Personal Jurisdiction:

 Rule 11
o Competent legal research has to be conducted by an attorney or else he could be
sanctioned.
o Sanctions are not necessary if a court rules this way
 Rue 8
o Failure to state a claim rule.
 Courts uses a test of citizenship that says he is a citizen of:
o His physical presence
o Intent to remain
 Bright Line Rule: Among the most firmly established principles of personal jurisdiction
in American tradition is that the courts of a state have jurisdiction over nonresidents who
are physically in the state and are voluntarily and knowingly served process in that state.
(Burnham case) Furthermore, in rem jurisdiction is permissible if the court can attach
property to the defendant at the onset of the case.
 International Shoe
o Rule: Due Process requires only that DEFENDANT (not plaintiff) have certain
“minimum contacts” with the forum state such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.
 Minimum contacts generally mean that defendant has to have taken actions that were
purposefully directed towards the forum state. Such actions may include among others,
selling goods in the state, being incorporated in the state, visiting the state, or bringing
property to the state
o Categories of In Personam Jurisdiction:
 General Jurisdiction: A defendant can be sued for anything in their home
state where that have continuous and systematic contacts (for
corporations: the concern is arguably less with continuous and systemic
contacts and more if it’s the defendant’s home state according to Daimler.)
 Specific Jurisdiction: A defendant can be sued for having minimum
contacts in state related to the claim. The fewer the contacts, the stronger
the relationship to the claim in order for there to be in personam
jurisdiction.
 There needs to be a connection between the forum and the specific
claims at issue for personal jurisdiction to be had in that state
(Bristol Meyers Case). This is the most cutting-edge rule. Even if it
would be no burden on the defendant to try the case in that state, if
the defendant has no connection to people, property, or activity in
that forum state, it would go against federalism issues and the Due
Process Clause.
 If defendant is from Illinois and plaintiff from Michigan and they
get in an accident in Indiana, the court holds personam jurisdiction
 over defendant in Indiana because he has minimum contacts in
Indiana due to the fact he was driving through the state. Court has
general jurisdiction in Illinois and no jurisdiction in Michigan.
(THIS IS BASED OFF OF INTERNATIONAL SHOE DECION.
Does not apply to Pennoyer decision)
 In order for a company to have minimum contacts in a state, it
must purposefully solicit business from the individual in that state
(Hanson case, the Trust company did not choose to do business in
Florida)
o “It is essential in each case that there be some act by the
defendant purposively avails himself of the privilege of
conducting activities in the forum state thus invoking the
invoking the benefits and protections of its the law”
 If you own property in a state and it’s not related at all to the claim and there is no
specific jurisdiction, the court does not have jurisdiction over that person. Therefore, the
“minimum contacts” test extends to “in rem” cases (or property) after the Shaffer case.
 Personal Jurisdiction and corporations:
o Foreseeability alone is not a sufficient benchmark for personal jurisdiction
o When would a business that sells products (like cars) be subject to personal
jurisdiction in another state, according to the court (in WWW Case)?
 When a corporation purposefully avails itself of the privilege of
conducting activities in the forum state. OR
 If defendant delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum state.
(this can tie in with the foreseeability as in Mcintyre)
 Fair Play and Substantial Justice:
 Burden on defendant
 Interests of forum state
 Interests of plaintiff
 Interests of federal system
 Fed. Rules of Civil Procedure 4(k)(1)
o Personal jurisdiction in federal court generally mirrors that of the state where the
federal court sits. Fed court in states has same extent of personal jurisdiction as
state courts
o There are some federal laws that allow federal courts to exercise broader
jurisdiction than would be allowed in state court
 Where are corporations clearly subject to general jurisdiction?
o In the state in which they are incorporated
o In a state where its corporate headquarters are located
 Where are individuals clearly subject to general jurisdiction?
o In the state of their domicile (where they live)
 Internet and Personal Jurisdiction
 o Just posting information online is not minimum contacts.
o Sliding Scale Test
 At one end of the spectrum are situations where a defendant clearly does
business over the Internet (such as commercial transactions). If the
defendant enters into contracts with residents of a foreign jurisdiction that
involve the knowing and repeated transmission of computer files over the
Internet, personal jurisdiction is proper. . . . At the opposite end are
situations where a defendant has simply posted information on an Internet
Web site which is accessible to users in foreign jurisdictions. A passive
Web site that does little more than make information available to those
who are interested in it is not grounds for the exercise [of] personal
jurisdiction. . . . The middle ground is occupied by interactive Web sites
where a user can exchange information with the host computer. In these
cases, the exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information that
occurs on the Web site
 The Calder effects test: “[A] defendant’s tortious acts can serve as a
source of personal jurisdiction only where the plaintiff makes a prima
facie showing that the defendant’s acts (1) were intentional, (2) were
uniquely or expressly aimed at the forum state, and (3) caused harm, the
brunt of which was suffered—and which the defendant knew was likely to
be suffered—[in the forum state].”
 As a general rule, forum selection clauses in contracts are enforceable. However, they are
subject to judicial scrutiny for “fundamental fairness”. Such clauses are traditionally
unenforceable if they were not freely bargained for, create additional expense for one
party, or deny one party a remedy.
 Due process also requires a reasonable form of notice
o Personal service is a forum state is always a reasonable form of notice
o Notice by publication is usually ok when property is attached in the state
 (However, in Mullane, the court says that the known beneficiaries were
not given due process. The bank (Trustee) had the addresses of the known
beneficiaries and had sent them mail in the past. Therefore, the court ruled
that due process would require that the bank inform them at least by
ordinary mail to the record addresses.)
 When there are more reasonable and reliable forms than publication, that
may be required
 Waiver of Service of Process
o SEE RULE 4
o Rule 4(d). The plaintiff asks the defendant to waive service of process by sending
a copy of summon and complaints to defendant through first class mail with
return receipt.
 o If defendant, without good cause, refuses to waive service, the defendant will be
required to pay the cost of a more formal service of process. If defendant agrees to
waive service, the defendant gets additional time to respond to the complaint
(normally they would get 21 days, but if defendant agrees they would get 60 days
or 90 days if defendant is outside the United States).
 1.) Long Arm statutes: Jurisdiction over a person must be authorized by statute, in
addition to being constitutionally permissible. (for example in California, if defendant is
subject to jurisdiction in forum under due process, then the court can exercise jurisdiction
over that defendant)
 If a state’s long arm statute is different than the federal due process clause that only
requires defendant to have minimum contacts, a 2-step analysis must be applied (like
Florida authorize less jurisdiction than the statue allows):
a.) Does the applicable statute authorize the court to exercise personal jurisdiction
(is the requirements of the long arm statute met?)
b.) If so, would the exercise of personal jurisdiction violate due process?
 Venue Statutes: Locates jurisdiction in a particular district within a state. (ex. Federal
court in Michigan. The eastern district fed court vs. west district fed court). In 2011,
Congress enacted a statute called The Federal Courts Jurisdiction and Venue Clarification
Act. A civil action may be brought in:
1.) A district where any defendant resides
2.) A judicial district where a substantial activity related to the claim has occurred
or where the property is located
3.) If there is no district as to where the action would be brought in this section,
any district in which a defendant is subject to PJ.
 3.) Transfer Statute (28 U.S.C. Section 1404)
o Permits transfer to another federal judicial district “For the convenience of parties
and witnesses, in the interest of justice.” (ex. If there is a selection clause, or if it
just makes sense to transfer)
 4.) Forum Non-Convenience
o Courts will occasionally dismiss a case so it can be litigated in the courts of
another more convenient or appropriate legal system (Piper Aircraft Case)
Subject Matter Jurisdiction:
 Federal Courts can only hear cases that fall under a federal question or diversity cases
 State courts are courts of general jurisdiction meaning they can hear both federal question
and diversity cases.
 Federal Question Jurisdiction:
o 28 U.S.C. 1331

o General Rule from Mottley (Federal Question):

 Even if during the course of litigation a federal question arises, if the
original cause of action does not arise under federal question and there is
no diversity jurisdiction, then the federal court cannot hear the case.
 Federal Diversity Jurisdiction:
o 28 U.S.C. Section 1332 (p. 235 rulebook):

 (See page 5 and 6 of notes for hypos)

 Principal place of Business for a Corporation
  Nerve Center Test (Hertz Corp. Test): The phrase principal place
of business refers to the place where the corporation’s high-level
officers direct, control, or coordinate the corporation’s activities
(where the company is run).

o Tricky rules:
 In order for diversity jurisdiction to exist no plaintiff can be from the same
state as any defendant (if there were multiple defendants and plaintiffs
involved in a lawsuit)
 No diversity jurisdiction in the U.S. if there are two foreign citizens (ex.
plaintiff citizen of France and defendant citizen of Mexico) (it would have
to be tried in state court)

o General Rules from Redner v. Sanders (Diversity Jurisdiction)

 For jurisdiction to exist under 28 U.S.C. 1332 (a)(2), a plaintiff would
need to be a citizen of a foreign state and not merely a resident.
 Bright line rule: Citizenship=domicile=physical presence plus intent to
remain (at the time lawsuit is filed)
 Courts have generally said you keep your old domicile until you intend to
stay at a new one
 Supplemental Jurisdiction:
o Article 3: For a federal court to exercise supplemental jurisdiction over certain
state law claims it must arise out of the same case or controversy as the original
claim
o 28 U.S.C. Section 1367 (Generally fed. Courts should exercise their discretion in
assessing whether to allow supplemental claims)
 Supplemental jurisdiction shall include claims that involve additional
parties unless the parties would create a non-diverse case
 Even if the court finds that they have supplemental jurisdiction over a
plaintiff’s state law claims, 28 U.S.C. §1367[(c)] provides four instances
in which it may choose not to exercise that jurisdiction: “(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.”
o Test: Federal courts have the power to exercise supplemental jurisdiction over
state law claims when the state and federal claims derive from “a common
nucleus of operative fact.” (ex. do the claims involve the same transaction?)
o Tricky rules:
 If a federal court hears a case regarding state law solely due to diversity
jurisdiction, a supplemental state law claim cannot be tried under federal
court because there is no federal law claim.
 No supplemental jurisdiction if the original federal jurisdiction claim is
dismissed.
 Removal
o 28 U.S.C. Section 1441 Removal of Civil Actions
 (Explanation of Subsection C of 1441) A federal question and
supplemental state law claims are tried in state court. The defendant then
removes the entire case to federal court. If the state law claims are not
within the supplemental jurisdiction of the federal court (because it arises
out of a different nucleus of facts) then the state law claims get remanded
back to state court and the federal question can still be tried by the federal
court.
 o 28 U.S.C. Section 1446—Procedure for Removal Statutes

 28 U.S.C. Section 1447

 Caterpillar Case Rule:

o Complete diversity was satisfied when the final judgement was rendered
o When the federal court rendered its decision, it used Kentucky state law---the
same law that the state court would use (considerations of finality, efficiency,
and economy became overwhelming)

The Erie Problem

 Main issue: Should federal courts apply state common law or federal law in diversity
cases in federal court that arise under state law?
o Erie case ruled that state common law should apply (state substantive law
always applied in diversity cases before this but Erie made state common law
apply as well). The court argued that there is no federal common law, and it is
outside its constitution right to do so. (However, nobody doubts federal power
over procedure in such cases). Also, the court hoped to limit forum shopping
by making federal courts apply same common law as state court.
 The two goals of Erie:
 To avoid forum-shopping (don’t want parties to pick federal court
because the federal court has more favorable rules)
 Avoid Inequitable Administration of the Laws (outcome would be
certainly different if it was filed in one court or another)
 Main issue: What should federal courts do when they are hearing diversity cases on a
state law issue and the conflict between state law and federal law is in the “grey area”
between substantive and procedural law?
o Outcome-determinative test: Court recognizes that line between substance and
procedure is blurry and concludes that the relevant question is whether it
would “significantly affect the result of litigation for a federal court to
disregard a law of a state that would be controlling in an action upon the same
claim by the same parties in a state court.”
 In Guaranty Trust, The NY SOL applies because disregarding state
law would be outcome-determinative (plaintiff might win if state law
is not applied).
 The outcome determinative test resulted in state law almost always
applying fed. court.
o However, the court in Byrd did not adopt outcome determinative test and
instead used a balancing test:
 1.) Does it seem more procedural or substantive?
 2.) The court determined that the importance of the federal practice
outweighed the likelihood of a different result in state court.
o Substantive law: A rule that is directly related to the rights and obligations of
the parties
o Procedural law: “form and mode” of enforcing the law
o Hana v. Plumer
 Distinguishes itself from Guaranty-Trust and Bird because those cases
dealt with federal practices and customs and this case deals directly
with a federal rule of civil procedure
 One must then ask two questions:
 1.) Does the Rule promulgated under the authority of the Rules
Enabling Act in fact fit its description: “rules of practice and
 procedure"? (The rules of procedure cannot change substantive
law. If it does, it cannot be enforced)
 2.) Is the procedure specified in the Rule constitutional? (so far,
there has been no federal rule deemed unconstitutional in these
types of cases)
 If so, federal rule applies under Hanna (EVERY TIME A
FEDERAL RULE OF CIV PROCEDURE. HAS BEEN IN
CONFLICT WITH STATE LAW, FED. RULE HAS
PREVAILED)
o If the conflict between state and federal law deal with a
common law practice instead of a federal rule, then the
“balancing test” should be applied to balance the
importance of a conflicting federal practice against the
likelihood of a different outcome in state court under
Byrd and examine if disregarding the state law would:
1.) encourage forum shopping 2.) lead to inequitable
administration of the laws.

Litigation as a Means of Resolving Disputes and Remedies

 Rule 65
o 2 Types of provisional (emergency) relief
 Preliminary Injunction (See Winter case)
 Plaintiffs seeking a preliminary injunction are required to establish
that (1) they were likely to succeed on the merits, (2) they would
suffer irreparable harm if injunctive relief were not granted, (3) the
balance of equities tips in their favor, and (4) the injunction is in
the public’s interest.
o Alternative Test” If plaintiff were highly likely to succeed
on the merits, then the plaintiff would only have to show a
“possibility” of irreparable harm (vice versa)
o The Supreme Court in Winter did not like alternative test
(even though it was not really relevant in this case since
both standards were met)
o Balance of Equities in Winter case: The court found that the
Navy’s interests easily trump relevant environmental
concerns
o The Court gives great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest
 Temporary Restraining Order (TRO)
 Troupe case
 o Defendant has satisfied its burden of establishing that the special, general, and
punitive damages in this case, if proven, will “more likely than not” exceed the
minimum jurisdictional amount (Greater than 75k pursuant to section 1332)

Pleadings
 Rule 8
 Furthermore, a failure to deny any aspect of the complaint is essentially admitting
guilt, unless a responsive pleading is not required in which case an allegation is
considered denied.
o Haddle v. Garrison
 Pre-answer motion by defendant for “failure to state a claim”
 One who maliciously and without justifiable cause, induces an employer
to discharge an employee, by means of false statements, threats or putting
in fear, or perhaps by means of malevolent advice and persuasion, is liable
in an action of tort to the employee for the damages thereby sustained.
 The fact that employment at will is not “property” for purposes of the Due
Process Clause, does not mean that loss of at-will employment may not
“injur[e] [petitioner] in his person or property” for purposes of §1985(2).
 And it makes no difference whether the employment was “at-will”
o Twombly
 Something beyond the mere possibility of loss causation must be alleged
under rule 8 because it could waste people’s time and money in the
discovery phase
o Ashcroft v. Iqbal
 To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.”

 Rule 9—Heightened Pleading Requirement for Fraud

o "In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind (state of mind) may be alleged generally."
o Requires that the “time, place, and nature of the [alleged] misrepresentations” be
disclosed to the party accused of fraud.
o It is usual practice in this jurisdiction to allow defendant to AMEND the
claim/complaint that has suffered dismissal under Rule 9(b) (see Stradford)
 Rule 11
o Discovery abuses, misstatements made during oral argument, and conduct in past
litigation, etc. fall outside the scope of rule 11 (As shown in Christian v. Mattel)
 (monetary sanctions can only be imposed against an attorney (not a party) for
violations of (b)(2)—the provision requiring competent legal research)

 Rule 12—Pre-answer motions

o Under 12(b) the following defenses are allowed for pre-answer motion to dismiss:
 1.) Lack of subject-matter jurisdiction
 2.) Lack of personal jurisdiction
 3.) Improper Venue
 4.) Insufficient Process—technical defects in summons or complaint
 5.) Insufficient service of process—problems with form of service
 6.) Failure to state a claim upon which relief can be granted
 7.) Failure to join a party under Rule 19

(if the party does not assert the claims in 3(a), they can no longer move to dismiss
for those reasons)
 (Failure to state a claim or for judgement on the pleadings generally rely on
just the papers. If they rely on outside evidence, they should be treated as
motions for summary judgement)
 “Motion to strike” is rule 12(f) which means that a party is moving to
strike out only a part of the claim.
o Zielinski v. Philadelphia Piers, Inc.
 Defendant violated rule 8(b) by not responding to specific allegations and
instead put forth general denials that were deemed not sufficient
 Rule 15—Amendments to the Pleadings
o Rule 15(a): In the absence of bad faith, prejudice, and undue delay, the “leave to
amend " shall be freely given when justice so requires."
o

o
o (Prejudice means it would create “unfair surprise” or if they are acting “too late
(burdensomeness).” (reasonableness is the standard for determining prejudice)
o Rule 15(c) gives plaintiffs some leeway to name new parties or new claims after
the statute of limitations expired: It allows an amended pleading to be treated as
though it was filed on the date of the original pleading
o

o
o

o
o Beeck v. Aquaslide
 The court found that it would be awkward for the defendant to have to
defend a products liability claim for a product they likely did not
manufacture. No evidence of bad faith, prejudice, and undue delay, so the
court allowed the complaint to be amended.
 The court allowed for the separate trial because:
 It promotes efficiency. The court just would have to find for this
one issue
 It promotes fairness by protecting Aquaslide from undue prejudice.
o Moore v. Baker
 Plaintiff was not allowed to amend her claim under rule 15(c) because the
original complaint contained nothing that asserted the issue of negligence
 (Side Note: Rule 15c only applies to cases were the statute of limitations
has expired. If you do not have an expired of statute of limitations issue,
then you are in 15a and the rules are much more lax (15c is strict because
it’s a relation back problem). If the amended claim relates back to the
original claim, then the amendment will not be restricted by the statute of
limitations)
 o Bonerb v. Richard J. Caron Foundation
 The court found that it is true that a claim for professional malpractice
invokes an entirely different duty and conduct on the part of the defendant
than does a claim for negligent maintenance of the premises. However, the
original complaint advised defendant of the same transaction or
occurrence giving rise to these different theories of negligence. Therefore,
amendment of the complaint was allowed
 The proposed amendment was also filed in a reasonable time—while the
parties were still in discovery

DISCOVERY
 Preservation of Evidence:
 Zubulake v. UBS Warburg LLP
 A party seeking an adverse inference instruction (or other sanctions) based on
the spoliation of evidence must establish the following three elements:
 (1) that the party having control over the evidence had an obligation to
preserve it at the time it was destroyed;
 (2) that the records were destroyed with a “culpable state of mind” and
 (3) that the destroyed evidence was “relevant” to the party’s claim or
defense such that a reasonable trier of fact could find that it would
support that claim or defense.
 There are a number of steps that counsel should take to ensure compliance
with the preservation obligation.
 First, counsel must issue a “litigation hold” at the outset of litigation or
whenever litigation is reasonably anticipated. The litigation hold
should be periodically re-issued so that new employees are aware of it,
and so that it is fresh in the minds of all employees.
 Second, counsel should communicate directly with the “key players”
in the litigation, i.e., the people identified in a party’s initial disclosure
and any subsequent supplementation thereto. Because these “key
players” are the “employees likely to have relevant information,” it is
particularly important that the preservation duty be communicated
clearly to them.
 Finally, counsel should instruct all employees to produce electronic
copies of their relevant active files.
 General Test for Scope of Discovery:
o 1.) Is the information relevant?
o 2.) Benefits of producing information is balanced with burdens (burdens can include
cost, embarrassment, privacy concerns, etc.) of producing this information
o Courts can limit a discovery request if it is found not to be proportional to the needs
of the case, as provided in Rule 26(b)(1), or if the request is (2) “unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
 convenient, less burdensome, or less expensive”; or (3) “the party seeking discovery
has had ample opportunity to obtain the information by discovery.” In addition, the
court can limit discovery “to protect a party or person from annoyance,
embarrassment, [or] oppression.” (Rule 26(c))
 Favale v. Roman Catholic Diocese of Bridgeport
 Defendant’s protective order for anger management was granted
because any info regarding anger management conditions of Stobierski
would not make the incident of sexual harassment foreseeable.
 Cerrato v. Nutribullet
 Only consumer complaints occurring within 5 years proper to
plaintiff’s incident were relevant and requiring discovery outside of
that time period would be too burdensome and disproportionate to the
needs of the case.
 Rengifo v. Erevos Enterprises
 Information sought regarding employee’s immigration status was only
marginally relevant to the claims and when weighed against the burden
of producing such evidence, the burden weighs significantly heavier
 Granting employers the right to inquire into immigration status would
allow them to implicitly raise threats, hence violating rule 26(c)
 Work Product Privilege [26(b)(3)]:
o Underlying facts fall outside the scope of work product privilege
o Mental impressions, conclusion, opinions, and legal theories are always protect even
when work product privilege is overcome
 Hickman v. Taylor
 Work Product Privilege is a qualified privilege meaning if there is no
other way to get the information for the opposing party, then the work
product privilege is not enforced.
 In this case, the testimony sought was publicly available and the other
party could have easily done the interviews from himself. Therefore,
the work product privilege prevailed.
 Expert Information (Rule 26(b)(4)(D))
 o

Summary Judgement
 Rule 56