Civil Procedure Outline

1. Personal Jurisdiction (Rule 12 (b)(2) Motion) *****The power of the court to bind the defendant to the judgment***** Traditional Bases i. Physical Presence 1. Rule a. A non-resident defendant is subject to personal jurisdiction where they are properly served with process while physically present in the forum state 2. In Personam (Person) a. Jurisdiction over actual person 3. In Rem (Property) a. True In Rem i. The property being seized is the subject of the claim b. Quasi In Rem i. The property being proceeded against has nothing to do with the claim ii. Can only collect what the property being proceeded against is worth when sold, not the full amount of the judgment ii. Citizenship 1. Rule a. A defendant is always subject to personal jurisdiction in any state that they are a citizen of 2. Natural Persons a. Physical Residence in State b. Intent to return/remain indefinitely 3. Corporations a. State where the corporation is incorporated b. Principle place of business i. 2 Tests 1. Nerve Center Test a. Where the decision making power is (CFO, CEO) 2. Muscle Test a. Looking for manufacturing center on main distribution 4. Associations (unincorporated labor unions, synagogues, clubs, etc) a. Where each member resides iii. Consent or waiver 1. Rule a. Traditionally, a defendant is subject to personal jurisdiction in any state where they have consented to settling a dispute, either purposefully or by accident 2. On Purpose a. Forum Selection Clause i. A covenant in a contract in which the parties agree that any dispute arising out of that contract will be litigated in a specific state ii. Unreasonable Only If 1. Not vital to Contract a. What is the link between the FSC and the contract?

b. Looking for the relationship between the forum and the relationship to the contract 2. Selects a remote and alien forum a. Does the forum have anything to do with the claim being filed? b. How far and burdensome would it be to litigate there? c. Does the claim have anything to do with the selected forum? 3. Was negotiated in bad faith a. Must be outrageous to qualify b. Not reading or understanding contract will not suffice c. Contract of adhesion not enough in and of itself o Was plaintiff prevented from reading the contract? o Was the contract not written in plain English? 3. By Accident a. No Special Appearance i. Defendant must make a special appearance to challenge personal jurisdiction; if defendant doesn't make special appearance, right to challenge personal jurisdiction is waived Modern Basis (MC = FP + SJ) (Shoe Test) i. Rule 1. Modernly, a nonresident defendant is subject to personal jurisdiction in any state where (1) the states long arm statute purports to reach and (2) they have such minimum contacts with the forum state so long as the finding of jurisdiction doesnt offend traditional notions of fair play and substantial justice ii. Steps to determine modern Basis 1. Does the Forum states long arm statute purport to reach? (Assume it always purports to reach) a. 2 Types of Long arm statute i. Specific Acts Statute 1. Names specific acts that subject a person to Personal Jurisdiction ii. Cop-Out Statute 1. The statute will purport to reach as far as it can under the 14th Amendment (not inconsistent with the constitution of the state or the US) 2. If so, does the defendant have MC = FP + SJ a. Purposeful Availment (MC) i. Rule 1. Defendant has minimum contacts with the forum state if they have purposefully availed him/herself of the benefits and protections of the forum state ii. IS 1. Has Effects a. Did the defendants contact with the forum state have an impact? 2. Intentional

a. Directed Towards the Forum State (Continuous and Systematic) 3. Substantial a. Continuous and Systematic Activities b. A single or occasional act, due to its nature, quality, and circumstance may be enough 4. Confers Benefit ($) a. Doesn't have to be a monetary benefit, can be any type of benefit from state b. Can be the laws and protections of the forum state 5. Gives Rise to the Claim a. "But for" test b. Whatever defendant has done in the forum state gave rise to the claim iii. AIN'T 1. No Impact a. Contacts with State did not give rise to claim 2. Accidental a. Unintentional or random b. Acts of God 3. Insignificant a. Insubstantial, isolated, sporadic, acts with state had nothing to do with lawsuit 4. Unilateral by Non-Defendant a. The contact was caused by a 3rd party or force b. Example: Dorothy & Tornado 5. Foreseeable a. Dont discuss unless it is brought up in the question by the facts b. Example: Company executive admits that they knew what happened was foreseeable b. Fair Play and Substantial Justice (FP + SJ) i. Rule 1. It may be unfair or unjust for defendant to defend in the forum, so it's necessary to determine how strong or weak the interests are from the plaintiff's and defendant's perspective 2. *****Evaluate using terms "Strong & Weak"***** 3. *****2 & 3 most important, than 1***** ii. Relevant Factors 1. Plaintiff's Interest a. Strong because plaintiff wants to remain in the forum they choose o Perhaps more favorable to them winning (home field) o relevant access to witnesses and evidence b. Always stronger when relevant evidence and witnesses are located in the forum state 2. Defendant's Interest (in avoiding forum state) a. Strong When o Defense doesn't have access to relevant evidence and witnesses

o Would cause a great burden on the defendant to litigate there ($$$); Have to show actual hardship 3. Forum State's Interest a. Strong When o Protecting its citizens o Incident occurred in State o Forum state's law to be applied; Choice of law clause (VERY STRONG) 4. Interstate Judicial System's Interest a. Burden on courts to hear same case with same evidence b. Only split if 2 pieces arent related o If a case has 2 claims that are not related, than split 5. Shared Substantive Interest of Several States a. Promotion of public good and social justice b. certain universal interests are shared by different states so if this is the case, no need to move c. If case affects more than 1 state or has a different policy, may not be wise to keep in the forum state 2. Subject Matter Jurisdiction (Rule 12 (b)(1) Motion) Federal Question (1331) First Class i. 'Arising Under' Requirement: The Plaintiff's claim must arise under the laws, constitution or treaties of the US (Only need 1 of 3) 1. Explicit Federal Right and Remedy a. Statute creates an explicit federal right and remedy b. On Exam, it will say: there is a federal law called X and it follows: "any person aggrieved by Y may bring action in Fed. District court. Look to facts and see if person is aggrieved under the statue 2. Federal Law is Essential Element a. Look to interpret federal law to interpret plaintiff's claim b. Break down the claim into components to see if one is a federal question 3. Important Federal Policy (Very Rare) a. Does it have a Federal Aura? b. Deals with some type of Federal law or policy ii. Well Pleaded Complaint Rule 1. The Federal question needs to appear in the plaintiff's claim 2. Cannot be based on a federal question raised in the defendant's defense Diversity (1332) Coach Class i. Rule 1. The action must be between citizens of different states and the amount in controversy must exceed $75 K ii. Between Citizens of Different States 1. Elements a. Between i. There has to be complete diversity ii. No plaintiff can be from the same state as any defendant b. Citizens i. Natural Persons 1. Physical Residence in State 2. Intent to return/remain indefinitely

ii. Corporations 1. State where the corporation is incorporated 2. Principle place of business 3. 2 Tests a. Nerve Center Test o Where the decision making power is (CFO, CEO) b. Muscle Test o Looking for manufacturing center or main distribution center iii. Associations (unincorporated labor unions, synagogues, clubs, etc) 1. Where each member resides c. Of Different States i. Not only states in the US, but also includes territories and protectorates iii. The Amount in Controversy Must Exceed $75 K 1. To-a-legal-certainty test a. The presumption is that the amount in controversy is satisfied, unless the party opposing Federal subject matter jurisdiction can establish to a legal certainty that the other party cannot make jurisdictional amount. b. The burden of proof is on party opposing Federal SMJ 2. Exclusions (to the $75 K calculation) a. Interest (Compounded Over Years) b. Court Costs c. Attorney Fees (Unless Suing for Attorney Fees) 3. Plaintiff's No-Aggregation Rule a. Multiple plaintiffs cannot add up their claims to reach the jurisdictional amount b. EXCEPTIONS i. A single plaintiff with multiple claims can add up to reach 75 K ii. Multiple plaintiffs against a single defendant bringing undivided parts of essentially the same claim 4. Non-$ Relief Tests a. Plaintiffs may want something other than money, such as an injunction, accounting, an action to quiet title, an action for ejectment, and other variations (Called EQUITABLE REMEDIES) b. 2 Tests to determine the value of equitable remedies i. Plaintiffs Perspective Test 1. What is plaintiff loses? What value would the defendant lose if the plaintiff got an injunction? ii. Defendants Perspective Test 1. What if the defendant loses? What value would the defendant lose if the plaintiff got an injunction? Supplemental Jurisdiction ( 1367) A claim that cannot pay its own way as a federal claim (No federal question or diversity). Essentially, a supplemental claim is a state law claim trying to get into federal court along with a federal claim. i. GIVETH (1367 a) Gibbs Test 1. If there is no independent basis for subject matter jurisdiction, then in order for the state law claim to ride along with the federal claim, the independent claim (Federal claim) and state law claim(s) must arise out of: a. The Same Case or Controversy; OR

b. The Same Transaction or Occurrence; OR c. Have A Common Nucleus of Operative Facts 2. TEST a. Are the federal claim facts the same facts that will be used to argue the state claim? If yes, then Gibbs test is satisfied 3. Taketh Away 4. In cases where diversity is the only independent basis of SMJ for the Federal claim, plaintiffs may not join supplemental claims to the litigation. 5. *****This rule does not bar defendants from joining supplemental claims under the same circumstances***** a. Defendants can implead other defendants as well, as long as the case stems from the same nucleus of operative facts 6. *****Rule also does not apply in cases where at least 1 Federal Question claim supplies an independent basis of SMJ***** ii. Conditioneth 1. A judge can get out of trying a case if it finds either of the following mentioned factors, but he does not have to dismiss the supplemental claim. (If none apply, claim must stay) a. Novel or complex state law i. Complex its a mess, and its too hard to figure out ii. Novel case of first impression b. State law claim predominates i. If there are more state law claims than federal law claims, than send it back to state court c. Independent claim(s) are dismissed i. Look at the investment of judicial resources ii. If the Federal claim is dismissed in the beginning of case, supplemental claim should be dismissed too. d. Other compelling reasons i. Exceptional circumstances and reasons that would compel a dismissal ii. Anything that makes it more difficult would be more reason to dismiss 3. Notice/Opportunity To Be Heard (Rule 12(b)(5) Motion) Components of Notice i. Mechanics (Federal Rules of Civil Procedure) ii. Constitutionality (14th Amendment) Mechanics of Notice i. Definition 1. The way local or federal rules prescribe notice to be given 2. How a statute sets out the procedure for which process is made. Must be followed specifically or service could be invalid ii. Upon Natural Persons 1. In-Hand Delivery Place and leave with defendant 2. Substituted Service Left at defendants dwelling or place of abode with person of suitable age and discretion residing therein 3. Appointed Agent Authorized to receive summons on defendants behalf 4. Other Any method authorized by forums law is OK under Federal Rules of Civil Procedure iii. Upon Fictitious Defendants 1. Managing or general officer a. The higher up the food chain the better

2. Appointed Agent a. An agent appointed by the defendant to accept service on their behalf 3. Other a. Whatever is acceptable by local laws Constitutionality i. Rule 1. Notice is constitutional if it is reasonably calculated under the circumstances to give actual notice ii. Elements 1. Reasonably Calculated a. Most effective means. b. Cost-benefit analysis (The more expensive, the less reasonable) 2. Under the Circumstances a. If the defendant is known, it should be more than publication 3. To Give Actual Notice a. Although giving notice is goal, an attempt may be good enough

4. Venue Venue = District = Where ( 1391) Venue is properly laid where i. Any defendant resides, if all in the same state 1. Under this option, at least 1 defendant needs to reside in the district here the claim is filed, if all the parties reside in the same state ii. Event(s) or Omission(s) Occurred 1. Venue is properly laid in any district where a substantial part of events or omissions giving rise to the claim occurred (or a substantial part of property that is the subject of the action is situated) 2. Not about where the defendant is from, but what the defendant did and where he/she did it iii. Last Chance Option (Only use after one has exhausted options 1 & 2) 1. Diversity: All Defendants = Personal Jurisdiction a. Venue is properly laid in a district where you can get personal jurisdiction over all the defendants b. Have to have minimum contacts with the district, not just the state 2. Federal Question: Anywhere defendant can be found a. If its a federal question case, we dont care about personal jurisdiction. In a federal question matter, the US is the sovereign power thats exercising jurisdiction. There is automatic contact with the US Transfer of Venue ( 1404 & 1406) i. Transfer of Venue is Permitted if: 1. Transferee Venue Satisfies 1391 a. Desired transferor venue has to be proper venue to begin with b. Plaintiffs Motion i. Where defendant could have initially been served c. Defendants Motion i. Where plaintiff could have brought the action 2. Convenient for Litigants and Witnesses a. Where it would be easier to prosecute and defend; where evidence mostly is locate b. 1404(a)

i. For convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 3. Serves Interests of Justice a. Where there is a transfer no matter where it came from, need to use laws where venue came from 5. Forum Non-Conveniens (FNC) Definition i. Defendant wants to throw out case because the forum is inconvenient. ii. Defendant wants to dismiss to another state court system or a foreign country. iii. THE ONLY REMEDY IS DISMISSAL 1. Because you cant transfer to another state court system or a foreign country iv. If motion is granted, plaintiff can go to the other forum and file the claim there v. Even if venue is proper, forum can possibly be inconvenient Differences Between FNC and Venue i. Only remedy in FNC is dismissal ii. Unlike venue, 90% of FNC cases will be in state court When Forum Non-Conveniens Comes Up i. STATE COURT 1. When federal court is not an option and the lawsuit is one state court, and theres another feasible forum in another states court, use FNC ii. FEDERAL COURT 1. We are in federal court and we have exhausted all venue options, and theres a more suitable venue in another country, the court will dismiss and recommend that the plaintiff file in that country RULES: Dismiss Suit If: i. Feasible Alternative Forum 1. Some other court from the forum court where the plaintiff could file the claim 2. Defendant has to show that there is another reasonably feasible forum in either another state court system or foreign country court system. 3. Doesnt have to be better or as good, or even the same as. The fact that you have no chance of winning doesnt make it infeasible. 4. Reasons why a court would not be feasible a. Courts are not open b. Court is biased towards one party ii. Public/Private Interests Favor It (If answer to #1 is no, dont need to do number 2) 1. Public (All these factors have to do with the court the case is currently in) a. Administrative Burden i. How much of a hassle is it going to be for this court to hear this case? ii. State courts have an interest in not burdening its courts with litigation not connected with the state b. Foreign Choice of Law i. Court may be reluctant to take a case depending on the extent of which the court has to apply foreign law. The legal merits of the case would be too difficult to argue in this court. 1. Courts are more likely to apply foreign laws that are similar to our common laws a. Examples - Canada, UK, Australia, NZ

2. Courts are less likely to apply foreign la that is different tradition because too inconvenient to learn that law and teach to jury a. Examples France & Germany c. Local Interests i. To what extent are citizens of the forum state going to be affected by outcome of litigation? 1. Strong a. Whenever blood is on ground, court will be compelled to hear the case 2. Weak a. Dismiss the case 2. Private a. Burden on Defendant i. Costs to defendant; distance to be traveled; fairness of his ability to defend b. Access to Evidence & Witnesses i. How difficult will foreign witnesses be to get into U.S. forum? ii. Would people controlling evidence cooperate voluntarily? 6. Removal ( 1441) *****State Federal Court Only***** Noticed by the defendant Rules Governing Removal ( 1441) i. Plaintiffs Original Jurisdiction Rule 1. Defendant can remove the case from State to Federal court whenever plaintiff could have originally had jurisdiction to file the claim in Federal court 2. The claim still needs to pay its own way a. Any claim that cant stand on its own or that is supplemental has to be send back to state court ii. No Defendants From Forum State Rule (In a diversity case) 1. When diversity would provide the only basis for removal, it cant be removed from State to Federal court if the case is brought in the defendants state of citizenship 2. Example a. CA plaintiff sues NV defendant in Nevada State Court on diversity; defendant cant remove to Fed. Court in NV because its already in his home state iii. All of Nothing Rule 1. All claims have to go or none can go (Cant just remove federal claims) 2. Claims that dont belong can be remanded back by Federal court 3. If multiple defendants in the case, all have to agree to remove. If even one doesnt agree, none can go. iv. Timing Rules 1. General 30 Day Rule (Only applies to diversity cases) a. The defendant has 30 days from notice to remove the case to Federal Court 2. Diversity 1 Year Cap Rule (ASK) a. Defendant only has 1 year from the date that the lawsuit is filed to remove b. Events that later create diversity are irrelevant 7. Remand ( 1446 & 1447) *****Federal State Court Only*****

Description i. Remand is the remedy for improper removal and shifts case from federal to state court. ii. If a case is improperly removed to Federal court, the whole case or part of it has to be remanded back to state court Rules For Remanding Back to State Court i. When a Removal Rule was Violated ii. Claim-by-claim analysis (Gibbs) 1. Look at each claim separately to determine if it can stand on its own 2. Could be remanded back on any theory that a supplemental claim can be or if it violated the 30-day rule iii. Timing (30-Day-Rule) 1. Have to make motion to remand within 30 days of removal. 2. If not, plaintiff waived right to remand 3. EXCEPTION a. If subject matter jurisdiction is discovered to be lacking in the claim, than the case will be remanded back to state court, even after 30 days