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A: TERRITORIAL JURISTICTION
I. Types of Juristiction
A. IN PERSONAN: In personam jurisdiction permmits a
court to enter a judgement that is PERSONALLY BINDING ON THE D. that orders the D. to
refrain from doing something or allowing the P. to collect from the D. Pennoyer v. Neff
& Burnam
B. IN REM JUISDICTION: Permits a court to adjudicate
the rights of all of all claimants to a specific piece of property, as in a sentence
proceeding. This authority came from a state's power to determine regarding real property
w/ in their boarders. SHAFFER V. HEITNER
C. QUASI IN REM JURISDICTION: QUASI IN REM
juristiction formerly included 2 types.
1. Quasi in rem #
1: This type included cases involving disuptes related to property
under the courts control. This type of QUASI IN REM jr. provided a constitutional basis
for exercise of jr.
2. Quasi in rem # 2: This
type involved PERSONAL DESPUTES where the court lacked PERSONAL JR. OVER THE D., BUT HAD
JR. OVER THE D'S PROPERTY. That property would be SEIZED by the P. and used to satisfy the
claim if the P. won. This type of JR. is no serverly limited.
II. PENNOYER v. NEFF: Issue: Was constructive notice by publication upon
a NON RESIDENT enough for as a basis for IN PERSONAM JR. in a state court? NO.
A. NO: The DUE PROCESS CLAUSE of the 14th ammendment
says that a D. should be given a chance to defend himself in an action filed against him
in PERSONAM. Here, P. could have bee served b/c he lived out of state and the publication
was inter state only.
1. To gain personam Jr. over
the D. the ct. must see that D. is PERSONLLY SERVED W/ PROCESS WHILD IN THE STATE. Also
the land in question must be attached b/c this serves a notice that there is a legal
action pending.
2. Since Pennoyer was never
served and his land was not attached, the court never had JR. over him and thus the
judgement was invalid.
B. TERRITORIAL LIMITS: Pennoyer also said that the
process form the cts. of one state CANNOT RUN INTO ANOTHER STATE.
C. SERVICE W/ IN STATE IT ENOUGH: Jr. has been
established once process has been served personally on a D. in the boundrys of the state.
This is called TRANSIENT JR.
1. It is allowed to serve one
w/ process if he is flying over the boundrys of the state.
D. SEIZURE OF D'S PROPERTY: Pennoyer said that a
prejudgement seizure of D's prop. was sufficeint to permit a state to dispose of that
prop. to satisfy unrelated claims. This was allowed even if no service w/in the state
occurred and IS AN APPLICATION OF A QUASI IN REM #2.
1. Still, for a prejudgement
seizure an attachment to the land is needed.
2. Scope of property: In
HARRIS v. Balk, the court allowed assertion of a quasi in rem Jr. over a debt owed to the
D. by a tempory visitior t the state b/c a debt follows a person where ever he goes.
III. SHIFT TO MINIMUM CONTACTS: In INTERNATIONAL SHOE, the court shifted
away from PENNOYER'S insistence on service w/ in the state to support in personam jr.
INSTEAD, it held that to hold a D. to a JUDGEMENT IN PERSONAM, dur process requires that
he have MINUM CONTACTS WITH THE FORUM STATE such that the maintenance of the suit not
offend
1. TRADITIONAL NOTIONS OF
FAIR PLAY AND;
2. SUBSTANCIAL JUSTICE.
A. Systematic and continuous acitivity: Courts have
up held INPERSONAM jr. over a non-resident based on SYSTEMATIC AND CONTINUOUS CONTACTS W/
THE STATE.
1. INTERNATIONAL SHOE v.
WASHINGTON: D. was a non residnent co. working in Washington. A notice was served on a
salesman in the state and then mailed to the head co. regarding some back taxes.
a.
ISSUE: For a state to subject a non-resedent D. to in personam jr. does due process
required only nthat he have CERTAIN MINIMUM CONTACTS W/ IT, such that the suit does not
offend fair play and substantial justice?
HELD: Yes: Before, had to have jr. over person. But now due process requires that in order
to to subject a person to a judgement in personam, it he is not present in the state, he
MUST HAVE MINUM CONTACTS W/ THE STATE. This measument is must depend on quality and nature
of the activity in relations to the fair and orderly admistration of the law. They cannot
be irregular or casual. Here the contacts were enough to make the co. partil to Wash.
laws.
B. SINGLE CONTACT: Courts have also upheld jr. over a
nonresident based upon a single contact w/ the forum state--sending a contract or
reinsurance to a person in CA. (MCGEE V. INT. LIFE INSURANCE) This is b/c of a more
nationalized commerce. Held here b/c the contract had a "SUBSTANTICAL CONNECTION W/
THE STATES COURTS."
C. PURPOSEFUL AVAILMENT: There must be some "act
by which the D. PURPOSELY AVAILS ITSELF OF THE PRIVILGE OF CONDUCTING ACTIVITIES W/IN THE
FORUM STATE AND THUS INVOKING THE BENEFITS AND PROTECTIONS OF ITS LAW.
IV. CONTEMPORARTY CONSTITUTIONAL GROUNDS FOR STATE COURT JR.
1. CONTACTS W/ THE FORUMS:
Under Int. Shoe, there is a 2 stage analysis to see whether jr. over a nonresident D. is
proper. (1) Did D. PURPOSELY AVAIL HIMSELF TO FORUM STATE; AND THEN (2) LOOK TO QUESTIONS
OF REASONABLENESS.
a.
Minimum contacts and Purposeful availment: REMEMBER, the purposeful availment requirment
focusese ON THE ACTIVITIES OF THE D. AND NOT THE INTEREST OF THE P.
(1) Definition: P.A. looks to some VOULUNTARY ACTION BY THE D.
ESTABLISHING A RELATIONSHIP W\ THE FORUM STATE, WHERE THE D. BENEFITS FROM W/ THE STATE.
(2) Rational; When the D. PURPOSELY AVAILS HIMSELF to the forum state
this "is fair warning that a particular activity may subject him to the jr. of that
state." [BURGERKING] THis also allows a D. to have an "idea of where he can and
cannot be brought into court." [WW-VOLKS]
(3) Forseeability: The D's actions and conduct w/the forum state are
such that he should RESONABLE BELIEVE THAT HE COULD BE BROUGHT INTO COURT THERE"
[WW-VOLS]
(a) Unilateral act of the P.: The UNILATERAL ACT OF THE P. IN BRINGING
A PROD. TO THE FORUM IS NOT ENOUGH TO ESTABLISH THE REQUISITE CONNECTION. EX:
1. HASON: Where the doner under a trust moved to Fl. after setting up a trust in DEL.,
that unilateral act DID NOT JUSTIFY FL'S ASSERTION OF JR. OVER THE DEL. TRUSTEE.
2. WW-vols Where the P. bought a car in NY and drove it to OKL., this
action by P. DID NOT ESTABLISH A CONTACT BT THE RETAIL SELLER AND OK. SELLER AND OKL.
(b) Long term relationship w/ forum: Where a D. has established a long
term relationship w/ the forum resident, that may be enough. BRUGER KING.
1. BURGER KING: Where a D. from Mich. enters into a 20 yr. K w/ a Fl. Co. that required D.
to adhere to a detailed specification of rules RE: the restaurant, Fl. jr. was proper over
a dispute under the agreement.
(c) Seeking to Serve: In WW-Volk, if NY resellers would have regularly
sold cars there, this would have been enough to establish min contacts. I.E. that they
SERVED OR SEEKED TO SERVE.
(d) Stream of commerce: It has been held that a forum state may assert
personal jr. over a Co. that delivers its products into the stream of commerce w/ the
expectation that they will be purchased by the consumers of that forum state. WW-Vols.
1. Retail seller: In WW-Vols the court held that the stream of commerc ends w/ the resale
of the product, even if that product will be taken and used in another state.
(4) Relation to claim: The court assumes that jr. is OK w/regard to
claims that are related to the forum cotacts that satisfy the PURPOSEFUL AVAILMENT
REQUIRMENT. This involves SPECIFIC JR. but some problems arise on examiniation:
(a) EX: In WW-Vols it was assumed that jr. was prower over Audi b/c
they sought to serve the OAKl. market. But it is difficult to see how the claim by the P.,
who bought the car in NY, arose out of or is elated to the efforts to serve OAKL.
(b) Resolution: When problems w/ claims not being connect w/ the corum
state--LOOK TO FORSEEABLILITY. IF D. SHOULD HAVE FORSEEN HE COULD HAVE BEEN HAILED INTO
THAT JR. IT IS ALLOWED EVEN W/ OUT MINIMUM CONTACTS.
(5) Commercial v. non comercial: Purposeful availment may be found
eaiser w/ regard to a D's commercial activity rather then private. EX: BURGER KING: Even
thought D. was a Mich. citizen his COMMERCIAL ACTIVITIES WAS PURPOSEFUL AVAILMENT AND
SUSTAINED JR. IN FLA.
(6) Choice of law: The court says that just b/c a states law does
apply, purposeful availment has not been satisfied.
(a) Choice of law clause: The partie's election that a certain states
court will govern their relationship may support jr. in that state.
(7) Reasonableness insufficient to satisfy PURPOSEFUL AVAILMENT
REQUIREMENT: The purposeful availment requirments are not easily outweighed EVEN if this
case would cause no harm to the D. to be tried in another jr.
b.
FAIR PLAY AND SUBSTANTIAL JUSTICE-REASONABLENESS: Besides focusing on the D's contacts, a
JR. inquiry also takes into account REASONABLENESS. This takes into account consideration
of the P's interests.
(1) Factors:
(a) The interest of the state in providing a forum for the P.
(b) The interest of the state in regulating the activity involved;
(c) The burden of the defense in the state on the D.
(d) The relative burden of prosecution elsewhere on the P
(e) Whether the D's activity in the state is CONTINUOUS AND SYSTEMATIC;
(f) The extent to which the claim is related to the D's local
activities and;
(g) Avoidance of the multiplicity of suits on conflicting judgements.
(2) Overlap: The same facts can be applied to meet more then 1 of the
above factors.
(3) Greater concern w/ foreign D's: The court has indicated that in may
be relevant that the D. is a foreigner b/c there are "UNIQUE BURDERNS PLACED UPON ONE
THAT MUST DEFEND ONESELF IN A FOREGIN LEGAL SYSTEM.
(a) EX: ASAHI, the ct. held that it was UNREASONABLE FOR CA to exercise
jr. over a cross claim for a forgien manufactorer b/ it could equally have been decided in
either country. In ASAHI, the burdern did not out wiegh the benefit to the state and
awareness was not enough to establish min contacts. Brennan disagreed.
2. PRESENCE OF D'S PROPERTY
IN FORUM: Quasi in rem and in rem jr. have been diminish since Harris v. Balk. Still, the
presence of the D's property in the state may often be enough to make jr. constittutional,
but only b/c it establishes a relevant contact bt. the D. and the state.
a.
Location of property:
(1) Tangible property: Real estate and things are in the state if
physically there.
(2) Intangible property: Genreally, States may declare that intangible
prop. is located in their jr. if some transaction related to the prop. occured in the
state. Ex: A debt or bank account may be deemed where the bank is located.
b.
Contact test: Shaffer held that minimum contacts applies to prop.
c.
Prensence of prop supports Jr.: In Shaffer the ct. saw that the "presence of prop. in
a state many bear on jr. by showing that contacts among the state, D., and litigation.
d.
Presence of property INSUFFICIENT FOR JURISDICTION: SHAFFER holds that when property is
COMPLETELY UNREALATED TO THE P'S CAUSE OF ACTION, ITS PRESENCE ALONE WILL NOT SUFFICE TO
SUPPORT JR. This overrules HARRIS V. BALK
e. In
personam alternative: Whenever the D. is subject to in rem jr., consider IN PERSONAM JR.
AS WELL.
3. GENERAL JURISTICTION
a.
Intro: If GENERAL JR. IS PRESENT, THE D. IS SUBJECT TO SUIT ON ANY CLAIM IN THE FORUM.
SUPECIFIC JR. GIVES JR. ONLY TO CLAIMS ARISING FROM JURISTICIONAL CONTACT W/ THE STATE.
b.
Rational; The idea is to provide a safe harbor wher the D. is amenable to suit w/out wour
that a court might later question the min contacts under International Shoe.
c.
DOMICILE: General jr. is available in the state of a persons DOMICILE. DOMICILE IS THE
PRESENCE IN A STATE AND INTENDING TO STAY THERE FOR AN INDEFINITE AMOUNT OF TIME.
d.
CORPORATIONS:
(1) State of incorporations: A corporation is subject to GENERAL JR. IN
ITS STATE OF INCORPORATION.
(2) Headquarters: A corporation is also subject to GENERSL JR. IN THE
STATE IN WHICH ITS HEADQUARTERS ARE LOCATED if this is different from the state of
incorporation.
(3) Substantial contacts: Corporations have been held suject to suits
on unrelated claims in state which they conduct SUBSTANTIAL ACTIVITY. This level of actual
activity is ambiguous but a LARGE VOL. SHOULD SUFFICE. HELICOPTEROS did not suffice for
gerneral jr.
e.
Relation to Claim: The general jurisdiction analysis usually becomes important when the
relation between the D's contact w/ the juristiction and the claim sued upon in not
sufficient. WHERE THERE IS NOT A SUFFICIENT RELATION TO THE CLAIM, ONE MAY FALL BACK ON
GENERAL JURISTICIONAL REASONING.
(1) EX. In Helicopteros the court loked to genral jr. b/c the conceded
thta the claims did not arise out of the D's contacts w/ Texas. Justice Brennan dissented
and said that the contacts were specific.
4. CONSENT: A D. may consent
to jr. in the forum. This consent may be EXPRESSED, IMPLIED, or by making a GENERAL
APPEARANCE IN THOSE STATES THAT DONT FOLLOW FED PRACTISE;
a.
Express consent: Express consent can be made either BEFORE OR AFTER suit is filed, and
suffices to support juristiction w/ out reference to other contacts w/ the forum.
b.
Implied consent: By filing suit, a P is deemed to have consented to the Jr. of the forum
for the purpose of a counter claim by the D. ASLONG AS THE COUNTER CLAIM IS RELATED TO THE
P'S ORIGINAL CLAIM.
c.
Apperance: A party's VOLUNTARY APPERANCE IN AN ACTION IS SUFFICENT BY ITSELF TO SUPPORT
JR.
(1) What constitutes appearance? An appearance occurs when the D
defends litigation on the merits of the case. Depending on the rules of prevailing jr. the
issue turns on the extent to which the D. raises issues other than jr.
(a) State ct: In many states a D. woh wished to preserve objections to
personal jr. must make a SPECIAL APPEARANCE raising ONLY jr. issues. Raising other issues
subjects the D. to the risk of having made a GENERAL APPEARANCE and thereby consenting to
jr.
(b) Fed courts: In fed courts and most state courts, a defendant need
not make a SPECIAL APPEARANCE; all ground of defense including LACK OF PERSONAL JR. CAN BE
ASSERETED IN A MOTION OR ANSWER.
(1) WAIVER: IF THE D. FAILS TO RAISE PERSONAL JR. IN HER INITIAL MOTIONS OF ANSWER, THAT
OBJECTION IS WAIVED. FRCP 12 (H)(1).
(2) Consent to jr. to decide jr. By moving to dismiss for lack of personal jr, the D.
consents to the power of the court to decide that question, INCLUDING THE POWER TO ORDER
DISCOVERY PERTINENT TO THE JR. QUESTION. INSURANCE CORP. OF IRELAND V. BAUXITES.
(c) Extent of jr. conferred: A general appearance may be limitied to
the claim made or issues raised in the action of the time of the appearance.
(d) Alternative of Default: A D. who believes tht jr. is the forum is
improper may disregard the suit and permit a DEFAULT JUDGEMENT TO BE TAKEN. When the P.
later tries to enforce the judgement in another jr. under full faith and credit, the D.
can then challenge on the grounds that the rendering court lacked jr. If the enforcing
court finds jr. was proper, then there will be no further opportunity to defend on those
merits.
5. Service w/ in the jr.:
Under Pennoyer, service w/in the jr. was PRESUMPTIVELY SUFFICENT TO SUPPORT JR.
a.
Possible min contacts: In Shaffer, the court said "all assertions of state court jr
must be evalutated acording to standards set forth in International shoe. Some courts have
taken this to mean that there must be min. contacts even where service is done in the
state. Other have said prence in the state is enough. The Court has not decided this
issue.
b.
Fraudulent inducement: Where the D. is personally served in the state, the court WILL NOT
EXERCISE JR. ON THAT GROUND IF THE D. WAS LURED INTO THE JR. BY P'S FALSE STATEMENT.
(1) Effective service: As long as D. is not lured into state by
trickery, this feature does not interfer w/ the effectiveness of service.
6. Territorial jr. of Fed
Courts: In most cases, Fed courts DO NOT EXERCISE NATIONWIDE JR. Except in the few
situations where such powers are conferred by rule or statute, the territorial jr. of a
fed court is usually no broader then that of the state in which the fed court is located.
V. STATUTORY AUTHORIZATION FOR JURISTICTION
1. Intro: Constitutionally
permissible extraterritorial jr. is not self-excecuting; a court meed authorty granted by
some statute or rule to exercise it. In STATE COURT, such authorization is usually in the
form of a LONG ARM STATUTE. This LONG ARM STATUTE operates as inabling legislation. THUS
THE FIRST STEP IN A JURISTICTIONAL ANALYSIS IS TO EXAMINE THIS LEGISLATION AND DERTERMINE
WHETHER IT COVERS THE CASE PRESENTED. I must interprete the statute and see what it is
that the interpretors had in mind.
2. LONG ARM STATUTES: In the
wake of International shoe, legislatures began to enact statutes extending the reach of
their courts jr.
a.
Full power: Some states have statutes which grant jr. anytime as long as it does not
violate the const.
b.
Specific acts: Some states only get specific jr. it specific acts are done in the state.
Ex. business transactions, tort violations, possession or ownership of any property in the
state, insuring a person in the state. W/ this kind of statute, one must see if (1) the
D's activities fall under the terms of the statue and (2) if so, whether the exercise of
jr. in the case is CONSTITITUTIONAL.
3. Fed. Court jr.: In
general, Fed. courts exercise jr. no broader then that authourized by the long arm
statute.
a. In
personam jr.: Process from fed. court can be served:
(1) W/in the state in which the district court is located (FRCP 4 (f))
AND
(2) Beyond the state if the STATE STATUTE AURTHORIZES SUCH SERVICE
(FRCP 4 (e)).
(a) Constitutionality: where service beyond the state occurs, the
constitutional determination is the same as if the case were in state court.
(b) Exceptions: (1) FRCP 4 (f) authorizes service on any person who
lives 100 MILES of the fed. court house and is either a NECCESSARY PARTY UNDER FED RULE 19
OR IS IMPLEADED UNDER FED RULE 14. This is callled bulge jr.
b. In
rem jr.: The Fed. courts may exercise attachment jr. by using the applicable state
attachment procedure FRCP 4 (e) but it must be constitutional under Shaffer.
VI. LITIGATING JURISDICTION
1. Intro: Inplict in the idea
of CONSENT, is the need for the D. to raise personal jr. objections in a timely fashion.
The D. has a varity of options.
2. Default: Already discussed
3. Appearance to litigate
jr.: The D. can litigate in the ct. which the suit was filed. In fed. court and most state
courts, the juristicional objection can be raised along w/ other defenses, but in a few
state courts the D. would have to enter a special appearance.
a.
Appellate review: A D. whose juristictional review is rejected can appeal that decision
but usually only after the final decision on the case is rendered.
VII. VENUE
1. Intro: VENUE IS A
STATUTORY LIMITATION ON THE GEOGRAPHICAL LOCATION OF LITIGATION. IT MUST BE CONSIDERED IN
ADDITION TO QUESTIONS OF STATUTORY AUTHORIZATION FOR JURISDICTION AND THE
CONSTITUTIONALITY OF THAT JR.
a.
Fed. courts: Venue statutes in the Fed system limit the FEDERAL DISTRICTS IN WHICH A SUIT
MAY BE BROUGHT.
b.
State courts: Venue statutes in state court systems usually limit the COUNTIES IN WHICH A
SUIT MAY BE BROUGHT.
2. PURPOSE: VENUE
LIMITIATIONS ARE DESIGNED TO PREVENT THE P. FROM SUING WHERE IT WOULD BE BURDENSOME FOR
THE D. TO APPEAR AND DEFEND.
3. Fed. Venue Limitation:
Most suits in fed courts are considered TRANSITORY ACTIONS subject to the following venue
rules: Generally, for most FED. QUESTION AND DIVERSITY CASES, VENUE IS PROPER WHERE ALL OF
THE D'S RESIDE OR WHERE THE CLAIM AROSE.FOR DIVERSITY CASES ONLY, VENUE IS ALSO PROPER
WERE ALL OF THE P'S RESIDE.
a. D's residence: Venue may be brought in the dist. in which all D's
reside when Fed. subject matter jr. is based on DIVERSITY OF CITIZENSHIP OR FED QUESTION.
28 USC 1391 A, B. If d's reside in different dist. of the same state the action can
be brought in any such dist.
(1) Residence of natural person: This refers to DOMICILE: The place she
resides W/ INTENT TO REAMAIN INDEFINITELY. In this sense, it is analogous to citizenship
for purposes of jr.
(2) Residence of corporation: A copr. is deemed a RESIDENT OF ANY
JUDICAL DIST. IN WHICH IT IS SUBJECT TO PERSONAL JR. AT THE TIME THE ACTION IS COMMENCED.
USC 28 1391 C. Thus, venue limitations do not pose additional hurdels, except for those in
personal jr, regarding coporate D's.
(3) Unincorporated associations: Have capacity to sue or be sued as an
entire entity. Venue is proper in districts in which they are doing business.
(4) Partnerships: A considered residents where ever their partners
reside.
b.
P's residence: When Fed. jr. is based on SUBJECT MATTER ONLY, VENUE IS PROPER IN THE DIST.
WHERE ALL P'S RESIDE. 28 USC 1391 A
(1) Fed. Question contrased: when the p's claim involves Fed question
as well this ground of venue is not available.
(2) Def. of residence: For a natual person residencs still refers to
domicile. But a coprate P. is Re: a resident only of its STATE OF INCORPORATION, and
broader residence def of 1391 C does not apply.
(3) Multiple districts: Where the P's reside in different districts of
the same state then this venue provision is not applicable.
c.
Where claim arose: Venue is ALWAYS PROPER IN THE DIST. WHERE THE CLAIM AROSE.
(1) Rational: This provision was added to the general venue statute to
cope w/ the prolem of venue gaps, which could arise when there were multiple P's and or
D's and there was no dist. that was the residence of all P's or D's.
(2) Def. In cases where the identity of the dist in which the claim
arose is not obvious, there is no simple test to see where the claim arose.
d.
Aliens: In a suit against an alien, venue is PROPER IN ANY DIST. 28 USC 1391 D.
e.
Removal cases: Where a case is removed from a state court to a federal court, it is
assigned to the Dist. encompassing the state ct. in which the action was pending
regardless of the residence of the parties. 28 USC 1441 A.
f.
Local actions: Certain types of acses involving title to property are considered local and
venue is regarded as proper only in the Dist. where the property is located.
(1) Where property is located in more then one dist. in the same state,
the action can be brought in any of those dist.
4. Litigating Venue: As w/
personal jr., improper venue may be WAIVED unless raised in the proper way. In fed. Court,
it is waived unless raised in the first rule 12 motion if there is no rule 12.
a.
Effect on timely veunue objection: Where the D. timely objects to venue, the court CANNOT
PROCEED W/ THE CASE. It may dismiss, but in most jr. it can also TRANSFER case to a court
that is a proper venue.
5. Fed transfer provisions: A
fed. case may be transfered to another fed. court in the following circumstances:
a.
Venue or jr. improper in original ct.: Where venue or jr. is IMPROPER IN THE COURT
SELECTED BY THE P., and the D. PROPERLY OBJECTS, the court MAY TRANSFER THE CASE TO THE
PROPER COURT rather then dismiss it. 28 USC 1406 a
(1) Above alos includes if jr. is improper.
(2) Transfer where venue proper but jr. is lacking: Lower courts have
held transfer where venue is proper but there is no persona jr.
b.
Transfer for convenience: Where venue and jr. are proper in the ct. selected by the P.,
the ct. can transfer the action "FOR CONVENIENCE OF THE PARTIES AND W'S IN THE
INTERESTS OF JUSTICE." 28 USC 1404 A.
(1) Compare w/ FORUM NO CONVENIENS: This transfer provision considers
many factors that bear on the question of whether to dismiss on FORUM NO CONVENIENS
GROUND, but PERMITS TRANSFER ON A LESSER SHOWING OF INCONVIENENCE.
(2) Proper transferee ct: The statute authorizes transfer only to a
district in which the ACTION MIGHT HAVE BEEN BROUGHT. This means that the transferee
district must be PROPER VENUE AND HAVE VALID PERSONAL JR. (The moving party's willingness
to waive objection to venue or personal jr. does not satisfy this requirement.
(3) Procedure
(a) Proper moving parties: Either the P or D can move to TRANSFER UNDER
THIS SECTION. A D. who has removed a case from state ct. can still move for a transfer
after removal.
(b) Showing required: In general, it is said that the P's CHOICE OF
FORUM SHOULD BE RESPECTED, and that transfer is proper only when the balance of
conveniences STRONGLY FAVORS TRANSFER. LOOKS TO THE IDENTITY AND LOCATION OF W'S ACCESS TO
ITEMS OF REAL EVIDENCE AND ANYTHING ELSE THAT WOULD MAKE IT MORE CONVIENIENT.
(4) Forum selection clause: Where the parties have entered into a
contract containing a forum selection clause concerning a dispute, that they should be
enforced as long as there is no duress.
c.
Multidristrict litigations: When cases pending in different districts raise a COMMON
QUESTION OF LAW OR FACT, THEY CAN BE TRANSFERRED TO ONE DISTRICT.
(1) Showing required: Must show that there are questions of law or
fact, and this does not favor the P's choice of forum in any way.
(2) This multidistrict litigation transfer is for pre trail purposes
only. 28 USC 1407 A.
(3) UNDER 1404 A THE TRANFEREE CT CAN TRANSFER THE CASE BACK TO ITSELF.
d.
Effect on choice of law: In Fed diversity cases, a transfer could affect choice of law b/c
the fed ct is required to look to the choice of law rules and determin the choice of law
issues.
(1) Venue and jr. proper in origina ct: In cases where the P. sues in a
ct. that has proper venue and jr. A TRNASFER FOR CONVIENCE WILL NOT AFFECT CHOICE OF LAW
B/C THE TRANSFEREE CT IS TO APPLY THE SAME CHOICE OF LAW RULES THAT THE 1ST COURT WOULD
HAVE ALLPLIED. Van dusen case.
(a) Ferens case: USSC said above rule is alright....
(2) Fed claims: Sometimes tranfers w/in the fed court system have
similiar choice of law problems. IT IS UNCLEAR WHETHER THE TRANSFEREE OR TRANFEROR
INTERPRETATIONS APPLY IN THIS CIRCUMSTANCE.
VIII. FORUM NON CONVENIENS
1. Intro: Even when jr. and
venue are proper, a court man decline to exercise jr. if the venue selected by the P. is
GROSSLY INCONVIENT. NOTE THAT THIS IS PURELY DISCRETIONARY ON THE CT.'S PART.
2. Present use:
a.
Fed ct: When the incoveniens problem can be solved by simply tranfering to another dist,
the ct may not dismiss; BUT IF THE PROPER FORUM IS IN ANOTHER COUNTRY THEN THE CT CAN
DISMISS THE ACTION. Piper Aircraft.
3. Rational: Change places
when it is simply to inconvenient to have one party defend it self there.
4. Procedure: The D. must
make a motion to dismiss ON THE GROUND OF INCONVENIENCE.
a.
Showing: The D. must show that the P has selected an GROSSLY INCONVENIENT LOCATION FOR THE
SUIT.
(1) Compare-transfer: In Fed ct. the showing necessary to justify
transfer is not as compelling as the showing needed to justify dismissal under forum non
conveniens grounds.
b.
Factors: The Ct. must consider the folling factors private and public factors when
deciding to dismiss on forum non conveniens grounds.
(1) Private factors: Will access to proof be eaiser in another
location, will imnportant unwilling W's be forced to attend a trial in a differnt place,
cost.
(2) Pubic factors: local intrest in having trial at home, have a trial
in a place that knows the particular law, avoid conflicts in law, and unfairness of
burdening citizens of unrelated forums w/ jury duty.
c.
Change in law: The fact the law is less favorible to a P in a more convenient forum has
not weight.
d.
The ct. cannot dismiss UNLESS THE ALTERNATIVE CT IS AVAILABLE
5. Effect on choice of law:
B/c forum non conveniens results in a dismissl, the P. must file a new lawsuit, and the
choice of law rules tht apply are determined by the forum for the new suit.
IX. NOTICE
1. Intro: In addition to
personal jr. and venue, one should be alert to the problems of notice. NOTICE IS NOT A
SUBSTITUTE FOR THE OTHER FACTORS, BUT IS ESSENTIAL TO A VALID JUDGEMENT.
2. Constitutional
requirements: Due process requires that REASONABLE EFFORTS TO PROVIDE NOTICE BE W/ REGARD
TO PERSONS WHOSE INTERESTS ARE TO BE DETERMINED. (Mullane)
a. In
rem cases: This notice also applies to pure in rem actions.
b.
Method: The method of giving notice must have A REASONABLE PROSPECT OF GIVING ACTUAL
NOTICE: THE MEANS EMPLOYED MUST BE SUCH AS ONE DESIROUS OF ACTUALLY INFORMING THE ABSENTEE
MIGHT REASONABLY ADOPT TO ACCOMPLISH IT. (MULLANE)
(1) Personal delivery: Personaly deliver of the notice is the
traditional method.
(2) 1st class mail: In Mullane, the court requried maild notice to
those whose names were know b/c they viewed the mail as a efficeint and inexpensive way of
commumication.
(3) Posted notice: Notice by posting on the D's residence MAY NOT BE
SUFFICEINT. Green, this was stated b/c it was reasoned that it could be torn down.
c.
Effort to identify: Reasonable efforts to identify and locate affected persons are
required.
(1) Class actions: Court has accepted failure to identify significant
members of a class. Rational: That as long as try to identify most of members, then any
objections will benefit the intrests of most that were not identified.
d.
Contents; must give D. nature and place of hearing.
e.
Constructive notice: If person cannot be located AFTER RESONABLE EFFORTS, then publication
will sufice.
f.
Effect of failure to recieve: If a constitutionally valid proceedure is used, the
JUDGEMENT IS BINDING EVEN IF INTERESTED PARTY DOES NOT RECIEVE NOTICE.
*******
Service of process: The usual method for giving motice is SERVICE OF SUMMONS on the D.
which tells D. what to do next or suffer default.
g.
Juristctional distinguished: Service of process and jr. are separate. Even where service
is proper, the D. can still challenge personal jr.
h.
Methods of service:
(1) Personal delivery: Process can be served on a person. In the case
of a corp., partnership, or unincorporated assn., service may be made on an managing
agent, or an agent authorized by law.
(2) Substitute service in Fed ct:
(a) At the D's home: A copy of the summons can be left at the usual
place of dwelling of the D. w/ a PERSON OF SUITABLE AGE AND DISCRETION RESIDING THEREIN.
FRCP 4 (D) 1.
(b) By mail: A copy of the summons can also be mailed to the D. along
w/ acknowlegement of the service, and is binding IF THE D EXECUTES AND RETURNS THE
ACKNOWLEDGMETN. FRCP 4 (C) 2 (C).
3. Timing of
Notice-Prejudgement seizuries: At common law, D's property could be seized even before D
had notice of action so that P had security of any jugement he might have got.
a.
Procedural due process requirements for prejudgement seizure: USSC says seizures w/out
notice or advance hearing require that the P give a detailed statement of basis for the
claim, then a judcial offer reviews the claim, then P post a bond, and D be allowed to
have a post seizure hearing.
B: SUBJECT MATTER JURISDICTION OF THE FED COURTS
X. Intro: Nature of subject matter jr.: SMJ involves a COURTS AUTHORITY
TO RULE ON A PARTICULAR TYPE OF CASE.
1. Defect Not Waivable: Lack
of SMJ is NOT WAIVABLE.
a. D.
may rais at any time: Lack of SMJ may be raised at ANY TIME EVEN AFTER FINAL JUDGEMENT.
b. If
the parties do not raise lack of SMJ, the court will raise the issue on its own.
XI. DIVERSITY JURISDICTION
1. Const. authority: Article
III, 2 authorizes DIVERSITY JR. TO PROVIDE A FORUM FOR PERSONS THAT MIGHT BE VICTIMS
OF LOCAL PREJUDICE. The Const. requires only MINIMUM DIVERSITY, I.E THAT DIVERSITY EXISTS
BETWEEN ONE P AND ONE D.
2. Diversity Statute:
a.
Complete Diversity Requirement: The diversity statute requires COMPLETE DIV., IE THAT NO D
HAVE THE SAME CITIZENSHIP AS ANY P.
b.
How Citizenship is Determined: For natural persons, including permanent resident aliens,
CITIZENSHIP IS GERNEALLY THE SAME AS DOMICILE. A corporation is a citizen of its STATE OF
INCORPORATION and the state of its PRINCIBLE PLACE OF BUSINESS. Unincoporated associations
are citizens of EACH STATE OF WHICH ANY MEMBER IS A CITIZEN.
(1) Class actions: Only the citizenship of the named P is needed.
(2) Fake D's: Citizenship of a fictious D. is DISREGARDED IN CONCERNING
WHETHER A CASE IS REMOVEABLE.
(3) Executors, guardians, and trustees: Legal representation of dead
people or retards are deemed CITIZENS OF THE SAME STATE AS THE PERSON WHO REPRESENTS THEM.
c.
Time for determination: Diversity need exist only at the COMMENCEMENT OF THE ACTION.
(1) Removal: For removed cases, diversity EXIST BOTH AT THE TIME OF THE
FILING OF THE SUIT AND AT THE TIME THE REMOVAL NOTICE IS FILED.
d.
Realigning parities: In considering DIV, the ct looks to the REAL INTERESTS of the parties
and may realign them according to the P and D.
e.
Efforts to create DIV: Diversity CANNOT BE created by collusively of improperly joining a
party or by assigning a claim w/out sufficient consideration.
f.
Efforts to defeat DIV: P's are allowed some latitude in taking steps to defeat DIV, like
adding claims against non-DIV D's
g.
Effect of lack of DIV: A P. may sometimes obtain DIV by dismissing a NON-DIV D., but may
not proceed in court w/out a necessary party.
h.
Jurisdictional amount: Must be MORE THEN 50,000 IN CONTROVERSITY IN A DIVERSITY CASE.
(1) Legal certainty test: The amount claimed by P. is determinative
unless D. shows to a LEGAL CERTAINTY THAT THE MIN 50,000 CANNOT BE MET.
(2) Aggregation of claims to satisfy requirement: Single P. MAY
AGGEGATE ALL CLAIMS AGAINST A SINGLE D. TO MEET THE MINIMUM 50,000. Single P. may
aggreagate claims aganst SEVERAL D'S ONLY IF ALL D'S ARE JOINTLY LIABLE. Multible P's may
aggregate claims against a single D. ONLY IF THE P'S HAVE A COMMON UNDIVED INTREST IN THE
CLAIMS. (D's counter claim cant be added on to P's claim to make min.)
XII. FEDERAL QUESTION JURISDICTION
1. Const Grant: Article III,
2 extends the federal judicial power to cases ARISING UNDER THE CONSTITUTION, THE
LAWS OF THE US, AND TREATIES, ADMIRALTY CASES, AND CASES TO WHICH THE US IS PARTY.
2. Fed. Question statute:
a.
Statute interpreted more narrowly than Const: The lang. of the fed question statute is
very similiar to that in article III, but has been interpreted more narrowly.
(1) State cts. have CONCURRENT JR OVER MOST FED QUESTION CASES
b.
Standards for determining whether FED QUESTION IS RAISED: A fed. question may be raised
when fed law has created a claim suied upon, or when a right under STATE LAW TURNS ON
CONSTRUCTION OF FED LAW
c.
Well pleaded complaint rule: The fed question must appear in the PROPERLY PLEADED
ALLEGATION IN THE COMPLAINT
(1) Anticipation of a defense is insufficient: A fed question is not
sufficiently raised by the P's allegations that the D. will rely on a defense based on fed
law.
(2) P's election not to assert a Fed claim: P may, w/in limits, elect
not to assert a fed claim and thus aviod FED QUESTIO JR.
d.
Plausible assertion of fed right sufficeint: A fed question is suffiecient to vest the
court w/ JR. unless it is frivolous or made soley to bring about jr.
e.
JR. Amount: In MOST FED QUESTION CASES THERE IS NO REQUIED AMOUNT OF $$$ NEEDED.
XIII. PENDENT AND ANCELLARY JR. (SUPPLEMENTAL JR)
1. Intro: Where jr. is
proper, fed courts have jr. OVER ALL ISSUES IN THE CASE NOT JUST FED QUESTIONS.
2. Const. limitations: A fed
ct. has power to decide pendent claims if the claim is SUBSTANTIAL, the claims derive from
a COMMON NECLEUS OF OPERATIVE FACT, AND THE P WOULD EXPECT THAT THE BE TRIED IN ONE
PROCEEDING.
3. Judicial Discretion
Whether to Exercise Pendent Jr: A ct. may decide not to exercise pendent jurisdiction IF
THE FED CLAIM IS DISMISSED BEFORE THE TRIAL, IF THE NON FED CLAIM IS THE REAL BODY OF THE
CASE, IF THE NON FED CLAIM UNDULY COMPLICATES THE CASE, OR IF STATE LAW IS UNCERTAIN,
4. Pendent Party Jr. Pendent
party jr. arises when P has a non fed claims against a NON DIV D. THAT ARISE FROM THE SAME
OPERATIVE FACTS AS A FED CLAIM AGAINST ANOTHER D.
a.
Const. Power: Pendent party jr. is constitutionally permissible, but probably cannot be
used where not clearly authorized by congress.
b.
DIV Claim: The Court has refused to allow a P to assert a claim aginst a non DIV 3rd party
D. to prevent the DIV requirement.
c.
Exclusive Fed Jr: If there is exclusiv fed jr. over one claim, pendent party jr as to
related claims is probably precluded unless congress has indicated that it contimplated
pendent party jr.
XIV. REMOVAL
1. Grounds for removal: In
general, an action that the P COULD HAVE ORIGINALLY FILED IN FEDERAL CT CAN BE REMOVED TO
THERE BY THE D.
a.
Local D: Removal is not permitted if any D. is a citizen of the state in which the action
is brought
b.
Separate and independent claims: D. may remove if sued on a removable separate and
independent claim, even if P has joined non re moveable claims.
2. Procedure for Removal: D
removes by filing a notice of removal in the appropriate fed ct. and notifying the other
partys and state ct.
a.
Only D's can remove: P may not remove a case on the baissi of D's assertion of a counter
claim
b.
All D's must join: Unless an individual D has a separate and independent claim against
him, ALL D'S MUST JOIN IN FILLING FOR REMOVAL.
3. Remand: The Fed ct. should
Remand an improperly removed case to state ct.
