The court has Subject Matter Jurisdiction (SMJ) over the case

SMJ cannot be waived. Court may dismiss the case at any time for lack of SMJ 12(h)(3)
Motion for lack of SMJ: Rule 12(b)(1)

Court has one type of SMJ: federal question, diversity, alienage, admiralty, some others
Federal question: Arising under the constitution, treaties or laws of the U.S. (1331)
Question is (one):
Exclusive (eg, copyright, U.S. is a party)
Concurrent (FELA)
Federal question is founded on facts that would appear in a well-pleaded complaint, and is not an anticipated
defense (Louisville & Nashville v. Mottley)
If q is founded on federal statute: Congress contemplated a federal remedy under the statute (Merrell Dow)
state cause of action contains significant question of federal law and wouldnt upset the state/federal court balance
Diversity: Citizens of different states, citizen suing a foreign national ( 1332).
Diversity is complete (Strawbridge v. Curtiss) / ( Diversity is minimum for class actions)
Amount in controversy exceeds $75,000 (can aggregate claims against single defendant)
Determining citizenship (When the action commences):
Individual (can only have one):
Domicile (birth or indefinite residence)

Center of gravity (fact-intensive)

Corporation (has two):

Place of incorporation, plus principal place of business (three tests)
Nerve center test (where executive decisions made)
Muscle test (principle place of business)
Total activities test
Unincorporated Association (law firm/labor union; has jillions)
Accumulated citizenship of all its members
Supplemental Jurisdiction: Claims that are part of the same case or controversy ( 1367)
If you have original jurisdiction over counterclaim or party etc. dont invoke SJ
Share a common nucleus of operative fact (Gibbs)
In diversity, claims by a second P against original D may come up w/o meeting AIC (Allapattah)
1367a: if case is founded on fed question, any claim/party arising out of same case in controversy has SJ
1367b: If case is founded on diversity, claim by original plaintiff is not allowed if:
It is inconsistent with diversity jurisdiction, and is against a person made a party by:
Rule 14 (third-party practice)
Rule 19/20 (joinder)
Rule 24 (intervention)
1367c: Court may, at its discretion, decline to exercise SJ if:
Novel issue of state law
State question predominates
Original claims are dismissed
Any other reason in exceptional circumstances (economy, convenience, fairness, and comity of Gibbs) (Executive
Software)
Note old method of pendent and ancillary jurisdiction: Pendent is when P. appends a claim lacking an independent basis for fed
SMJ jurisdiction to a claim possessing such a basis. Ancillary is when either P. or D. injects a claim lacking independent fed SMJ
via joinder (counterclaim, cross-claim, 3rd party claim) that comes from same T&O as original claim that does have fed SMJ.

The court has personal jurisdiction over the individual defendant

Traditional bases for personal jurisdiction (need one):

Physical presence (Pennoyer, Burham)
Domicile Agency (corporate, partnership)
Express consent (Carnival Cruise forum clause)
Implied consent (Hess)
Doing business (applies to agencies domicile for corporations)
waiver/imposed consent (Beauxites)
Presence or any other basis cannot be obtained by fraud (Tickle)
Specific jurisdiction: Applying a long-arm statute:
State long-arm applies to state court (4k1a)
Is the long-arm constitutional? (need both)
Minimum contacts (contacts are continuous and systematic Shoe)
Cause of action arises out of these contacts, plus one of the following:
Purposeful availment of the states laws / reasonably expect to be haled into court (Shoe)
Contacts are purposeful, cognitive and volitional (Hanson)
Single contact with substantial connection, purposefully directed (McGee)
Brunt of harm suffered in forum state, directed there (Calder)
Stream of commerce (depends on jurisdiction):
Expect product will be bought in forum state (Woodson)
[Stream of commerce plus act purposefully directed at forum state (Asahi)]
Stream of commerce plus; need substantial target+connection, not just foreseeability (Nicastro)
Contact is not random, fortuitious (BK) or unilateral act of a third party (Hanson)
Act is not an isolated occurrence / mere foreseeability is not enough (Woodson)
Act would impose a burden on family relations (Kulko)
Contacts equaling fair play and substantial justice (Shoe). Relevant factors (Woodson):
Defendants burden
Forums interest in adjudicating
Ability to obtain relief
Systems interest in getting most efficient resolution
Substantive social policies
* Burger King: Plaintiff has the burden of showing contacts; defendant must show lack of fair play

General jurisdiction (when no long arm / cause of action doesnt arise from contacts) (need both)
Continuous and systematic association
Ongoing and substantial relationship (Perkins)
Purchases are not enough where cause of action is unrelated (Helicopteros)
foreign subsidiaries not subject to gen jurisdiction state courts on claims unrelated to any activity of the subsidiaries
in the forum state (Goodyear)
Jurisdiction based on property
In rem (need both): dispute is based on property (Balk) property is present/attached before suit (Neff)
Quasi in rem (need both): dispute is based on property
property is present/attached before suit (Neff)
Minimum contacts analysis for QIR (Shaffer v. Heitner) (watch out for defamation)
Remedy is limited to the value of the property attached
Full faith and Credit Clause does not apply
* Relevance of quasi in rem jurisdiction depends on state long-arm

Internet contacts: use sliding scale, active/passive, Calder: intentional act, targeted at forum state, brunt harm in forum
Federal Rules
14/19 joined party is within 100-mile bulge (4k1b)
FQJ: No state has jurisdiction, and constitution allows jurisdiction (4k2 invokes Shoe?)
How to challenge:
If PJ has not been challenged in the responsive pleading, it is waived

 Appear specially
Limited appearance to contest attachment of property
Dont show up / challenge collaterally (Pennoyer)

 Defendant was given adequate notice and opportunity to be heard

Notice was reasonably calculated under the circumstances to give actual notice (Mullane)
The Mullane Standard:
Personal service is best
Direct mail is acceptable where knowledge of address
Conditions do not permit direct notice & publication (or other method) is not substantially less likely to bring
notice than any feasible alternative
Notice is to a class, and notice is reasonably certain to reach most members
This is about what happened in serving notice, not whether notice was actually received
Opportunity to be heard:
Defendant had opportunity to dispute pre-judgment attachment (Fuentes, Doehr)
If court attaches property without opportunity to be heard, it considered these factors (Doehr):
Debtors property interest
Risk of error
Interest of the plaintiff
-------------------------------- Defendant was served with process properly (can be waived)
Service cannot be obtained by fraud (Tickle, Wyman)
But can flush out those present in state
D who enters state specifically to defend against criminal charge is immune to service (Sivnitsky)
A defendant in jail is subject to service, if he entered the state voluntarily (Sivnitsky)
Federal Rules for Service of Process (need one 4e):
Service under the law of the forum state, in the district where fed court is sitting (4e1)
Personal service on the individual (4e2a)
Leaving the copy at a residence with someone of suitable age & discretion (4e2b)
Substituted service on agent where there is high likelihood that service will be passed on (Szhukent, 4e2c)
Corporations, partnership, unicorp. association like on humans (e1) or on agent (4h) who is so integrated that he
knows what to do with it (Hellenic)
Defenses
If improper notice/service is not asserted in the answer, it is waived
12b4 motion: improper process (constitutional)
12b5: improper service (statutory/rule-based)
----------------- Can defendant remove to federal court? ( 1441) (removal is only possible from state to federal)
Action could have been originally brought in this federal court (SMJ, PJ, venue)
Party seeking removal is an original defendant
All defendants consent to removal
Removal is sought within 30 days from when basis for removal appears in the case (complaint)
If suit is based on diversity, defendants (seeking) are not residents of the forum state
Separate (not CNOF) claims may be brought up in federal question cases, but will be remanded if state claim
FELA cases may not be removed
Remember: this might actually be a question about SMJ
Sometimes P brings a claim that can only be heard in state court, and later amends it (amount in controversy, fed
question) so that it could be heard in federal court. Then D can remove up to 30 days after the claim was amended. 28
USC 1446.
Defense: Removal is waived if the defendant has take substantial defensive action

 Court has proper venue

Determining venue ( 1391a): (remember that some fed statutes have their own venue statutes)
In cases founded solely on diversity (need #1 or #2, default to 3):
When all defendants reside in same state, the state where they reside
Where a substantial part of the events occurred, or where the property is
Default: Where any defendant is subject to personal jurisdiction when the action is brought
1391b
In federal question cases (need #1 or #2, default to 3):
When all defendants reside in same state, the state where they reside
Where a substantial part of the events occurred, or where the property is
Default: Where any defendant may be found
Special rules:
Corporations reside wherever they are subject to PJ. Each district is treated as separate state. 1391c
Aliens may be sued in any district
Where defendant is U.S. agent/agency & no real property involved, default is where plaintiff resides
Where defendant is a foreign state, see 1391(f)
Local Actions: in cases involving injury to land, venue is where land is (but see Reasor-Hill)
Transitory Action: Problems of PJ prohibit local action, bring case where D resides (Reasor-Hill)
Transfer ( 1404a)
Convenience of parties and witnesses
In the interest of justice
Destination must be court with original SMJ, PJ and venue (Hoffman v. Blaski)
* If on test if it asks if venue is proper in new court, make sure SMJ PJ and venue proper
* Transferee court applies the law of the transferor court
* Cant transfer to where suit could not have been brought initially
* Multistate Litigation: Cases with same CNOF may be transferred to one court for pre-trial, then moved back (
1407). Tranferee court may keep the case with parties consent.
Forum non conveniens (requires dismissal):
An alternative forum exists (Gilbert)
Other forum has overpowering interest (Piper)
Usually, court will require defendant to consent to adjudication in alternative forum, waive SoL
P cannot defeat forum non motion just b/c law in new state would be unfavorable (Piper)
* Defendant must overcome strong presumption in favor of plaintiffs choice of forum
------ Have any defenses been waived?
Cannot waive SMJ
PJ, Venue, Notice, Service, must be in or before answer
Any defense in law or fact should be asserted in a responsive pleading
All motions must be consolidated (12g2). If stuff is omitted from the pre-answer, its gone
12b6 motion, joinder of required party, state a legal defense:
In any pleading
By 12c motion after pleadings

At trial

Erie doctrine
No conflict apply state law
Twin aims of Erie v. Tompkins:
Prevent inequitable administration of laws

Discourage forum-shopping

Conflict between state practice and a Rule of Civil Procedure: (Rules Enabling Act, 2072):
Rule is on point, in direct conflict with state policy (if not, go to next section)
Conflict turns on intent (Walker) Accommodate state policy (Gasperini)
Hanna part 2 analysis:
Rule is constitutional (allowed by Congress) & consistent with part 1 Rules Enabling Act ( 2072)
Does not enlarge, abridge or modify a substantive right, part 2 of REA
If the rule is arguably procedural, it falls within the Courts authority to promulgate rules, and it doesnt matter
if the rule abridges state law (Shady Grove)
Where federal practice is at issue, apply Hanna part 1 test
At issue are the Twin Aims of Erie:(forum shopping and inequitable administration of the law)
Federal policy is procedural, not substantive (Erie)
Federal policy is not substantially outcome-determinative (York)
Federal interests outweigh state interests on this point (Byrd)
No way to accommodate both state and federal interests (Gasperini)
Hanna part 1 test: outcome determinative in terms of the twin aims? If yes, apply state law
* York notes a third category remedial where Frankfurter says federal courts can differ
Where a statute is at issue, it governs if it is a valid exercise of authority. Must also pass Hanna part 2 test (Stewart)
Ascertaining state law
Federal court sitting in diversity must apply states conflict of law rules (Klaxon)
Law travels with a transfer of venue (Van Deusen)
When a District Court may reinterpret state law (Mason):
Federal district court may behave as a state supreme court (can use dicta, lower court rulings)
Last case on point is outdated
Direction of state law indicates a change
Federal Common Law: (usually have to use Hanna part 1)
For policy questions: Court may create common law in specific areas, such as:
Substantial federal interest (GCs defense) Fed. statutes with private causes of action
Gap-filling in statutes
Tradition, necessity
When a significant conflict exists between federal policy or interest and state law, and state law application would
frustrate specific objectives of the federal legislation, fed common law will trump state law. (Boyle)
Reverse Erie
Supremacy clause: State courts must apply federal law when hearing federal question cases
Apply w/ care and deference (Dice)
In FELA, and fed question cases, state court must apply FRCP rule to construe pleadings in light most favorable
(Brown)

Pleadings (Rule 8)
Pleadings have a strictly notice-giving function. Low threshold:
Affirmatively establish SMJ
Statement of facts; cause may be inferred (Dioguardi)
P doesnt have to prove prima facie case in pleading (Swierkiewicz)
Fair notice of claim & grounds on which it rests (Conley)
Ad damnum clause: what is sought default judgment shall not exceed this amount (Rule 54c)
May plead alternatively, hypothetically or inconsistently (8d)
* Jury may award more than in the ad damnum clause (Bail)
* Generally, courts are not empowered to create higher pleading standards (Leatherman)
New standard under Twombly and Iqbal?
Requirement for showing the pleader is entitled to relief is translated as plausibility.
Judges should use their common sense and judicial experience to decide on a case-by-case basis
* The effect of this is not yet understood. This could signal a move away from pure notice pleading.
Answer (Rule 8b) Defendant must systematically respond:
Admission
General Denial
Qualified Denial
Specific Denial
Denial of knowledge or information
Denial based on information & belief
Denials must be in good faith (Zelinski, Oliver)
Affirmative defenses
Special pleading rules (Rule 9):
Must state circumstances of fraud/mistake with particularity (9b)
Conditions Precedent: sufficient to aver generally (9c)
Capacity (9a)
Special Damages (9g). See Ziervogel: car accident; unexpected damages must be specified
Heightened Pleading (PSLRA, Tellabs)
Accept all allegations as true
Consider sources ordinarily examined
Make inference of scienter only if it is cogent & at least as compelling as any competing inference
Amendments to pleadings (Rule 15):
May amend once before answer (15a)
after that, with courts leave (should be liberally granted)
If evidence is objected to at trial, court should freely permit (15b1)
Objecting party has burden to show admission would prejudice
If evidence is tried by express/implied consent, Ps may be amended even after judgment (15b2)
Party may seek supplemental pleading regarding new events (15d)
When an amendment relates back to the date of an original pleading (15c; need one):
Law allows relation back
Claim arose from t&o
Changes the party (see 15c1C)
* Some courts dont allow relation back, so there are Erie issues here
Rule 23.1: Derivative suits may be brought by one who does not understand the document (Surowitz)
Sanctions: Sanctions under Rule 11 are no longer monetary or mandatory, to deter not punish. The safe harbor
provision requires objecting attorney to give the offending one 21 days to modify the paper in question.
Challenges:
Rule 12b motions

Motion to Strike (12e)

More definite statement (12e)

Joinder
Joinder of claims (Rule 18):
Party may join any claims it has against opposition
* Rule 42b is the safety valve: court may consolidate/separate for virtually any reason
Permissive joinder of parties (Rule 20 need both):
Same transaction & occurrence, or series
Common questions of law or fact will arise
* The requirements are the same for joining plaintiffs or defendants (cant destroy diversity need PJ)
Required joinder of parties (Rule 19 failure means dismissal for nonjoinder) (need one):
Cannot otherwise complete relief (19a1A), or
Party claims an interest relating to the subject, plus one of the following (19a1B):
Disposition would impair his ability to protect that interest
Leave an existing party with a risk of multiple or inconsistent obligations
If joinder is not feasible (19b), court considers these factors to decide whether it can proceed (see other):
Will judgment prejudice absent/existing parties?
Would judgment be adequate?
If case is dismissed for nonjoinder, will the plaintiff have an adequate remedy?
Can prejudice be lessened by: protective provisions, tailored relief, or other measures?
* Feasibility, of course, is a diversity, PJ question.
Counterclaims (Rule 13):
Permissive counterclaim (13b) any claim (must carry its own basis for SMJ) (unlikely SMJ under 1367)
Compulsory counterclaim (13a need both):
Arises out of the same transaction & occurrence
Does not require adding another party over whom the court cant get jurisdiction
Exceptions: When claim was already the subject of a pending action; or opposing party initiated suit in a way
that didnt establish PJ, and pleader does not assert any 13b claim.
Crossclaims against a coparty (Rule 13g need one): may take supp jurisdiction
Arises out of the same t&o
Relates to property involved in the original action
Third-Party Practice (impleader questions of SMJ, PJ, notice) (Rule 14): may take supp jurisdiction
(Cant destroy diversity between 3rd party P and 3rd party D in diversity only original P 3rd D)
Defendant (or plaintiff defending a counterclaim) alleges nonparty is liable for all or part
This is generally understood to be the transaction & occurrence standard
Third-party defendants defenses (14a2):
Must assert Rule 12 defenses
Must bring 13a claims
May bring 13b claims
May bring any claim against the original plaintiff that is t&o-related (14a2D)
May bring any additional parties under Rule 14
Plaintiff may assert any claims against third-party defendant that arise from t&o
Allows third party to bring 13b & 13g claims
Must bring 13a claims
In diversity, original plaintiff cannot sue third-party D if suit would kill diversity (Kroger)
Interpleader (Rule 22): Stakeholder deposits property with court for interested parties to fight
Intervener (Rule 24):
Party has right under statute or to prevent prejudice of his own interests (flip of Rule 19)
Permissive intervener: Common questions of law or fact

Class actions
Determining subject-matter jurisdiction:
FQ:
Class action is based on a federal claim
Diversity:
Minimal diversity (any member v. any defendant)
* See 1332(c)(3)-(4) for 1/3 & 2/3 exceptions to minimal diversity

Aggregated over $5 million

Constitutional rights of absent class members in damage actions (Shutts):

Without any affiliation to the action, forum state cannot apply its own law (Shutts)
Adequacy
Notice
Must be given the opportunity to opt out
Certification (need all):
There is a class (definable group)
Plaintiff is a representative of the class
Numerosity (23a1 joinder is impracticable)
Common questions of law or fact (23a2) heightened, WM
Typicality (23a3 claims are typical of class)
Adequacy (23a4 representative, lawyer)
Predominance?
Interlocutory appeal is permitted on certification questions (23f)
Classification (23b pick one)
Anti-prejudice: Protect D from multiple rulings (23b1A)
Equitable distribution (23b1B)
Injunctive relief (23b2 historical class action; Brown v. Board)
Non-natural class (e.g., mass torts 23b3) (need both)
Predominance: Common questions predominate over individualized questions
Superiority: Class action is superior to other forms
* Relevant factors include: members interests in individually controlling the action, extent to which any litigation
has already begun, desirability of the particular forum, managerial difficulties
* A class that seeks money and an injunction is a hybrid b2-b3.
Notice:
No notice requirement for b1, b2 classes, but lingering constitutional question
For b3 classes, best notice that is practicable under the circumstances (e.g., Mullane) (23c2B)
Individual notice to members who can be identified with reasonable efforts (super Mullane)
Judge may order notice at any time for anything, not bound by Mullane standard
Settlement:
If settlement would bind class members, parties must show it is fair, reasonable, adequate (23e2)
This can be a tough standard if members are not adequately represented (Am Chem)
For 23b3 classes, must give a new opportunity to opt out (23e4) (recent amendment)
Any class member may object, and the objection may be withdrawn only with courts approval (23e5)
Attorney:
Consider (23g1A):
Work done Experience Knowledge Resources Other
Attorneys fees must be reasonable. Consider:
Statutory (normal rate)
Must represent the marketplace for contingent fee lawyers
Problems:
50-state law problem for national classes (apply law of state of class members, Schutts), goes to superiority and
manageability
Court can exercise PJ over absent class members with if no minimum contacts
Individual questions of causation (Agent Orange)
If class action fails, and lawyers adequacy is questioned, a member may collaterally attack

Class Action Fairness Act of 2005: Basically thrust all class actions into federal court by reducing diversity to a
minimum requirement and aggregating the amount in controversy to exceed $5 million. Gave defendants removal
power. For supplemental jurisdiction issues, see Allapattah.