of the services of the state

     --dangerously broad!! What if I mail you a letter, have I availed myself of the postal

     system? Better to keep to strict physical presence standard than lower the standard for

     minimum contacts.

    iv. Statutory Inquirywe only get to exercise PJ if a statute that allows it;

    1. every state has a series of statutes about PJ (all have Pennoyer traditional


    2. Long-Arm Statutestwo types

    a. Californiawe have jurisdiction to the full extent of the


    b. Laundry list statute—various things the Δ can do in the state that

    subject Δ to jurisdiction

    i. Language varies from state to state (any business v.

    substantial business)

    ii. Same language can be interpreted in different ways (i.e.,

    ―tortious act‖—IL reads that to be the location of the

    injury; NY reads it to mean the Δ must act in the state)

    Gibbons v. Brown (1998): car accident from bad directions; π sought to assert jurisdiction over non-resident Δ on the grounds that the Δ had filed a lawsuit in the forum two years earlier stemming from the same incident (π was not a party to that suit); FL long arm-statute permitted jurisdiction over

    those “engaged in substantial and not isolated activity” within the state. Held, bringing an action in the state two years earlier does not qualify as substantial activity, no personal jurisdiction.

    v. Analytical Framework

    1. Does the long arm statute allow personal jurisdiction? If yes ->

    2. Do traditional bases apply? (presence, agent, consent, domicile)those

    may be enough by themselves under 4 justices in Burnham; but maybe

    we need some more per the other 4 justices

    3. Minimum contacts?

    a. Relevant contact between the Δ and the forum

    i. purposeful availment

    ii. relatedness—does this claim arise from the Δ’s contact

    with the forum?

    b. Traditional notions of fair play and substantial justice

    i. foreseeable that the Δ could get sued in that forum

    ii. Fairnessburden on the Δ to show that it is

    unconstitutionally unfair (severe disadvantage in the

    litigation) Page 5 of 35

    iii. State’s interest (McGee)does the forum have some

    interest in allowing the litigation?

    iv. Π’s interest (not often discussed)

    v. Legal system’s interest in efficiency

    vi. Interstate interest in shared policies

    B. In Rem Jurisdiction—power over Δ’s property (specific jurisdiction)

    i. Statutory Inquiryattachment statute requires attachment at the outset of the


    1. common law attachment standard from Pennoyer

    ii. Constitutionality

Shaffer v. Heitner (1977): where there is property in the state that serves as a basis for jurisdiction

    but is unrelated to the cause of action, there must be sufficient minimum contacts with the state

    to support jurisdiction over the Δ. [neither the ownership of shares of stock of a corporation located

    in the forum state nor holding a position as a director of the corporation is sufficient minimum contacts

    to support personal jurisdiction over individual Δs]

    1. In many states it is statutorily mandated that being the director of a

    corporation registered in that state submits those directors to personal

    jurisdiction in the state

    2. This holding made quasi in rem insufficient and incorporated pure in

    rem on the presumption that there’s always contact between the owner

    and the property and the property is within the forum state.

    3. Property in a forum may still suffice to create general in personam

    jurisdiction under minimum contacts assessment.

HYPO: π lives in Washington and drives down to Oregon to drive around. Goes to a clock shop and

    buys a clock. Takes it home to Washington state where he is injured by the clock. Can we sue the

    Oregon clock maker in Washington?

    ? Personal Jurisdiction

    o Is there a Washington statute?

    ? Traditional basis statute won’t work here

    ? Long Arm statute?suppose it says that Washington has jurisdiction over

    non-residents who commit a tortious act in Washington

    ? Illinois ruleyes there was a tortious act in WA because π was injured

    in Washington

    ? NY Ruleno because there was no tortious act in WA; if there was

    negligence it’s where the clock was made in OR

    o Constitutional validity?

    ? No traditional Pennoyer basis (presence, consent, domicile)

    ? Contact?

    ? Purposeful availmentclock got into WA because of a unilateral act

    of a third party (like in Volkswagen); but what if the shop is on the

    interstate highway two miles from the border or Δ advertises in WA

    (like in McGee)

    ? Foreseeabilityagain an issue of the facts Page 6 of 35

    ? Fairness

    ? Relatedness(usually required by long arm statutes)

    ? Burden on Δthese are neighboring states, he went there already, this

    is not a severe burden

    ? State interest in protecting citizens from defective products from other


    II. Notice

    A. Service of ProcessRule 4

    i. Process consists of summons and a copy of the complaint

    ii. Service can be made by any nonparty who is at least age 18

    iii. How do we serve an individual?

    1. Rule 4(e)(1)incorporates state law; federal court incorporates methods

    for serving process allowed by the state in which the federal court sits or

    the state in which service is actually effected

    2. Rule 4(e)(2)

    a. Personal service—hand the process to the Δ anywhere in the state

    b. Substituted service—at the Δ’s usual abode and you must serve

    someone of suitable age and discretion who resides there

    c. Agent—You can serve the Δ’s agent

    iv. How do we serve a corporation? Rule 4(h)

    1. serve an officer or a managing or general agent (someone with enough

    responsibility to be considered reliable for passing along important


    v. Waiver of service by mailRule 4(d)

    1. does NOT allow service of process by mail (only allows service by mail

    if states rule is incorporated under 4(e)(1))

    2. if Δ does not return waiver form then she will be formally served and she

    may have to pay for service

    vi. Geographic LimitationsRule 4(k)(1)(a)we can serve process throughout the

    state in which our federal court sits but we can serve process out of state only if

    a state court in this state could do so (such as long arm statutes); Exceptions:

    1. federal statutes allows for nationwide service of process for federal

    courts 4(k)(1)(c) and (d)

    2. Bulge rule4(k)(1)(b)a federal court can serve outside the state in

    which it sits within 100 miles of where it sits; does NOT apply to

    original Δs only to parties being joined later in the case under Rule 14 or

    Rule 19

    B. Constitutional standard for notice

    i. Due process requires that notice be provided prior to the deprivation of life,

    liberty or property by adjudication.

    Mullane v. Central Hanover Bank (1950): pooled trust funds and notice of terminated right to suit for

    mismanagement published in newspaper. Held, due process requires notice must be “reasonably

    calculated under the circumstances to apprise the Δ of the suit and provide an opportunity to be

    heard; it would not have burdened the trust to mail individual notices because they knew of the Page 7 of 35

location of the beneficiaries.

    ii. Constructive notice (publication notice): giving notice to people in the

    newspaper; in most instances it is not good because it will not satisfy Mullane;

    however Mullane addresses ―all the circumstances‖ and permits publication

    notice where beneficiaries of a trust could not be identified/ located

III. Subject Matter Jurisdiction (SMJ): does this claim belong in state or federal court?

    A. Concurrent jurisdictioncases arising under federal law can be brought either in state

    or federal court

    B. Exclusive JurisdictionCongress has made federal court the exclusive forum for

    certain actions such as bankruptcy and antitrust cases

    C. Diversity of Citizenship28 USC ? 1332(a)(1) creates federal court jurisdiction

    over ―controversies between citizens of different states‖ and citizens of a state and

    foreign citizens (codifies Art III ? 2)

    i. Citizens of different states

    1. Complete diversity rulethere is no diversity if any π is a citizen of

    the same state as any Δ (Strawbridge v. Curtiss)

    2. Citizenship

    a. US citizens are citizens in the state of their domicile (only one

    domicile at a time, everyone has one, retain old domicile until

    you get a new one)

    i. Presence in the state

    ii. Intent to make that state your permanent home

Hawkins v. Masters Farms (2003): π is KS, π lived in MO, driver's license, title, license, and insurance

    for car, pay checks sent, lives in KS with wife and possible plan to move to MO - Δ is KS

    b. Foreign Citizens:

    i. 28 USC ? 1332(a) was amended in 1988 to provide that

    an alien admitted to the US for permanent residence is

    deemed a citizen of the state in which he is domiciled.

    Saddeh v. Farouki (1997): the 1988 amendment does not extend diversity jurisdiction over an alien and another alien who has permanent residence status in the US; amendment to ? 1332(a)(5) was meant to exclude diversity between alien resident and citizen in same state, not create jurisdiction for two non-

    citizen parties.

    ii. US citizens who reside in foreign countries may not claim

    diversity jurisdiction.

Redner v. Sanders (2000): US citizen may not claim diversity jurisdiction as a citizen of a foreign

    state; ? is a US citizen residing in France, ?s NY - US citizen with foreign residence cannot claim diversity jurisdiction as a citizen of a foreign state (needed to allege facts to support CA domicile) -

    (a)(2 Page 8 of 35

    c. Citizenship of a corporation: defined by statute ? 1332(c)(1)

    i. All states where it is incorporated

    ii. One state where it has principle place of business (only

    one principle place of business)

    1. nerve centerexecutive center of the corporation

    2. muscle centerwhere most activities are


    3. total activities testuse the nerve center unless all

    corporate activity is in a single state

    ii. Amount in Controversy? 1332(a)(1)

    1. amount must exceed $75,000 not counting interest and costs (must be

    $75,000.01)does include punitive damages

    2. Courts view the allegations in the pleading as controlling and do not

    speculate about the likelihood of π collecting what is asked for; must

    appear to legal certainty that claim is for less than statutory amount

    to dismiss. St. Paul Mercury Indemnity v. Red Cab Co.

    a. π’s ultimate recovery is irrelevant to jurisdiction—? 1332(b) may

    have to pick up the other side’s costs if the judgment is under


    3. Aggregationadding two or more claims to exceed amount in


    a. Aggregate claims if it is one π versus one Δ (even for unrelated


    i. But NOT if there are multiple parties on either side

    b. Mutiple Δs with a common interest or single title/ right are

    aggregated (total value of interest in the amount in controversy)

    4. Counterclaims:

    a. Compulsory—may be heard regardless of amount when πs claims

    meets statutory requirement

    b. Permissiverequires independent basis for jurisdiction

    (supplemental under ? 1367)

    D. Federal Question? 1331

    i. Case must ―arise under federal law‖ (federal statute or Const. claim)

    1. Well Pleaded Complaint Rule

    a. look only at the Complaint

    b. it is the π’s claim that must arise under federal law

    Lousiville Nashville v. Motley (1908): husband and wife settled for lifetime passes on the RR;

    Congress passes a statute that says RR cannot give lifetime passes (federal law); they said the fed rule

    the RR will assert does not apply to them; are the Motley’s enforcing a federal right? Notheir claim

    is simply breach of contract, the federal issue is an anticipated defense; Alleging that a defense will

    be based on federal law is not sufficient to raise a federal question

    2. Federalizing Warp‖—question that arises under state law but contains

    federal interest or turns on interpretation of federal law may be allowed

    in federal court. Page 9 of 35

    a. Declaratory judgment—federal courts can hear cases where a Δ

    seeks a declaration of rights

    i. If the parties were reversed and the π had made that claim,

    would a federal question arise?

    E. Supplemental Jurisdiction? 1367when a federal court has proper original

    jurisdiction over a claim, it may hear all other claims that form part of the same ―case

    or controversy‖ including cases involving joinder or intervention.

    i. Federal claim must support federal question jurisdiction

    ii. Federal and non-federal claims must arise from the same nucleus of operative

    facts such that they can be tried in one proceeding.

    United Mine Workers v. Gibbs ( ): π is a citizen of TN; Δ is a citizen of TN; π has two claims against

    the same Δ one is FQ the second is a state law claim

    ? Claim #1 is a federal question (qualifies for federal court) ? Claim #2 does not invoke federal question because it’s based on state law and no diversity

    ? Supreme Court said federal court can hear Claim #2 because it has supplemental jurisdiction

    (pendant) over that claim because it ―shares a common nucleus of operative fact‖ with Claim

    #1 (similar to ―same transaction or occurrence‖)

    iii. Discretionary factors:

    1. Issue of state law predominates over issue of federal law

    2. Judicial economy and fairness to the litigants (prejudicial)

    Jin v. Ministry of State Security (2003): federal RICO claim and state defamation claim (no diversity

    b/c foreign on both sides) - share a common nucleus of operative facts, supported by judicial

    economy, convenience and fairness

    iv. TEST: when we see a non-federal claim

    1. Does ? 1367(a) grant supplemental jurisdiction? Yesif it meets the

    Gibbs test of ―common nucleus of operative fact‖

    2. Does ? 1367(b) remove supplemental jurisdiction?

    a. if original jurisdiction is based on diversity: no supplemental

    jurisdiction over claims by π against persons made parties under

    14, 19, 20, or 24

    F. Removal—a Δ in state court can have the case transferred to federal court

    i. ? 1441 :

    1. (a) Δ can remove to the district court in which the action is pending

    2. (b) Δ may remove regardless of diversity if there is a federal question;

    but not if the case is filed in the state in which they are domiciled

    3. (c) Dist court has discretion to hear or refuse to hear removal claims

    brought under supplemental jurisdiction

    ii. ? 1446 :

    iii. ? 1447 :

    1. (c) motion to remand must be filed within 30 days except if its because

    of lack of SMJ which can be remanded any time

    2. (d) remand order is not reviewable by appellate court Page 10 of 35

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