PERSONAL JURISDICTION (PJ) Answers the question of in what state can

sue? The test for personal jurisdiction is the same in federal court and state court. A federal
court will only have jurisdiction if the state in which it sits has personal jurisdiction. A court
can either have power over the or the s property to have PJ.
Specific jurisdiction is when the sues for a claim that arises in the forum.
General jurisdiction is when the sues for a claim that arose anywhere.
I. IN PERSONAM JURISDICTION (power over the s person) A jud!ment from a
court creates a personal o"li!ation on the and entitles the to full faith and credit
(##$) in all other states. The Due Process Clause tells states how far they can !o in
e%ercisin! PJ. This is the outer limit and is not self&e%ecutin! "ut states do not have to
e%tend their reach to the full limit of the constitutional circle.
A. Statutory Test. The first thin! you loo' at when you !et a PJ (uestion is the state
statute for the jurisdiction that you are in. )hile statutes vary from state to state*
every state has statute allowin! jurisdiction when+
present in forum when served with process (!eneral jurisdiction statute)
domiciled within the state (!eneral jurisdiction statute)
non&resident motorist act , appoint a!ent for service of process and
consent (specific jurisdiction statute) (-ess v. Pawlos'i)
attachment statute for in rem./01
long-arm statut !or non-rs"#nts
2. $ull Po%r (CA t&')+ the state has jurisdiction to the full e%tent that the
$onstitution allows test is same as $onstitutional test
3. Laun#r& L"st+ various thin!s that can do in state that would su"ject him to
specific jurisdiction. $lassical list includes+ transaction of "usiness*
commission of tortious act* matrimonial domicile within state* owns real
property within state.
0nterpretation of lan!ua!e can vary in different states. 0n (Gray v.
American 1adiator) 0llinois had jurisdiction over 4hio $orp. ".c
0llinois interpreted 5commit tortious act within state6 to mean tortious
act occurred where is harmed (Ill"no"s Rul). The same statute and
fact pattern in 78 would not !rant jurisdiction ".c interpreted same
lan!ua!e to mean tortious act occurred where product was ne!li!ently
manufactured (N( Rul). (#lint v. Gust)
)atch for difference "etween 5any "usiness6 and 5su"stantial
"usiness6 in statute.
Amandas $ivil Procedure 0 4utline Pa!e 2 of 39
). Constitutional Analysis+ once a state statute has "een met must loo' to $onst.
*. Tra#"t"onal )as"s o! Jur"s#"+t"on may alone suffice to esta"lish PJ.
(a) Presence: The Supreme $ourt upheld PJ when the was served with process
within the forum state. (Pennoyer v. 7eff)
7either 0nternational Shoe nor :urnham overruled the idea that presence
alone is sufficient for personal jurisdiction. The 0nternational Shoe test
says 50f he "e not present6 then the minimum contacts test will "e applied.
:urnham was a transient jurisdiction case (o"tainin! jurisdiction "y
servin! while temporarily physically present in the state) "ecause was
served process for a cause of action unrelated to his "rief presence in the
state. -ere the court split 9&9 with one side su!!estin! that presence alone
was enou!h (Scalia) and the other usin! minimum contacts as the
definitive test (:rennan). (:urnham v. Superior $ourt of $alifornia)
Force or Fraud exception, service of process invalid in cases where
forced or tric'ed to enter state in order to serve process and therefore no
PJ.
Iunity of parties and witnesses, most states !rant immunity from PJ to
nonresidents who are present in the state solely to ta'e part in a judicial
proceedin! or who are passin! throu!h the state on their way to a judicial
proceedin! elsewhere.
(-) Doicile, if domiciled within the state then there is !eneral jurisdiction. 0t
is still true today.
(+) Consent: can waive $onstitutional protection "y consentin! to PJ. $an do so
in a state court "y ma'in! a gnral a''aran+ instead of a s'+"al
a''aran+ (only contest PJ).
can provide .'rss +onsnt via contract or "m'l"# +onsnt such as the
nonresident motorist act in -ess v. Pawlos'i.
(#) A!ent appointed for ser"ice of process: can serve process on s a!ent if
served within state. may appoint a!ent or s actions may "y statute appoint
or desi!nate an a!ent for service of process. (-ess)
Privile!es and immunities clause protects ri!ht of interstate travel for
persons "ut since corporations are not persons* state can e%clude them
from enterin!. States can force corporations to appoint an a!ent within the
state as a condition for allowin! the corporation in.
Amandas $ivil Procedure 0 4utline Pa!e 3 of 39
/. Mo#rn anal&s"s-Intrnat"onal S0o Tst, The Supreme $ourt in 0nternational
Shoe v. )ashin!ton !reatly e%panded the test for PJ "eyond the traditional "ases.
The focus "ecame whether there were #such iniu contacts with the foru
so that the exercise of jurisdiction does not offend traditional notions of fair
play and su$stantial justice%&
Two&pron! test re(uired+ minimum contacts and fairness. ;ust have a
relevant contact "efore loo'in! at fairness. All the fairness in the world would
not ma'e up for no contacts.
(a) MINIMUM CONTACTS: purposeful availment and foreseea"ility
Purposeful a"ailent, $ourt must find that the purposely availed himself
5of the privile!e of conductin! activities within the forum state* thus
invo'in! the "enefits and protections of its laws.6 (-anson v. <enc'la)
Un"latral a+t o! , "rin!in! product to forum or relocatin! in the forum
is "nsu!!"+"nt to esta"lish the re(uisite connection.
movin! to #= in -anson did not esta"lish PJ over <elaware
"an'.
s drivin! a car throu!h 4> did not esta"lish PJ ()orld&)ide
?ol'swa!en v. )oodson)
Long-trm rlat"ons0"' %"t0 !orum, reached out to #= when si!ned
3@ year franchise a!reement (:ur!er >in!)
S"ngl a+t, sin!le act see'in! to serve the forum mar'et suffices for
specific jurisdiction such as a Te%as insurer sellin! one policy to person in
$A. (;cGee)
Sol"+"t"ng -us"nss, (e.!. advertisin! in forum* A@@ num"ers* sell on
interstate hi!hway close to state "order* etc.)
Foreseea$ility, <o not loo' to the foreseea"ility that product will !et there
"ut that 5BC should reasona"ly anticipate "ein! 0al# into court there.6
()orld&)ide ?))
Stram o! Commr+: PJ over a corporation that 5delivers its products
into the stream of commerce with the e%pectation that they will "e
purchased "y consumers in that forum state6 (?)) There is no su"stantive
law in this area "ecause of a 9&9 split in Asahi. 7eed to address "oth of
the followin! theories+
Amandas $ivil Procedure 0 4utline Pa!e D of 39
4$onnor+ reasona"le anticipation product could !et in state
and some intent or purpose to serve the state (solicitin!
"usiness) is sufficient to satisfy minimum contacts
:rennan+ reasona"le anticipation that product could !et into
state is sufficient for minimum contacts
Manu!a+turrs: court upheld PJ over a component supplier whose
product was sent into the forum state as part of a product manufactured "y
its customer (Gray v. American 1adiator)
Targt# !!+ts: tar!eted effects at forum&E reasona"ly anticipate
causin! injury in forum&E reasona"ly anticipate "ein! haled into court
there.
(-) $AIRNESS, the e%ercise of PJ must also "e fair "eyond merely havin!
minimum contacts
'elatedness 5slidin! scale6 "etween the amount of contact and the
relatedness of the contact. 0f contacts are su"stantial* continuous* and
systematic then dont need relatedness for !en. Juris. A hi!her de!ree of
relatedness "etween the claim and the contacts lowers the (uantity of
contacts necessary to justify jurisdiction (specific jurisdiction). ;any
contacts will justify jurisdiction even if the claim is unrelated to the s
contacts with the state (!eneral jurisdiction).
Con"enience since will always claim that forum is not convenient then
"urden is on the to show that it is 5so !ravely difficult that is at a severe
disadvanta!e in the liti!ation6 (:ur!er >in!). 0t is such a hi!h standard that
will almost never satisfy it.
State(s interest interest of the state in re!ulatin! the activity involved and
providin! a forum for its citiFens when ripped offG
Shared interests of several states.
s interests.
0nterstate judicial system interest.
C. )eneral *urisdiction, 0n order to have !eneral jurisdiction* the contacts of the with
the forum must "e 5su"stantial* continuous* and systematic.6 (Per'ins v. :en!uet
;inin! $o. and -elicopteros)
Amandas $ivil Procedure 0 4utline Pa!e 9 of 39
/. IN REM AND 1UASI IN REM
Treat li'e in personam. Hvery state has an attachment statute. The $onstitutional
test is to meet minimum contacts. (Shaffer v. -eitner) 0f cant !et in personam try
one of these. Property may "e tan!i"le (real property or personal property)* or
intan!i"le ("an' account).
A. In 'e <ispute over ownership of the property as to the entire world. This
jurisdiction is limited to situations where the property is located within the physical
"orders of the state. Isually presence of the property alone will satisfy minimum
contacts. (footnote in Shaffer)
). +uasi In 'e two types+ The first one includes cases involvin! disputes over the
ownership of the property "etween two or more parties. The second type involves
personal disputes where the court lac's jurisdiction over the * "ut has jurisdiction
over the property of the . The property would "e seiFed "y the and used to satisfy
the claim if he prevailed.
III. DIRECT2COLLATERAL ATTAC3
<4 74T mi% the two approaches.
can only challen!e PJ once* either on direct or collateral attac'.
A. D"r+t Atta+4 5 gos to t0 !orum an# +ontsts 'rsonal 6ur"s#"+t"on.
*. Special v. General Appearance
$ode states have special appearance where"y a can solely contest PJ as
lon! as no other defenses are raised.
(a) #1$P states have no such thin! as a special appearance "ecause all
!rounds of defense includin! lac' of PJ can "e asserted in a motion or
answer under Rul */(-).
0f raises other defenses* it "ecomes a !eneral appearance and has
consented to PJ.
(a) 4nce a ma'es a !eneral appearance* he cannot later o"ject to
jurisdiction. (:aldwin v. 0owa State Travelin! ;ens Association)
(-) Inder #1$P Rul */(0)(*)* waives PJ if it is not contested in either the
answer or the first motion filed.
/. Ad"anta!es of a direct attac'+
0f client prevails and court has no PJ* then case immediately dismissed.
0f s case is stron! on the merits* should use direct attac'.(wouldnt ris'
losin! on issue of PJ on collateral attac' "ecause at that point jud!ment is
already entered* and merits hold no wei!ht)
7. Disad"anta!es of direct attac'+
;ay "e e%pensive to travel and stay in a distant forum.
;ay have to hire new attorney to appear in the forum who must (uic'ly "e
familiariFed with the case "ecause of the time limits imposed on defensive
responses.
Amandas $ivil Procedure 0 4utline Pa!e J of 39
A"sent special e%ception for appeal of PJ* traditional rule only allows appeal
on the issue of PJ after liti!ation of case on the merits.
Thus* rejection of PJ attac' may re(uire to stay for trial.
). Collatral Atta+4 , allows a default jud!ment to "e entered and then contests PJ
when comes to claim full faith and credit (##$) on the jud!ment.
*. Ad"anta!es of collateral attac'+
would liti!ate at home (save travel e%penses).
0f s case is wea' on the merits* would "e "etter to save K and try to win on
issue of PJ.
/. Disad"anta!es of collateral attac'+
:ecause a can enforce jud!ment anywhere has property* may still have
to raise collateral attac' in a distant forum.
Permits to raise only issue of PJ (cannot contest merits of claim).
Amandas $ivil Procedure 0 4utline Pa!e L of 39
NOTICE AND OPPORTUNIT( TO )E 8EARD - <ue process re(uires to "e
!iven notice and opportunity to "e heard+ #notice reasona$ly calculated, under all the
circustances, to apprise interested parties of the pendency of the action and afford the
an opportunity to present their o$jections& (;ullane v. $entral -anover :an' M Trust $o.)
Satisfyin! the re(uirements in 1ule 9 is usually enou!h to satisfy this $onstitutional
re(uirement.
I. SER9ICE O$ PROCESS, !overned "y #ederal 1ule 9. Service is only !ood in the
state where the court sits* courts can only serve process outside of state lines if state law
allows
A. :0at "s sr;#< Process , summon (formal court notice) plus copy of complaint
). :0o sr;s< Any non&party at least 2A years of a!e.
C. 8o% #o &ou sr;< Rul =(#)+ may re(uest "y mail that waive service of
process accordin! to 9(d) specifics. )aivin! service does not waive PJ. 0f
wont waive* then there are methods for service+
Personal ser"ice can hand to personally or close to them (within state
or outside of state if state law allows) Rul =()(/)
Su$stituted ser"ice o'ay if service is left at s 5dwellin! house or usual
place of a"ode6 and with someone of 5suita"le a!e and discretion residin!
therein6 (>hasho!!i) Rul =()(/)
Ser"ice of a!ent a!ent can "e appointed "y contract or "y operation of
law. Rul =(0) says can only serve corporations "y servin! an a!ent of
such corporation.
Ser"ice $y Pu$lication only accepta"le if there is no other reasona"le
means of noticeN last resort.
-nder State laws Rul =()(*) says that any method provided "y state
law in state where federal court sits or law of state in which was served
may "e ade(uate for service of process. (Oloo' to state lon!&arm statutes)
Tie .iit for Ser"ice Rul =(m) have 23@ days after filin! of
complaint to serveN doesnt apply for service in forei!n country
/xceptions
*. 5:ul!e 1ule6 Rul =(4)(*)(-) service within 2@@ miles of
courthouse thou!h out of state ("ut still in IS) only applies to
parties joined later as necessary parties
/. Statutory 0nterpleader Rul =(4)(*)(+)
II. OPPORTUNIT( TO )E 8EARD, >Hveryone is entitled to their day in court.6
(#reer)
Amandas $ivil Procedure 0 4utline Pa!e P of 39
SU)JECT MATTER JURISDICTION (SMJ)
A federal court can hear only certain 'inds of cases+ <iversity of citiFenship or federal
(uestion. Article 000 of the $onstitution defines the scope of federal courts in Q 3
para!raph 2. These are the outer limits of federal su"ject matter jurisdiction.
The ISS$ has ori!inal jurisdiction over cases involvin! am"assadors* pu"lic ministers*
and when a state is a party. All other times the Supreme $ourt has appellate jurisdiction
(Article 000* section 3* para!raph 3)
S0* is not wai"a$le* "ut PJ is a waiva"le defense.
The only time in which the federal and state courts do not have concurrent S;J is when
there is a federal (uestion involved providin! S;J to federal system.
S0* answers the question: 1hich syste can you $rin! suit in 2State or Federal3?
*. DI9ERSIT( O$ CITI?ENS8IP BQ2DD3 (a)(2)C and Aliena!e BQ2DD3 (a)(3)C, Two
re(uirements case must "e "etween citiFens of different states (or between a US citizen
and a subject of a foreign state) with the amount in controversy e%ceedin! KPJ*@@@.
*. :0o ar +"t"@ns o! #"!!rnt stats<
*. Com'lt D";rs"t& Rul (Stra%-r"#g ;. Curt"s)
7o diversity if any is a citiFen of the same state as any (draw line in
"etween and sides to chec').
;ust have complete diversity at the time the case is filed (doesnt matter if the
parties move after case is filed ma'es no difference for diversity purposes).
A I.S. $itiFen livin! a"road may never sue."e sued in federal court "ecause
has no domicile for a diversity claim and is not an alien.
/. :0at "s +"t"@ns0"'<
(a) 4atural persons+ two re(uirements to determine citiFenship BQ2DD3 (a)(2)C
;ust "e a citiFen of the I.S.
<omicile (two determinin! factors&can only have one domicile at a time)
must "e present
must have the intent to ma'e it your permanent home (no sin!le factor
is determinative of intent)
a child !oes with parents domicile until affirmatively chan!es or
old enou!h to have re(uisite intent (H.!. parents move when child
2P years old* does not necessarily have to chan!e with parents "ut
may 'eep previous domicile&su"jective test depends on factors)
(-) Corporations BQ2DD3 (c)(2)C
$orporations are citiFens of all states where they are incorporated an# in
the one state where they have their principle place of "usiness (PP:).
Pr"n+"'l Pla+ o! )us"nss (PP))
#Total Acti"ity Test& loo' at nerve center and muscle center (if they
are in different states) to determine which is the PP:.
*) 0f a corporations operations are far flun!* the sole nerve center is
more si!nificant in determinin! the PP:.
Amandas $ivil Procedure 0 4utline Pa!e A of 39
/) 0f a corp. has its sole operation in one state and head(uarters in
another* the muscle center is re!arded as more si!nificant.
#4er"e Center& where corporate decisions are made or location of
corporate head(uarters
#0uscle Center& where corporation does most of it "usiness or
manufacturin! activities
(+) -nincorporated Associations5 Partnerships (e.!. =a"or unions* no statute)
$itiFenship , that of each and every one if its mem"ers.partners
(#) 'epresentati"es BQ2DD3 (c)(3)C
)hen a party lac's capacity (minors* incompetents* decedents&"ecause
they have chan!ed their venue) they need to have a representative "ecause
they cant liti!ate on own.
=oo' to citiFenship of represented person not of the representative.
This differs from class action where the citiFenship is that of the
representative of the class.
() Assi!nent of clais BQ2DJRC
$an only assi!n claim for ade(uate consideration. There is no collusion
for an a"solute assi!nment of claim where the assi!nor retains no interest
in the claim.
)hen there is collusion* a court will loo' to the citiFenship of the assi!nor
of the claim not the assi!nee.
). Aount in Contro"ersy BQ2DD3 (a)(2)C & s claim for recovery ust exceed 6789
not countin! interest and costs.
There must "e a le!ally tena"le possi"ility that recovery will e%ceed KPJ> (!ood
faith)* even thou!h final jud!ment does not have to e%ceed KPJ>. Three reasons
why s claim may not "e !ood faith+
*. =e!al limit. (statute says cannot !et over KPJ> "ased on claim)
/. 1emedy is inappropriate. (e.!. punitive dama!es in a contract case)
7. s claim not deservin! of more than KPJ>.
Aggrgat"on o! Cla"ms (a##"ng u' t%o or mor +la"ms to gt o;r ABC3)
2. $an a!!re!ate claims if one a!ainst one .
3. 7o a!!re!ation with multiple parties unless+
joint claim "y s a!ainst one (e.!. joint owners of real estate sue to !et
(uiet title) or
one asserts claim a!ainst several s who are jointly lia"le
EDu"ta-l Rl"! $ourt will uphold jurisdiction if harm to is enou!h* or cost
to is enou!h with respect to amount in controversy.
Amandas $ivil Procedure 0 4utline Pa!e R of 39
II. $EDERAL 1UESTION ($1) BQ2DD2C The district courts shall have ori!inal
jurisdiction of all civil actions arisin! under the $onstitution* laws* or treaties of the
Inited States.
The federal courts have e%clusive jurisdiction over areas includin! patent
infrin!ement* "an'ruptcy* civil ri!hts* antitrust and others as provided in QQ2DDD&
2DJ2.
There is no amount in controversy re(uirement and the citiFenship of the parties
does not matter in an #/ case.
0n a #/ case* must only satisfy PJ under minimum contacts ($onstitutional test)*
even if state has a more restrictive lon! arm.
A. :ll-Pla## Com'la"nt Rul
#ederal (uestion must appear as part of s complaint. :asis of claim itself must
arise under federal law. Is the "indicatin! a federal ri!ht<
$ontent of the s answer is not relevant* even if an issue of federal law is
asserted as an affirmative defense. (=ouisville M 7ashville 1ailroad $o. v.
;ottley)
III. SUPPLEMENTAL JURISDICTION BQ2DLPC 0f the ori!inal "asis of the claim
invo'es federal S;J* then the federal courts have the discretion to e%ercise
supplemental jurisdiction o"er state law clais that ay not ha"e an independent
$asis for S0** as lon! as the state claim and ori!inal claim constitute part of the
same case or controversy.
I9. REMO9AL BQQ2992* 299L* 299PC Gives a say in whether a case will proceed in
state or federal court. 1emoval is simply a transfer to a different court* "ut never call
it a transferG Permits to remove a case from state court to federal court.
A. Enral Ruls,
*. 0t is a one way street (you remand "ac' to state court* you do not remove "ac'
to state court).
/. cannot reo"e in any circumstance. Hven when there is a counterclaim
does not "ecome li'e for purposes of removal.
7. All served s must a!ree to remove a case. s served later can move to
remand "ecause they did not a!ree to the removal. F*==*(-)
=. $an remove only to the federal district that !eo!raphically encopasses the
state court where ori!inal case was filed.
C. 1emovin! a case does not waive 23(")(3&J) motions.
Amandas $ivil Procedure 0 4utline Pa!e 2@ of 39
G. A federal court ust ha"e S0* in order for a case to "e remova"le. 0f one
claim is an #/ then may remove entire case even if other claims do not have
S;J. Two e%ceptions to allowin! removal in a diversity case (do not apply to
#/ case)+
(a) 0f a diversity case (not #/)* then no removal if any is a citiFen of the
forum , >In Stat RulH (OO:ewareOO unclear whether 5in state rule6
applies to cases that are not solely diversity casesN e.!. hy"rid cases
involvin! "oth #/ and diversity.aliena!e)
(-) 4o reo"al ore than one year after case was filed in a diversity case.
). Pro+#ur !or Rmo;al BQ299LC
*. ust file in the district court a notice of reo"al pursuant to #1$P 1ule 22
containin!+ a short and plain statement of !rounds for removal* and a copy of
all process* pleadin!s* and orders that have "een served on .
/. 7otice of removal shall "e filed within :; days after receipt of complaint "y
* or within D@ days after service of summons on if initial pleadin! did not
have to "e served on * whichever period is shorter.
7. 0f the ori!inal complaint was not remova"le* then may file within :; days
after case $ecoes reo"a$le ("y an amended complaint or otherwise)* as
lon! as it has not "een more than one year from commencement of the action.
=. must !ive written notice to all adverse parties and state court cler'*
effectin! removal and endin! state courts handlin! of case until case is
remanded
C. >On Str"4 RulH the first that could have removed "etter have "ecause
su"se(uent s added past D@ day period cannot remove (7o"le v. :radford
;arine* 0nc.)
D. Pro+#ur A!tr Rmo;al BQ299PC
*. must file otion to reand within :; days after notice of removal
BQ299L(a)C was filed "y * except when court lac<s S0*. The D@ day
re(uirement does not apply to S;J since if at any tie the federal court lac<s
S0*, case ust $e reanded.
/. #ederal court has option of allowin! joinder of additional s that would
destroy S;J and then remand the case to state level* or deny joinder and 'eep
case as is.
Amandas $ivil Procedure 0 4utline Pa!e 22 of 39
9ENUE IF*7J*K
?enue tells which federal district you can sue in (!eo!raphic (uestion).
7o $onstitutional ri!ht to venue. All determined "y statute.le!islation.
0mproper venue may "e waived.
I. )ASIC RULES
A. .ocal Actions I=>:?> does not applyK , ones involvin! real property (e.!. land)
RULE, lay venue where land lies
1eal property as "asis of jurisdiction (in rem* /01)
1emedy in realty
<ama!es for injury to land (trespass)
). Transitory Actions I=>:?>K @ all other actions
1ules same for diversity and #/ cases.
+an la& ;nu "n,
*. Any district where any resides, if all s reside in the sae state%
BQ2DR2(a* ")(2)C
(a) 0f s reside in different districts of the same state* then can lay venue in
district in which any one of the s reside.
(-) 5reside6 (for natural persons) , domicile
(+) 5reside6 (for corporations) BQ2DR2(c)C , all districts where su"ject to PJ
at time action is commenced. 1ule does not specify whether PJ met "y
state statute or minimum contacts* thus must ar!ue either way. 0n multi&
district state* reside in any district where contacts sufficient for PJ e%ist.
0f no contacts sufficient for PJ* reside in district where most si!nificant
contact.
(#) 5reside6 for unincorporated associations is where it does "usiness.
/. Any district where a su$stantial part of the e"ents or oissions !i"in! rise
to the clai occurred% BQ2DR2(a* ")(3)C
;ay "e more than one district.
7. Any district in which any is su"ject to P* at time action is commenced
BQ2DR2(a)(D) , di"ersity casesC or where any may "e found BQ2DR2(")(D)
, nonAdi"ersity casesC* if there is no district anywhere in the I.S. which
satisfies (2) or (3). (?ery 1are)
H.!. 0f a claim arose outside the I.S. a!ainst a not residin! in I.S.
Al"nag cases+ An alien may "e sued in any district that has personal
jurisdiction BQ2DR2(d)C. Same rule applies for permanent residents* even thou!h
they possess state citiFenship for Q2DD3 purposes.
Amandas $ivil Procedure 0 4utline Pa!e 23 of 39
II. TRANS$ER (C8ANEE O$ 9ENUE)
0ntra&system transfer+ can transfer across state lines only in federal court
$an only transfer from one federal court to another federal court.
Hither a or can transfer a case.
Ruls !or trans!r,
A. $an only transfer to a court that is proper venue and has PJ without waivers "y .
(-offman 5where action mi!ht have "een "rou!ht6)
). Trans!r %0n or"g"nal +ourt %as a 'ro'r ;nu IF*=L=(a)K 5 *=L= Trans!r
*. Every transfer of a case removed from state court must be a 1404 transfer and
cannot be a 1406 transfer. )-8S
T0 St"n Ans%r, *7J* #os not a''l& to rmo;# +ass -+aus
;nu "s 'ro'r "n t0 #"str"+t t0at n+om'asss t0 stat +ourtM
t0us t0at #"str"+t +ourt %"ll al%a&s - 'ro'r ;nu.
/. EOLDLA:R where transferor court lac<s P* (is $onstitutional to
transfer* lac' of PJ does not affect power to transfer a case)
H.!. Amanda is sued in state court where there is no PJ "ut yes S;J*
thus remove case to federal court on "asis of diversity. ?enue is proper*
however still no PJ , 29@9 Goldlawr so case can "e heard.
?an <usen does not apply under a Goldlawr transfer "ecause cannot
capture choice of law rules from a court that lac's PJ.
7. 9AN DUSEN & Inder a 29@9 (e%cept a Goldlawr transfer)* transferee court
must apply the choice of law rules of the ori!inal court.
Hach state can create its own choice of law rules to dictate which
states law will apply.
0f case were not transferred* the district court will apply the choice of
law rules of the state in which it sits.
=. 7ote+ Court has discretion over whether it will transfer "ased on convenience
of the parties and witnesses and in the interests of justice (loo' for #center of
!ra"ity& e.!. place that is su"stantially "etter).
C. Trans!r %0n or"g"nal +ourt %as an "m'ro'r ;nu IF*=LG(a)K , *=LG
Trans!r
$ourt can either transfer or dismiss.
Inder a 29@L* Ban Dusen does not apply "ecause cannot capture choice of
law rules from an improper venue court.
29@L Goldlawr is possi"le when a court has improper venue and lac's PJ.
$ourt still has power to transfer in this situation.
Amandas $ivil Procedure 0 4utline Pa!e 2D of 39
D. Mult"-D"str"+t L"t"gat"on IF*=LBK
0n ass torts where many cases are pendin! in different districts* all such
cases may "e transferred to one district and consolidated for pre&trial
proceedin!s. #ollowin! pre&trial crap* cases shall "e remanded* yet not
uncommon for such cases to "e tried to!ether.
Transfers need not eet other "enue requireents.
<ecision to allow such transfers made "y judicial panel on multi&district
liti!ation.
III. $ORUM NON CON9ENIENS
)hen a proper court dismisses a case "ecause there is a "etter court.
#7$ is raised "y motion of .
)hy not transferS :ecause F4C only applies when can(t transfer "ecause
the "etter court is in another system. (H.!. different state or forei!n country)
A #7$ dismissal may "e conditioned on the waivin! certain defenses such
as statute of limitations or PJ.
At the outset of #7$ in(uiry* court must determine if alternative forum e%ists.
PIPER AIRCRA$T dismissal was appropriate where forum chose
imposed a heavy "urden on or the court* and where the cannot offer any
specific reasons of convenience supportin! his choice. 1elevant factors
considered are private and pu"lic factors. These factors must ma'e a stron!
showin! "ecause result is a dismissal of the case.
A. Pr";at $a+tors (+on;n"n+ o! l"t"gants)
*. Accessi"ility to sources of proof (witnesses* evidence).
/. $osts of "rin!in! willin! witnesses and availa"ility to su"poena
unwillin! witnesses.
7. Possi"ility of view of premises (if appropriate).
=. 4ther practical pro"lems that ma'e case easy* cheaper* and (uic'er.
). Pu-l"+ Intrst $a+tors (+on;n"n+ o! !orum)
*. Administrative difficulty "ecause of court con!estion.
/. =ocal interest in decidin! local controversies at home.
7. Trial of diversity case in forum of the home of the !overnin! law.
=. Avoid unnecessary pro"lems in conflict of laws (or application of
forei!n law).
C. Infairness of "urdenin! citiFens with jury duty in forum unrelated
to dispute.
Amandas $ivil Procedure 0 4utline Pa!e 29 of 39
PLEADINES
I. 8ISTOR(
A. Coon .aw Pleadin!
5)rit system6 re(uired invo'in! writ for particular claim of action.
Primary method for puttin! s on notice and factual development.
). Code Pleadin!
Pleadin!s simplified to !ive notice and facilitate decision on merits.
#act development shifted to li"eraliFed discovery process.
HmphasiFed pleadin! facts 5a statement of the facts constitutin! the cause of
action* in ordinary and concise lan!ua!e.6
1e(uires more detailed alle!ations.
C. Federal 'ules 2F'CP3
Pleadin!s function to !ive notice and provide mechanism to test le!al
sufficiency of a claim (same as $ode).
<o not re(uire as much factual detail in pleadin! 5short and plain statement
of the claim showin! that the pleader is entitled to relief.6
General purpose is to put on notice.
II. PLEADINES ALLO:ED '-./ 72A3
$omplaint ()
Answer ()
$ourt&ordered 1eply to an answer or motion or answer to a counterclaim.
A. For of Pleadin!s C 'ule >;
*. $aption
7ame of court
Title of action.7ame of parties
<esi!nation as in P(a)BH.!. complaint* answer* reply to counterclaim* etcC
#ile num"er BC9(civil)&JB (year)&LLLL* (T)&S (jud!e)C
/. All averments.assertions (claims or defenses) made in separate num"ered
para!raphs* claims "ased on separate transactions set forth in different counts
'ule >;2$3
Hach shall "e 5simple* concise* and direct6 'ule D2e3
Parties re(uired act in !ood faith "y alle!in! matters only supported "y
evidence 'ule >>2$3
7. Parties allowed to adopt "y reference alle!ations found elsewhere in document
rather than restatin!* and ma'e attached written documents part of pleadin!
'ule >;2c3
Amandas $ivil Procedure 0 4utline Pa!e 2J of 39
=. In+ons"stnt 'la#"ngs+ can plead statements in the alternative
(contradictory) in claim* yet if plead in alternative in separate cases*
alle!ations in one case can "e used as judicial admissions a!ainst in other
case 'ule D2e32E3 M M+Corm"+4
). Coplaint C 'ule D2a3
;ost $ode and #1$P provisions !overnin! complaints are su"stantially
similar
*. S0ort an# 'la"n statmnt assrt"ng groun# !or +ourtNs 6ur"s#"+t"on
;ust alle!e S;J for federal courts (dont need to assert PJ)
;any states re(uire showin! that trial court selected was proper
Some states re(uire alle!e PJ and proper venue "! is nonresident
/. S0ort an# 'la"n statmnt o! +la"m !or rl"!
;ust "e egay and factuay sufficient to support a jud!ment for
(a) Code states+ 5statement of facts constitutin! a cause of action* in
ordinary and concise lan!ua!e* w.o repetition.6 5facts6 , 5ultimate
facts6* which courts have difficulty definin!.
(i) alle!e facts too specifically , 5pleadin! the evidence6
(ii) alle!e facts too !enerally , 5pleadin! conclusions of law6
for "oth* court will sustain s challen!e (special demurrer)
(") F'CP states+ avoids term 5facts6.
(i) does not re(uire statin! 5with particularity6 e!cept+
'ule ?2$3 - cases of fraud or mista'e
'ule ?2!3 claims for special dama!es (dama!es that dont
flow naturally from an event)
7. Dman# !or 6u#gmnt
<emand does not limit s recovery* can !et whatever proves at trial
Generally pleaded as lump sum* certain 'inds need plead with
particularity (e.!. special dama!es* e(uita"le relief)
can state specific dollar amount or 5dama!es in an amount to "e shown
at trial6
C. Defensi"e 'esponse C 'ule >E
T"m"ng (!or -ot0 ans%r an# mot"on),
must "e served within 3@ days after "ein! served with process 'ule >E2a3
2>32A3
O if is Inited States* it has L@ days to do so O & 'ule >E2a32:3
if service waived* must "e served within L@ days from when re(uest waiver
sent - 'ule >E2a32>32F3
Amandas $ivil Procedure 0 4utline Pa!e 2L of 39
*. ANS:ER & must respond to alle!ations of complaint and raise affirmative
defenses
(a) 'espond to alle!ations of coplaint
". A#m"ss"ons
'ule >> actin! in !ood faith also re(uired for answers
;ust admit alle!ed facts that are true so that undisputed facts are not at
issue in trial.
"". Dn"als / t&'s,
(A) )eneral denial short pleadin! denyin! all alle!ations in complaint
(:) Specific denial used to deny alle!ations in specific para!raphs of
complaint
(e.!. +ualified !eneral denial 5admit U J and deny all of the rest.6)
0f dont deny particular alle!ation* treated as admitted fact
;a'e denials simple and direct 5deny alle!ations in U 96
&& #Ar!uentati"e denial& introduces new facts as means of denyin!
alle!ations* may "e confusin! or not seen as effective denial
&& #4e!ati"e pre!nant& is too literal denial* may "e seen as admittin!
some of facts alle!ed
""". La+4 o! 3no%l#g (#onNt 4no%)
$an state lac' 'nowled!e* has effect of a denial
$annot use if access to info or is !eneral 'nowled!e
(-) 'aise affirati"e defenses
<iffer from denials in that they inject new matter into dispute
Hlements of a claim+ 5ifs6 are for s claim* 5unlesses6 are afrm. defenses
0f fail to raise affirmative defense in answer* omitted defense is waived
(may amend)
:urden of pleadin! issue followed "y "urden of provin! issue at trial.
E exceptions+ defamation and repayment ("oth and must plead*
"urden on to prove)
/. MOTIONS (not a 'la#"ng) re(uest to the court "y
(a) )eneral 'ules of 0otions
;otion serves two functions+ tests le!al and factual sufficiency of
complaint
0f a motion is #n"#M 0as *L #a&s to !"l an ans%r.
may "rin! motions for relief other than dismissal
*. Mot"on !or mor #!"n"t statmnt Bor unintelli!i"ilityC (only
raises* very rare)N applies to pleadin!s to which a responsive pleadin!
Amandas $ivil Procedure 0 4utline Pa!e 2P of 39
is permitted & not a reply ".c a reply is only to a counterclaimN 'ule
>E2e3
/. Mot"on to str"4 (either or can raise* more common) 'ule >E2f3
(-) 'ule >E2$3 0otions for Disissal
All affirmative defenses must "e in an answer* e%cept any of the 23(")
defenses which may "e made "y motion or asserted in the answer.
;ust ma'e 23(") motion "efore responsive pleadin!. (H.!. an answer)
7o defenses are waived merely "ecause they are joined with others in a
motion or answer. (This is the reasonin! for why there is no special
appearance under #1$P)
0f 23(")(3&J) defenses not raised in 2st motion* then cannot raise in
su"se(uent motion "ecause they have "een waived "y 'ule >E2!35>E2h32>3
2A3. Also* cannot "e raised in su"se(uent answer "ecause waived "y 'ule
>E2h32>32F3.
Rul */(-) Mot"ons T"m"ng un#r */(0)
>E2$32>3 Su"ject ;atter Jurisdiction ;ay "e made at any time ever.
>E2$32E3 Personal Jurisdiction 0n 2
st
1esponse* or else waived.
>E2$32:3 0mproper ?enue 0n 2
st
1esponse* or else waived.
>E2$32G3 0nsufficient Process 0n 2
st
1esponse* or else waived.
>E2$3283 0nsufficient Service of Process 0n 2
st
1esponse* or else waived.
>E2$32H3 #ailure to State a $laim ;ay "e made up until end of trial.
>E2$3273 #ailure to Join an 0ndispensa"le Party ;ay "e made up until end of trial.
Amandas $ivil Procedure 0 4utline Pa!e 2A of 39
III. DISMISSAL RULE =*
:"t0out 'r6u#"+ 5 $laim can "e re&filed.
:"t0 'r6u#"+ 5 $laim cannot "e re&filed "ecause the dismissal is e(uivalent
to adjudication on the merits.
A. 9oluntar& D"sm"ssal 3 ways a can dismiss without order of the court (notice
of dismissal or stipulation of the parties)
*. may file a not"+ o! #"sm"ssal without order of the court* and without
prejudice* at any time "efore ser"es (filed does not , served) an answer or
serves a motion for summary jud!ment (1ule JL). 7o other motion will
suffice. -owever* the second tie a files a notice of dismissal "ased on or
includin! the same claim in any federal or state court that had once "een
dismissed* it operates as an adjudication on the merits and is dismissed with
prejudice. 'ule G>2a32>32i3
/. may file a st"'ulat"on o! #"sm"ssal si!ned "y all the parties without order
of the court (and without prejudice). 'ule G>2a32>32ii3. 0f files a stipulation
after once filin! either a notice of dismissal or a stipulation* still without
prejudice.
7. $ourt may order dismissal "y terms and conditions as the court deems proper
if no dismissal "y 92(a)(2)(i) or 92(a)(2)(ii). This is without prejudice unless
otherwise specified. $ourt will not !rant dismissal if pleads a counterclaim
"efore served with motion to dismiss* unless counterclaim is sufficient for
independent adjudication.
). In;oluntar& D"sm"ssal 'ule G>2$3 9 ways to for to dismissN
*. #ailure of the to prosecute.
/. #ailure of to comply with #1$P.
7. #ailure of to comply with court order.
=. Any dismissal not provided for in this rule. BH.!. 23(") motionsC
Inless court order specifies otherwise* an involuntary dismissal is with
prejudice unless dismissed for lac' of jurisdiction B23(")(2M3)C* improper
venue B23(")(D)C* or failure to join a party B23(")(P)C under 1ule 2R.
1ule AD allows district courts to adopt lo+al ruls as lon! as they dont
conflict with #1$P.
$ourt issues order to to show cause why not to dismiss (OSC) when court
has found that has ta'en no action in specified period of time. 4r in state
practice 5Rul N"s"6 (7i!h&si!h). 0n L"n4* court dismissed case without
warnin! s counsel of dismissal for failure to prosecute. -owever* now
Amandas $ivil Procedure 0 4utline Pa!e 2R of 39
re(uired notice and opportunity to "e heard "efore sanctions can "e imposed.
'ule >>2c3.
I9. DE$AULT O DE$AULT JUDEMENT
A. Default C 'ule 882a3
*. !ets notation on doc'et sheet "y cler' that failed to respond within 3@
days
can file a motion or answer at any time "efore the default is entered
on the doc'et sheet.
should ma'e motion for enlar!ement of time in which to respond if
!oin! to file a late response (no one really follows this rule "ecause
technically has ri!ht to "e late if no default is on the "oo's. 'ule H2$3
/. cannot o"tain any K or relief on default.
7. can o"tain default "y presentin! federal court cler' with 5affadavit or
otherwise6 showin! failed to plead or otherwise defend w.in 3@ days*
cler' must enter the default. (Affidavit , sworn statement under penalty of
perjury)
=. )hat can do if default has already "een enteredS
'ule 882c3 provides that can ma'e motion to the court to set aside the
default if can show !ood cause.
5H%cusa"le ne!lect6 (ualifies as !ood cause.
). Default *ud!ent C 'ule 882$3
*. Jud!ment "y the $ler' & 'ule 882$32>3
(a) #our thin!s needed for cler' to enter default jud!ment+
2. $ase involves a 5sum certain6 or easily calcula"le amount.
4nly loo' at claim* doesnt matter if court costs un'nown until
end of proceedin!s.
3. failed to appear if no answer* never appeared
D. not an infant or incompetent
9. must file affidavit sayin! that 5sum certain is due
(-) 0f all four satisfied* default jud!ment must "e entered for that amount
stated in affidavit (prayed for)* plus costs.
(+) $an o"tain this jud!ment immediately after !ettin! default under 'ule
882a3 if have two copies of affidavit.
/. Jud!ment "y the $ourt 'ule 882$32E3 must do this in all cases that dont
(ualify for cler' jud!ment
(a) Apply to court for default jud!ment (must "e in writin!).
Amandas $ivil Procedure 0 4utline Pa!e 3@ of 39
(-) $ourt will then have a hearin!.
(+) $ourt considers numerous factors in awardin! default jud!ment+
2. s failure to plead is merely technical.
3. Possi"ility of prejudice to .
D. <efault is de minimus (merit of s su"stantive complaint).
9. Sufficiency of the complaint.
J. Sum of K at sta'e in the action.
L. Possi"ility of dispute concernin! material facts.
P. )hether default was due to e%cusa"le ne!lect.
A. The stron! policy underlyin! the federal rules favorin! decision on
the merits.
(#) 0f court decides to issue default jud!ment* hearin! focuses on
determinin! dama!es amount to "e rewarded.
7. 0f amount prayed for an unspecified amount* 'ule 882$32E3 ena"les the court
to conduct hearin!s and determine the amount of dama!es the is entitled
to. 'ule 8G2c3 does not apply.
0f sou!ht a specified amount "ut couldnt !o to cler' for default
jud!ment "ecause other factors re(uired were not present* then 'ule
8G2c3 applies and says that can only receive amount prayed for or
less (left up to court).
0f see'in! default jud!ment a!ainst who has appeared* must "e
served with notice of application for jud!ment at least D days "efore
the hearin!.
=. )hat can do if default jud!ment has already "een enteredS
'ule H;2$3 $ourt may e%cuse from jud!ment for such factors+
(a) ;ista'e* e%cusa"le ne!lect often used "y s yet court usually
insists on a via"le defense in addition to !ood cause
(-) 7ewly discovered evidence
(+) #raud
(#) Jud!ment is void. (H.!. no S;J or PJ)
() Jud!ment no lon!er e(uita"le.
(!) Any other reason.
$annot raise (a)* (")* or (c) later than one year after default jud!ment
entered.
Amandas $ivil Procedure 0 4utline Pa!e 32 of 39
9. AMENDED PLEADINES
A. Aendents Allowed A 'ule >82a3
*. has a"solute ri!ht to amend once "efore serves answer (no day
limitation).
/. has a"solute ri!ht to amend answer once within E; days after answer
initially served so lon! as responsive pleadin! is not permitted and action
has not "een placed on trial calendar.
7. General amendment provision allowin! for amendment with court
permission or stipulation of parties.
(a) Parties must ma'e a motion to amend in this situation.
(-) Shall "e !iven freely when justice so re(uires.
(+) $ourt loo's at factors when ma'in! decision+ delay and prejudice.
(#) $onstrued li"erally "ecause courts li'e decidin! on merits not
technicalities.
=. Parties must respond to amended pleadin! under time re(uired in (a) or (")*
whichever is a lon!er period of time+
(a) )ithin 2@ days of "ein! served with amended pleadin!* or
(-) )ithin time remainin! for response to ori!inal pleadin!
). Bariance A 'ule >82$3 , when evidence at trial does not match evidence
presented in pleadin!s (either party can o"ject). 0n code states variance can "e a
pro"lem* "ut not fatal under #1$P.
*. Amn#mnts to Con!orm to t0 E;"#n+
(a) )hen a party does not o"ject to a variance* evidence comes in and is
treated as if the issue had "een raised "y pleadin! "ecause that party
impliedly or e%pressly consented to it "y not o"jectin!.
(-) Party may then ma'e a motion to amend pleadin! to match evidence
admitted in trial* "ut this is not re(uired.
(+) Amendments to conform to evidence must "e made "y motion "y any
party at anytime* even after jud!ment.
/. Mot"on to Amn#
(a) At trial 2J(a) 3
nd
sentence 5shall "e freely !iven when justice so
re(uires6 does not apply durin! trial. 0nstead* the court may freely allow
Amandas $ivil Procedure 0 4utline Pa!e 33 of 39
the pleadin!s to "e amended when the 5presentation of the merits of the
case will "e su"served.6
(-) $ourt will !rant amendment if satisfies (a) unless o"jectin! party shows
that allowin! amendment would prejudice them. 0n that situation* the
court may !rant a continuance to ena"le party to meet such evidence and
therefore not "e prejudiced.
C. 'elation Fac< of Aendents C 'ule >82c3 , amendin! after the statute of
limitations has run. The amended pleadin! is treated as thou!h it was filed
when the ori!inal was filed when+
*. 0t is permitted "y the law that provides the statute of limitations applica"le
to the action ('ule >82c32>3)* or
/. The claim or defense asserted in the amended pleadin! arose out of the issue
raised in the ori!inal pleadin! ('ule >82c32E3)* or
7. The amended pleadin! chan!es the party a!ainst whom the claim is asserted
if >82c32E3 is satisfied* and service is within the period of time provided in
Rul =(m) B23@ daysC 2'ule >82c32:33* an#
(a) The new party has received notice of the action.
(-) The new party 'new that if "ut for a mista'e in the ori!inal complaint
they would have "een named in the action.
D. Suppleental Pleadin!s C 'ule >82d3
Ipdates dispute "y allowin! new facts occurrin! after ori!inal pleadin!
filed to "e "rou!ht to attention of the court.
<oes not include facts that occurred "efore ori!inal pleadin! filed* yet not
discovered until after filin!.
Allowed even if they chan!e the relief sou!ht or add additional parties.
Allowed only "y court permission and courts !rant leave to supplement
upon reasona"le notice* upon terms that are just* and so lon! as it does not
create undue delay* prejudice* or "ad faith.
Amandas $ivil Procedure 0 4utline Pa!e 3D of 39
9I. SEL$-POLICINE $OR LA:(ERS Rul **
A. S"gnatur **(a)
*. Si!nature re(uired on the pleadin!* motion or any other written
document) "y attorney or pro se liti!ant
/. Si!nature means that document does not need to "e
accompanied "y an affidavit
7. 0f document is not si!ned* it can "e stric'en unless omission is
corrected promptly
). R'rsntat"ons to Court **(-)
presentin! document to the court is on!oin! certification that
reasona"le in(uiry will "e made into the truth as to+
*. <ocument not presented for any improper purpose. (")(2)
/. =e!al contentions are warranted and not frivolousN sanctions
are a!ainst the attorney not the represented party. (")(3)
7. #actual contentions supported in evidence or will "e supported
in evidence after further discovery (for plaintiffs and
defendants when they raise affirmative defenses). (")(D)
=. <enials of factual contentions supported "y evidence (for
defendants). (")(9)
C. San+t"ons Rul **(+)
<iscretionary "y the courts
$an "e "rou!ht a!ainst lawyers* parties* or firms
*. Sanctions served "y motion "y mail not filed with courtN
offendin! party has 32 days to fi% claim if they dont* file the
motion (5safe har"or6). **(+)(*)(A)
/. Sanctions raised sua sponte with order to show cause. **(+)(*)
())
7. Sanctions to deter repeat offensesN monetary punishment may
"e used "ut not preferred. **(+)(/)
=. ;onetary sanctions not awarded sua sponte unless court issued
order to show cause (4S$) "efore voluntary dismissal or
settlement a!ainst sanctioned party. **(+)(/)())
Amandas $ivil Procedure 0 4utline Pa!e 39 of 39