7867 Henning Civil Procedure I Fall 2014

Downloaded From OutlineDepot.com Henning Civil Procedure I Fall 2014 Purple=Key Topics Green=Arguments, Policy, and Rules Pink=Cases Blue= Hypo's/Questions Blue= Key terms Orange= Elements

Red= Federal Rules D= Defendant argument Pros/P= Plaintiff argument Court= Court argument J= Jurisdiction COA=Cause of action

Personal Jurisdiction (PJ): Direct attack: The d challenges the Forum Court's jurisdiction at the outset of the litigation; in federal courts, through either an answer or motion to dismiss, whichever the D files first. State courts traditionally have required the D to make a special appearance (CA motion to quash service of summons) which is limited to challenging jurisdiction. In federal courts, if the trial court finds jurisdiction, the D must wait until there is a final judgment to appeal the trial court's ruling. In contract, some states courts allow the D immediate appellate review. For example, in CA, the D may petition an appellate court for review i.e. a write of mandate. Collateral attack: The out-of-state D ignores the litigation, enabling the P to obtain a default judgment since the D doesn't answer the complaint. If in a subsequent proceeding, the P attempts to execute upon the default judgment, the D may attack it as void for lack of jurisdiction. Or, the D can initiate a new lawsuit arguing as in Neff that the underlying lawsuit is void for lack of jurisdiction. It is risky not to fight the case and to allow default judgments because the D may be stuck with the first judgment without an ability to argue the original suits meritorrial defenses. Appearance: 1. A party’s voluntary appearance in an action is sufficient by itself to support jurisdiction 2. A Special Appearance is when a party objects to personal jurisdiction being exercised and makes an appearance raising only jurisdictional issues. If the party raises other issues their appearance may then be considered general and they may have consented to jurisdiction In rem: A court's jurisdiction extends only over the particular property attached. The proceeding decides ownership of the attached property as to the world. Examples Include a condemnation action brought by a government entity asserting superior title as to anyone who may have an interest in the property sought to be condemned or a civil forfeiture action brought by a government entity. Quasi-in-rem 1: Title to the attached property is at issue, but the dispute is between indentified litigants with claims to the property (ex): A foreclosure proceeding in which a bank which made a load on the property and the debtor who is delinquent in making mortgage payments to the bank. Note: Instead of bringing a quasi-in-rem 1 action and attaching the property the band could sue the debtor in personam for the amount of the unpaid debt. 1

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Quasi-in-rem II: The non-residents property within the forum state is attached as a means for the forum state to exercise jurisdiction. Any judgment the p obtains is limited to the attached property. In Personam Jurisdiction: A court's jurisdiction is over a person (an individual or a corporation). The judgment is not limited by the value of any property. The p may execute an in personam judgment against any or all of the D's assets until the amount of the judgment is satisfied. Permits a court to enter a judgment that is personally binding on the defendant, usually equitable relief, injunctive relief, or legal relief. Pennoyer v Neff: Facts: Mitchell brought suit against Neff to recover unpaid legal fees. Mitchell published notice of the lawsuit in an Oregon newspaper but did not serve Neff personally. Neff failed to appear and a default judgment was entered against him. To satisfy the judgment Mitchell seized land owned by Neff so that it could be sold at a Sheriff’s auction. When the auction was held Mitchell purchased it and later assigned it to Pennoyer. Neff sued Pennoyer in federal district court in Oregon to recover possession of the property, claiming that the original judgment against him was invalid for lack of personal jurisdiction over both him and the land. The court found that the judgment in the lawsuit between Mitchell and Pennoyer was invalid and that Neff still owned the land. Pennoyer lost on appeal and the Supreme Court granted certiorari. Procedural History: Neff sued Pennoyer, Pennoyer appealed Issue: Whether judgment for money, against a non-resident who was not served valid? Was it legal for Oregon to enter judgment against Neff without personal service of process? Did Oregon have personal jurisdiction over Neff? Holding: No, it is NOT legal for a State to enter judgment against a non-resident for an action in personam. Oregon did NOT have personal jurisdiction over Neff

Rules: 1. Every state possesses exclusive personal jurisdiction and sovereignty over its own citizens with respect to lawsuits filed in that state and property within its boundaries. 2. A state may exercise personal jurisdiction if a D consents by appearing in court. A D must challenge personal jurisdiction at the outset of the litigation or it is waived. 3. A state may exercise jurisdiction if an individual is found within the state. A person found within a state's boundaries and served with a summons and complaint of a lawsuit is subject to the that state's jurisdiction for an individual. An individual is subject to jurisdiction of a state's court when: (1) the individual appears in court, (2) is found within the state, (3) is a resident of the state or (4) has property within the state, but only to the extent of such property at the time the jurisdiction attached. Policy- First, every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. Second, no state can exercise direct jurisdiction and authority over persons or property without its territory. Note: The supreme court interprets the last provision to mean that if the d is a nonresident who doesn't appear in the state and isn't present in the state, but owns property within the state, the state's jurisdiction extends only over the property within the state. Policy: The concept is based on two principles of public law. P must attach assets in outset of litigation. Policy: If there is a judgment, it has to be valid with jurisdiction at the time of the judgment. Otherwise valid judgments would be created later by tracking down property and attaching 2

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property. Also, if property was not attached to begin with and the D transfers the property, then court's jurisdiction would just disappear. Attachment: (a) Security Interest: A judicial lien assuring D has assets if P obtains a judgment. A prejudgment attachment after filing the complaint and before the judgment where P request a judicial lien on the D's property (real/personal) to prevent the D from transferring or dissipating the property during litigation. BUT, (1) Notice to the D and (2) a hearing are required before a court issues an order with a security interest unless there are exigent circumstances. Connecticut v. Doehr. Facts: In conjunction with a civil action for assault and battery against Brian K. Doehr (Respondent), John F. DiGiovanni (Petitioner), submitted an application for an attachment in the amount of $75,000 on Respondent’s home in Meridan, Connecticut. Respondent challenged the constitutionality of the attachment statute, the General Statutes of Connecticut, Section 52-278(e) (1991), under the Due Process Clause of the Fourteenth Amendment. The Supreme Court of the United States granted certiorari to resolve the conflict in authority between the United States Court of Appeals for the Second Circuit’s ruling that the statute was unconstitutional and the District Court’s decision to uphold the statute. Indirect jurisdiction Some instances where a state has to exercise indirect jurisdiction over property or persons of other states: (ex) Two state citizens where contract to sell property in another state. The court could order one party to transfer title to the other. (ex) State has writing ability to determine marital status of citizens. A B marry in NV. B to CA. A wants divorce where B's state does not recognize way to divorce. A can nonetheless get divorce in NV. Hypo 1: D citizen of CA & located in CA but owns property in NV. P wants to sue D for fee's in NV. D served in CA. Can P sue in NV? No because D was not seved within state's boundaries; therefore was not found within the state. A state may exercise jurisdiction if an individual is found within the state. A person found within a state's boundaries and served with a summons and complaint of a lawsuit is subject to the that state's jurisdiction for an individual. Hypo 2: D vacation in AZ. P files summons and complaint within AZ. Yes because a state may exercise jurisdiction if an individual is found within the state. A person found within a state's boundaries and served with a summons and complaint of a lawsuit is subject to the that state's jurisdiction for an individual. Hypo 3: P files in CA. A CA sheriff goes to NV and grabs D and drags D into CA. Some courts yes because served in the state with summons and complaint. Virtually every state has a statue with a law addresses fraudulent or underhanded tactics in order get jurisdiction. Hypo 4: Assume D never homesteaded in OR, but was passing through OR on way to CA. While in OR D ran over P causing injuries. D bounced from OR to CA. P wants to sue D for injuries. Is P out of luck since D is not in CA. Out of luck in OR. Can file in CA and CA court has jurisdiction. Maybe file in federal court where the P request transfer to a different state and the other must have personal jurisdiction and venue must be proper in state transferred to. Hypo 5: Says facts as Hypo 4, then D vacations in OR. P files in OR and serves summons and complaint to D. D dips to CA. P gets a default judgment. P goes to CA for an execution of the 3

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default judgment. CA would give full faith and credit because P found D within OR and served with summons and complaint giving OR valid personal jurisdiction. Hess v. Pawloski: Facts: D (a PA resident) collided with P (resident from another state) in a car accident in Massachusetts. The court established personal jurisdiction over D under a statute whereby nonresident motorists involved in accidents in MA consented to the appointment of the Registrar of Motor Vehicles as the driver’s agent for service of process. Process was served on the Registrar of Motor Vehicles as D’s agent and D received actual notice of the suit. Court: A non-citizen motorist state statue declaring that non-residents using its highways impliedly consent to the appointment of a third party as agent for the service of process in the state for actions arising from use of the highways is valid to establish personal jurisdiction. Policy: A consent statue is a safety measure where states have policing power over safety on highways and the statue does not treat residents any different that nonresidents. Policy against: The consent statues are a fiction used as a substitute for the minimum contacts theory are no longer applicable after International Shoe. Court: The appointment of an agent to accept service on behalf of nonresidents does not deprive the nonresident of due process under the 14th amendment. Corporation: For out of state corporations states have to appoint an agent for service of process within the state. Some statues implied agent for states and some states required a formal appointment. Consent statues became problematic because the commerce clause prohibits the state from suing corps. engages solely in interstate commerce. Most states require out-of-state corporations to register and appoint an agent for service of process within the state. States came up with the idea of finding ways to show a corporation was within the state with presence such as doing business.

Jurisdictional Analysis: First prong: Long-arm statue: Post International Shoe, state's enacted law defining jurisdiction. Does a d's act fell within the forum state's long-arm statue? In general, a federal court applies the long-arm statue of a state in which the federal court is located. FRCP 4(k)(1)(A). Some exceptions where a federal statues provide for nationwide service of process, which means that a federal court has jurisdiction over all the D's. If the d's act satisfy the long-arm statue then a court inquires whether the states exercise of jurisdiction comports with the Due process clause. Cal. Code Civ. Proc. 410.0 Jurisdiction reaches as long as permitted by the states and United States Constitution. Second prong: Per the United States constitution, a state does not have to give another state's void judgment full faith and credit. Because exercising jurisdiction may result in deprivation of liberty or property, courts must comport with due process following certain set procedures. Jurisdiction is tied to due process. When the Supreme court adjudicates personal jurisdiction there is an issue of due process and whether the state has authority to exercise jurisdiction. The due process clause serves as a limitation to protect a non-resident D and restricts forum shopping by the P. The due process clause requires minimum contacts and proper notice.

Specific jurisdiction (SJ) Is predicated upon minimum contacts within the forum state that give rise to the liability sued on. 4

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International Shoe Co. (D) v. Washington: Facts: The Supreme court reviewed whether the state exercised jurisdiction in accord with due process. D was Del corp. with an office in MI. D employed salesmen in Wash. D set up business to avoid presence or doing business in Wash. P's statue said commissioner could serve if D was found within the state by mailing and serving one salesman within the state. P sued D because employees could collect unemployment when employer was bypassing collections. The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe. All assertions of state-courts jurisdiction must be evaluated according to the minimum contacts test. Court: International Shoe established the circumstances when a state can exercise jurisdiction over out-of-state corporations. Minimum contacts with the forum state can enable specific jurisdiction over a party as consistent with the Due Process clause. Astate must satisfy three elements to exercise specific jurisdiction: (1) The out-of-state d must have minimum contacts with the forum state; (2) The claim has to be related to the contacts. (3) The states exercise of jurisdiction cannot offend traditional notions of fair play and substantial justice Minimum contacts= The out-of-state d must conduct a certain level of activities within the forum state. Related to forum= The p's claim arises out of or is related to the out of state d's activities within the forum state. There must be a relationship between the P's claim and the non-residents d's contacts. (The claim is to get D to do _____ and because the D has ____ in the state within the state (i.e. the minimum contact) that is why the P wants D to do ____). Fair play and substantial justice= It must be reasonable or just for the forum state to exercise personal jurisdiction over the out-of-state d consistent with the principles of fair play and substantial justice. (P has a strong interest in the case. The burden on the D to litigate is less because P has activities within the state. The evidence is in the forum states so the claim seems reasonably fair. Policy- To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of laws of that state. The exercise of the privilege may give rise to obligations, and, it comports with due process where an out-of-state D is sued for some business the d is doing in the forum state. The is a sort of quid pro quo. Impact on Penyor: Allows broader jurisdiction that Penyor may preclude. International shoe permitted more of a means for out-of-state d's to exercise direct jurisdiction and make the D subject to the forum states court system. Concurring Opinion: The new words in the analysis are not in the constitution, are slippery, and may be applied and analyzed in a shifty fashion. Hypo: X ordered in Wash. P ran over D in Kans. going to deliver X. Wash. cannot claim specific jurisdiction because the claim is probably unrelated enough to the contacts. No general jurisdiction because even though there are a few salesmen that is not so substantial and of such a nature that a court may bring a suit on an unrelated claim. Kans- Contacts- driving on road. 5

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Related to contacts? Yes but for D driving on road the accident would not have occurred. Fair? yes because...

McGee v. Int. Insurance Co.: Fact: P is a California resident, while D is a Texas Corp. P sued D for refusal of payment on life insurance policy. P filed suit in CA Ct under State jurisdiction Statute stating that “foreign corps are subject to suit in CA on insurance contracts w/ residents of CA…even though such Corp cannot be served within CA borders”. P won this, but failed to collect on said judgment. P then filed suit to enforce judgment in TX Ct. TX Ct refused to enforce her judgment, holding that CA Ct never had jurisdiction over D. P appealed Procedural History: P sued D in CA for insurance policy, and won. P then sued to enforce judgment in TX, TX Ct refused, P appealed Court: Suit was based on a contract which had substantial connection with that State. Residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant state in order to hold it legally accountable. California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claim. Jurisdictional rules may not be employed in such a way as to make litigation so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage in comparison to an opponent. Hanson v. Denckla: Personal Jurisdiction. P lives in PA. Executes trust in DE with DE trustee. P entitled to income off trust and right of appointment to name beneficiaries. Moves to Fl and executes will to Daughters. Dies and beneficiaries sue in FL execute will and trust in DE is invalid. Fl agrees trust is invalid. DE says FL did not have jurisdiction because trustee did not have any contacts and under Fl law trustee must be in proceeding an indispensible party. Court: Did FL have jurisdiction? No jurisdiction on FL because D did not have any contact in FL. No contact. This was a unilateral act. The D did not purposefully avail themselves in FL. The difference in McGee was the solicitation by the D where instead in Hanson the D did not purposefully avail themselves with an act to create a contact/connection. There must be some act by which the D purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Policy for: The purposeful availment requirement ensures that a D will not be hauled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person. Gray: Illinois Supreme Court: If a corporation elects to see its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products. If D places a product into the stream of commerce anticipating it to get to a forum state the D can be sued there. Nowadays there is a distribution system before a manufactures product gets to a consumer at the retail level. Policy for: Even if it is the stream of commerce a D receives revenue from the forum state and indirectly benefits from the laws governing commercial transaction in the forum state. 6

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World-Wide Volkswagen v. Woodson: Facts:Car blows up injury exacerbated because cars poor design. NOT A STEAM OF COMMERCE CASE Policy: Minimum contacts protects the D against the burdens of litigating in a distant or inconvenient forum. Also, it ensures that the states, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. Against The state has a legitimate interest in enforcing its laws designed to keep its highway system state, and the trial can proceed at least as efficiently. The protections against inconvenient litigation is described in terms of reasonableness. The D's contacts with the State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. The relationship between the D and the forum must be such that it is reasonable to require the corporation to defend the particular suit which is brought there. Determining the reasonableness of the exercise of jurisdiction depends on evaluation of several factors. The burden on the Defendant The forum state's interest in adjudicating the dispute: The state's have an interest because they want safety in the workplace and most state's do not like have defective products within the state. The plaintiff's interest in obtaining convenient and effective relief The interstate judicial system's interest in obtaining the most efficient resolution of controversies The shared interest of several States in furthering fundamental substantive social policies Court: Even if the D would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another state, the forum state holds a strong interest in applying its law, and the state is the most convenient location for litigation, the Due Process Clause may sometimes act to divest the State of its power to render a valid judgment. Hanson v. Denckla. Reasonableness is considered but the D must have minimum contacts because reasonableness is not enough. Court: The product only got to the forum state through the unilateral act of the P's taking it there. There was no reaching out by the D to personally avail itself to the forum state. Even if it is foreseeable, mere foreseeability is not enough. The court looks to the D's conduct and connection with the forum state are such that the d should reasonably anticipate being hauled into court there. The d should be able to reasonably anticipate being sued in forum state (i.e., the d must purposefully avail itself of the privilege of conducting activities within the forum state). As in Hanson, purposeful availment cannot exists on the basis of the unilateral actions of the P or third parties; rather jurisdiction must be based on actions of the D. MINIMUM CONTACTS? No business, no benefits of State law, no solicit business in state, no selling product in state, no sales, no business, no employees. Policy why foreseeability is not enough: Every seller of chattels would in effect appoint the chattel his agent for service of process. The due process clause, ensures the orderly administration of the laws and gives a degree of predictability to the legal system that allows potential d's to structure primary conduct with some minimum assurances as to where that conduct will and will not render them liable to suit. Predictability allows d's to structure their primary conduct; and D should be able to alleviate risk through insurance or deciding not to have any connection with a state. D/Court: No showing that any automobile sold by D has ever entered OK with the single exception of the vehicle involved in the present case 7

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D/Court: No Minimum contacts because D had no activity whatsoever in the state. D did not have sales or perform services in the forum state. D did not avail the D to the privileges and benefits of OK. D did not solicit any business in state through salespersons or advertising directed to the state. D did not regularly sell cars to state customers at the wholesale or retail level. D/Court: Exercise of jurisdiction over the D would offend the limitations on the state's jurisdiction over imposed by the Due process clause of the fourteenth amendment. STREAM OF COMMERCE Tracing the flow of goods. STREAM OF COMMERCE ENDED IN NY. (distributor system) D/Court/Dicta: This was not a stream of commerce case because retail sale ended in NY. However, the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers it products into a the stream of commerce with the expectation that they will be purchased by consumers in the forum State. Cf. Gray Dissent: Reasonableness is the most important facts. Broad jurisdiction. Seller derives substantial benefits from States other than its own. A large part of the value of x is the extensive, nationwide network. The international Shoe's Jurisdiction, does not recognize the commercial realities nowadays. Business people, no matter how local their businesses, cannot assume that goods remain in the business' locality. Customers and goods can be anywhere else in the country usually in a matter of hours and always in a matter of a very few days. People should understand that they are held responsible for the consequences of their actions and that in our society most actions have consequences affecting many States. Hypo 1: P told you it will take the product elsewhere, the D still has not done anything to purposefully avail. Hypo 2: Doing something directed to the state. Counter: As in Hanson, the P is taking the machine to the state and the D is just doing paperwork. Hypo 3: Doing more like delivering.

The Effects Test 1. Use forum sources 2. The article must make a forum state connection between the person being talked about and the D knew it. 3. The subscribers.

Keeton v. Hustler: COA- Libel. D's activities in connection with Forum(NH) was that magazines were sent to forum each month. The magazines contained libel about the P. People in Forum(NH) were read the libel in magazine. D: P has no connections with forum and no jurisdiction. P/Court: The specific jurisdiction inquiry focuses on the D's minimum contacts with the Forum State and not the P's. BUT, this is not the type of claim that gives rise to general jurisdiction. 8

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Calder v. Jones: COA- Libel. D's were editors/writes in FL for national enquirer. D's activities in connection with Forum(CA) did not concern physically entering the forum but did have activities in the forum. The D's sources were in the forum, and the D's knew the P was a citizen in the forum and that is where P worked. D also knew the articles would be sold in the forum. D's acts were having effect in the forum and that satisfied minimum contacts. D's are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious actions were expressly aimed at the forum. They KNEW that the brunt of the injury to P would be felt by P in the state in which the P lived and worked. Where a forum seeks to assert specific jurisdiction over an out-of-state D who has not consented to suit there, the fair warning requirement is satisfied if the D has purposefully directed activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. ****Note: The effects test has been applied typically to intentional tort for expressed aiming and expressed targeting. Fiore v. Washington: Facts: Violation of 4th Amendment rights because luggage seized in GA. Filed civil rights action in NV. P: The P mentioned an NV connection when the money was seized in GA, and it took months until the money was returned. The P continued to suffer the injury in NV, and the D should have recognized the P would be injured in NV because of the connection. Court/D: The D did not have minimum contacts in NV because all the events occurred in GA. The P choose to be in NV during the time while waiting to see if the property would be returned or not. How far can the minimum contacts in contracts reach when the D has not been in the forum state? Burger King Corp v. Rudzewicz: Facts: D does not pay franchise dues. This contract has a choice of law provisions. A choice of law provisions in a contract typically informs which state's law governs the parties agreement. This was not a forum-selection clause: A forum selection clause in a contract specifies the forum where litigation shall be filed in the event of a dispute between the parties. Courts typically uphold as long as there is not fraud and is consistent with the activities. D: Contacts w/ MI-Citizen, evidence, franchise location, discussion about franchise D: Contacts w/ forum state- D reached out for franchise agreement, sent money for equipment, occasionally talked to people in headquarters, contracts made clear all ultimate authority took place in forums offices and D knew that ultimately that authority could lead to forum state. Also, the contract says disputes would be governed by the forum state law. Court: An individual's contract with an out-of-state party cannot automatically establish sufficient minimum contacts in the other party's home forum. Minimum Contacts in Contracts Cases is a multiple-factor approach: Prior Negotiations: There were prior negotiations. Contemplated Future Consequences: Courts examine the continual frequency in which negotiations would occur. Terms of the Contract (this factor alone is not dispositive): Choice of law provisions and payments all in the forum state. 9

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Parties Course of Dealing: D dealt with people in forum state before the contract, during the contract, and amidst the dispute Dissent: There is not a fairness in bargaining power between a small franchisee and a corporation. BUT, this is a divorce between commercial partners and sophisticated parties. Policy: The factors were chosen because one-shot consumer contracts will not typically satisfy the test. If there were a bright-line rule where a contract alone suffices for minimum contacts were applicable claims to personal jurisdiction may be unfair. Brennan articulated a test that lends itself to satisfy a typical commercial contract that business have with each other. What about Rest of the Test for Specific Jurisdictions? Did P's claim against D arise out of or relate to D's contacts with the forum state? P is suing for breach of contract. Only reason D has contacts at all is the contractual relationship with P. The claim arises because the D has contacts with the forum state because the D wanted to establish the franchise connection with a corporation from the forum state. Is it reasonable (i.e. comport with fair play and substantial justice) for the forum state to exercise jurisdiction over the D? Burden on the D , State's Interest (for its citizens), P's interest: As in World-Wide VW, consider the burden on the D but if otherwise the case is strong for assertion of personal jurisdiction, the burden on the D will not be considered as great. Policy :A forum to exercise personal jurisdiction over a nonresident who purposefully directs activities toward a forum resident: A state generally has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Where individuals purposefully derive benefit from their interstate activities, it may be unfair to allow them to escape having to account in other States for consequences that arise proximately form such activities. Additionally, 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, it usually will not be unfair to subject a d to the burdens of litigation in another forum for disputes relation to such activities. Abstract principles used to determine Minimum Contacts: Did the D purposefully avail itself of the forum state where the litigation is going on? Did the D receive benefits from its activity within the forum state and if so the D has obligations arising from.

STREAM OF COMMERCE CASES: Asahi: This is not a majority holding. Facts: Cheng-Shen (foreign manufacturer) sued on indemnity to recover from Asahi (foreign component part). The product became defective. An 8 justice majority agreed that exercising jurisdiction was unreasonable (i.e. offended traditional notions of fair play and substantial justice); hence, the state could not exercise of jurisdiction. Court Plurality Opinion: Exercising jurisdiction was unreasonable because: The burden on the Defendant. Burdens on the D include litigating under an unfamiliar legal system in a foreign remote court not likely governed under the courts own law. The forum state's interest in adjudicating the dispute. Interest of the state was low because the suit involved a foreign parties transaction that occurred out of the state. Also, the agreement was likely governed by law. 10

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The plaintiff's interest in obtaining convenient and effective relief. The P did not have grave interest in the jurisdiction because the P was hauled into the court. The evidence was likely at the parties foreign fora. The interstate judicial system's interest in obtaining the most efficient resolution of controversies: WWV admonished courts to take into consideration the iterest of the several State in addition to the forum State. This case involves procedural and substantive policies. This advice calls for a court to consider the procedural and substantive policies of other nations who's interest are affected by the assertion of jurisdiction by the California court. The procedural and substantive interest of other nations in a state court's. The shared interest of several States in furthering fundamental substantive social policies. No comment. Scalia: No minimum contacts because no purposeful availment, so there is no reason to go further into the analysis. O'Conner: Mere awareness is not enough, it requires a higher quantum of activity. The substantial connection between the D and the forum State necessary for a finding of minimum contacts must come about by an action of the D purposefully directed (i.e. purposeful availment) toward the forum State. The placement of a product into the stream of commerce, without more is not an act of purposeful availment. There must be something assertive (e.g. something more). Additional conduct of the defendant may indicate something more to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. Brenan: Awareness is enough because the D is benefiting and the standard has a historical bases as endorsed in the dicta of WWV mentioning Grey. The test encompasses broad jurisdiction. A seller derives substantial benefits from states other than its own. A large part of the value of the product is the extensive, nationwide network. International Shoe's type jurisdiction does not recognize the commercial realities nowadays. Business people, no matter how local their businesses, cannot assume that goods remain in the business' locality. Customers and goods can be anywhere else in the country usually in a matter of hours and always in a matter of a very few days. People should understand that they are held responsible for the consequences of their actions and that in our society most actions have consequences affecting many States. Stevens: No need to come up with a new test for minimum contacts because 8 justices agree that is it unreasonable. If it is unreasonable, there is no need to consider minimum contacts. But if the court applies the something more requirement, something more can involve the volume, value, and hazardous character of the product. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as the position taken by those members who concurred in the judgment on the narrowest grounds. J. McIntyre v. Nicastro: Facts: P sued on product liability where P was injured and product was sold. D's product was distributed by an independent distributor. D attended convention in the U.S. but not in the forum state. Justice Kennedy: In the Plurality opinion, the stream of commerce metaphor cannot substitute for the general rule that a D must purposefully avail itself of the privilege of conducting activities within the forum state. The D's activities must manifest an intention to submit to the power of a 11

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sovereign. The d must purposefully avail itself of the privilege of conducting activities within the forum State, thus invoking the benefit and protections of its laws. The D's transmission of goods permits the exercise of jurisdiction only where the D can be said to have target the forum. States cannot overstepping boundaries in exercising sovereignty. Policy: The federal system is premised on states having sovereignty with people and property inside the boundaries while avoiding unlawful intrusions outside of the state boundaries. This restricts judicial power not as a matter of sovereignty, but as a matter of individual liberty for due process protects the individual's right to be subject only to lawful power. But whether a judicial judgment is lawful depends on whether the sovereign has authority to render it. The idea of sovereignty is somewhat shall because it must be the D who consents to the state exercising jurisdiction upon it. Analysis: D had no office in the forum; it did not pay taxes or own property there; and it did not advertise or send any employees to the state. This was sold by a distributor but the D did not tell the distributor to target the forum state rather to sell to the market in the U.S. market in general. BUT, manufactures now know how to avoid liability in the Unites States. Breyer: Stream of commerce is as followed in Asashi. Courts may determine the appropriate test on a case by case basis, they may apply the something more test, they may apply mere awareness. This is a traditional commerce case where the status quo should remain. There is no need to change precedence in Asahi because it does not implicate modern concerns and complexities including the internet and pop-up ads. Neither Brennan's view nor O'Conner's view would find a single isolated sale to satisfy minimum contacts. A large number and awareness that a product is sold throughout the United states might be enough in the stream of commerce to establish minimum contacts (i.e. regular flow or regular course. see e.g. Wilemsen v. Invacare Corp.) Policy: The court shouldn't announce a rule of broad applicability without fully considering the modern-day consequences. The plurality strict non-jurisdiction doesn't take into consideration websites that target the world or forum directed popup ads. On the other hand, the automatic jurisdiction rule is difficult to reconcile with the constitutional demand for minimum contacts and purposeful availment. The absolute rule also abandons considerations of fairness. Ginsberg J. As established in International Shoe, D took steps to avail itself in the United States and New Jersey and sought to develop a market in America. It hoped to derive substantial revenue from sales made by American purchasers. D's goal was to sell as much as it could and wherever it could. It excluded no region or State from the market it wished to reach. The product arrived there because under a distributor partnered by the D and not through some random unilateral act. It is fair and reasonableness which is the touchstone. D being hauled into the state although the D is making money whereas if it were the opposite the P would be hauled to a foreign court just for getting hurt. How to reconcile if isolated sale or there is no jurisdiction if there is no focus on a particular state and a the product makes it to the forum state by a distributor. Hypo: Are there cases with little foreign manufacturers since the justice Kennedy and Breyer are concerned about it. Foreign D that sells nuclear reactors world-wide. D enters trade shows in NV. Manufacturer foreign. 2 reactors in U.S. on in New Jersey. Kennedy: No because D works through an independent distributor who just says market it throughout the U.S. Breyer: This is an isolated sale. OR FIT THIS WAY: International shoe established a case by case test context and left minimum contacts a flexible standard. 12

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Sotomayor Dicta in majority opinion of Daimler: The Kennedy is wrong because international shoe inquiry is different than the exclusive sovereignty of the states. As in International Shoe, Sometimes a single or occasional act is enough unlike Breyer.

In-Rem Jurisdiction: In rem: A court's jurisdiction extends only over the particular property attached. The proceeding decides ownership of the attached property as to the world. Examples Include a condemnation action brought by a government entity asserting superior title as to anyone who may have an interest in the property sought to be condemned or a civil forfeiture action brought by a government entity. Qausi-in-rem 1: Title to the attached property is at issue, but the dispute is between indentified litigants with claims to title to the property. (e.g. A foreclosure proceeding in which a bank which made a load on the property and the debtor who is delinquent in making mortgage payments to the bank.) Note: Instead of bringing a quasi-in-rem 1 action and attaching the property the band could sue the debtor in personam for the amount of the unpaid debt. Quasi-in-rem II: The non-residents property within the forum state is attached as a means for the forum state to exercise jurisdiction. Any judgment the p obtains is limited to the attached property. If P can sue personally and uses the forum states long-arm statue to serve in another state. The full faith and credit clause, after all, makes the valid in personam judgement of one state enforceable in all other states. The forum state can exercises jurisdiction if there is minimum contacts. Attachment: (a) Security Interest: A judicial lien assuring D has assets if P obtains a judgment. A prejudgment attachment after filing the complaint and before the judgment where P request a judicial lien on the D's property (real/personal) to prevent the D from transferring or dissipating the property during litigation. BUT, (1) Notice to the D and (2) a hearing are required before a court issues an order with a security interest unless there are exigent circumstances. Connecticut v. Doehr. or (b) Jurisdiction: The D's property is attached at the outset of the litigation to give the forum court jurisdiction, as in quasi-in-rem II action. AND!! Unlike Connecticut v. Doehr, the U.S. Supreme Court has never ruled on whether prior notice to the D and a hearing are required when the attachment is for jurisdictional purposes. Shaffer mentions, the presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the D's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership. In some cases it might be easier to go after property because if P makes a boo-boo on how they serve a foreign D that foreign place may not recognize a judgment. Shaffer v. Heitner: 13

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In-rem actions must satisfy minimum contacts test. Mere presence of property is not sufficient to establish jurisidction because it must relate to the claim. Policy: One could suggest that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a P of a forum; however, the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisidctional question may be the sacrifice of fair play and substantial justice. That cost is too high. Corporation-established in accordance with state law. A corporation is a separate legal entity from its employees and shareholders. Stock: An equity (ownership interest in a corporation). It is divided into fractions of ownerships called shares. Shareholder: An individual or entity that owns at least 1 share of stock. Shareholders may vote on certain matters and may be entitled to dividends, but otherwise don't play a major role in running the company. Board of Directors: the shareholders elect the directors in a purlic company. The directors make the company's major decisions. they may be inside dictors or ourside directors. They owe a duty of loyalty to the corporation. Shareholder derivative action: An action brought by a shareholder(s) alleging injury to the corporation, often a breach of fiduciary duty by the corporation's management and/or directors. Any recovery goes to the corporation, not to the shareholder(s) who brought the suit. Idea: Full faith and credit judgment can be honored in any state where the D's obligations can be found, and historical pedegree is not binding. Analysis: D's had nothing to do with the state and no reason to expect to be haled before the court. The officers and directors had never been to the state and nothing in relation to the claim because the acts had been performed in different state. Powell Concurring: So neither the statutory presence of D's stock in the state nor their positions as directors and officers of a state corporation can provide sufficient contacts to support the state court's jurisdiction. However some other forms of property whose situs is indisputabl and permanently located within a state may, without more, provide contacts necessary to subject a d to jurisdiction within the state to the extent of the value of the property. Stevens Concurring: Minimum contacts on real property is not necessary when the property is intangible. Brennan Concurring: Minimum contacts analysis is okay, but there is minimum contacts because the state has an unusually powerfull interest: First, the stat has a substantial interest in providing restitution for its local corporations that allegedly have benn victimized by fiduciary misconduct. Second, state courts have legitimately read their jurisidction expansively when a cause of actions centeres in an area in which the forum State possesses a manifest regulatory interest. Finally, a State like DE has a recognized interest in affording a convenient forum for supervising and overseeing the affairs of an entity that is purely the creation of that State's Law. ALSO THE DIRECTORS DERIVE BENEFITS FROM A DELEWARE INCORPORATION INCLUDING INDEMNIFICATION AND INTEREST-FREE LOANS). Hypo 3: A, citizen of X, owns a beach house in Y. A has never been to Y. B slips and falls hurting herself in the beach house Y. B files suit in Y attaching the beach house to obtain jurisdiction. Is this valid? Attaching the proper. As international shoe, X's house is a contact in Y. The claim is related to the property and the duty's related to the house. The state has an interest 14

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over property and safety condition of property within its jurisdiction. Y has an interest because there is evidence in the state. If the case is strong for minimum contacts and otherwise it is reasonable but the D is burdened that will not be dispositive. Hypo 4: A and B both citizens of X have a contract to run a business together. A sues B in X court for breach of contract and wins. B refuses to pay judgement. A goes to Y and attaches B's property. As long as it is a valid judgment, A can go after property where it is found. Could A sue B in Y and attached property in order to get jurisdictions. If A sued in Y this breach of contract claim would not satisfy minimum contacts. B would not have minimum contacts in Y that relates to Y seeing as the contract relates to X. If an Internet domain name violates the rights of a registered trademark and the trademark owner is not able to obtain in personam jurisdiction over the offending domain name owner, the trademark owner may bring an in rem action against the domain name. Some courts find minimum contacts applies only when the cause of action does not relate to the property involved. Other court apply the minimum contacts test to the exercise of in rem jurisdiction over Domain names, but conclude that contacts between the property and the forum are sufficient to satisfy the requirement.

Tag Jurisdiction: An out-of-state person who is present in the state and served with summons and complaint in the state is subject to general jurisdiction whether or not the claim is related to that state. Burnham v. Superior Court (PLURALITY): Tag jurisdiction comports with due process where a D is found in a state and served with summons and complaint. Scalia Policy- Transient jurisdiction is constitutional because it is historically accepted and is the benchmark as a procedure that comports with due process. International shoe and Shaffer involved different factual scenarios where D's were not in the state but maybe had some activities in the state. The international shoe test is about taking out-of-state D's and dragging them into the state via a long arm statue. In contrast, Burnham involves a situation where the D was in the state. White Policy- Due process problems do not generally exist where person is served in a state so long as they are intentionally in the state (i.e. no fraud). The court has the authority under the 14th Amendment to examine even traditionally accepted procedures and declare them invalid. Brennan Policy- Transient jurisdiction is analyzed if fair. A transient defendant derives significant benefits provided by the State. Health and safety are guaranteed by the State and the economy is openly exploitable. Transient jurisdiction is typically fair so long as the D is intentionally and knowingly in the State. Stevens Policy- Follow everybody has points. FRAUD: Most states have laws or cases the invalidates service of process where people have been brought into the state through fraud, trickery, or against their will. A number of courts have struck down in-state service where the D was tricked into entering the state, although the cases are unclear as to whether this result is required under the Constitution or reflects simply a prudential common law rule of immunity designed to discourage deceitful conduct. 15

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Consent: Jurisdiction must be challenged at the outset of litigation, otherwise the party consents to the jurisdiction. A failure to raise a timely objection to jurisdiction constitutes a waiver of the objection. Insurance Corp. of Ireland, Ltd. v. CompagnieFacts: P sues D. D challenges personal jurisdiction. Court orders compliance with discovery. D did not produce. The court sanctioned for personal jurisdiction. Parties may consent to jurisdiction by virtue of their conduct in the litigation. James-Dickson Farm Mortgage Co. No in-state service on a transient corporate agent. Jurisdiction over a corporation of one State cannot be acquired in another state or district in which is has no place of business and is not found, merely be serving process upon an executive officer temporarily therein, even if the officer is there on business of the company. Corporations can consent by registration of service of process: Consent to jurisdiction is sometimes manifested by appointing an agent for service of process within the state. Courts are divided: Some courts find that if a corporation registers an agent for service of process within, then the state there can be an exercise of general jurisdiction because the corporation has been served within the state boundaries. Most courts say that when a corporation registers an agent for service of process, this is a convenient way to give notice if the state has specific jurisdiction. Contract: Courts general uphold forum selection clauses. Policy: Predictability and cheaper transaction costs avoiding disputes about where the litigation should be are reasons for validating the forum selection clauses. Courts typically strike down forum selection clauses where the forum has nothing at all do to with the claim or where the clause is fraudulent.

General Jurisdiction: Where a state has a claim even though the claim is unrelated to any activities that occurred within the state. Daimler AG v. Bauman (Ginsburg): Facts: Foreign P v. foreign D based on events occurring entirely outside the United States. Sought from D under law of the U.S. in CA and P's foreign. Jurisdiction was predicated on U.S. contacts of a subsidiary of D incorporated in DE with a principle place of business in New Jersey. Millions and millions of dollars worth of sales, employees and offices, continuous and systematic activities but still no jurisdiction. Perkins: A court can exercise general jurisdiction over a court at the corporations principle place of business ( i.e. president moved to forum state, kept an office, maintained the company’s files, and oversaw the company’s activities). Helicopteros: Companies agreed no bases for specific jurisdiction. When a company buys products in a state, that is not enough for general jurisdiction. A state can exercise general jurisdiction where they have employees, permanent facilities, and conduct business in a continuous and systematic manner. Daimler: A state can subject a corporation to general jurisdiction if the corporations activities are such that the corporation is at home in the State.

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Paradigmatic examples of general jurisdiction include the principle place of business or where the business is incorporated. ***Narrow exception: A corporation maybe home in an exceptional case where a corporation’s operations in a forum other than its formal place of incorporation or principal place of business if they are so substantial and of such a nature as to render the corporation at home in that State. It is one thing to hold a corporation answerable for operations in the forum State, quite another to expose it to suit on claims having no connection whatever to the forum State. If the percentage of activities within the forum state are substantial continuous and systematic compared to their activities on a global scale, the corporation may be subject to general jurisdiction. An individual is at home where an individual domiciled as a citizen Policy: If D’s forum state activities sufficed to allow adjudication of a foreign-rooted case in the forum state, the same global reach would presumably be available in every other State in which the distributor’s sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants to structure their primary conduct with some minimum assurance as to where that conduct would render them liable to suit. Furthermore, the virtue of an at home standard ensures the P a predictable method to bring suit. A reasonableness standard is not part of general jurisdiction. Policy: Reasonableness is not applied in general jurisdiction because it compounds the jurisdictional inquiry and imposing it would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation. ANALYSIS: The forum does not have general jurisdiction. Neither the D nor the D's distributor incorporated in the forum State, nor does either entity have its principal place of business there. A corporation may be subject to general jurisdiction depending on the volume of products sold in the forum state number sold in the forum State but the revenue sold in the forum states is compared relative to the world wide scope. Policy: If D’s forum state activities sufficed to allow adjudication of a foreign-rooted case in the forum state, the same global reach would presumably be available in every other State in which the distributor’s sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants to structure their primary conduct with some minimum assurance as to where that conduct would render them liable to suit. Furthermore, the virtue of an at home standard ensures the P a predictable method to bring suit. Concurring Sotomayor- Applying a substantial, continuous, and systematic test would satisfy general jurisdiction, but given the parties this jurisdiction would be unreasonable. Activity to satisfy general jurisdiction. For jurisdiction courts examine activity within the jurisdiction and not on a world while scale.

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Personal Jurisdiction and the Internet: Zippo: District Court: A sliding scale measures an internet site's connections to a forum state. A passive website that merely allows owner to post information on the internet, is at one end of the scale. At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper. But it is ultimately decided through an international shoe analysis. Policy against: The test provides little certainty because the majority of websites have some degree of interactivity and thus fall within a middle zone in which criteria other than the degree of interactivity will be dispositive. Also, the standard for what is active and passive is shifting as technology changes. The zippo test begs the question of way the degree of interactivity should matter for jurisdiction purposes because it has no definitive connection to the reasons why it might be reasonable to subject a d to jurisdiction. Connecticut: Passive website, soliciting business because it had advertisements and a number to call. Rejected because sued just for website. Access of a website is not enough because it would take internet jurisdiction to the limit. Revell v. Lidov (before Daimler/Goodyear): P: The activities of an opportunity subscribe, purchase advertising on the website or in the journal, and submit electronic applications for admissions allow exercise of general jurisdiction. Court:: This case and Calder have several distinctions. First the articles written by P contains no reference to the forum state, nor does it refer to the forum state activities of P, and it was not directed at the forum state's reders as distinguished from readers in other states. The forum state was not the focal point of the article or the harm sufferece, unlike Calder, in which the article contained descriptions of the California activities of the P, drew upon California sources, and found its largest audience in California. Pavlovich: Facts: P was a third party trade association (incorp in Del. and Principle Place of Business CA). D was a resident of TX. Never business, telephone listen, or bank account in CA, no property no solicitation in CA and no contacts in CA. D posted information on a passive website. D knew that the industries hurt were located in CA, but this was not enough to satisfy the effects text. P ARGUMENT: D might not have come into the forum state, and does not have business activities in the forum state; nonetheless, the effects of D's activities were felt in the forum state. D/Court: Virtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the D's knowledge that the D's intentional conduct would cause harm in the forum. The D did not know where the actual P was located and did not know what the harm was to the P, so the D could not have targeted or aimed at the forum state. The effects of the tortuous conduct is attenuated basis for jurisdiction because a third party. Mere foreseeability is not enough for jurisdiction. Held: A d's knowledge that the d's tortious conduct may harm industries centered in CA is undoubtedly relevant to any determination of personal jurisdiction and may support a finding of jurisdiction. The knowledge alone is insufficient to establish express aiming at the forum state as required by the effects test. 18

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Dissent: Though the D did not know the identity of the P. One purposefully directs injurious conduct against entire industries, with actual knowledge that they are primarily or substantially present in a particular forum, the contacts with that state are no more attenuated, random, or fortuitous, that if, by unusual happenstance, they were sole concentrated there. The actor must reasonably anticipate that litigation generated by intentional conduct will originate in a forum where, as D knows, the industry or industries D sought to injure are primarily or substantially located.

Notice: Has the notice met the minimal requirement to comport with due process? Notice is a requirement of due process; notice must provide sufficient information about the matter and sufficient time for a person to respond in some way. Mullane: Fact: Pooling small trusts for cost efficiency. Guardian represented the interests of the Trust beneficiaries: Income Interest Vaughan represented the principle interest. Costs of what the guardians are doing is important for notice or if the guardian is breaching fiduciary duty. In analyzing appropriate notice the interests of the state and an individual is balanced. The vital interests of the state include efficiency and finality. The individual interest is due process and opportunity to be heard. As to those whose interest and place of residence is known mail is reasonably calculated because it lessens any practical difficulties with notice, mail is reasonably reliable, and it minimizes costs. If the mail fails to reach everyone in a class of people, it is still reasonably calculated because the recipients of notice can indirectly act on behalf of those unable to be reached. Personal service is ideal but sometimes the costs are outweighed the ideal notice. As to those whose interest or whereabouts is unknown with due diligence be ascertained or the interest is contextual, the statutory notice is sufficient if it requires at least publication. One could argue there is minimal probability that the publication will be seen. Policy: Nonetheless, publication is reasonably calculated because an alternative method would be too costly, time consuming, and inefficient. As in Mullane, notice comports with the Due Process if it is reasonably calculated under all of the circumstances to apprise interested parties of the pending action and afford them an opportunity to be heard. Absolute notice is not necessary. Sometimes notice is reasonably calculated but for some reason, it does not get to the D. As in Mullane, if the form of Notice is reasonably calculated under all of the circumstances to apprise interested parties of the pending action, but interested parties nonetheless don’t get actual notice, the Notice may still be constitutionally sufficient. As in Wuchter, a state’s notice statute may be unconstitutional, even if the state actually provides interested parties with notice of the pending action, if the state’s notice statute doesn’t require that the interested party receive notice of the action. As in Greene, a state notice statute may be reasonably calculated to apprise interested parties in most circumstances, but if the sender knows in advance that it is unlikely the interested parties in the pending action will receive notice, such notice is not sufficient , and other means of giving notice are required. As in Jones, a method of giving notice may be reasonably calculated to apprise interested parties of a pending action, but if the sender subsequently learns that the recipient did not receive the notice, “additional steps” are required. 19

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As in Schroeder, posting notice on property and publication are traditional means of giving notice when claims to the property are involved, but if the property owner’s name and address are readily ascertainable, notice by mail may be required. California affidavit showing diligence to track down whereabouts. Courts want to ensure documentation of efforts made to give a party notice before ordering publication. Notice: Has the notice met the minimal requirement to comport with due process? Notice is a requirement of due process; notice must provide sufficient information about the matter and sufficient time for a person to respond in some way. Mullane: In analyzing appropriate notice the interests of the state and an individual is balanced. The vital interests of the state include efficiency and finality. The individual interest is due process and opportunity to be heard. As to those whose interest and place of residence is known mail is reasonably calculated because it lessens any practical difficulties with notice, mail is reasonably reliable, and it minimizes costs. If the mail fails to reach everyone in a class of people, it is still reasonably calculated because the recipients of notice can indirectly act on behalf of those unable to be reached. Personal service is ideal but sometimes the costs are outweighed the ideal notice. As to those whose interest or whereabouts is unknown with due diligence be ascertained or the interest is contextual, the statutory notice is sufficient if it requires at least publication. One could argue there is minimal probability that the publication will be seen. Policy: Nonetheless, publication is reasonably calculated because an alternative method would be too costly, time consuming, and inefficient. As in Mullane, notice comports with the Due Process if it is reasonably calculated under all of the circumstances to apprise interested parties of the pending action and afford them an opportunity to be heard. Absolute notice is not necessary. Sometimes notice is reasonably calculated but for some reason, it does not get to the D. As in Mullane, if the form of Notice is reasonably calculated under all of the circumstances to apprise interested parties of the pending action, but interested parties nonetheless don’t get actual notice, the Notice may still be constitutionally sufficient. As in Wuchter, a state’s notice statute may be unconstitutional, even if the state actually provides interested parties with notice of the pending action, if the state’s notice statute doesn’t require that the interested party receive notice of the action. As in Greene, a state notice statute may be reasonably calculated to apprise interested parties in most circumstances, but if the sender knows in advance that it is unlikely the interested parties in the pending action will receive notice, such notice is not sufficient , and other means of giving notice are required. As in Jones, a method of giving notice may be reasonably calculated to apprise interested parties of a pending action, but if the sender subsequently learns that the recipient did not receive the notice, “additional steps” are required. 20

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As in Schroeder, posting notice on property and publication are traditional means of giving notice when claims to the property are involved, but if the property owner’s name and address are readily ascertainable, notice by mail may be required. California affidavit showing diligence to track down whereabouts. Courts want to ensure documentation of efforts made to give a party notice before ordering publication. Is the service of the summons and complaint reasonably calculated to comport with due process? Federal court 21 days to respond to a summons. California 30 days to respond to a summons. FRCP 3/Cal. Code Civil Proc. §350: A action is commenced by filing a complaint with the court. Under the Erie doctrine, federal courts apply the forum state's statute of limitations to state-law claims. Moreover, some state (unlike CA) require that the complaint be both filed and served before expiration of the statue of limitations. Federal courts will follow state rules in diversity cases, which means that merely getting the complaint filed before expiration of the statue of limitations isn't sufficient. C. Process server: FRCP 4(c)(2)/CCP 414.10: Any person who is at least 18 years old and not a party may serve a summons and complaint. E. Serving an Individual: FRCP 4(e)(1): An individual may be served by 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; California service law: Mail: A summons may be served on a person outside (CA citizens need something more) of CA by sending a copy of the summons and complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form is deemed complete on the 10th day after such mailing. As in Mullane, service by mail can comport with due process. Publication: If the plaintiff establishes upon affidavit that the defendant can’t be served with reasonable diligence by another method of service, the court may allow service by publication in a named newspaper within California and may also order publication outside the state. Allows for service outside of California “as prescribed by the law of the place where the person is served.” FRCP 4(e)(2)An individual may serve delivery of a copy of the summons and complaint (A) to the individual personally (B) at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there. (C) by delivering a copy of each to an agent authorized by appointment or by law to receive service of process. CALIFORNIA. SEE (A) or CALIFORNIA “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, a person may be served by leaving a copy of the summons and complaint at the person’s usual place of abode/ business/mailing address . In the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . at least 18 years of age, who shall be informed of the contents thereof, and by by mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. National Dev. Co: actual notice is not sufficient if it does not comply with the statues, otherwise the statues are undermined. Court looks at presence, the archaic terminology and wooden rule does not fit into todays highly mobile and affluent society. 21

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WAIVER OF SERVICE: FRCP 4(d): A p may request that an individual, corporation, or association waive service of a summons by sending the d a written notice and request addressed to the defendant; name the court where the complaint was filed; contain a copy of the complaint, two waiver forms, and a prepaid means for returning the form; state the consequences of not waiving service; and state the date the request is sent. The defendant has 30 days to return the waiver. If the d timely returns the waiver form, the d has 60 days (instead of 21 days) from the date the request was sent to serve an answer/motion to dismiss. If the d signs the waiver form, the d may still challenge personal jurisdiction. If the d doesn’t sign and return the waiver form, the d may be responsible for the plaintiff’s expenses in having to serve the defendant by another method. SERVICE BY MAIL CALIFORNIA: A p may mail a copy of the summons and complaint to an individual, corporation, or association along with two copies of a notice and acknowledge of receipt of summons, and a prepaid, addressed envelope to the defendant requesting the defendant to acknowledge receipt of the summons. If the defendant doesn’t return the signed acknowledgment within 20 days from the date it was mailed, the defendant may be liable for the plaintiff’s expenses in having to serve the defendant by another method. H. Serving a Corporation FRCP(h) provides that a corporation, partnership, or association may be served: (1) in the manner prescribed by FRCP 4(e)(1) for individuals (i.e., in accordance with state law) (2) by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized to receive service of process. If the agent is authorized by statute, the summons and complaint must also be mailed to the defendant. (3) If service is outside a federal judicial district, the provisions of FRCP(f) for service in foreign countries apply. CALIFORNIA A corp. may be served by delivering a copy of the summons and complaint to 1) the person designated for service of process as provided by the Corporations Code; 2) the pres, CEO, or other corp. head, vice pres, treasurer, secretary, CFO, general manager, or person authorized to accept service. In lieu of personal delivery to any of the above persons, a copy of the summons and complaint may be left during regular business hours at the person’s office or usual mailing address with the person who is apparently in charge of the office. This person must be at least 18 years old and must be informed of the contents of the summons and complaint. A copy of the summons and complaint must then be mailed to the person who was to be have been served personally. Service is deemed complete 10 days after the mailing. Time Frame: P must served the D within 120 days after the complaint is filed. But if the P shows good cause for the failure, the court must extend the time for service for an appropriate period. See FRCP 4(m). Opportunity to be heard: The D must ordinarily receive advance warning to allow time to prepare an adequate defense. The amount of advance warning required depends on the nature of the proceeding. garnishment of wages, replevin, sequestration (seizure of property). States in general do not require pre-attachment hearing typically with mechanics lien. This could be limited to real estate. The benefit of procedural safeguard may be outweighed by its cost.

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There must be Notice to the D and a hearing are required before a court issues an order with a security interest unless there are exigent circumstances. Mitchell: Facts: Prejudgement attachment. P submitted detailed affidavit; judge issued order; P posted bond; statue provided for immediate post-seizure hearing. No prior hearing or notice to D. Immediate post deprivation hearing along with option of damages;. Relationship of property claim: Creditor's claim for non-payment of items seized Outcome: Constitution What was the private interest (or government interest) that will be affected by the prejudgment measure? D: For a property owner attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. Is there a substantial risk of erroneous deprivation? What would be the probable value of additional or alternative safeguards? There was a substantial deprivation because there was a vague requirement for affivdavits. There was not enough safeguards: Judicial reviews, expeditious post attachment adversary hearing, notice for hearing, and double damages actions if an original suit is commenced without probable cause are not enough. In mitchell there was a documentary proof, and p was required to put up a bond. None of the factors diminish the NEED FOR A PRE_DEPRIVATION HEARING. What were the interests of the person seeking the prejudgment remedy? What was the government's ancillary interest? There was a P interest in the attachment was only to ensure availability of assets but it was unrelated to the incident that gave rise to the lawsuit n(o interest in the real estate when P sought attachment.). Government has an ancillary interest because of fiscal and administrative burdens that an additional or substitute procedural requirement would entail. Counter: State cannot seriously plead additional financial or administrative burdens involving pre-deprivation hearings when it already claims to provide an immediate post deprivation hearing. Common Law: Did not require hearing or notice before attachment, but P would have to show some jeopardy assets would be taken away and now most courts require bonds. Bonds should be required because if there is an erroneous attachment, a D may be wrongfully deprived. Concurring/Dissent: Limit the judgment to the facts. No bond needed.

Subject matter jurisdiction: The p must file suit in a court permitted by relevant law to entertain the type of claim asserted. Federal courts have limited subject matter jurisdiction. State courts have general subject matter jurisdiction. **** Narrow exception: Congress has vested federal district courts exclusive subject matter jurisdiction (admiralty, bankruptcy, patent and copyright infringement, and antitrust and securities. Sometimes there is concurrent subject matter jurisdiction. State law claims are diversity in federal court.

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Art III, Sect 1 of the Constitution mandates that congress establish a supreme court. It allows congress to establish lower federal courts at well. Art. III, Sec 2 limits the judicial power of the federal courts to certain types of cases (limited jurisdiction). Citizens of different states or citizens of a state and citizens of foreign states. 28 U.S.C. 1331 provides for federal question jurisdiction over civil actions arising under the Constitution, federal law, or treaties of the United States. There is no jurisdictional amount required as long as claim is a federal question.. Can have foreign on both sides only if citizens on both sides. 28 U.S.C. 1332 provides for diversity jurisdiction when the matter in controversy is more than $75,000 and the action is between: A. Citizens of different States............B. Citizens of a state and foreign citizens except between citizens of a state and foreign citizens permanently admitted into the U.S. who are domiciled in the same State C. Citizens of a State and foreign citizens who are joined as additional parties; and a foreign country, as p, and citizens of a State or of different State. Can have foreign on both sides only if citizens on both sides. 1332(b) A penalty might be imposed on P for recovering less than the jurisdictional amount. Interpleader §1335- An action is entertained as long as two or more adverse claimants, of diverse citizenship, are claiming or may claim to be entitled to such money or property ($500), or to any one or more of the benefits arising by virtue of any obligation and the p has deposited such money or property/paid loan. Minimal Jurisdiction: Federal subject matter jurisdiction is valid upon having one adverse claimant of diverse citizenship from another. Parties to litigation cannot confer subject matter jurisdiction on a federal court by consent. A federal court's lack of subject matter jurisdiction is a defense that cannot be waived. See Rule 12(h)(3). There is a presumption against federal jurisdiction. Diversity: For: provides a neutral forum-free from local bias or influence. Impartial federal forums makes it easier for enterprises to invest in other states and thus may foster economic expansion. Plus, state justices are elected. Against: Local bias has evaporated due to mass communication and travel. Diversity jurisdiction changes the presiding judge and not the law; thus, it cannot protect litigants from biased laws. Diversity cases increasingly flood the federal docket and given limited resources, federal judges should be free to work on federal substantive law cases. Complete diversity rule. Strawbridge: Diversity jurisdiction exists only if all p's are of diverse citizenship from all d's. For The presence of parties from the same State on both sides of a case dispels the concern of a litigant being hometowned.

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Determining Citizenship: To be a citizen of a state, a natural person must be both a citizen of the U.S. and a domiciliary of that State. For diversity, citizenship means domicile; mere residence in the State is insufficient. Diversity is determined when the lawsuit is filed. A change of domicile is effective by (a) taking up residence in a different domicile with (b) the intention to remain there. Factors for intent to remain include: voter registration, purchase of a house, payment of taxes and of in-state college tuition. Alienage Jurisdiction: For: It gives aliens involved in litigation with American citizens a forum free from local political influence. It thereby demonstrates to other countries that the U.S. treats litigation involving their citizens or subjects as a matter of such importance as to justify a place on the dockets of the national. 28 U.S.C.§1332(c)(1) A corporation is a citizen of any state where it is incorporated and also the state where it has its principle place of business. For: Because diversity of citizenship jurisdiction is intended to allow access to federal court to avoid fear of local bias, the state-of-incorporation definition of citizenship is under inclusive without principle place of business. Principal place of business: Hertz: Principal place of business is the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. (i.e. the nerve center/corporation headquarters). Against: Prejudice against an out-of-state party often depends upon factors that are not easily measured such as the corporations image, history, advertising. Also, if the bulk of a corps business activities are in a state, the public would be less likely to be prejudiced against the corp than the public in another state would be where there are a few top officers. Court: Principal place of business is the place where a corporation's officers direct, control, and coordinate the corporation's activities which is normally the headquarters (i.e. the nerve center) provided it is the actual center of direction, control, and coordination (i.e. ceo, general counsel, CFO, accounting). It is not simply an office where the corporation holds its board meetings, plant, sales and employee locations. For: The statute's language support the approach. It's text deems a corporation a citizen of the state where it has its principal place of business. The word place is in the singular, not the plural. The work principal requires the main prominent or leading place. And because the word place follows the words "state where" means that the place is a place within a state. It is not the state itself. Main headquarters is a single place which avoids greater litigation and strange results. The rule provides a more practical formula, allowing administrative simplicity. Complex tests complicate litigation, eat up time, money, and judicial resources. The legislative history, for those who accept it, offers simplicity rather than judicial inquiry as related interpretive benchmark. C.&C. R. CO. v. Letson: A corporation is an artificial person of the State by which it had been created, and its citizenship for jurisdictional purposes. For: For the limited purpose of determining corporate citizenship, courts conclusively presume that a corporation's shareholders are citizens of the State of incorporation. 25

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Non-incorporated Businesses:The business is considered a citizen of all states of which its members are citizens. Partnerships ( an association of two or more persons to carry on as owners of a business for a profit. A partnership can be formed simply by going into business together; no formal papers are required and the partners do not need to get any approval from the state to form this association).Gerneral partnership all partners liable for debts. Limited partnership general partners liable. The advantage is a single tax. Non-corporate associations with members citizens of every american jurisdiction (large unions) could not sue or be sued under diversity of citizenship jurisdiction. Limited Liability Co.: LLc are both a partnernship and a corporation. A LLC like a partnership does not ordinarily pay taxes on LLC income; instead, the money flows to each member of the LLC who pays individual taxes on money received from the LLC. An LLC is like a corp. in that its members are not personally liable for the debts of the LLC. Every circuit like a partnership. Representative Suits and Assignments of Claims Is jurisdiction afoul of 28 U.S.C. §1359, where a court has no jurisdiction over cases in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. § 1332(c)(2)- Citizenship of the decedent, minor, or incompetent, and not to the citizenship of the representative. Look AT CITIZENSHIP OF ASSIGNEE if a legitimate assignment. The Domestic Relations and Probate Exceptions: Federal courts refuse to hear domestic relations cases involving divorce, alimony, or child custody decrees. For: State courts are better suited than federal courts, which lack to close association with the state and local government organizations dedicated to handling the issues arising out of divorce, alimony, and child custody. For: Federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals. Federal courts also will not probate or administer a decedent's estate or appoint an executor. For: Actions would interfere with the jurisdiction of state probate courts. Amount in Controversy Requirement: For diversity of citizenship and alienage questions, the amount must exceed $75,000. Not for federal questions. Rule 54(d). Under 1332(b) A penalty might be imposed on P for recovering less than the jurisdictional amount. Costs include filing and other fees assessed by the court clerk's office, some costs of discovery, witness fees, and copying cots of certain papers. The p's good faith allegation that the jurisdiction amount is satisfied will invoke jurisdiction unless it appears to a legal certainty that the claim is really for less than the jurisdiction amount. (a court could rule as a matter of law that p could not recover the requisite amount even in absence of a legal limitation on damages). Federal jurisdiction is not lost because a judgment of less than the jurisdictional amount is awarded. For: Federal tribunal should not be a small claims court and controversy limitations are a method of docket control. Against: Article III contains no amount in controversy limitations. 26

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Aggregate: One p v. one d. The p may aggregate all of her claims to meet the jurisdictional requirement even if the claims are unrelated legally or transactionally. Against: Inconsistent with the premise imposing an amount in controversy requirement to prevent the federal courts becoming tribunals for small claims. Multiple parties on either side. If there is more than one p or one d, aggregation generally is not allowed. Jointly liable aggregation is allowed. Equitable relief: Different approaches: Does D's acts harm the p by more than $75,000? Would complying with the injunction would cost the D more than $75,000? Supplemental jurisdiction If one of the P's meets the jurisdictional amount, the claims are related, and there is complete diversity between the P's and D's then there is supplemental jurisdiction. §1331 Federal Question Jurisdiction (a type of subject matter jurisdiction, no jurisdictional amount, more important and will trump diversity) The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States. For: Federal judges are more sympathetic to policies underlying federal legislation, it develops expertise in interpreting federal law, so federal courts might be the best forum for vindicating federal rights. Federal law must be set forth as a claim, not as a defense (well-pleaded complaint "rule"). For: It serves that valuable function of allowing the court to decide at the outset whether a case arises under federal law. Against: The rule does not funnel litigation centering on federal issues to federal court, it is difficult to apply in a declaratory judgment context, and what elements are considered part of the claim and what matters are considered defenses raises a policy issue that has no particular relation to federal jurisdiction. Well-pleaded complaint: To invoke federal question jurisdiction, the federal issue must be part of a well-pleaded complaint and must also be a sufficiently central part of the dispute to justify jurisdiction. Louisvill RailRoad v. Mottley: A suit arises under the Constitution and laws of the U.S. when the p's complaint is based upon those laws or that Constitution. Holmes: A d's compulsory counterclaim that raises a federal issues cannot create federal jurisdiction. NARROWEXCEPTION: A counterclaim can create federal jurisdiction over patent, plant variety protection, or copyright claims even if the federal claims are first raised in the defendant’s counterclaim and not in the plaintiff’s complaint. If sued for unfair competition state law claim; however, in patent/copyright counterclaims. 28 U.S.C. §1454

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Declaratory Judgment: 28 U.S.C. 2201/2202: Parties may file actions for declaratory judgment in federal court and the court must consider whether the p's complaint would have complied with the well-pleaded complaint rule. Embedded federal issues/state law claim Is this a garden variety claim? Merrel Doe Pharmaceuticals: A court would have to interpret the federal law to adjudicate the p's claim, but concluded that it would flout Congressional intent to find federal question jurisdiction since the p's could not sue under the federal law itself. The divisions of labor between state-law negligence claim "any garden variety of state tort law claim might similarly give rise to a federal question, leading tremendous number of cases being filed in federal courts. Grable: There was not a federal law that would allow the P to bring a COA. The claim was under state law but there was still a federal question (importance of a provision). The parties disputed the requirements of the IRS notice provision, that its interpretation was an essential (necessary) part of Grable’s claim, that the issue was substantial because of the IRS’s strong interest in being able to seize property for tax delinquencies and providing valid title to subsequent purchasers , and that it wouldn’t upset the division of labor (balance) between the federal and state court systems since it would be rare that a state-law quiet claim would raise disputed issues of federal law. Gunn v. Minton: Suit for attorney malpractice from a patent case. A attorney did not bring some argument. Does a state-law claim with an embedded federal issue give rise to a federal question and hence subject-matter jurisdiction? Federal jurisdiction over a state law claim will lie if a federal issue is: Necessary: Is resolution of the federal issue necessary to the plaintiff’s action? (Necessary because all about if defense should have been raised). Disputed: Do the parties actually dispute the federal issue? Substantial: Is the federal issue substantial, i.e., important to the federal system as a whole? Federal court will ignore a state court Disruption of Balance Between Federal and State Courts: Would resolving the plaintiff’s claim in federal court disrupt the balance between federal and state judicial responsibilities? The states have interest in this state law claim, it is in the bailiwick of the supreme ct.

Removal: Federal subject matter jurisdiction - diversity of citizenship, alienage, or federal question. Actions that cannot be removed even though the requirements for removal might otherwise be satisfied. 28 U.S.S §1445: states worker's compensation, claims under federal law against carriers or receivers for damaged shipments unless the matter exceeds $10,000, and "FELA" negligence by railroad employees against a railroad employer (garden variety tort). D may remove cases filed in state court if: 1441(a) The case could have been filed in federal court originally 1441(a) & 1446(a) The d's join in filing a timely signed notice of removal with the federal court in the district where the state court is located 28

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1446(b) To be timely, the notice of removal must be filed within 30 days after the d is served with the initial pleading or, if the initial pleading is not removable then within 30 days of the d's receipt of an amended pleading, motion, order, or other paper from it may first be ascertained that the action is removable 1446(b)(2)(C) If d's are served at different times, d's who did not previously file a notice of removal may consent to removal by a later-served d 1446(a) The notice of removal must contain a short and plain statement of the grounds for removal and includes copies of all pleadings and orders that have been served upon the d's 1446(d)Promptly after filing a notice of removal in federal court, the ds must give written notice to all adverse parties and file a copy of the notice of removal with the state court Special diversity removal provisions: 1441(b)(2) In-state rule: If diversity is the sole basis for removal, the action may not be removed if any of the ds properly joined and served are citizens of the forum state Some courts say that the in-state rule is a technical defect. A few circuits find that violation of the in-state rule is a jurisdictional defect and the case must be removed immediately. 1441(c)(1) A diversity action may not be removed to federal court more than 1 year after the action was commenced unless the p acted in bad faith to prevent removal 1446(c)(2)(3). The sum demanded in the initial pleading shall be deemed the amount in controversy unless 1) the initial pleading does not state a specific sum pursuant to state law or the pleading seeks nonmonetary relief, in which cases the notice of removal may assert the amount in controversy or 2) information in the state proceeding reveals that the sum being sought exceeds the jurisdiction amount. 1446(1)A p's deliberate failure to disclose the amount in controversy to prevent removal shall be deemed "bad faith"

Remand: 1447(c) Other than lack of subject matter jurisdiction, the p must make a motion to remand a cases to state court within 30 days of the filing of the notice of removal in federal court. 1447(c) A clerk of the federal court must mail a certified copy of the remand order to the state court, which shall then proceed with the case 1447(d)The district court's order remanding a removed action to state court is not reviewable on appeal Any time before final judgment, it appears that the federal court lacks subject-matter jurisdiction, the case must be remanded if the cases was removed to fed ct. 1447(e)If a after removal to fed. ct. the p seeks to join additional ds who would destroy diversity, the ct. may deny joinder or permit joinder and then remand the action to state court 29

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IF THE CASE IS ORIGINALLY FILED IN FED. CT. AND THE FEDERAL COURTDISCOVERS IT DOES NOT HAVE SUBJECT-MATTER JURISIDCITON, THE FED. CT. MUST IMMEDIATELY DISMISS THE CASE. THE FED. CT. CANNOT REMAND THE CASE TO ST. CT. SINCE IT WASN'T FILED INITIALLY IN ST. CT. GENERAL PRINCIPLES: 30 DAYS “ONE BITE AT THE APPLE” SUBJECT-MATTER JURISDICTION CAN NEVER BE WAIVED AND CONGRESS HAS ERECTED MORE OBSTACLES FOR DIVERSITY CASES THAN FEDERAL QUESTION CASES

Change of Venue Permit a d to seek transfer if the d is unlikely to get a fair trial where the case is filed. TRANSFERS ARE WITHIN THE STATE. California has 4 federal judicial districts: THE SOUTHERN DISTRICT (includes San Diego); THE CENTRAL DISTRICT (includes Los Angeles); THE NORTHERN DISTRICT (includes San Francisco); and the EASTERN DISTRICT (includes Sacramento) FRCP 12(b)(3) provides that the defendant may bring a motion to dismiss the action for improper venue.

Proper Venue Venue is generally proper under §1391 based on either residency of the ds or where the events giving rise to the action occurred or where property is located. Venue (residence): If all ds reside in the same state, venue is proper in a district where at least one d resides. D's that are entities reside in districts subject to personal jurisdiction (i.e. spec/gen juris.) For individuals Ds, include foreign citizens permanently admitted to the U.S., residing in a district means to be domiciled in a district. An idnv. domicile is the single district considered the individual's permanent home. Ds not residing in the U.S. may be sued in any district. 1391(b)(3) Fallback provisions is used to any district which any d is subject to the court's personal jurisdiction with respect to such action. Venue (relevant place): Venue is proper where a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is subject of the action is located. Courts differ as to how broadly or narrowly they interpret the word substantial in 1391(b)(2) 1391(b)(3) When d's are citizens of different states and a substantial part of events fall outside the U.S. Fallback provisions is used to any district which any d is subject to the court's personal jurisdiction with respect to such action.

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A state court transfers to different state venues within the state but cannot transfer an action to another state, to a foreign country, or to a federal court. If venue is improper within the state where the action was filed, the original state typically dismisses the action. A fed. ct. may transfer a case to another fed dis. ct. within the U.S., but a fed. ct. cannot transfer a case to a state. ct. or to a foreign country. 1404 Transfer of Venue Arguing venue is proper but another district may be more convenient for litigation that the original dist. where the action was filed. A transferee district must have proper venue (and personal jurisdiction over the d) unless all parties consent. Factors: Location where agreements were nego/executed, st. most familiar with the governing law, place p choose, parties contacts with the forum, contacts related to p's COA in the forum, difference in cost of litigation in the two forums, availability of compulsory process, ease of access of sources of proof. (i.e. more witnesses, documents, evidence, easier to subpoena). 1404 When deciding whether to transfer, the court considers (1) convenience of the parties, (2) convenience of the witnesses, and (3) the interest of justice 1406 Transfer of Venue Venue (often personal jurisdiction) were not proper in the original district where the action was filed. Court may transfer on its own. A D can motion to transfer. 1406 If the case if filed in an improper venue, the court shall dismiss or if it be in the interest of justice, transfer. Erie: Federal ct. should apply state law with state claims. Sometimes a st. ct. does not apply its own st. law to an action before it. States have different choice of law law: (1) the place of the wrong governs, (2) the most significant relationship the claim and the states it has the most significant relationship with, (2) governmental interest test what are the interest of the states having their own law applied. 1404 tranfers 2nd ct applies choice of law under the first ct........1406 transfer 2nd ct applies choice of law under the second ct.

Forum Non Conveniens: Forum non conveniens is used in fed. cts only where the alternative forum is in a foreign country because fed. cts. cannot transfer to other nations. If the more convenient forum is in the U.S. the fed. ct. could transfer using 1404. Piper: The possibility of an unfavorable change in law should not, by itself, bar dismissal. If a change in law would make it impossible to get rid of suits, then more litigants would flood to the U.S. because U.S. has more discovery, jury rights, and high judgments. If the ct. could not dismiss judges could be burdened with interpreting a foreign jurisdictions law. In ruling on a forum non conveniens motion, the ct considers the private interest of the litigants and the public facts Howeres such an open-ended test reduces certainty and predicatability: The private factors are the interest of the litigants including relative easier to obtain sources of proof, where is there more witnesses and evidence and where is it easier and cheaper to obtain those sources and other practical problem making trial less easy, expeditious and inexpensive. The public factors bearing on the ? include the administrative difficulties flowing from ct. congestion, the local interest in having localized controversies decided at home, the interest in 31

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having the trial of a diversity case in forum that is at home with the law that must govern the action, the avoidance of unnecessary problems in conflict of laws, or the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. California: Private interest are those that make the trial and the enforceability of the ensuing judgment expedition and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interest of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternative jurisdiction in the litigation.

Pleading: Putting out claims/coa or defenses. P initiates suit by filing a complaint. P must give notice to d through service of process. D can motion or answer. An answer responds to the allegations in the complaint and may raise affirmative defenses. Some jurisdiction allow a P to respond to any new matter raised by the answer in another pleading called the reply. Rule 10 Form pleadings: (a) Must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs... May refer by # to a ¶. (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. Code requirement of fact pleading, p must make a statements of facts constituting a COA, in ordinary and concise language, without repetition. (Demurrer) Federal Rules: Notice pleading. Rule 8 General Rules of Pleading (12(b)(6)/12(b)(3) (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the ct's juris., unless the Ct already has juris. and the claim needs no new juris. support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. aka PRAYER. Does not have to specify a specific amount. Twiqbal standard: D: Pleadings are meant to put opponents on notice, if there is a perceived need to get more information that should be brought by amendment to federal rules not juridical interpretations. D just needs to state provable facts believed to be true, and to provide a quick method for resolving meritless claims and defenses. Ruling against the D will raise the barriers to enter suit. Twombly: A complaint does not need detailed factual allegations, but a formulaic recitation of the elements of a cause of action is insufficient. Factual allegations must be enough to raise a right to relief above the speculative level, that is, the allegations must be plausible. What is the touchstone of plausibility? If there is an alternate explanation that is better, the alleged explanation though 32

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conceivable might not be plausible. The guide seems to be the cost of discovery and litigation. Where D is saying other plausible explanations or maybe based on a rational economics theory.

Pleadings Rule 8 , Rule 9, Inconsistent and Alternative Theories and Voluntary and Involuntary Dismissals. Iqbal: A ct. does not assume legal conclusions are true. While the ct. then takes factual allegations as true, the claim must be plausible. A ct determines whether a claim is plausible based upon judicial expertise, experience, and common sense. Leatherman: A court accepts factual allegations as true, but a ct. does not consider legal conclusions or legal conclusions couched as factual allegations to be true. Plausible means more than a possibility but less than a probability. Some factual allegations are not plausible because there are alternative explanations as to why the facts occurred. For an allegation to be plausible how good must an explanation be and does the fact that another explanation is more likely make the p's allegation implausible? If the pleading requirements are not met the D is not entitled to discovery. D: Facts merely consistent with a d's liability aren't sufficient. A ct determines whether a claim is plausible based upon judicial expertise and common sense. P: TRY TO STATE ON INFORMATION AND BELIEF IF FACTS ARE UNKNOWN. For an allegation to be plausible how good must an explanation be and does the fact that another explanation is more likely make the p's allegation implausible? Rule 9 imposes a heightened pleading requirement in two specific instances (i.e. fraud or mistake) because it helps the p by making the p think more carefully about bringing claims that may be more difficult to prove or it helps the d, by providing some protection from glib assertions of claims that may be especially damaging to her reputation. 9(1) Alleged generally is fine: pleading conditions precednetd, a party's capacity to sue or be sued, malice, a party's authority to sue or be sued in a representative capacity; or the legal existence of an organized association of persons that is made a party.. Special damages must be stated specifically. Rule 8(D) Pleading inconsistent facts and alternative theories is okay A party may state as many separate claims or defenses as it has, regardless of consistency. Obligation under rule 11 that there is a factual basis. It is okay to bring inconsistent allegations if there are doubts about the facts. FRCP 41(a)(1) Voluntary Dismissal. A P may dismiss an action without a court order by (a) filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (b) a stipulation of dismissal signed by all parties who have appeared. UNLESS the notice or stipulation states otherwise, the dismissal is without prejudice. But if P previously dismissed-in any ct- the action, a notice of dismissal (not a stipulation) operates as an adjudication on the merits. 33

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(2) Dismissal By Court Order. An action may be dismissed at the p's request by ct order, on terms that the ct considers proper. If D pleaded a counterclaim before being served with the P's motion to dismiss, the action may be dismissed D's objection if the counterclaim can remain pending for independent adjudication. Unless otherwise state the dismissal is without prejudice. Focus is whether the d will suffer prejudice if the motion is granted. Factors: P's diligence pursuing the action, how far the current action has progressed, p's reason for M2D. Some cts consider d having filed a M4SJ weights against dismiss. Cts split whether dismiss without prejud. should be allowed dismiss for another jurisdiction because of statue of limitations. FCRP 14(b) Involuntary Dismissal: If P fails to prosecute/comply, a D may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.

Dismissals before trial: Pleadings: (120 days to serve summons and complaint from filing) 12(a) Time to Serve Responsive Pleading: Party has 21 days to answer a complaint/ respond to other pleadings that assert a claim, but when service is waived, the party gets 60 days. A party can motion to postpone an answer. If the court denies a rule 12 motion to dismiss the D has 14 days to answer. 12(b) Motion to Dismiss: (1) lack of subject matter-jurisdiction, (2)personal jurisdiction, (3)improper venue, (4-5) invalid service of process (6) failure to state a claim upon which relief can be granted. (7)failure to join. 12(c) Motion for Judgment on the Pleadings: Like 12(b)(6) but timing difference after all parties have responded to the pleadings. 12(e) Motion for more Definite Statement: If ct. orders more definite statement and p does not file one within 14 days, the ct may strike the pleading. Such a mess that a party argues an inability to respond by pointing out defects. 12(f) Motion to Strike- Ct may strike on its own, or a party may make a motion to strike before responding to the pleading or within 21 days after being served with a pleading to which a response is not allowed (i.e. an answer). (insufficient defense, redundancy, immaterial, impertinent, scandalous matter) 12(g)Joining motions: (1) A motion under the 12 may be joined with any other motion allowed by this rule. (2) LIMITATIONS on Further Motions. A party making a rule 12 motion cannot make another motion a defense or objection that was available to the party but omitted from its earlier. 34

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12(h) Waiving and Preserving Certain Defenses: (1) A party waives any defense listed in Rule 12(b)(5) by omitting it from a motion in the circumstances described in Rule 12(g)(2) or by failing to either make it by motion or by including it in a responsive pleading or in an amendment allowed by 15(a)(1). 12(h)(2-3) Can motion up to and including trial challenge the sufficiency of the P's claim. Failure to state a claim upon which relief can be granted or to state a legal defense to a claim may not be waived(12b6/12c/failure to join). Lack of subject-matter jurisdiction may be raised by motion at anytime. Can file a waivable defense in a pleading without waiving it in a motion. All waivable defenses must be in the first motion. D has 21 days from being served to serve either an answer or rule 12(b), 12(e), or 12(f) motions. The motion must include all waivable defenses. If the court denies the motion, the D has 14 days to serve an answer. It is too late to put in waivable defenses not put in the motion. The answer has to have the waivable defenses, but if omitted, the party has 21 days to amend the answer to include a waivable defense.

Answer: 8(b)(1): An answer must include defenses to each claim asserted against it and admit or deny allegations asserted against the party. (b)(2): A denial must fairly respond to the substance of the allegation. (b)(3): General or specific denials. (b)(4)Party can deny part of an allegation but must admit the true part. (b)(5) A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state and it is considered a denial. (b)(6) Other than damages, an allegation is admitted if a responsive pleading is required and the allegation is not denied. If the responsive pleading is not required, an allegation is considered denied or avoided.

Affirmative defense: 8(c)(1) In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense (list). (2) If a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the ct must if justice requires treat the pleading as though it were correctly designated. Issue to Affirmative defense: must it be backed with a factual basis? If an affirmative defense is not included in the answer, it may be waived.

Default: Entering a Default cuts off d's right to file an answer or a motion. FRCP 55(a) A party must ask for a default and show with an affidavit or otherwise a failure to plead or otherwise for the clerk to enter a default.

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55(b) (1) by the court clerk- If there is a sum certain or a calculable sum with an affidavit showing amount due must enter judgment for the amount/cost against a D who defaulted AND DID NOT APPEAR AND WHO IS NOT A MINOR/INCOMPETENT. 55(b)(2) may be granted by the court if the party against whom a default judgment is sought has appeared at least by rep (lenient appearance), party/rep must be served with written notice of application at least 7 days before the hearing. It is not mandatory for the judge to enter default judgment. 55(c) A ct may set aside an entry of default for good cause or upon a motion under 60(b) for relief from a Judgment or order rounds are (1) mistake, inadvertence, surprise, or excusable neglect (must be within a year of entry of default), (4) the judgment is void (lack of jurisdiction or improper service) (6)any other reason that justifies relief (i.e. substituted service). Ct focus on 3 factors in deciding to vacate either default/judgment. Did the party seeking to vacate do so in bad faith? Would setting aside the default prejudice P? Did the d have a meritorious defense to the action?

Amending Pleadings: Rule 15: A party may amend a pleadings before and during trial and add new claims or parties sometimes after the statue of limitations are added (relation back). (a)A party can amend before Trial with a one time freebie up to (A) 21 days after serving an answer, or (B) 21 days after serving a pleading where a response is required or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. (b) Amendments During and After Trial: (1) If, at trial, a party objects to ev. not in a pleading, the court may permit the pleadings to be amended, if not to prejudice the D. (2) Issues Tried by Consent/Claim not in amendment: When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. An amendment changing the party or the naming of the party against whom a claim is asserted relates back to the date that the original complaint was filed if the amendment concerns the same conduct, transaction, or occurrence as the original pleading AND within 120 days after filing the complaint (and such additional time as the ct. may order upon a showing of good cause), the party to be brought in by amendment (i) has received such notice of the action that he/she will 36

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not be prejudiced in maintaining defenses on the merits,; and (ii) knew or should have known that, but for a mistake concerning the proper party's identity, the action would have been brought against him/her. It is the knowledge of the party to be brought in by amendment, not of the P, that is relevant. Rule 11. (a) Certification: The papers must be signed by the attorney or the person proper. The ct must strike an unsigned paper unless the motion is promptly corrected after being called to the attorney's/party's attention. (b) Representations to the Court: (1) it is not being presented for any improper purpose (i.e. harass, delay, or needlessly increase costs). (2) allegations must be warranted by existing law or by a nonfrivolous argument for new law. (3) the factual allegations have evidentiary support or qualified on information and belief (4) the denials of factual allegations are warranted by evidence or qualified on information and belief. (c) Sanctions. If, after notice and a reasonable opportunity to respond, the ct. may impose an appropriate sanction on any attorney, law firm, or party. (2) Motion for Sanctions. must be made in a separate motion, describe the conduct against 11(b), be served under Rule 5, but it must not be filed/presented to the ct if it is withdrawn/corrected within 21 days after service or within another time the ct sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion. (3) On the Court's Initiative. Ct. may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed must be limited to what suffices to deter (i.e. nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses resulting from the violation. (5) Limitations on Monetary Sanctions. No sanctions by ct. on a represented party, or on its own, unless it issues the show-cause order 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

Civil Procedure I – Fall 2014 - MINI OUTLINE Personal Jurisdiction: General Jurisdiction: Claim May Be Unrelated to Forum State • Individuals: Domicile in Forum State or Served With Process in Forum State • Corporations: Where a corporation is “at home” – paradigmatic examples are its state of Incorporation or where its principal place of business is located. In an “exceptional” situation, there may be GJ where corporation has substantial, continuous, and systematic activities but only if substantial relative to the corporation’s other activities Specific Jurisdiction: (begin w/state’s long-arm statute) • Minimum Contacts: Contacts with forum state indicate purposeful availment; defendant has reasonable probability of being sued there 37

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Claim Related: The plaintiff’s claim arises out of (or is related) to the defendant’s contacts with the forum state • Fair or Reasonable: State’s Interest in the litigation; Plaintiff’s Interest in Suing in Forum State; Burden on Defendant to litigate in Forum State Other Grounds: Consent: failure to timely object; forum selection clauses In Rem Jurisdiction: (must be evaluated per International Shoe standards) • In Rem: Plaintiff asserts superior title to property against anyone • Quasi-in-Rem I: Title/ownership or property disputed between identified claimants • Quasi-in-Rem II: Property title not an issue; property is basis for jurisdiction • Preliminary Procedures: Venue – 28 U.S.C. section 1391 Residence: • If all defendants “reside” in same state, venue is proper in any judicial district within the state where at least one defendant resides. 1391(b)(1) • Individuals: An individual “resides” in the state of domicile (citizenship). A permanently admitted foreign citizen resides in the judicial district where that person is domiciled. 1391(c)(1) • Corporations: A corporation (or other entity) “resides” in any judicial district where it is subject to personal jurisdiction, which may be general jurisdiction or specific jurisdiction with respect to the action at issue. 1391(c)(2) Place of Activity: • A district where a substantial part of the events or omissions giving rise to claim occurred or a substantial part of property is situated if subject of the action. 1391(b)(2) Exceptions: • Non-Residents: A defendant who does not reside in the U.S. (including U.S. citizens domiciled abroad) may be sued in any district. The non-resident’s presence is disregarded for determining proper venue with respect to other defendants. 1391(c)(3) • Fall-Back Provision: Rarely applicable. If there is no federal district where venue is proper, venue is proper where at least one defendant is subject to personal jurisdiction. 1391(b)(3) • Transfer of Venue 28 U.S.C. section 1404  Venue is proper in the district where the action was filed.  Basis of transfer motion is “convenience” or witnesses or “interest of justice.”  Court may transfer case to another district only if venue (and PJ) would be proper in that district or all parties consent to transfer.  Court exercises discretion in evaluating private interests of parties (including convenience to the parties, convenience to the witnesses, forum selection clause) and public interests (court congestion, interests of local court and jurors in the dispute, difficulty in applying foreign law).  Transferee (second) court applies choice of law provisions of transferor court (first court where action was properly filed) in determining which state’s law applies. 28 U.S.C. section 1406  Venue is improper in the district where the action is filed.  Party may request transfer (or court may transfer sua sponte) to district where venue (and personal jurisdiction) are proper.  Transferee (second) court applies its own choice of law provisions in determining which state’s law applies. Why? Action was improperly filed in the first court. 38

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Remember: A defendant must timely object to improper venue or improper venue is waived. A court may transfer venue to an appropriate district pursuant to section 1406 rather than dismissing the action for improper venue. • Motion to Dismiss for Forum Non Conveniens • Venue is proper where the action is filed initially • Showing on Motion • The party moving for forum non conveniens must identify an alternative forum • The defendant in federal court argues that it would be more convenient to litigate in a foreign country and the action should therefore be dismissed • The court gives weight to the plaintiff’s choice of forum, but less when the plaintiff is not a U.S. citizen • The court considers the private interests of the parties, including relative ease of access to sources of proof, availability of witnesses, and the possibility of viewing the premises or scene of the incident, if applicable • The court considers the public interests of the parties, including court congestion, the relationship of the litigation to the court, the jury’s interest in the claims, and the difficulty of applying another country’s law. • According to the Supreme Court in Piper Co. v. Reyno, the fact that the law may be less favorable or that the procedures may be more limited in the alternative forum is not a relevant factor unless the remedy in the alternative forum “is so clearly inadequate or unsatisfactory that it is no remedy at all.” • Court’s Discretion: The district court’s ruling on a forum non conveniens motion will not be reversed unless the court clearly abused its discretion Subject-Matter Jurisdiction: Diversity – 28 U.S.C. section 1332 Diversity of Citizenship Between Citizens: There must be complete diversity of citizenship between Plaintiffs and Defendants, i.e., no plaintiff may be of the same citizenship as any defendant. Strawbridge v. Curtiss, 7 U.S. 267 (1806) • Individual: An individual is a citizen of the state where the individual has an intent to remain permanently. For diversity purposes, the court does not have diversity jurisdiction between a citizen of a state and a foreign citizen permanently admitted to the U.S. and domiciled in the same state. • Corporations: A corporation is a citizen of its state of incorporation and its principal place of business (its “nerve center” – typically its corporate headquarters).. • Non-Incorporated Businesses: The citizenship of every partner in a partnership must be considered per the Supreme Court. Lower federal courts apply the same rule to other business associations, such as limited liability companies. Jurisdictional Amount: The amount in controversy must exceed $75,000. • The court accepts the plaintiff’s allegation in good faith unless “legally impossible.” • Each plaintiff may aggregate all claims it has against each defendant. • If a plaintiff recovers less than the jurisdictional amount, the court deny costs to the plaintiff and may require the plaintiff to pay the defendant’s costs. 1332(b) • If a plaintiff seeks only non-monetary relief (such as a permanent injunction), a court may consider whether the value of the relief to the plaintiff exceeds $75,000 (or the cost to the defendant) Diversity Between Citizens and Aliens: • There must be more than $75,000 in controversy and: • The action is between Citizen (s) of a State and Alien(s) (i.e., foreign citizen); or 39

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The action is between Citizens of States and Aliens are joined as additional parties. Exceptions: Judicially-created and narrowly applied . Federal courts refuse to hear probate and domestic relation cases even if the parties are diverse. • Subject-Matter Jurisdiction: Federal Question – 28 U.S.C. section 1331 • Section 1331: Federal courts have jurisdiction over actions arising under the Constitution, laws, or treaties of the United States. • The Well-Pleaded Complaint Rule: Under Mottley’s “well-pleaded complaint” rule, a court considers only the plaintiff’s actual claims set out on the face of the complaint in determining whether there is a federal question – not the defendant’s anticipated defenses or a defendant’s counterclaim (except for copyright, patent, federal trademark and plant variety protection claims per §1338). • State-Law Claims with Embedded Federal Issues: Per Grable & Sons Metal Products v. Darue and Gunn v. Minton, a court must apply a 4-prong analysis in determining whether there is a federal question. • Whether resolution of the federal claim is necessary to the case; • Whether the federal issue is actually disputed by the parties; • Whether the federal issue is substantial in terms of its importance to the federal system as a whole; and • Whether the claim is capable of being resolved in a federal court without disrupting the balance (division of labor) between federal and state courts Removal from State Court to Federal Court: 28 U.S.C. §§ 1441, 1446 & 1447 • Basis: A defendant or defendants may remove an action to federal court from state court that could have been filed originally in federal court. Timing: The notice of removal must be filed within 30 days of service of the complaint or, if the original complaint isn’t removable, within 30 days of receipt of an amended pleading, motion, or order that is removable. All defendants must join in removal. A defendant only gets “one bite at the apple” and must remove the action the first time the action is removable. Diversity Limitation: If the basis for removal is diversity, the action cannot be removed if any defendant is a citizen of the forum state Another Diversity Limitation: If the basis for removal is diversity, the action may not be removed more than 1 year after commencement of the action unless the court finds that the plaintiff acted in bad faith to prevent removal. The plaintiff’s deliberate failure to disclose the actual amount in controversy to prevent removal is an example of what might be deemed “bad faith.” Remand and Timing: The plaintiff must file a motion to remand to state court within 30 days of the filing of the notice of removal in federal court if the basis for remand is a defect other than lack of subject-matter jurisdiction. Remand and Lack of Subject-Matter Jurisdiction: The court must remand the case to state court if at any time before final judgment it appears that the court lacks subject-matter jurisdiction. Supplemental Jurisdiction: 28 U.S.C. § 1367 (Evening Civ Pro Class May Ignore Except for “In General” Which May Be Helpful) In General: A federal court may exercise supplemental jurisdiction over claim(s) that are so related to claim(s) within the court’s subject-matter jurisdiction that they form part of the “same case or controversy” (i.e., they derive from “a common nucleus of operative fact” per United Mine Workers v. Gibbs) 40

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Exception: If diversity is the federal court’s original basis for subject-matter jurisdiction, the court cannot exercise supplemental jurisdiction over related claims by plaintiffs against parties joined by impleader (R. 14), required joinder (R. 19), permissive joinder of parties (R. 20), or intervention (R. 24), or over claims by persons joined as plaintiffs under Rule 19 or intervening as plaintiffs under Rule 24. Discretion: A federal court may decline to exercise supplemental jurisdiction over a related claim if it raises a novel or complex issue of State law, the claim substantially predominates over the claim(s) within the court’s subject-matter jurisdiction, the court has dismissed all claims within its subject-matter jurisdiction, or in “exceptional circumstances.” If the federal court exercises its discretion to dismiss such related claims, the statute of limitations is tolled for 30 days for related claims and other claims voluntarily dismissed from the action. Due Process: Notice and Hearing General Principles: Notice: Due process “is notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co. Pre-Judgment Remedies: In determining what process is appropriate, a court considers: 1) the private interest that will be affected by the prejudgment measure; 2) the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and 3) the interest of the party seeking the prejudgment remedy and due regard for any ancillary interest the government may have in providing the procedure or foregoing the burden of providing greater protections. Connecticut v. Doehr (citing and modifying the test of Mathews v. Eldridge for the facts of the case) • Unless there are exigent circumstances, pre-judgment deprivations require notice and a hearing. Connecticut v. Doehr Statutory Notice: FRCP 4 A copy of the summons and complaint must be served by a person at least 18 who is not a party to the case and service must be effected by: Individuals: • Following the state law of the state where the district court is located or where service is made; • Delivering a copy of the summons and complaint to the defendant personally; • Leaving a copy of the summons and complaint with a person of suitable age and discretion residing at the defendant’s dwelling or usual place of abode; or • Delivering a copy of the summons and complaint upon an agent authorized by appointment or law to receive service of process. Domestic Corporations and Other Entities: • Following the state law of the state where the district court is located or where service is made; • Delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to accept service of process. Waiver of Service (upon Individuals, Corporations, or Associations)

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Mailing a Notice and Request along with a copy of the complaint, waiver forms, notification of the procedure and its consequences, and a prepaid means for returning the waiver. If a domestic party fails to sign and return a waiver form, the court must impose on the defendant the expenses incurred in making service and reasonable expenses if a motion is required.

Pleading: Complaint—FRCP 8(a) Every complaint must contain the following: 1) A short and plain statement of the grounds for the court’s jurisdiction 2) A short and plain statement of the claim showing that the pleader is entitled to relief • A court accepts all factual allegations as true. • The claim must state a plausible entitlement to relief. The judge determines plausibility based on experience and common sense • The court should disregard legal conclusions. Twombly/Iqbal. • Note: FRCP Rule 9 imposes heightened pleading requirements for fraud, mistake, and special damages • 3) A demand for the relief sought, which may include relief in the alternative or different types of relief • Pleading: Answer – FRCP 8(b) & 12(a) • Within 21 days of being served with a summons and complaint, a counterclaim, or a crossclaim, a party must serve an Answer in which the party: • State its defenses to each claim asserted against it; • Admits or denies the allegations of the opposing party, or states that the party lacks knowledge or information sufficient to form a belief about the truth of an allegation; in which case, the statement has the effect of a denial; and • Affirmatively states any avoidance or affirmative defenses. • Affirmative defenses include but are not limited to: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of limitations Rule 12 Motions In lieu of serving an Answer within 21 days of being served with a summons and complaint, a counterclaim, or a crossclaim, a party may serve the following motions: Rule 12(b) Motion to Dismiss: for lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, invalid service of process, failure to state a claim, and failure to join a required party under Rule 19. Rule 12(e) Motion for a More Definite Statement: if the pleading is so vague or ambiguous that the party cannot reasonably prepare a response. Rule 12(f): Motion to Strike: an insufficient defense or any redundant, impertinent, or scandalous matter. When the pleadings are closed, a party may serve the following motion: Rule 12(c): For Judgment on the Pleadings: The equivalent of a 12(b)(6) motion for failure to state a claim or may be used to argue for dismissal for failure to join a required party under Rule 19. 42

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Note: When ruling on the legal or factual sufficiency of a claim on a Rule 12(b)(6) motion, the court considers solely the allegations in the pleading and treats all factual allegations as true. If the court considers outside evidence on a Rule 12(b)(6) motion for failure to state a claim or on a Rule 12(c) motion for judgment on the pleadings, the court may treat the motion as a summary judgment motion and give all parties an opportunity to present material pertinent to the motion. See FRCP 12(d). Rule 12(g)(h) and Waivable Defenses Waivable Defenses: The following defenses are waived if not asserted in a party’s Rule 12 motion or its answer, whichever is filed first: Lack of personal jurisdiction; Improper venue Insufficient process; Insufficient service of process; Other Defenses: Failure to state a claim (FRCP 12(b)(6) and failure to join a required party pursuant to Rule 19 may be asserted up to and including trial. Subject-MatterJurisdiction: A court must dismiss at any time that it determines it lacks subject-matter jurisdiction. Entry of Default and Default Judgment; Setting Aside Default – FRCP 55 & 60(b) Entry of Default: If a party shows the defendant has failed to answer or otherwise defend, the court clerk must enter default. FRCP 55(a). Entry of default cuts off the defendant’s opportunity to file an answer or a Rule 12 motion. Default Judgment: Upon plaintiff’s request, the clerk may enter default judgment if the claim is for a sum certain or can be made certain and the defendant has not appeared. Otherwise, the plaintiff must apply to the court for default judgment. If the defendant has appeared, the defendant must be given written notice of the application for default judgment 7 days before the court’s hearing. FRCP 55(b). The court may consider a number of matters, including the amount of damages and the truth of the allegations in deciding whether to enter default judgment. Setting Aside Entry of Default: The court may set aside entry of judgment for “good cause.” FRCP 55(c) Setting Aside Default Judgment: A court may set aside a default judgment for “mistake, inadvertence, surprise, or excusable neglect” (FRCP 60(b)(1) or if “the judgment is void” (FRCP 60)(b)(4)). If under 60(b)(1), the motion to set aside default judgment must be made no more than a year after entry of judgment. Note: In setting aside entry of default or default judgment, courts may consider whether the defendant acted in bad faith in not responding to the lawsuit, whether the plaintiff has been prejudiced, and whether the defendant has meritorious defenses to the action. Voluntary and Involuntary Dismissals: FRCP 41 “Freebie” Voluntary Dismissal: A plaintiff may dismiss an action by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Caution: If a plaintiff has previously dismissed an action based on the same claim in either state or federal court by notice of dismissal or stipulation of the parties, filing a notice of dismissal in a subsequent action in federal court operates as an adjudication on the merits. Voluntary Dismissal by Stipulation or Court Order: A plaintiff may dismiss an action by requesting (filing a motion) dismissal from the court (i.e., by filing a motion) or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless the stipulation or court order of dismissal state otherwise, the dismissal is without prejudice. 43

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Involuntary Dismissal: Among other reasons, a court may dismiss an action for the plaintiff’s failure to prosecute the action [or for failure to state a claim]. Unless the dismissal order states otherwise, an involuntary dismissal operates as an adjudication on the merits (i.e., is “with prejudice”). Dismissals for lack of subject-matter, personal jurisdiction, improper venue, or failure to join a required party, however, do not operate as an adjudication on the merits (i.e., are “without prejudice”). Amending a Pleading: In General – FRCP • “Freebie” Amendment to Pleadings: • Complaint: A party may amend a complaint (or similar pleading setting out claims) once as a matter of course within 21 days after service of an answer or a Rule 12(b), (e), or (f) motion. • Answer: A party may amend an answer once as a matter of course within 21 days after serving it. Amendments may include omitted affirmative defenses. Amendments may also include omitted waivable defenses under Rule 12(b), but only if the party had not previously served a Rule 12(b) motion omitting those defenses. See FRCP 12(h)(1)(B)(ii). • Other Amendments: • By Stipulation: A party may amend a pleading with the opposing party’s written consent. • By the Court: A party move the court for leave to amend a pleading. Courts should “freely give leave when justice so requires.” Factors courts consider include the moving party’s undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by amendment, the futility of amendment, and prejudice to the opposing party. • Amendment: Relation-Back and New Claims – FRCP 15(c) • Relation-Back problems arise when a party seeks to amend a pleading after the statute of limitations has expired on the claim. • An amendment to a pleading relates back when: o The law providing the statute of limitations allows relation back; o The proposed amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out -- in the original pleading. o “The linchpin to Rule 15(c) is notice [to the opposing party] before the limitations period expires.” Marsh v. Coleman, 774 F. Supp. 608 (D. Kan. 1991) o Amendment: Relation-Back and New Parties • An amendment changing the party or the naming of the party against whom a claim is asserted satisfies Rule 15(c) if: o The law that provides the applicable state of limitations allows relation back; or o Within 120 days of filing the complaint (the “period provided by Rule 4(m)”), the party to be brought in by amendment:  received such notice of the action that it will not be prejudiced by defending on the merits; and  knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity. • A party’s delay in amending to change the party or whether the party should have known the identity of the proper defendant are not factors in determining whether the amendment relates back. Krupski v. Costa Crociere, S.p.A., 560 U.S. 538 (2010) Sanctions: FRCP 11 Certification and Sanctionable Conduct: 44

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By presenting a pleading, written motion, or other paper to the court, an attorney or unrepresented party certifies to the court that to the person’s knowledge, information, and belief formed after reasonable inquiry: • It is not being presented for an improper purpose, such as to harass or cause unnecessary delay or expense; • Claims, defenses, and other legal contentions are not frivolous; • Factual contentions have evidentiary support or, if specifically identified, will likely have such support after further investigation; and • Denials of factual contentions are warranted. Sanctions and Their Purpose: The court may on its own or pursuant to a party’s motion impose sanctions upon an attorney, law firm, or party to deter such conduct. Sanctions may include nonmonetary directives, paying a penalty to the court, or paying the moving party’s expenses. The court may not impose monetary sanctions on a represented party for asserting frivolous claims, defenses, or other legal contentions. Safe Harbor: A motion for sanctions must be served on the other party at least 21 days before filing it with the court to give adequate time for withdrawal or correction of the allegedly sanctionable paper.

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