Civ Pro Outline

JURISDICTION
A. Quick overview:
B. Jurisdiction:
a. Refers to the power to hear cases and the power over defendants
b. Determined at the time the suit is filed
c. Types of jurisdiction:
i. General jurisdiction: In some cases, D will have such substantial contacts with the forum
state to make it fair to assert jurisdiction even under claims unrelated to those contacts
1. For corporations such as Microsoft, under the theory of general jurisdiction they can
be sued for contracts/torts committed in Idaho or Germany for example
ii. Specific jurisdiction: Where D’s activities fall short of general jurisdiction, minimum
contacts analysis becomes important
iii. Transient jurisdiction: refers to personal jurisdiction over a defendant who is served with
process while in the forum state only temporarily such as during travel.
iv. Personal jurisdiction: Power of a state court to render a judgment binding someone who
never set foot in that state
1. Limits both state and federal courts in relation to particular D’s
v. Subject Matter jurisdiction: Power of the federal courts to decide certain kinds of case
C. Personal Jurisdiction: D always challenges jx
a. FRCP 4: procedural reason
i. Who, when, how
ii. Waiver of service is the preferred method
1. Incentive to get D to do this is extra time to file answer, saves on costs
a. If you fail to waive and P serves you, you will incur more costs
iii. Personal service
1. Leaving a copy at the dwelling with someone of suitable age and discretion who
resides there
iv. Corporation:
1. Leaving a copy with a registered agent
b. Long-Arm Statutes – of the forum: for out-of-state resident Ds
i. Specific: (FL) helps the D, harder job for courts
1. Policy: judicial economy
ii. Broad: (CA& IL) helps the P and locals to the state
1. Easier on judges for precedent
c. Constitutional Limitations:
i. The Old Rule: Grab the person or grab the land - Pennoyer v. Neff
1. Enter a judgment against a non-resident ONLY if: (before the suit)
a. Personally served w/ process while the D is w/in the state OR
b. Has property w/in the state & the prop is attached before litigation
begins
i. Similar to a lien on property
ii. International Shoe:
1. Min. Contacts w/ fair play and substantial justice
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2. No Contact = No Jx
3. If you enjoy the luxuries of the state → jx
iii. General Jurisdiction:
1. Continuous and Systematic Contacts
a. One single connection will not suffice
b. Higher threshold
c. Multiple inferences: looking for omnipresence
i. Ex: investing, buying product,
d. PPL & Biz: incorporations, principle place of biz, HQ, factories, etc.
i. Principle place will always trump
i. Foreign exception: Being a foreign subsidiary of a US company
is not enough for general jurisdiction
2. Domicile – as long as you live there (only one)
a. 2 components (need both):
i. Physical presence +
ii. Intent to remain
b. Examples:
i. Multiple properties suffice, aka summer home
ii. Living in one state & commutes to another
iii. Rarity → Ringo Starr recording in NY, even though from England
iv. Specific Jx: 4 MUST BE EST. elements
1. State Interest: easy to achieve
Vocab 2. Reasonably Convenient: doesn’t really matter the $ to
In personam: against the the D
person
In rem: any property
a. Low threshold
Quasi in rem: solely on the 3. Purposeful Availment
fact they own property in a. Test: Intent
that state
i. Must reach into the forum state
b. Multiple times, continuous
i. One time will not suffice
c. Foreseeability will not constitute alone
d. Mere knowledge is not enough
4. Arising Out of
a. Must spring from what actually happened in that state
v. Transient Jurisdiction – needs physical presence
1. Serving someone while in the state
d. Consent: D voluntarily appearing in the state’s court and submitting himself to the jx
i. Express
1. Forum Selection Clause: litigation takes place in location because clause was in
the contract
a. No longer need transient, general or specific
b. But long arm statute still needs to apply
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2. Appointment of Agent
ii. Implied
1. Non-resident Motorist Statute
e. The notice requirement – Rule 4 (serving)
i. Must be a long arm & con. To D
ii. Notices through clauses can be allowed
1. Ex: cruise case sub. To FL jx
iii. Must prove by evidence
1. Multiple inferences of trying to contact someone
f. Other matters related to personal jurisdiction:
i. Venue: 28 USCA 1391 – P must prove 1 of 3:
1. State in which any D resides, if all D’s are residents of the state in which the
district is located
a. If all D’s are not in one state - #1 is no longer applicable
2. State where events or commissions giving rise to the claim occurred, or sub. Part
of property is the subject
3. If there is no state, action be brought as provided in that state in which any D is
subject to the court’s personal jx
a. Fallback of last resort
ii. Change of venue – 1404: (federal only)
1. For the convenience of parties and witnesses, n the interest of justice, a district
court may transfer any civil action to any other district or division where it
might have been brought
a. Must be a place where all requirements are met
b. Exists for moving to federal court to another
iii. Forum non Conveniens: some connection to countries outside the US
1. Only comes up for foreign based companies
a. Standard is very high
2. Moving to dismiss (D will raise)
a. Showing the venue is completely wrong
3. OR you attempt to get it Transferred
a. Ease and access to other sources of proof
b. Availability
g. Defense to PJ
i. D: will claim Rule 12 for wrongful venue – motion to dismiss
1. If venue is proper, then D will move to 1404 or Forum
Subject Matter Jurisdiction: power over the case itself – legal and factual substance
h. No SM jx = dismissal (sua sponte)
i. Two sources of SM jx: Con & Statutes
i. Con. Basis - Federal Question: MUST have personal jx & SM jx
1. Art. 3, sec. 2, cl. 1 – very broad
a. Authority over all cases “arising under” federal law
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i. Treaties, Con. And fed. law

b. P must raise it – thus NOT on the D’s defense
i. Fed Q – needs to be alleged in the claim
2. 28 USC 1331 – Statutory Grant
a. Courts shall have original jurisdiction
i. Narrow interpretation
b. Test:
i. Whether federal law “creates” cause of action
ii. “Arising under” fed. Law
1. Needs to be substantial
2. Serious and important
c. Well Pleaded Complaint Rule: the P’s claim on its face must contain a Q of
the Con, fed statutes or treaties
3. Why - Reasoning & Advantages:
a. Practical: dockets rules, nationwide enforcement of judgments
b. Strategic: life tenured judges, insulted from political pressures, more
sympathetic, etc.
ii. Diversity: fed district courts have Original jx over cases where the parties are from diff
states or one of the parties is from a diff country
1. 1332: Controversies between:
a. Diversity of parties
i. Citizen of different states OR
1. Looking for domicile
a. Physical presence & intent to stay there
ii. Citizens of a state and citizen or subjects of a foreign state
1. There must be at least one party that is from the US
iii. Corporate Citizenship
1. State where it was incorporated OR
2. Principle place of biz
a. Nerve Center: HQs
3. Partnerships
a. Citizenship of each partner is used to determine if
diversity is present
b. Amt. of controversy: (1332a)
i. Must be over $75k – need to look at the original am.
ii. Aggregate of Claims
1. 1P/1D: add together claims to total $75k
2. 1P/2+D: Can’t add claims of 1D to 2D, 3D
a. Must meet $75k for each D
3. Multiple P/ 1D:
a. Can’t add claims together unless:
i. The P are forcing a single title or right
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ii. Ex: TIC

c. 1441b: home-state D can’t remove at all
i. Ex: P-CA sues D-NY in NY – can’t remove at all
iii. Rule 12 – dismiss SM jx
j. Supplemental Jurisdiction
i. Involves extending jx over claims that standing alone, a federal court could NOT hear
1. Based off the idea that a Con. “case or controversy” could be broader than a
particular claim or defense
ii. Think about it:
1. Doesn’t come across if it is 1P & 1D and 1 issue
2. If you see something being added → think supp. jx
iii. 1367 (a): supp. jx could be sub matter jx so long as the state law is so related enough to
same case to join the cause of action
iv. 1367 (b): Anchor claim MUST BE diversity, then:
1. P can’t add a party that would destroy diversity
2. D CAN add a party even if it would destroy diversity
v. 1367 (c): Even if the court can extent supp. jx, the court can also dismiss to extent sup
1. If the claim arises from a novel or complex issue of state law
2. If the claim substantially dominates over the original claim
3. DC has dismissed all claims over original jx
4. (Rare) other compelling reasons
k. Removal: is up to the D to raise (& burden of proof)
i. 1 year time frame
ii. 1441: civil action brought in state court, which the district court of the US have original
jx, may be removed by the D to the district court
1. Literally just moves you across the street
a. Can’t be in fed and try to removal to state
2. To do a change of venue – you can file once removal is complete
3. Exceptions:
a. If D is getting sued w/ diversity in his home state, removal is NOT an
option
b. If D is getting sued w/ fed Q’s in his home state, removal is good to go
c. If more than 2D+ and 1D is in his home state, removal is NOT an option
iii. 1446: procedure for removal

JOINDER
l. Joinder of Claims –
i. Two questions first:
1. Does the relevant FRCP allow it?
2. Is it P or the D adding?
ii. P’s Test:
1. Question 1 - Rule 18: Does joinder allow it?
a. Yes always
2. Question 2 - Rule 42: its is up to the court to separate or get rid of case for
3. Question 3 – If it still okay, will the federal court have SM jx over it?
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a. Does it present a federal question? If no… next

b. Is there diversity? If no… next
c. Supp. JX → Is it so related to think the claims are similar? 1367a
i. If no, no supp. Jx
ii. If yes, then courts could still dismiss under 1367c
1. But up to their discretion
iii. D’s Test:
1. Rule 13: Counterclaims
a. If a federal Q, then compulsory & permissive doesn’t matter
b. Compulsory: arising out of the transaction or occurrence that is the SM of
the opposing party’s claim and does not require for its adjudication
i. Aka it needs to be SO related to the original suit
ii. If you don’t add – then you lose your chance to sue on that
additional issue
c. Permissive: a pleading may state as a counterclaim any claim against an
opposing party not arising out of the transaction or occurrence that is the
SM of the opposing party’s claim
i. Aka unrelated to the state
ii. Then it CAN’T be supp. Jx
iii. Must be either a federal
Joinder Claim:
question or diversity jx w/
Other party is going to claim
$75k+
that there is no SM jx:
1. If neither = NO joinder
m. Joinder of Parties
i. By plaintiffs Is there a Fed Q?
1. Rule 20: Permissive Joinder – all persons may Trumps all
join in one action as P, if they assert any right diversity
to relief… arising out of the same transaction, destruction
occurrence or series of transactions or Is there diversity?
occurrences and if any question of law or fact Diff state
common to all these person will arise in the
action. (not necessarily from Supp Jx)
Over $75k+
a. Fairly low standard Is there supp. Jx?
b. If anchor claim is a federal question → Is it so
then can add related?
c. If anchor claim is diversity → then If D is
CAN’T add bringing in
d. Look at 1367b: split if it is too big of a
party
e. Look at 1367c: discretion of the court
ii. By defendants: third party claims (aka impleader)
1. Get away w/ a lot more
a. Can’t destroy diversity
2. Rule 14: about impleader where a duty is owed that was not fulfilled
a. There needs to be legal relationship, and dependent on the outcome of
original action
b. Example of an impleader:
i. Loan co-singer
ii. Insurance policy
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iii. Attorney
c. Ex through a case:
i. Chicken coop case:
1. Price (person) → Latco (comp. making coop) → ITW (made
nails to hold the coop together)
2. Once wearing the D hat, then you could implead others
3. ITW could sue the steel comp., etc. OR
4. Counter w/ Latco
iii. Compulsory Joinder
1. Rule 12: D’s case will be dismissed if not all necessary parties were joined
a. But D has no duty to join
2. Rule 19: required joinder
a. Feasible (serve them w/ process), can’t destroy diversity and needs supp
jx
b. Its at the discretion of the court – therefore can dismiss
n. Intervention: (rare)
i. A 3rd party might want in on the lawsuit
1. Rule 24a - Rights might be affected
2. Given a conditional right to intervene by fed. statute
ii. Rule 24b - Permissive: on timely motion – court may permit anyone to intervene who:
1. Requirements:
a. Must be timely
b. Must have interest in the suit
c. Interest must be risk
d. Must not be adequately representing the interest
2. NEVER an obligation to intervene
o. Interpleader: like a finder in property (very rare)
i. Rule 22: not from existing lawsuit; its stand-alone
D. ERIE: only applies to federal court sitting in diversity
a. Choices of Law
i. Horizontal – choose the law of the state (across what state)
ii. Vertical – do we use federal law (should state or fed be applied)
iii. Substantive - Federal court sitting in diversity → law of the state
1. Indemnity: Contract
2. Contribution: Tort
iv. Procedural – Federal court sitting in diversity → its own law/rules
1. Issues with how the paper is used etc.
2. Rule Enabling Act: SC can create a set of rules
a. It was w/in the rights of congress to make this statute
v. Test for determining whether an issue is substantive or procedural: (only 1)
1. Outcome determinative
a. Resolution of this issue going to affect the outcome of the case
i. Yes - substantive, therefore state law must apply
1. Very easy to prove sub.
ii. No – procedural, therefore fed law must apply
2. Balancing Test: A lot of weight on federal law
a. Is there some state interest that outweighs the federal interest?
i. State Interest - Must be strong
ii. Need to fall into the realm that the state typically have interest
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iii. Ex: Marriage

3. Purpose Test: looks at the purpose of the laws in question
a. Even handed test – no favoring one side
i. Most widely used test today
ii. Harder to predict what the court will decide
b. Purpose at the courts – try to not flood, efficiency, etc.
i. Issue is procedural
c. Purpose is to help ppl – create, modify or define
i. Issue is substantive
vi. Goals & Purpose of Erie:
1. Discourage forum shopping
2. Avoid inequitable application of the laws
3. Avoid added advantage for P’s who are able to sue an out of state D
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Civ. Pro Shell: 3 hours: 30 MC, 2 Essays

I. PJ
a. Long arm
b. Constitutional
i. General
1. Continuous & systematic contacts
2. Domicile
ii. Specific: all 4 must be required
1. Interest
2. Reasonableness
3. Purposeful Availment
4. Arising out of
iii. Transient
1. D was served while in state
II. SM Jx
a. Fed Q
b. Diversity: diff state & 75k+
c. Supp jx – so related – 1367a-c
i. Joinder based issues
d. Removal
i. Must satisfy fed or diversity
III. Joinder
a. Claims – still need SM
i. Counter
1. P: 18, 42, SM = Fed, Diversity, Supp
2. D: 13, compulsory/permissive
a. Fed Q = doesn’t matter
b. Comp: need supp jx (so related)
c. Permissive = needs to be fed Q or diversity
b. Parties – still need PJ
i. P: 20, Permissive = fed Q or diversity
ii. 3rd party - D: 14 – impleader: duty
c. Impleader: 14 – duty was owed & not fulfilled
i. Still need SM, can destroy diversity
d. Intervention: 24a&b: 3rd party wants in
e. Interpleader: property and 2+ more ppl
i. 22: needs SM & general PJ + venue
f. Defenses:
i. 12: dismissal for not adding all D
ii. 42: up to the courts
IV. Erie: fed sitting in diversity
a. P&D fighting over what law to apply
b. Tests:
i. Purpose
ii. OD
iii. Balancing