***Due Process

Due process protects an individual’s liberty interest in not being subject to binding judgments of a forum
in which they have established no meaningful “contacts, ties, or relations.”

I. Personal Jurisdiction
a. Can the plaintiff sue the defendant in this state? (all we are worried about)
b. For a court to have pers. Juris. A court must have power over something
i. Court can have power over def. themselves or
ii. Court can have power over defs. Property
c. In Personam
i. Power is over def. herself
d. In Rem or Quasi in rem
i. Power is over defs. Property
e. Due process sets the outer boundaries of how far a court can go w/ jurisdiction.
f. 1st step, The state must have a statute that allows personal juris. That allows personal
juris. In a particular case.
g. 2nd step, Constitutional analysis
h. On exam
i. 1st step look for statute
ii. 2nd step is constitutional analysis, and see if the case fits within the due process
circle.
A. In personam jurisdiction
a. Can be either general or specific
i. w/ general jurisdiction, can be sued in this forum over a claim that arose
anywhere in the world
ii. w/ Specific jurisdiction, sued on a claim that arose in this forum
(Note: Discussing Constitutional Analysis first but on test discuss Statutory first)
I. Constitutional Limit
 Traditional Jurisdiciton
1. Pennoyer v. Neff
a. Stresses power,
b. Affirms state has power over everybody and everything inside its
boundaries
c. Gave us traditional bases for in personam jurisdiction
Traditional Bases are:
i. Defendant is served w/ process in the forum
1. Gives general jurisdiction
ii. Defendant is domiciled in the forum
1. Gives general jurisdiction
iii. Defendant Consents
 d. Rule rationale is based on states sovereignty, doesn’t allow a state to reach
into another.
e. 14th amendment – due process
f. Full Faith and Credit – states should uphold the findings of other states
2. Hess v. Polaski
a. Facts: Hess drives car to Mass. and is involved in wreck, plaintiff wants to
sue in mass. Def. left state
b. Every state has a statute called a non-resident motorist act (says by driving a
motor vehicle in our state you have appointed a state official for service of
process.)
c. Mailed a copy to Hess
d. Consistent w/ pennoyer
e. Expands notion of consent to include implied consent
f. This is Specific Jurisdiction ( has to be a claim that arises from the operation
of a motor vehicle)
 Modern Personal Jurisdiction
3. International Shoe
i. Specific Jurisdiction: Claim against defendant arises from its activity in
the state.
b. Facts: State of Wash. sought to collect unemployment tax from Intern. Shoe.
Intern. Shoe did not consent. They had salesmen in Washington and sold
products there.
c. New Doctrinal formula developed
d. Magic Phrase “the defendant must have such minimum contacts with the
forum so that exercise of jurisdiction does not offend traditional notions of
fair play and substantial justice. (this test is crap, nobody knows what it
means.)
e. Minimum contacts are qualitative not quantitative
f. 4 things about holding
i. It is flexible, we can expand
ii. It is clear that you can serve process on defendant outside of the
forum (as long has defendants have such minimum contacts)
iii. It seems to have two parts
1. Contact
2. Fairness
iv. Nowhere does it purport to overrule Pennoyer
g. This is the test if the defendant is not served with the process in the forum.

Specific Jurisdiction: Applying Minimum Contacts

 State Long-Arm Statutes:
o All states have long arm statutes
  Nonresident motorist statutes – implied
 Long arm statute
 Unlimited Long Arm- A few states such as California have
long arm statutes that give their courts power over any
person or property over which the state can constitutionally
exercise jurisdiction.
 Limited (Specific) Long Arm –Most states have long arm
statues that specify in detail the situations in which their
courts can exercise jurisdiction.

 Minimum Contacts
4. McGee v. International Life
a. Facts: Def. a Texas insurance company only had one contact with the forum
b. Court upheld jurisdiction
c. Three things stressed
i. Def. solicited the contract from California
ii. Forum State’s interest (California had an interest in protecting its
people who had been ripped off by insurance companies.)
iii. Relatedness, (the plaintiff’s claim arose from the def. contact w/ the
forum)

5. Hanson
a. Wealthy Penn. Woman, set up trust fund w/ Delaware bank, she moves to
florida, she continues to have relationship w/ Delaware bank, dies in florida,
b. Did Florida have juris. over Delaware bank? NO
c. No juris. b/c the def. had not purposefully availed themselves to florida
d. Only reason def. had contact w/ florida b/c customer moved there
e. Difference between Hanson and McGee, In Hanson the trust did not have a
choice to continue bus. w/ woman; In McGee the Insur. Co. had a choice,
they wrote a letter saying they would continue policy voluntarily.
f. Case is a state sovereignty case, (a def. may not be called upon, unless he
has minimal contacts with that state that are prerequisite to its exercise of
power over him.)
6. Worldwide Volkswagen
a. Facts: Family lived in New York, they buy a new car,(audi) and drive off to
Arizona. In accident and car blew up. Claimed car was defective. Sued four
defendants.
b. Oklahoma had juris. Over two def.
i. Other def. did business in only three states, not Oklahoma
ii. Other def. did business only in NY
c. Court said no jurisdiction because there is no contact
d. Def. did not avail themselves to Oklahoma
 e. Car got to Oklahoma through the unilateral conduct of a third party (family
drove it there)
f. To be a contact, the def. must direct their activities towards forum in some
way
g. Foreseeability is relevant, but not foreseeability that product would get
there, Must be foreseeable that the def. would get sued in that forum.
h. This case is both a Due Process case and Sovereignty case. (court says you
need to look at both when determining Personal Jurisdiction.)
i. Five reasonableness/fairness factors
i. Burden is on defendant to prove unfair
ii. Forum State’s interest
iii. Plaintiff’s interest in obtaining convenient and effective relief
iv. Interstate judicial system’s interest in obtaining the most efficient
resolution
v. Shared interest of the several states in furthering fundamental
substantive social policies
7. Caulder v. Jones
a. Facts: People in Florida wrote a defamatory article and caused a negative
effect for plaintiff in California. Plaintiff sought juris. in California.
b. Do not have to set foot in the forum to be subject to jurisdiction
c. Reached out to the forum, in this case, caused an effect in forum state
8. Burger King
a. Court says we are going to uphold juris.
b. Four important things
i. Court makes it clear that international shoe has two parts
1. Contact part- def. has to have purposefully established
minimum contacts within the forum state.
2. Fairness part- the court may evaluate
a. Burden on def.
b. Forum state’s interest
c. Plaintiff’s interest
d. Efficiency
e. Interest in substantive social policies
(this is now absolutely true)
ii. You must have a relevant contact before fairness ever becomes
relevant. If there is no relevant contact than all fairness in the world
will not give juris.
iii. On contact it was easy, def. reached out to Florida, clearly availment
(Defs. reached out to Florida, entered a twenty year multi million
dollar agreement)
iv. Fairness, Court says that burden is on the defendant to show that this
forum is unconstitutional. (you have to show that it is so gravely
 difficult and inconvenient that you are at a severe disadvantage in
litigation.)
c. Court said that relative wealth of the parties is not important
d. Due process does not guarantee you a good forum
9. Asahi
a. Facts: Def. made valves that went into motorcycle tires. Defective valve
caused motorcycle crash. Def. was Japanese company, accident happened
in Cali.
b. Issue: whether awareness on part of foreign def. that its product would
reach the forum state in the stream of commerce constitutes minimum
contacts.
c. Stream of commerce case
d. There is no law, justices is split four to four
e. First approach, Brennan
i. Says it is a contact, if you put the product into the stream and
reasonably anticipate that it will get to forum state.
f. Second approach, O’Conner
i. You need what Brennan said plus the intent or purpose to serve the
forum state.(designing product for market in forum, advertising in
forum) (so there needs to be intent for availment.)
g. There is no law, so on stream of commerce you need to discuss both
theories.

Internet Cases

10. Zippo Manu. V. Zippo Dot Com

a. The more interactive the website, the stronger the case is that def.
purposefully availed themselves. (This is first part of Shoe)

b. If website is generic and passive then probably no juris. (court’s do not want
to allow jurisdiction everywhere.)

 Transient Jurisdiciton (temporary presence juris.)

11. Burnham
a. New Jersey Def. is served w/ process in California (He was there for 3 days),
and sued in California, case has nothing to do w/ California, happened in
another state. Only way its gonna work is if California has general
jurisdiction.
b. Question here is, did international shoe replace pennoyer, or does it exist
alongside pennoyer. (In other words are traditional bases still good by
themselves or have they been replaced completely by international shoe.
c. Court split four to four
d. Two approaches
 i. Scalia’s approach
1. Presence is enough when you are served, that is enough
ii. Brennan
1. You must apply international shoe to every case, traditional
bases are irrelevant, International shoe swept away what
happened with Pennoyer.
e. But all nine justices agreed that California had general jurisdiction.
f. GOULD says it is not clear whether jurisdiction based solely on in-state
service is constitutionally valid.

 Consent
12. Carnival Cruise Lines, Inc. v. Shute
a. Facts: Shute slipped while on board the cruise ship in international waters.
Her ticket stated that “it is agreed by and between the passenger and Cruise
Line that if litigation ensues it will take place in Florida.
b. Pennoyer said consent was valid basis
c. Due process serves fairness function
d. Court says forum selection clauses are permissible
i. Court agrees w/ this even though it may hurt consumer
e. Court is not saying all forum selection clauses are valid

(General Juris. v. Specific)

-General – claim or cause of action will arise in some other state than
the forum state.
-Specific – claim or cause of action will arise out of def. activities in
forum state.
B. General Jurisdiction

Any claim can be brought against defendant; not solely claims that arise out of its
conduct in the state.

f. Continous, systematic and substantial presence in the state (some

administrative/nerve center activities strengthens determination have
general jurisdiction.
i. Perkins v. Mining Co.
1. Facts: Cause of action arose in Philippines, the companies
operations were halted during WWII, Company’s president
did many things on behalf of the company in Ohio,
2. Court found President carried on in Ohio a continuous and
systematic supervision of the necessarily limited wartime
activities of the company.
3. Jurisdiction is allowed
ii. Helicopteros
 1. Black letter rule – There is general in personam jurisdiction
if the def. has continuous systematic ties with the forum.
g. Domiciled, incorporated or principal place of business in the state.
(Shaffer)
i. After Shaffer, basis for determining whether personal juris. can be
asserted over an out of state defendant is International shoe. Even
cases about property, the analysis is based on minimum contacts
although the presence of the property in state may be sufficient as a
minimum contact.
h. Personal service in the state for individuals, not corporations (Burnham)

*Constitutional Analysis for In personam Jurisdiciton

In Personam Jurisdiciton

 Constitutional analysis
o Flag whether one of the traditional bases applies
 If one of these applies, put in answer
 Then talk about Burnham, However we are not sure that traditional
bases are good by themselves, (argue both sides)
o Then go to International shoe
 You must have a relevant contact between the defendant and the
forum
 Relevant contact is one that results from defendants purposeful
availment.
 You must have foreseeability (Means that it has to be foreseeable that
this defendant could be sued in that forum.)
o Fairness
 Relatedness (Need to ask: does the plaintiff’s claim arise from the
defendant’s contact with the forum?)
 If claim doesn’t do this, it will only work if you have general in
personam juris.
 If it does, this will help us find jurisdiction.
 Five fairness factors
-The burden is on the defendant to show that it is so gravely
inconvenient that the defendant is at a severe disadvantage in litigation.
 Inconvenience for the defendant and her witnesses
 States Interest [The state may have an interest in providing a
forum (McGee)]
 Plaintiff’s interest (plaintiff may be injured and would be tough
to travel.)
  Interest in Efficiency (goal to find the most efficient resolution
of controversy)
 Interstate interest in shared substantive policies (Burger king,
Worldwide)

 Statutory Inquiry (first you have to have a statute that allows jurisdiction, then you go on whether
its constitutional)
(every state has statutes that allows jurisdiction on the traditional bases. In addition every state has
two statutes to go after non residents.)
iii. Non-Resident Motorist act
iv. Long Arm Statute (allows jurisdiction over a non resident and is usually always
for specific jurisdiction.)
-Long arms come in two varieties
1. Unlimited Long Arm (basically allows full extent of constitution
probably not on exam) (WILL PROBABLY NOT BE DISCUSSED ON EXAM)
2. Limited (specific) Long Arm
a. Says we can sue a non resident for doing certain things in a
forum, i.e. entering a contract, conducting business
transactions.
-Watch for a long arm that says we have jurisdiction over a non resident
who commits a tort in our state. (Gray v. American Radiator)
-Some statutes permit juris. when a tort occurs within the state, while
others require a tortuous act (this can occur out of state)
-Marital Dissolution – All states provide that when a married coupel last
lived together in the state and one spouse then abandons the other, the
remaining spouse by obtain personal juris. over the absent spouse for
divorce or legal separation.

Hypo: I make widgets in state x, I sell a widget to you in state Y, it blows up in state Y, the statute in state
y says you have juris over any non resident who commits a tort in state y.
Courts are split
-Illinois view says you did commit a tort in y because you sold the widget in y
-Other courts say no because the tortuous conduct occurred in state x.

Hypo: on Personal Jurisdiction:

Plaintiff lives in Maryland, P drives over to Virginia, P sees cuckoo clock shop and buys clock, Drives back
to Maryland, cuckoo injures P in Maryland, wants to sue D (“Uncle Joe” clock maker) in Maryland, Is
there In personam juris over clock maker?

(always start with a statute)

I. Does a Maryland statute allow In personam juris.
 There are no traditional bases,(Clock maker not present in Maryland when served, not
domiciled in Maryland, did not consent to Maryland)
 So if there is a statute it has to be a long arm statute (Suppose Long arm statute says
Maryland has juris. over non resident who commits a tort in Maryland.)
Did Uncle Joe commit a tort in Maryland? Split authority here
1. No, b/c uncle joe did nothing in Maryland, he made clock in Virginia
2. Yes, (based on gray v. American radiator), b/c plaintiff was injured in Maryland,
tortuous conduct happens when injury occurs.
II. Ok Statute is met so we must go to constitution.
 Is Jurisdiction Constitutional?
 Go to International shoe
-Is there a relevant contact between uncle joe and Maryland?
-Is there purposeful availment?
-uncle joe did not send clock to Maryland (looks like World Wide
Volkswagen) Plaintiff took clock to Maryland (unilateral act of third
party), looks like there is not purposeful availment.
(What if facts told us that uncle joe’s shop is three miles from Maryland, uncle
joe advertises in Maryland, what if uncle joe has a lot of customers in Maryland,
at some point it looks like purposeful availment.) You need to worry about facts.
Foreseeability
-Question is not whether it is foreseeable if the product could get to Maryland
-Is it foreseeable that uncle joe could get sued in Maryland
(no one knows what the answer is, you have to argue it both ways)

(Assuming there is minimum contacts met we move onto Fairness)

III. Fairness
-Relatedness (Relatedness is met here, plaintiff’s claim arises from defendant’s conduct w/
Maryland)helps us find jurisdiction
(Move to five fairness Factors)
Five fairness factors (burden on the defendant)
1. Inconvenience for def. and witnesses (use fact, Maryland is a neighboring state, this is
relative to convenience. )
2. States Interest (Maryland may have an interest, just like McGee case)
3. Plaintiffs interest (Especially big, he is injured, it would be burden to travel to other juris.)
4. Efficiency
5. Shared Substantive policy

B. In Rem and Quasi In Rem Jurisdiction

(Jurisdiction is over def. property)
-With in In rem the suit is about who owns that property
-With Quasi in rem the suit is not about ownership of property (we know its def. property, the suit is
about something else)NOTE: THIS TYPE JURIS. IS NO LONGER GOOD AFTER SHAFFER
(we are just trying to get juris.)

All goes back to Pennoyer

(Pennoyer facts: Underlying dispute was where attorney sued Neff for breach of contract, could not get
In Personam Jurisdiction over Neff, So Quasi In Rem was used)
-Pennoyer held that for in rem and quasi in rem, you have to have property seized at the outset
of the case.
-Since property was not seized/attached at the outset of the case, jurisdiction could not be
granted.

How do we get In Rem Today?

 We start with Statute
-Attachment statutes (every state has one, basically says we can exercise juris. over property in
our state that the def. owns or claims to own.)

 Then we go to the constitution

-(Pennoyer said all you have to do is attach the property at the outset of the case.)
HOWEVER this changes with Shaffner v. Heitner
-Shaffner v. Heitner – you must attach the property at the outset, but you must also show that
the def. meets international shoe test. (-International Shoe Test- Constitutional test is same test
that it was for In Personam)
-Shaffner v. Heitner – if property is in rem about land, strong argument that the presence of the
property in the state will satisfy international shoe. There very well may be enough minimum
contacts b/c def. property is in the forum state.
AFTER THIS CASE QUASI IN REM IS DEADLETTER LAW
NOTE: when you acquire Personal jurisdiction it stops the statute of limitations from running.
Personal Jurisdiction procured by fraud is not personal juris. (cannot lure someone into juris.)
Pennoyer gives us first notion that tag jurisdiction works.

C. Notice
A. Service of Process (way we are notifying defendant) (governed by Federal rule 4)
a. Federal Rule 4 –
i. Process consists of the summons and a copy of the complaint.
ii. Service can be made by any non party who is at least age 18
iii. Service on a human being (Rule 4 (e)(2)
1. Three alternatives
a. Personal Service [4 (e)(2)(a)] – Just walk up and hand
service, anywhere in the state.
b. Substituted Service [4 (e)(2)(b)] –Specific about where,
(1)Must be done at Def. dwelling or usual abode, (2)Must
serve someone of suitable age and discretion who resides
there.
c. Serve the defendant’s Agent who is authorized by
appointment or by law. [4(e)(2)(c)]
iv. Rule 4(e)(1) – says we can use state laws, (this is where we get service by
mail.
v. Service of process on a business. (you serve an officer or a managing or
general agent of that business.)
vi. Waiver of service, Rule 4(d) allows plaintiff to mail to the defendant the
process and waiver form, also a self address stamped envelope, then the
 defendant can waive the process of service. If the defendant fails to return
the waiver, we have to serve the defendant, and the defendant has to pay
for the cost of being served.
B. Constitutional Standard
a. Mullane v. Central Hanover Bank
i. Facts: Central Hanover Bank, had 113 trusts, needed to give notice to the
beneficiaries of the trust, only notice given was through publication in a
newspaper.
ii. Court found this publication was not ok.
iii. Notice is ok if it is reasonably calculated under all the circumstances to
apprise the party of the proceeding. (if you meet rule 4 you satisfy mullane)
iv. Court also says notice must be given sufficiently in advance of action of
courts, to prepare
v. Thumbnail test – is notice the sort of notice that someone who really
wanted to inform defendant of notice would give?
b. Jones v. Flowers (Did not discuss this case in class, good to know though)
i. If you become aware that the defendant did not receive service, you may
have to take additional steps.

II. Subject Matter Jurisdiction

Question is do we go to State court or Federal court?
A. Diversity of Citizenship [Section 1332 (a)(1)]
Two requirements
a. Citizens of different states
i. Complete diversity rule – there is no diversity if any plaintiff is the citizen of
the same state as any defendant.
ii. Test for citizenship - a U.S. citizen is the citizen of the state in which she is
domiciled. YOU ONLY HAVE ONE DOMICILE, AND YOU ALWAYS HAVE ONE.
1. To change domicile
a. Physically you must go to the new state
b. You must form the intent to make that your permanent
home (expressions of intent are don’t usually work, need
proof i.e. car tags, voting, etc.)
2. Case that showed this(Mas v. Perry)

Hypo: Have a person who is the domicile of California, person turns 18 and goes to Maryland to college
for four years, the whole time says I’m not going to California but I don’t want to stay in Maryland
forever. Then goes to Law school in Illinois, but doesn’t like Illinois and doesn’t want to go to California,
then he joins the merchant marines and sails the seas for sixty years. Where is his domicile, CALIFORNIA,
he didn’t have intent to make any places he went his domicile.

Hypo: Family from Worldwide Volkswagen, they decide to move to Arizona, but their domicile does not
change until they set foot in Arizona. They had intent but the physical requirement was lacking.

iii. Citizenship of a corporation

 1. Statute 1332 (c)(1)
A corporation is a citizen of
a. The state where incorporated
b. Principal place of business
i. THERE IS ONLY ONE PPB,
ii. Factors in finding PPB
1. Nerve center test (usually headquarters)
2. Corporate Activities test (place of activities,
where corporation does more operations
than anywhere else)
3. Total Activities Test – supposed to be a
hybrid of the two above approaches(gives
rules of thumb, (1) if this corporations
activity is in a lot of states, we usually use
nerve center, (2) If all activity is in one state,
we usually use the muscle center.
(NOTE: Supreme court has never settled on one
test.)
b. The amount must exceed $75,000
i. It must exceed, at least 75,000 and a penny.
ii. Plaintiff’s claim governs, unless it is clear to a legal certainty that she cannot
recover more than 75,000.
iii. Aggregation – when we add multiple claims to exceed 75,000
1. We can aggregate if it’s one plaintiff v. one defendant (claims can be
completely unrelated)
2. For joint claims, use the total value of the claim, here the number of
parties are irrelevant. (look for the word joint on the exam.
Aggregating Claims
-Single plaintiffs may aggregate claims P (claim 1 + claim 2) v. D = Yes
(related or unrelated) against a single
Defendant.

-Single plaintiffs may not aggregate P (claim 1) v. D1 + P (claim 2) v. D2 = NO

claims against multiple defendants P (Joint Liability Claim) v. D1 + D2 =Yes
(this rule does not affect joint liability
claims.)

-Multiple plaintiffs may aggregate (P1 + P2) (Claim 1) v. D = Yes

claims only if they are based on a
common undivided interest.

-Multiple plaintiffs may not aggregate P1 (Claim 1) + P2 (Claim 2) v. D = No

Separate and distinct claims to reach the
Jurisdictional amount, even if factually
related.

§ 1332:
a) The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between-
a. Citizens of different states;
b. Citizens of a state and citizens or subjects of a foreign state
c. Citizens of different states and in which citizens or subjects of a foreign state are
additional parties; and
d. A foreign state, as plaintiff and citizens of a state or of different states.

B. Federal Question
a. Section 1331 (citizenship is irrelevant, and no amount in controversy requirement)
i. Need a case that arises under federal law
1. Well pleaded complaint rule – the court looks only at the complaint,
does not look at anything from the defendant, and in looking at the
complaint you consider only the claim itself.
a. Louis and Nashville Railroad v. Motley
i. Facts: Motley’s have lifetime passes on the railroad,
Congress passes a law, says “railroads cannot honor
free passes.)
ii. Motley’s complaint: (1) you breached our contract,
and (2) the new federal law does not apply to them.
iii. This is not a federal question case, b/c the well
pleaded complaint rule says you only look at the
claim. The second half of their claim that dealt with
a federal issue was not their claim, it was their
defense.
iv. Need to show plaintiff’s original cause of action
arises under federal law.
ii. To determine if it is a FQ or not, ask, Is the plaintiff enforcing a right under
this federal law? If answer is no it is not a Federal Question.
iii. Parties cannot consent to subject matter juris. (under 1331)

b. Counterclaims – supreme court holds that counterclaims asserted in response to

initial complaint will not support fed. question juris.

- Grable & Sons Metal Products v. Darue Engineering and Manuf.

a. Facts: P was delinquent on taxes, IRS gave notice of seizure by certified mail, IRS
sold property to D. Five years later P brought quiet title action in state court,
claiming D’s title was invalid b/c IRS failed to notify Grable of seizure in manner
required by 26 U.S.C. 6335(a), Grable claimed statute required personal service
not certified mail. Darue removed to federal court.
b. A state law claim can give rise to federal question jurisdiction so long as it
appears from the complaint that the right to relief depends upon the
construction or application of federal law.
c. In this case Grable’s state complaint must specify “the facts establishing the
superiority of its claim, and Grable has premised its superior title claim on a
failure by the IRS to give it adequate notice, as defined by federal law.
NOTE: Court emphasized well-pleaded complaint rule makes plaintiff master of claim; he or she may
avoid fed. Juris. by exclusive reliance on state law. HOWEVER, although plaintiff his master to complaint,
courts will not permit the plaintiff to manipulate fed. juris. through “artful pleading.”

C. Supplemental (pendent) Jurisdiction – does not get a case into federal court, it gets
additional claims into the case that is already in the federal court. (Combines Pendant and
Ancillary Juris.)
We have a case in federal court
-(for every claim you see in court you must have subject matter jurisdiction,
if you see a claim in federal court you must ask whether it invokes federal
question or diversity)
- 1367(a) says in any civil action of which district courts have original juris., the district
courts shall have supplemental juris. over all the other claims that are so related to the claims in the
action within such original jurisdiction that they form part of the same case or controversy under Article
III of the U.S. Constitution.

b) United Mine Workers of America v. Gibbs

i. Asserts two claims
Plaintiff (tenn.)  Federal Question – does not invoke diversity
but it does invoke federal question, got case
into federal court

 State Law – does not invoke diversity, and

does not invoke federal question (could never
get into federal court by itself)

ii. Test supreme court set: We have supplemental jurisdiction over claims
that “share a common nucleus of operative fact with the claim that
invoked jurisdiction.”
iii. Common nucleus of operative fact is always met if the claims arise from
the same transaction or occurrence.
iv. Gould’s Hypo:
1. What if Gibbs had loaned 10k to union 3 years before all this
arose, union failed to pay, would this succeed as supplemental
juris?
2. Probably not b/c it doesn’t arise out of the common nucleus of
operative fact.
v. Pendent Juris. Def.
1. Exists whenever there is a claim “arising under the Constitution,
the Laws of the U.S., and Treaties made, or which shall be made,
under their Authority and the relationship between that claim
and the state claim permits the conclusion that the entire action
before the court comprises but one constitutional “case.” The
federal claim must have substance sufficient to confer subject
 matter juris. on the court. The state and federal claims must
derive from a common nucleus of operative fact.
(ability of plaintiffs to add non-qualifying claims to qualifying
claims that they asserted)

How do we handle supplemental today? (by Statute)

c) Statute 1367
a. Approach in two steps
Whenever you see a claim that by itself could not go to federal court on
diversity or federal question basis, ask
1. Does 1367(a) grant supplemental jurisdiction over this claim?
a. Yes if it meets Gibbs(shares a common nucleus of
operative fact….)
2. Does 1367(b) take away that supplemental jurisdiction?
a. Takes it away when
i. Applies only in diversity cases, never in Federal
Question.
ii. Only takes away supplemental juris. over claims
by plaintiffs (not by any other party)
iii. Only takes away that juris. over certain claims
by plaintiffs
1. Claims by plaintiff against parties joined
under rules 14, 19, 20, or 24
2. Claims by Rule 19 plaintiffs
3. Claims by somebody seeking to
intervene as a plaintiff
Third parties: claims by plaintiffs against parties impleaded
under Rule 14
Necessary Parties: claims by plaintiffs against parties joined
under Rule 19
Permissive Parties: claims by plaintiffs against parties joined
under Rule 20
Intervening Parties: claims by plaintiffs against parties
intervening under Rule 24

28 USC 1367 (c) the district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if –
(1) The claim raises a novel or complex issue of state law
(2) The claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) The district court has dismissed all claims over which it has original
jurisdiction, or
(4) In exceptional circumstances, there are other compelling reasons
for declining jurisdiction

b. Finley v. U.S.
 i. Court had to decide whether a plaintiff asserting tort claims against the
U.S. under the Federal Tort Claims act could use pendant jurisdiction to
assert a state law tort claim against a city government in the same case.
ii. Finley case said this could not happen, BUT
iii. 28 U.S.C. 1367(a) overturns this ruling.

Pendant Party Juris.

c. P Federal Question D1 U.S. Govt.
State Cali. Tort Claim D2 Power Co.
Pendant Claim Juris.
d. P Federal Question D
State Claim---^

HYPO:
Gibbs
Claim 1: Fed. Question Claim
Claim 2: State Claim

Does 1367(a) grant supplemental jurisdiction?

-yes claim did share a common nucleus of operative fact

Does 1367(b) take away that supplemental jurisdiction?

-This is a Federal Question case so No, 1367(b) does not apply

-NOTE: A federal question case can be brought among citizens of same state.

-Ancillary Jurisdiction is used to bring in an additional defendant or claim under supplemental

jurisdiction. (refers to juris. extended over non-qualifying claims by plaintiffs or defendants asserted as
counterclaims, cross-claims, or third party claims)
There is only 1 claim filed by plaintiff against def., def. brings in 3 rd party def. and def. files
counter claim against def.
RULE 13(a) Compulsory Counterclaim
I. In General. A pleading must state a counterclaim any claim that the pleader has
against opposing party if claim:
a) arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim; and
b) does not require adding another party over whom the court cannot acquire
jurisdiction.
II. Exceptions. The pleader need not state the claim if:
a. When the action was commenced, the claim was subject of another pending
action; or
b. The opposing party sued on its claim by attachment or other process that
did not establish personal juris. over the pleader on that claim, and the
pleader does not assert any counterclaim under this rule.
Ancillary juris. applies when parties are in federal court because of diversity and one party wants to
bring a claim against another party (possibly third party) which would otherwise defeat diversity.
Ancillary juris. allows fed. court to hear this type of case despite of lack of diversity.
Two important restrictions
- First, additional non-fed claim must be sufficiently related to original claim.
- Second, a court is more likely to grant ancillary juris. to a claim asserted by def.
rather than the plaintiff b/c the plaintiff chose to the court in which to bring their
case whereas the def. was forced into the plaintiff’s choice.

Pendant Party Jurisdiction

Owen Equipment v. Kroger
Held that a plaintiff cannot assert a claim against a third-party defendant who does not have complete
diversity of citizenship from the plaintiff.

D. Removal
Gives defendant chance to pick forum (ONLY DEF. CAN REMOVE)
-Can only arise this way
-Def. has been sued in state court but wants case in federal court
-Removal is where the def. has the case removed to the federal court (only goes from
state to federal)
a. General Rule: It is removable if it invokes federal subject matter jurisdiction (Means
it needs diversity or federal question juris.)
i. EXCEPTION: WE CANNOT REMOVE A DIVERSITY CASE IF ANY DEFENDANT IS
A CITIZEN OF THE FORUM.
(Plaintiff citizen of New York sues two defendants, D1 of texas, and D2 of
Georgia, and the forum used is Georgia, def. cannot have case removed b/c
D2 is citizen of the forum.)
Another common Hypo: exactly same fact pattern as above, claim is for
violation of federal employment law, WE CAN REMOVE B/C EXCEPTION ONLY
APPLIES IN DIVERSITY CASE.
b. All defendants must agree
c. Timing
i. You must remove within 30 days of SERVICE of the document that first
made the case removable. (usually original service of process)
d. You can remove only to the federal district that embraces the state court where it
was filed.

Note: diversity must exist both when the original action was filed and when the petition to
remove is filed. Exception: when the plaintiff drops a non-diverse party, in which case
removal is possible.

E. Hays v. Cave
a. Facts: P brought suit in state court, charging D with legal malpractice under Illinois
common law in a federal criminal case. D removed case to federal court on ground
 that case arose under federal law b/c the resolution of a malpractice claim arising
out of the defense of a federal criminal case would require evaluation of federal
law.
b. A case filed in state court under state law cannot be removed to federal court on
the basis that there are defenses based on federal law.
c. However, what is true is that if fed. Law creates the claim on which the plaintiff is
suing, the fact that he has omitted from his complaint any reference to federal law
will not defeat removal.
d. Case is state claim so it is remanded to state court.
e. From this case we learn that to be removable, an action must be one that would fall
within the original juris. of the federal courts consistent with the requirements of
the well-pleaded complaint rule and the artful pleading doctrine. (in other words
the plaintiff must have been able to initiate the civil action in federal court originally,
either through; diversity, federal question, or another statute conferring fed.
Subject matter.
F. Federal Removal Statute 28 U.S.C. 1441(a)
a. Any civil action brought in a State court of which the district courts of the U.S. have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending. (Cases which the fed. Court would have had juris. in
the first place can be removed to fed. Court.)
G. 28 U.S.C. 1441(b)
a. Any civil action of which the district courts have original jurisdiction founded on a
claim or right arising under the constitution, treaties or laws of the U.S. shall be
removable without regard to the citizenship or residence of the parties. Any other
such action shall be removable only if none of the parties in interest properly joined
and served as defendants is a citizen of the State in which such action is brought.
(a diversity of citizenship can’t be removed if def. is from forum, but a federal
question case can.)
H. 28 U.S.C. 1441(c)
a. Whenever a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therin, or, in its discretion,
may remand all matters in which State law predominates. (Non-removable claims
that are completely separate and independent of a Federal question claim can be
removed with the Federal question claim.)NOTE THIS IS WHY FULLIN v. MARTIN
SAYS UNCONSTITUTIONAL

Fullin v. Martin
-This case says that 1441(c) is unconstitutional.
-Come to the conclusion that 1441(c) extends jurisdiction to claims that do not share a common
nucleus of operative fact.

Once a case has been removed, it can be remanded back to state court by:
1. Mandatory remand – if the statutory requirements for removal are not satisfied(i.e. if the action could
not have been brought originally in fed. district court or in diversity cases if a def. is a citizen of the state
in which action was commenced) fed. judge must remand action back
2. Discretionary remand – if a fed. trial of the case would be jurisdictionally proper, but unwise, the fed.
judge has discretion to remand the case back to state court.

Removal & Remand Procedures

I. Fed Statute 28 U.S.C. 1446
J. 28 U.S.C. 1447

III. Venue
Tells you which federal court
Venue Overview: function of venue is to figure out which court within the same judicial system
(government of a particular sovereign) the case goes.

Statute
28 U.S.C. 1391 as stated
a) Action founded only on diversity, May, except as provided by law, be brought only in
a. District where any def. resides, if all defs. reside in same state,
b. District in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated, or
c. District in which any def. is subject to pers. juris. at time action is commenced, if there is
no district in which the action may otherwise be brought.
b) Action not founded solely on diversity, may, except as provided by law, be brought only in
a. District where any def. resides, if all defs. reside in same state,
b. District in which a substantial part of events or omissions giving rise to claim occurred,
or a substantial part of property that is the subject of the action is situated, or
c. District in which any def. may be found, if there is not district in which the action may
otherwise be brought
c) For purposes of venue, a def. that is a corporation shall be deemed to reside in any judicial
district in which it is subject to pers. juris. at the time the action is commenced. In a state which
has more than one judicial district and in which a def. that is a corporation is subject to personal
juris. at the time an action is commenced, such corp. shall be deemed to reside in any district in
that state within which its contacts would be sufficient to subject it to personal juris. if that
district were a separate state, and, if there is no such district, the corp. shall be deemed to
reside in the district which it has the most significant contacts.

Statute Simplified
A. Basic provisions mapped out (section 1391)(We are talking about venue when P files in federal
court)(1391 (a) gives you choices for diversity cases and (b) gives you choices for federal
question cases, BUT there is no difference, same whether diversity or federal question)
a. You can lay venue in
b. Any district where ALL defendant’s reside
i. Sub Rule: if all def. reside in different districts of the same state, we can lay
venue where any of them resides.
1. Resides means–
 - for a human being, it is your domicile
- for a business 1391(c)
i. a business resides in all districts where it is subject to
personal jurisdiction when the case is filed.
2. Residence is only relevant for venue, don’t get confused w/ citizenship
c. Any district where a substantial part of the claim arose

In a federal diversity case, what are the bases for Venue?

a.       domicile, if all defendant reside in the same state
b.      where a substantial part of the events arose or where property is located
c.       If the above don’t apply, then anywhere in the jurisdiction

In a federal question case, what are the bases for Venue?

a. domicile, if all defendant reside in the same state
b.      where a substantial part of the events arose or where property is located
c.       where defendant “may be found” (where defendant is subject to jurisdiction)

Bates v. C&S Adjusters, Inc.

Basically: statutory standard for venue focuses not whether a defendant has made a deliberate contact,
but rather on the location where the events occurred.
Held: a receipt of a collection notice is a substantial part of the events giving rise to a claim under Fair
Debt Collection Practices, so this is enough to use as location where events occurred.

Transfer of venue basically allows a defendant who feels that plaintiff’s chosen venue is too
inconvenient may seek a transfer to another venue where the case might have been brought.

B. Transfer of Venue ( you can only transfer to a different court in the same system)
a. Transferor is the original court
b. Transferee is the court to which it is transferred
c. Kicker on transfer in federal system, two statutes
i. 1404 and 1406
1. Under both statutes, the transferee must be of proper venue, and
must have personal jurisdiction over the defendant.
ii. Difference between statutes
1. 1404 applies when the transferor is of proper venue
- Based on convenience of the parties and the witnesses and the
interest of justice
2. 1406 applies when the transferor is of improper venue

Smith v. Colonial Penn Ins. Co.

Facts: Defs. request for transfer centered around fact that Galveston does not have a commercial airport
into which Defs. employees and representatives may fly. Def. contends it is huge inconvenience of flying
into Houston and driving to Galveston.
Holding: does not allow transfer simply to avoid an insignificant inconvenience. [looks at 1404(a)]
Bolivia v. Philip Morris Companies, Inc.
-Can be transferred from one judicial system to another if it satisfies 1404(a)
Facts: Government of Bolivia chooses venue of a rural court in Texas in suit against Phillip Morris. Court
finds that District of Columbia is a more appropriate venue stating that at least Bolivia has an Embassy
there.

Arkansas Venue
-Primary Ark. Venue Statute A.C.A. 16-55-213