Civil Procedure Packet

Introduction to Civil Procedure Packet
I. Civil Litigation Basics, Generally

Legal disputes begin with an event – e.g., an auto accident, someone breaches a
contract, a fight – for which a person (or some people) believes that a right to
seek legal relief exists. In the United States, people who seek formal legal relief
have some options for seeking relief, and this relief-seeking process is the focus
of any Civil Procedure course. The specific process that forms the overwhelming
bulk of this, and every basic procedure course, is civil litigation (the lawsuit).
Rule 3 of the Federal Rules of Civil Procedure states that a civil action begins
when a plaintiff files a complaint with a court. Rule 4 requires that a plaintiff
serve a summons and complaint to notify the defendant that the plaintiff has
filed an action. If the defendant does not reply or appear in court as summoned,
the plaintiff can move to declare that the defendant has defaulted and lost the
case on those grounds. The “default judgment” is a final judgment in the
plaintiff’s favor ending the case. Fed. R. Civ. P. 55. A civil judgment in a plaintiff’s
favor is usually an order to pay money, or an injunction forcing or prohibiting
certain behavior.
Rule 4 allows a federal plaintiff to serve the complaint in a manner consistent

with the relevant state’s law of service. See, e.g., Fed. R. Civ. P. 4(e)(1). The
states provide various means of accomplishing service, usually by serving a
defendant personally or through an authorized agent. See, e.g., Ariz. R. Civ. P.
4.1(d). Many states also provide that if service through a more direct means is
unavailable or unsuccessful, the plaintiff can serve by publishing a copy of the
summons and complaint in a newspaper (service by publication). See, e.g., Ariz.
R. Civ. P. 4.1(n).
If a plaintiff wins a judgment (by default or otherwise), the plaintiff still has to
obtain the relief ordered in the judgment, as compliance is not automatic. The
first step is formally notifying the defendant of the adverse judgment. This
happens through a process set forth by state law, usually by means similar to the
service methods already mentioned.
Hopefully, the defendant complies with the judgment upon receipt of the notice.
If not, the plaintiff can seek enforcement by the courts. State law, generally,
Intro to Civil Procedure Packet, Page 2
provides for various methods of enforcing judgments; e.g., seizing money in a

bank account, or garnishing wages. Many states provide for a process called
“attachment,” under which the court can seize real or personal property the
defendant owns within the state, sell it at a sheriff’s sale (usually an auction), and
pay the judgment from the proceeds. Any excess funds go back to the
defendant, but if the seized property sells for less than the judgment’s amount,
the plaintiff has to seek an alternative method to recover the balance.
Finally, if a party is unhappy with the outcome in court, the usual method to seek
reversal of that judgment is through appeal. An appeal is a “direct review” by an
appellate court of the proceedings and decisions that took place in the trial court
to determine their propriety in light of whichever error(s) the appellant claims
took place.
A party may also seek to overturn an earlier judgment by filing a new lawsuit
challenging the first (or arguing, in a separate lawsuit, that the earlier judgment
was invalid). This attempt, called a “collateral review” or “collateral attack,” is
not one that the law prefers, see Walker v. City of Birmingham, 87 S. Ct. 1824
(1966). Usually, the law prohibits collateral attacks, because we prefer that
judgments have a proper level of finality.
Under certain unusual circumstances, though, the law permits a collateral attack.
This happens only rarely, but the most common circumstance is when the party
seeking collateral review claims that the first judgment is invalid because the
court lacked jurisdiction to enter the judgment. This claim is not that the
judgment is incorrect on its merits, but that regardless of its correctness, the
court issuing it had not jurisdiction (power) to enter any kind of judgment in that
case – correct or incorrect. If you recall, the defendants in Walker collaterally
attacked the previous judgment on its merits, but the courts only asked whether
the court in the first case had proper jurisdiction (power) to enter the judgment.
Upon deciding that the earlier court possessed jurisdiction, the courts in Walker
had to let it stand, regardless of whether they agreed with that judgment.
II. Personal Jurisdiction

The concept of “jurisdiction” is nothing more than a description of a court’s
power to hear and decide cases and controversies. Personal jurisdiction is a
court’s power to hear and decide cases involving particular people. Subject
matter jurisdiction is a court’s power to hear and decide cases involving particular
topics (claims). Our focus right now is personal jurisdiction; we will cover subject
matter jurisdiction below.
Personal jurisdiction has its origins in the law’s provision for a court’s power over
people and property they own. In England, colonial North America (the English
colonies, at least), and the early United States, a court’s only foundation for
exercising personal jurisdiction was its ability to exercise physical control over a
person. The reason was that any court’s power finds its necessary limits in the
geographic boundaries of the government to which it belongs; i.e., the Idaho
courts have power only in Idaho, the U.S. federal courts have power only in the
U.S. and its territories, etc. Understanding that fact leads quickly to the
conclusion that asserting physical control over a person requires that the person
is physically within the geographic boundaries that the court controls.
A. Territorial Theory
One of the earliest theories of personal jurisdiction, the territorial theory,

followed that exact line of thought. The territorial theory embraced the idea that
a court could exercise personal jurisdiction only when one could point to a
person’s physical presence within the geographic area that a given court
governed. Thus, a citizen or resident of a given forum was subject to personal
jurisdiction. Additionally, personal jurisdiction was appropriate when a person
received personal service of process within the court’s geographic territory, or
consented to jurisdiction. We call such jurisdiction – jurisdiction over a person
directly – in personam jurisdiction.
From the earliest times (even before the Constitution), courts in the colonies that
would become the United States recognized, along with power over people
physically within their territory, courts’ power over property located within their
geographic territory. This power, called in rem jurisdiction, existed even if the
property owner was not a person located within the court’s territory, because
such jurisdiction was against the property itself, and worked against the owner
only indirectly. In rem jurisdiction is consistent with the idea that a court’s power
over everything within the geographic territory it governs allows it to determine
rights to property even with respect to owners in distant places.
An in rem judgment, however, could not operate as a binding judgment against

the owner personally; it worked against that person’s interests in property. As
long as one could locate that property (usually real property, although personal
property worked just as well) within the court’s territory at the time of the suit, in
rem jurisdiction was appropriate.
One nuanced aspect of in rem jurisdiction developed from the practice of

attaching a person’s property. Attachment is nothing more than a legal
procedure under which a court secures a person’s real or personal property as a
means of ensuring the person’s appearance in court.1 If, for instance, a civil
defendant failed to appear in court, the plaintiff could take a default judgment for
the relief sought in the complaint. That judgment allowed the sheriff to sell the
defendant’s property at auction, and pay the plaintiff’s judgment from the
proceeds.
This process developed into yet another type of personal jurisdiction, quasi in rem
jurisdiction. Quasi in rem jurisdiction is personal jurisdiction that operates as a
cross between in personam and in rem jurisdiction, allowing a court to exercise
jurisdiction over property within its geographic territory to adjudicate a matter
that did not involve ownership of the property in question. The disadvantage to
quasi in rem jurisdiction is that the court could only exercise jurisdiction to the
extent that the defendant owned property within the forum.
Consider the following to illustrate the distinctions between in personam, in rem,

and quasi in rem jurisdiction (only the territorial theory of jurisdiction governs for
purposes of this example): Gerald, a citizen and resident of Ohio, wants to sue
Michael, a citizen and resident of California, on two different claims. First, for
breach of a contract to perform at Gerald’s nightclub (total damages for this
claim are $200,000); second, to resolve which of them is the sole owner of a
particular home in Cleveland. Michael is an avid collector of classic cars. He
keeps a 1965 Shelby Cobra CSX 4000 garaged in Ohio. The car is worth
approximately $120,000.
1
Think of attachment as the civil analog to the practice, in criminal proceedings, of securing a defendant’s bond.
Gerald’s personal jurisdiction options with respect to Michael are, of course,

California and Ohio. California, where Michael is a citizen and resident, can
exercise in personam jurisdiction over Michael, meaning that its courts can
adjudicate the full extent of both claims against him. Gerald, however, would
rather sue in Ohio. Ohio courts would have in personam jurisdiction (necessary
for the contract claim) over Michael if he (Michael) consented, or if Gerald was
able to accomplish personal service of process on Michael while Michael was
physically present in Ohio, or if Michael had appointed an agent to receive service
of process in Ohio.
The claim to quiet title in the Cleveland home is within the Ohio courts’ in rem
jurisdiction, because the home is property (real property) located in Ohio. An
Ohio court could determine fully Gerald’s and Michael’s rights (or lack thereof) in
the home.
In addition to the home, Michael has other property located in Ohio – his car,
worth $120,000. Gerald could take advantage of that fact to pursue his contract
claim by having an Ohio court attach the car, invoking its power over Michael
through his car’s presence in Ohio. Note that Gerald’s claim is not that he and
Michael have competing claims to the car’s ownership – quite the opposite.
Gerald fully recognizes Michael’s ownership, but argues that the car’s presence in
Ohio allows an Ohio court to exercise jurisdiction over Michael. That is true, but
the Ohio courts could only order, and Gerald would only be able to recover, an
amount up to the car’s value ($120,000), leaving him short of the full relief he
claims he is due for the breach ($200,000).
That last situation is quasi in rem jurisdiction – jurisdiction “as though against a
thing.”2 Gerald and the Ohio courts are acting in the same way they would (in
terms of jurisdiction) if Gerald’s claim was that he owned some interest in
Michael’s car. Gerald, however, does not claim an interest in the car. Rather, he
claims that Michael owes him a personal obligation (performance or damages
under a contract), and uses the fact that Michael owns property in Ohio to assert
jurisdiction over Michael in Ohio.
2
Another type of quasi in rem jurisdiction exists, in which (among other things) the plaintiff might seek to resolve a
dispute as to some interest in property, but only between the parties to the suit, and not the entire world.
Understanding the scope and nuance of this particular type of quasi in rem jurisdiction is beyond this course’s
scope. Right now, that you understand the type of quasi in rem that functions as a substitute for in personam
jurisdiction (as with Gerald and Michael, above) is enough.
Of course, if Gerald pursues his option to sue Michael in Ohio, exercising quasi in
rem jurisdiction through the car that Michael owns, he will only recover $120,000,
rather than the $200,000 he claims Michael owes him. The Ohio courts cannot
do any more for Gerald, because territorial theory, remember, limits a court’s
power to the people and property located physically within the geographic
boundaries that the court controls.
A summary of the different forms and purposes of traditional personal

jurisdiction follows.
Type of Court Reason for What is Extent of

Personal Exercises Jurisdiction Required to Jurisdiction
Jurisdiction Power Over (Suit’s Exercise
purpose)
In Personam A person’s legal Adjudicate Presence in the Full extent of
interests of all matters forum: any obligation
kinds related to  Forum the court
some citizen or adjudges
personal resident; defendant to
obligation the  Receive owe
defendant personal
may owe service of
(e.g., liability process
under a tort within the
or contract forum;
theory)  Service of
process on
an
authorized
agent
located in
the forum;
 Consent
 Doing
business
In Rem A person’s Adjudicate Defendant owns Full
interest in real or matters property that is determination
personal related to physically within of interests (or
property interests in the forum lack thereof) in
Type of Court Reason for What is Extent of

Personal Exercises Jurisdiction Required to Jurisdiction
Jurisdiction Power Over (Suit’s Exercise
purpose)
that real or property
personal
property
Quasi in Rem A person’s Adjudicate Defendant owns Value of the
interest in real or matters property that is defendant’s
personal related to physically within property that
property some the forum is physically
personal within the
obligation the forum
defendant
may owe
(e.g., liability
under a tort
or contract
theory)
Although quasi in rem jurisdiction sometimes presented the plaintiff with the
choice of achieving convenient but incomplete relief, the defendant also had a
difficult choice to make. On the one hand, the defendant could consent to the
court’s jurisdiction, but then the court would have in personam jurisdiction and
could impose the full extent of any judgment against the defendant. On the
other hand, the defendant could default, thus sacrificing the property, but
limiting exposure only to the value of that property.
One final note: although personal jurisdiction must exist for a court to render a
proper judgment with respect to any defendant who a plaintiff brings to court,
personal jurisdiction law (and our study of it) is primarily about a specific person
instead of all persons generally. We will call this person the “nonresident, out-of-
state defendant”; that is, a defendant who is not a citizen or resident of the
forum state, nor is physically within the forum state (and, thus, unable to receive
service of process within the forum). Most of the time, when we are asking
whether personal jurisdiction is appropriate in a given case, we will really be
asking whether this particular nonresident, out-of-state defendant is subject to
personal jurisdiction.
Pennoyer v. Neff: Traditional Theory’s Apex
Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877), is something of a rite of passage for
lawyers trained in US law schools. Studying this case seems to be just as much
about studying the law as it is about joining the club of the legally-trained.
Professor Linda Silberman of New York University Law School recounts:
Everybody seems to have a Pennoyer v. Neff story. My own favorite

occurred one autumn afternoon as I distractedly hurried home through
Washington Square Park after teaching a class on the power theory of
jurisdiction, my mind still fixed on the confused faces of 120 first-year
law students. The park, which runs adjacent to the Law School’s
Vanderbilt Hall, was once memorialized by Henry James as a setting of
elegance and style, but is now a place where senior citizens occupy
their time on the benches, feeding the pigeons that strut by and
watching the students toss frisbees through the air. It is also a popular
territory for passing vagabonds who drift up from the Bowery in search
of promising prey for their daily solicitations.
One such idler, his appearance more appropriate to a Dickens novel

than one by James, confronted me on my passage homeward. He
asked for change for the proverbial cup of coffee, change which, one
could safely surmise from his demeanor, would be quickly invested in a
pint of fruit-tainted brandy. In New York City, an instinct for self-
preservation generally overtakes charitable inclinations, and
consequently I continued apace through the park, my eyes rather
deliberately avoiding my tattered follower. If one characteristic
distinguishes New York derelicts from their comrades elsewhere,
however, it is their persistence, and thus my snub was to no avail. “Two
bits?” he pleaded after me, adding, “I’m a lawyer!”
I was somewhat impressed by the boldness of this addition, but

convinced that it was prompted by his sighting of my own books, I kept
moving, mumbling those cursory phrases one learns to ward off such
intruders. “I matriculated at Harvard,” he went on, now trotting
alongside, “really I did.” I remained unmoved. Apparently frustrated by
my refusal to respond, he slowed, then stopped, and yelled, “Pennoyer!
Pennoyer v. Neff, by God!” He then proceeded to shout, precisely,

accurately, and in legalese that belied his condition, the facts and
holding of the case. He even knew who won. This was too much for
even the most hardened of civil procedure buffs. I succumbed,
rewarding his recitation with a five dollar bill, and we departed
friends[.]
Linda J. Silberman, Shaffer v. Heitner: The End of An Era, 53 N.Y.U. L. Rev. 33, 33-
34 (1978).
Professor Silberman is correct. Even nearly thirty years after the events in her
story, you can still distinguish those who have studied the law by their knowledge
of Pennoyer v. Neff. Unlike Professor Silberman’s new friend, however, not as
many actually understand it.
Understanding Pennoyer takes time, but law school does not afford you the kind
of time you need to grasp the case fully. Moreover, many of the concepts in
Pennoyer no longer hold any force, either because the courts have overruled
them, or because the world has grown beyond them.
Still, value exists in studying Pennoyer. Some of its concepts survive to this day, it
still serves as one of the vital pieces of knowledge for those trained in the US
legal tradition, and it is a good foundation for understanding modern personal
jurisdiction doctrine.
For all its value, Pennoyer is a notoriously difficult read. The opinion appears in
language exemplary of the time in which it emerged (1877), omits many
important facts, and uses many technical terms relating to complex ideas – many
of which, as mentioned above, are no longer in force. Still, you will not truly have
been inducted into the community of US lawyers without studying it, so let us get
to it.
As mentioned earlier, the territorial theory of personal jurisdiction was prominent

in the English colonies in North America, and consequently, in the United States’
early jurisdictional jurisprudence. The theory reached its apex in 1877, when the
United States Supreme Court embraced it in Pennoyer v. Neff.
Marcus Neff was a young Iowa native who journeyed west to seek his fortune in
the antebellum era (circa 1848). He reached Oregon, and sought to obtain a
federal land grant for real property in the then Oregon Territory. The process of
securing a land grant was notoriously long, and after eight years, Neff still had no
land grant, and a daunting stack of federal paperwork to complete. Neff was
illiterate (or possibly semi-literate), and by 1856, he had finally completed the
necessary steps and filed the appropriate paperwork to obtain his land grant.
Six years later, the wheels of the federal bureaucracy were still spinning on Neff’s
grant, so he hired John H. Mitchell, a Portland attorney, presumably to help him
spur the government’s processing of his claim. Mitchell’s specialty was land
matters, and he agreed to take Neff’s case early in 1862. A few months later,
another set of documents relating to the land grant went to the federal
government on Neff’s behalf (presumably, Mitchell prepared and sent them). A
few months after that, Neff received notice that he had satisfied the
requirements to get his land grant.
Actually obtaining the grant, however, was another matter, and Neff still did not
have his grant by 1865. Sometime between 1862-1863, when Mitchell rendered
his legal services, and 1865, Neff relocated to California. In November, 1865,
Mitchell sued Neff in an Oregon state court, seeking legal fees of $253.14 (about
$3900 in present-day money) for the services rendered a few years earlier.
Oregon law provided for service of process by publication if a defendant’s

location was unknown. Mitchell, claiming that Neff was in parts of California
unknown to him, served Neff with process by publishing a copy of the summons
and complaint in a local Oregon newspaper, the Pacific Christian Advocate (see
the document titled “Mitchell’s Service of Process” on TWEN).
John H. Mitchell was an interesting character. Known as John Hipple (probably

his true name) in Pennsylvania, he was a schoolteacher who found himself forced
to marry a 15-year-old girl that he had seduced and, according to some reports,
impregnated. No longer able to teach, he began to practice law, which he did for
several years before heading west with $4000 of his clients’ money and his new
lover (though he was still married).
Hipple and his lady reached California, where he left her (apparently because she
was ill and her medical expenses were too burdensome) and moved north to
Portland, Oregon. Now using the name John H. Mitchell, he became a successful
property litigator and new husband (never having divorced his first wife). Given
his willingness to embrace whatever “ethics” suited him at the time, whether
Neff actually owed Mitchell the money or whether Mitchell actually did not know
Neff’s location is questionable.
Regardless, you can predict that Neff never responded to Mitchell’s published
service, and Mitchell took a default judgment against him in February, 1866.
Mitchell sought to enforce that judgment in July, 1866. Why the wait? Mitchell
was apparently waiting for Neff’s land grant, sent from Washington in March,
1866, to arrive in Oregon! Note that, while Mitchell could not find Neff, the
Oregon land office did not apparently have any trouble delivering the land patent
to him in California.
In any event, Mitchell invoked Oregon’s attachment and sale process against the
land that Neff now owned in Oregon. The sheriff’s sale in August, 1866, saw
Neff’s land sold at auction. Who was the winning bidder, at a price of $341.60?
None other than John H. Mitchell! Three days later, Mitchell assigned the
property to Sylvester Pennoyer.
From 1866 to 1874, Pennoyer paid taxes on the property, cut timber on the land,
sold a small portion of it, and otherwise acted as any landowner would. In 1874,
Marcus Neff appeared in Oregon, and was surprised to find Pennoyer occupying
his land. He filed his own action, Neff v. Pennoyer, in an Oregon federal court in
that same year.
Neff, remember, relocated to California while attempting to secure the Oregon

land grant years earlier. He had married, had a daughter, and become a quite
prosperous landowner in the San Joaquin area (just west of Fresno). He claimed
that Pennoyer was a trespasser that the courts should eject from his land.
The crux of Neff’s argument in this collateral attack was that the judgment in
Mitchell v. Neff was void for lack of personal jurisdiction. Since the judgment was
void, so was the sheriff’s sale seeking to enforce it, and so was the assignment
from Mitchell to Neff.
The federal district court in Oregon decided in Neff’s favor, on grounds that
Mitchell had missed one of the procedural steps necessary to secure the
judgment in the earlier case. Pennoyer appealed his loss to the US Supreme
Court (at the time, none of the federal circuit courts of appeal existed), in
Pennoyer v. Neff.
The US Supreme Court rejected the approach that District Judge Deady had
taken, deciding that the procedural defect was not the kind that a collateral
attack could remedy. Neff’s only remaining hope, then, was to show that his
collateral attack was permissible because the Oregon court that decided Mitchell
v. Neff had no jurisdiction over him (personal jurisdiction).
Writing for the majority, Justice Stephen Field embraced territorial theory
explicitly. He wrote that two fundamental legal principles exist at the foundation
of each state’s independence and its authority over people and property. The
first principle is that “every State possesses exclusive jurisdiction and sovereignty
over persons and property within its territory.” The second principle is the
contrapositive of the first, that “no State can exercise direct jurisdiction and
authority over persons or property without its territory.” 3
Justice Field also recognized, though, that the federalist system the U.S.
Constitution creates necessarily divests the states of some portion of their
independence and exclusivity.4 For that reason, Field wrote, states could exercise
jurisdiction (in personam) over a nonresident, out-of-state defendant who had
consented to jurisdiction, or who had received personal service of process within
the forum state. Field also wrote that a state could exercise jurisdiction (in rem)
over a nonresident, out-of-state defendant if that defendant owned property
within the forum. Such jurisdiction was effective even when the suit’s subject
matter was not about an interest in the property itself (quasi in rem).5
Field noted that when a state wished to assert jurisdiction through a nonresident,
out-of-state defendant’s property (in rem or quasi in rem), the defendant was
entitled to notice just as much as a defendant over whom the court wished to
exercise in personam jurisdiction. A court could provide this notice by seizing the
property at the time the plaintiff filed the complaint. A person who owns
property in a distant place, Field wrote, is responsible to maintain the property
3
Id. at 722-23.
4
For example, see Article IV, § 1, which requires every state to give full faith and credit to valid judgments of every
other state.
5
See the descriptions of in personam, in rem, and quasi in rem (above).
with reasonable care, so seizure of that property would provide the required
notice of the lawsuit and the potential loss of property.
In Neff’s case, jurisdiction was inappropriate for two reasons. First, Neff never
received appropriate notice of the action because Mitchell did not invoke the
attachment process until he was in the process of enforcing the default judgment
he had already won against Neff. Second, the Oregon court in Mitchell v. Neff
never had grounds for in rem or quasi in rem jurisdiction over Neff. In rem and
quasi in rem jurisdiction, remember, depend on the presence of the defendant’s
real or personal property in the forum. The property that Mitchell helped Neff
acquire, and the basis of the fees for which Mitchell was suing, did not actually
become Neff’s property until after Mitchell acquired the default judgment (at the
earliest, when the land grant paperwork arrived at the Oregon land office). The
Oregon court in Mitchell v. Neff issued a default judgment against a nonresident,
out-of-state defendant who did not yet own property in the state and who
received service of process by publication in a small local newspaper! 6
Somewhat unnecessarily from Neff’s point of view, Justice Field tied personal
jurisdiction’s propriety to the Due Process Clause of the 14th Amendment. 7
Although not the ground upon which the Pennoyer decision truly stood, Justice
Field’s decision to connect personal jurisdiction to the 14th Amendment in two
different ways remains viable, and even presaged much of modern due process
jurisprudence. Summarized, Field’s due process analysis is deceptively simple:
due process requires that a court exercise personal jurisdiction only over those
people and things within the court’s power ( “substantive due process”), and that
people who are subject to a court’s jurisdiction must receive adequate notice of
the court’s exercise of that jurisdiction (“procedural due process”).
We can describe these requirements as “power” and “notice.” Due process

requires that the court have the power to exercise personal jurisdiction over a
defendant, especially a nonresident, out-of-state defendant, and that the
defendant receive proper notice of the action to facilitate a response. Notice is
probably not a difficult concept to fit into an understanding of due process, and
when we study notice, you will probably find it comparatively straightforward.
6
Note, however, that the real problem with what happened is not that Mitchell chose to serve a possibly illiterate
man by publication, nor that he chose a small newspaper within which to publish the notice.
7
Discussing the 14th Amendment was unnecessary for Neff because John Mitchell sued him in 1866, two years
before the 14th Amendment’s ratification.
Notice fits into that part of due process called “procedural due process,” a
concept that seeks to answer the question of whether the government employed
appropriate procedures to deprive a person of life, liberty, or property (or place
them at risk of deprivation), assuming that the government has the power to
deprive.
Power, on the other hand, is not as intuitively part of a due process analysis. It is
part of a concept called, again, “substantive due process.” 8 Substantive due
process asks, generally, whether the government has the power to deprive a
person of life, liberty, or property at all, regardless of the procedures it uses to
accomplish that deprivation.
You may find thinking of due process in this way helpful: substantive due process
seeks to determine the degree of justification the government must have to
deprive a person of certain rights, and procedural due process seeks to determine
the steps the government must follow to effect the deprivation. If either is
missing, due process is not satisfied, and whatever the government has done is
unconstitutional.
Placing Pennoyer v. Neff into that context, then, the US Supreme Court decided
that Oregon violated Marcus Neff’s right to substantive due process because it
had neither an appropriate justification to infringe upon his liberty by making him
come to Oregon, nor an appropriate justification to place his rights to property at
risk. This was true because, at the time Oregon asserted jurisdiction over him,
Marcus Neff owned no property in Oregon, he was not physically in Oregon, and
he did not consent to Oregon’s jurisdiction.
Oregon also violated Neff’s right to procedural due process because, even if we
assume that it had an appropriate justification to force him into an Oregon court,
Oregon did not exert its power in an appropriate manner. We will study this
point in detail when we get to Mullane v. Central Hanover Bank, but the
appropriate procedures involve providing the defendant appropriate notice.
8
Without going into the details of how due process came to have two components, one that sounds redundant
(procedural due process), and one that just sounds weird (substantive due process – how can something be
substantive, yet procedural? You will appreciate that even more once we cover the Erie doctrine), suffice to say
the law’s current state recognizes that it does. Pennoyer, in my view, provides a great opportunity to see the first
seeds of modern Constitutional jurisprudence. How great (or at least curious) is it that this whole mess started
with a lawyer trying to collect a fee? Despite the fact that he was a notoriously unscrupulous lawyer trying to
collect a dubious fee, the irony is just too much!
John Mitchell had a few choices available to him for accomplishing service,
publication being one of them.
That he chose to publish is not, of itself, the problem, according to Justice Field.
The problem is that serving by publication was not enough, under the
circumstances, to provide Marcus Neff notice of the action. Since the foundation
of Oregon’s power over Neff was, supposedly, the fact that he owned property in
the state, the way to notify him of the action and the court’s assertion of
jurisdiction was to seize the property. By failing to do that, Oregon’s assertion of
power was improper – even if it had possessed the power in the first place.
We will highlight a few of the problems that emerged from application of

territorial theory in class, but first, try to see how this kind of theory was likely a
very sensible and useful theory to embrace at the time. It certainly presents a
straightforward, almost categorical, approach to jurisdiction that we would have
little difficulty in applying, even if the results were not always desirable. Then, try
to think about how useful territorial theory would be in an increasingly “national”
rather than “local” United States, with people beginning to travel across the
country for business and pleasure.
The advent of the transcontinental railroad system, the automobile, and the
airplane, along with vastly improved telecommunications technology, among
other factors, changed the nation from a collection of loosely grouped localities
into a thriving, singular entity, especially economically. This was the United
States in which the US Supreme Court, led by Chief Justice Harlan Fiske Stone,
heard International Shoe Co. v. State of Washington in November, 1945 – not
three months after the end of World War II.
What became of the parties after Pennoyer v. Neff? Prof. Perdue tells us:
The opening salvo between Neff and Pennoyer was fired when Neff
sued to evict Pennoyer, but the war did not end there. After Pennoyer
lost the eviction suit, and costs were awarded against him, he battled
bitterly over the amount of those costs. Neff was again the winner,
and adding insult to injury, he proceeded to sue Pennoyer again—this
time to recover money damages sustained as a result of Pennoyer
cutting down timber on the property. Pennoyer counterclaimed to
collect property taxes that he had paid from 1866 to 1875. The
counterclaim was dismissed and Pennoyer’s defense of the damage

action proved to be the closest that he got to a victory: the jury found
for Neff but awarded only nominal damages.
When the dust had settled, Pennoyer *** was left holding the bag.
Pennoyer had purchased the land for “valuable consideration” and
paid the taxes on it for a number of years, yet he found himself
evicted, with nothing to show for his money and subject to suit for
trespass for entering the land he thought he owned. There is no
evidence that Pennoyer did or could ever recover the loss from
anyone.
Following the litigation, Neff disappeared into obscurity; not so

Pennoyer and Mitchell. Pennoyer went on to be Governor of Oregon,
but he remained bitter about his defeat in Pennoyer v. Neff. Ten years
after the Supreme Court decision, in his inaugural address as
governor, Pennoyer decried that decision as a usurpation of state
power. He remained a vociferous critic of the Supreme Court, urging
at one point that the entire Court should be impeached, explaining:
“We have during this time been living under a government not based
upon the Federal Constitution … Our constitutional government has
been supplanted by a judicial oligarchy.”
Mitchell also remained in the public eye. He was elected to the United
States Senate in 1872, lost his senate seat in 1879, but was reelected in
1885. By modern standards, Mitchell’s reelection is quite
extraordinary. Shortly before the 1885 election, Judge Deady, the
lower court judge in Pennoyer v. Neff, came into possession of a set of
love letters which Mitchell had written to Mitchell’s second wife’s
younger sister during the five years that he carried on an affair with
her. Deady turned the love letters over to a newspaper, the
Oregonian, an outspoken critic of Mitchell. The Oregonian willingly
published the letters for all to read and enjoy. Despite the scandal,
Mitchell was elected four days later, something which Deady called “a
disgrace to the state and a reproach to humanity.”
Scandal was a way of life for Mitchell. In 1905 he, along with a number
of other prominent Oregon officials, was indicted in connection with a
massive land fraud scheme. *** In July of 1905, while still serving in
the United States Senate, Mitchell was convicted and sentenced to six
months in jail, a $1,000 fine, and complete disbarment from public
office. In December of that same year, while his appeal was pending,
Mitchell died, apparently from complications following a tooth
extraction.
The Daily Oregon Statesman reported that the Senate adjourned

without any official recognition of Mitchell’s death, though the
chaplain “recalled the situation to mind in his prayer by referring
pointedly to corruption and death and by praying that the members of
the senate might be given strength to bear each other’s burdens.”
Possibly moved by the chaplain’s prayer, the Senate later passed a
resolution to pay Mitchell’s funeral expenses.
B. Modern Theory
Traditional theory, as discussed above, is a very formal, categorical approach to

personal jurisdiction. Under traditional theory, courts could exercise personal
jurisdiction over a defendant only if that defendant was “present” in the forum in
some way, or if the defendant consented to jurisdiction. Thus, under traditional
theory, personal jurisdiction existed if any one of six things were true:
1. the defendant was a citizen or resident of the state;

2. the defendant received personal service of process while physically within
the state, or the defendant’s authorized agent received service of process
within the state;
3. the defendant owned property located within the state;
4. the defendant was doing enough business within the state to be
considered “present”;
5. the defendant consented to the state’s jurisdiction in some way; or
6. the defendant submitted to the state’s jurisdiction as a condition of
acquiring authorization to conduct business within the state.
Also, as discussed above, traditional theory viewed personal jurisdiction’s

requirements differently depending on the kind of case involved (in personam, in
rem, or quasi in rem). Under modern theory, those distinctions mostly do not
exist, but you should still understand those terms so that you can understand the
language you will see in particular cases.
As the 20th Century progressed, the incompatibility between traditional theory

and the increasingly national (and indeed, now, global) economy became
increasingly pronounced. The Supreme Court broke away from traditional
theory’s strict categorical approach in International Shoe Co. v. Washington, 326
U.S. 310 (1945). The modern theory of personal jurisdiction begins with
International Shoe; everything else flows directly from this case.
The Court’s decision in International Shoe derived directly from the 14th
Amendment’s requirement that the government never deprive people of life,
liberty, or property without due process of law. You will remember that civil
judgments can force the losing party to pay money or act in particular ways, so
liberty and property interests are at stake in civil cases. As noted above, due
process requires both that the court have the power necessary to enter effective
judgments, and that the defendant whose liberty and/or property is at stake
receive proper notice of the action.
International Shoe represents a watershed moment in personal jurisdiction

theory, a shift from traditional theory’s strict question, “Is the defendant there?”
to a more practical question: “Is jurisdiction in this place fair?” Jurisdiction is fair,
the International Shoe court decided, based on the relationship between the
defendant, the forum (the state where the plaintiff filed), and the lawsuit. Under
modern theory, the requirement for personal jurisdiction is that the defendant
has “minimum contacts” with the forum, and that jurisdiction in that forum is
reasonable. If the answer to both questions is “yes,” jurisdiction is fair.
Minimum contacts
“Minimum contacts” does not mean that the defendant only has to have a small
degree of contact with a forum. Instead, it means that the defendant has to have
contacts with the forum that rise to some “minimum” level required to give the
courts in that forum jurisdiction over that defendant. The minimum contacts
concept represents a sliding scale under which we evaluate jurisdiction based on
three things: whether the defendant has contact with the forum, how those
contacts relate to the lawsuit’s subject matter, and whether the defendant is
responsible for the contacts between it and the forum.
The question of whether the defendant has contact with the forum is usually very
easy to answer. The only question here is whether the defendant had any
connection to the forum. For instance, did the defendant travel to or through the
forum? Does the defendant live in the forum, or is it a citizen of the forum? Did
the defendant make or sell a product that found its way into the forum? Does
anything create a connection between the defendant and the forum, even if that
connection is very small?
Simply having contact with the forum is not enough, however, to make the
contact the “minimum” necessary for personal jurisdiction. The defendant’s
contact with the forum has to relate enough to the litigation’s subject matter to
support jurisdiction. The question is how much the contact between the
defendant and the forum has anything to do with the lawsuit. This is where the
“sliding scale” mentioned earlier comes into play: as the level of contact between
the defendant and the forum increases, the level of relatedness required
decreases.
Consider the diagram below:

Contact
Isolated, Singular
Contact Full Contact
(forum citizen)
Relatedness
Direct No
Relationship Relationship
As you can see, contacts and relatedness have an inverse relationship: as contact
increases from “isolated” to “full,” the level of relatedness necessary for personal
jurisdiction decreases, and the reverse is true. Thus, if the defendant is a forum
citizen, the contacts are so high that they do not have to relate to the litigation to
support personal jurisdiction (that forum is said to have “general” jurisdiction).
On the other hand, if the contact is an isolated contact, the only lawsuits that will
support jurisdictions are the lawsuits directly related to that contact (that forum
is said to have “specific” jurisdiction). As the contact between the defendant and
the forum increases, the relatedness decreases, and the range of lawsuits for
which the forum will have jurisdiction becomes broader. Of course, if the
defendant has no contact with the forum, no jurisdiction exists.
The final piece of the minimum contacts puzzle is the question of whether the
defendant created the contacts. This idea, called “purposeful availment,”
requires that the contacts between the defendant and the forum result from the
defendant having behaved in such a way that it could anticipate having to defend
against lawsuits filed in that state.
If the defendant has contact with the forum, that relates sufficiently to the
lawsuit to authorize jurisdiction, and the contact resulted from the defendant’s
purposeful availment, the defendant has minimum contacts with the forum.
Reasonableness
In addition to possessing minimum contacts with a defendant, a forum’s exercise

of personal jurisdiction in a given case must be reasonable to satisfy due process.
Whether jurisdiction is reasonable depends on the balance of five factors, listed
below with the questions generally relevant to each factor:
1. the defendant’s burden of litigating in the forum;

How inconvenient and/or costly will the defendant find litigating in the
forum?; How does modern technology relative to travel and communications
affect that burden?; Does the defendant’s past conduct indicate that being in
the forum is not a hardship?
2. the forum’s interest in adjudicating the dispute;

How connected is the forum to the events relevant to the litigation?; Does the
litigation involve forum citizens or residents?; Is the forum’s law applicable to
the dispute?
3. the plaintiff’s interest in efficient relief;

Can another forum provide relief as conveniently as this one (or more
conveniently, or not at all)?; Is the plaintiff connected to the forum in some
way?; Will litigating in the other available forum (fora) unduly burden the
plaintiff?
4. the effect on the judicial system’s efficiency; and

How connected is the forum to the events?; Will jurisdiction (or not) in this
forum lead to duplicative or piecemeal litigation?; Are witnesses and evidence
in the forum?; Whose law will govern the action?; Might jurisdiction (or not) in
this forum lead to inconsistent decisions on the same issue in related actions?
5. concerns of social policy.

Will the forum offend another sovereign (the defendant’s state or country of
citizenship) by exercising jurisdiction over its resident/citizen?; Is the forum
justified in asserting jurisdiction over another sovereign’s resident/citizen
under the circumstances?
Personal jurisdiction has to satisfy both tests (minimum contacts and

reasonableness) to satisfy due process.
Although modern theory did away with most of the categorical, “presence-
based” notions existing under traditional theory, some traditional methods of
establishing jurisdiction survive today. Accomplishing personal service of process
on a defendant who is physically within the forum, or serving process on a
registered agent authorized to receive process within the forum, will establish
personal jurisdiction without regard to contacts or reasonableness. In addition, if
the defendant expressly consents to personal jurisdiction in the forum, or simply
begins to defend itself without objecting to personal jurisdiction, the court will
have jurisdiction without regard to contacts and reasonableness. Finally, under
Rule 12(h)(1) of the Federal Rules of Civil Procedure, a defendant can waive an
otherwise valid challenge to personal jurisdiction.
C. Effect of State Law
State law can add another layer to personal jurisdiction analysis. States have
jurisdictional laws (“long-arm statutes”) defining the circumstances under which
their courts can exercise jurisdiction over defendants who are not citizens or
residents. Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, by allowing
federal courts to exercise jurisdiction when the state courts in the forum could do
so, incorporates the effect of the state long-arm statutes to cases in the federal
district courts. Exercising personal jurisdiction has to satisfy both the relevant
state long-arm statute, and the requirements of due process (minimum contacts
and reasonableness, above).
Some states’ long-arm statutes list specific situations under which the state
courts can exercise jurisdiction. If the situation in a particular case does not
satisfy the long-arm statute’s requirements, no jurisdiction exists – even if
jurisdiction would satisfy due process! Other states have generalized long-arm
statutes allowing their courts to exercise jurisdiction whenever doing so would
satisfy due process. In those instances, the analysis of due process and the long-
arm statute is the same.
D. Notice
Regardless of the method (e.g., consent, due process, waiver) by which a court
acquires personal jurisdiction, the court’s exercise of that power has to satisfy
due process. A court’s exercise of power satisfies due process if the defendant
received notice and an opportunity to have its position heard.
The first requirement with regard to notice is that the defendant receives the
appropriate materials within an appropriate time. Remember that the plaintiff
begins a civil action by filing a complaint with the court. The plaintiff has to serve
a copy of that complaint, along with the summons from the court, within 120
days of the date the plaintiff filed the complaint.
The second requirement is that the plaintiff has to use an appropriate method to
serve (deliver) the summons and complaint. In the state courts, the plaintiff need
only choose one of the methods authorized by state law. Rule 4 of the Federal
Rules of Civil Procedure provides multiple lists of acceptable service methods,
depending on who the defendant is (an individual, corporation, minor child, etc.),
and whether they are in the United States.
The third requirement is that the summons and complaint have to contain the
appropriate information. It has to notify the defendant about how, when, and
where it has to respond. In addition, it has to give the defendant a reasonable
time, under the circumstances, between the date of service and the date a
response is due.
The final requirement is that the method the plaintiff chose to serve process was
a reasonable method. A couple of paragraphs ago, you saw the reference to a list
of potential methods of service available under either state or federal law. From
that list of service options, the plaintiff has to choose one that is appropriate to
the circumstances of the given case. The minimum requirement is that the
plaintiff has to choose a method that, under the circumstances, a reasonable
person who actually wanted the defendant to know of the action would have
chosen.
E. Summary
Condensing all of the above provides a general view of whether personal

jurisdiction over a specific defendant exists in federal court in a particular forum
for a particular case.
First, the court will have the power to exercise personal jurisdiction if any one of
five situations exists:
1. The defendant waived its jurisdictional objection under Rule 12(h)(1);

2. The defendant received personal service of process while in the forum (or
the plaintiff served a registered agent authorized to receive service in the
forum);
3. The defendant consented to jurisdiction in the forum;
4. A federal statute specifically allows personal jurisdiction in the given case;
or
5. The forum state’s courts have personal jurisdiction (long-arm statute plus
due process – minimum contacts & reasonableness)
Second, if the court has the power to exercise personal jurisdiction, the court has
to exercise that power appropriately by giving sufficient notice. The notice has to
contain all necessary information. It must inform the defendant how, when, and
where to respond, and provide a reasonable time to respond. Finally, the method
the plaintiff chose has to be a method the law authorizes, and be reasonable.
III. Venue
Venue is a concept that is simply about choosing an appropriately convenient
court within which to locate a lawsuit. The United States has nearly 100 different
federal districts, each of which has a trial-level federal court. Venue law, along
with personal jurisdiction law, helps plaintiffs choose, from all those courts, the
particular court in which to file an action.
A federal court must possess personal jurisdiction, and be a proper venue, but the
two are not the same. The analyses of venue and personal jurisdiction are
different, although they often overlap.
The general federal venue statute is 28 U.S.C. § 1391. Unless the defendant has
waived venue under Rule 12(h)(1) of the Federal Rules of Civil Procedure, or has
agreed to locate the action in a particular court, or a special venue statute
applies, § 1391 controls the venue location.
Under § 1391, venue is subject to three tests: for convenience, we will call them a
“residency test,” an “events test,” and a “fallback test.”
Under the “residency test,” the question is whether all the defendants in the
action reside in the same state. If they do, venue lies in a district in which any one
of the defendants resides.
Under the “events test,” the question is whether a district exists in which a
substantial part of the events giving rise to the litigation occurred, or in which a
substantial part of the property forming the litigation’s subject matter is located.
If so, that district (or districts) is an appropriate venue.
Finally, under the “fallback test,” venue will be appropriate in any district in which
any defendant is subject to personal jurisdiction. The fallback test, though, yields
a venue only when neither the residency test, nor the events test, yields one.
Even if the plaintiff’s chosen venue is appropriate, a defendant can seek to

change it. The defendant can argue that, for the convenience of the parties and
witnesses, and in the interests of justice, the current court should transfer venue
to another court. The current court, in its discretion, can grant the motion to
transfer on grounds of convenience and justice, but it can only transfer to a court
that is itself an appropriate venue for the case.
IV. Subject Matter Jurisdiction

Subject matter jurisdiction is a court’s power to hear particular claims. Subject

matter jurisdiction is especially important to understand with regard to the
federal courts, because federal courts cannot hear every possible case. They are
courts of “limited jurisdiction,” while the state courts are courts of “general
jurisdiction.”
A. Original federal jurisdiction
Some cases can begin in federal court; that is, a plaintiff can choose to file them
there, even though that plaintiff may choose to file the case in state court. For
our purposes, understanding original federal jurisdiction requires understanding
two federal statutes, 28 U.S.C. §§ 1331 and 1332.
Under § 1331 (“federal question jurisdiction”), federal courts have original

jurisdiction over claims “arising under” federal law. A claim arises under federal
law if it has a critical federal piece, which means one of two things. The claim
could be one that a federal statute creates, or it could be a state claim that
genuinely requires application or interpretation of federal law. Plaintiffs are
required to state their claims accurately and genuinely, limiting themselves to
the law relevant to the claim, and including any necessary federal component. If
the federal piece enters the picture as part of a defense or counterclaim, the
claim does not “arise under” federal law.
Under § 1332 (“diversity jurisdiction”), federal courts have jurisdiction over certain
state-law claims. Original federal jurisdiction over such claims exists if the parties
are citizens of different states, and the amount at issue in the case is more than
$75,000 (…the amount claimed must be made in good faith; only when it appears
“to a legal certainty” that the claim is actually for a jurisdictionally insufficient
amount should a court dismiss the matter on jurisdictional grounds. Note after
Del Vecchio.) If the amount is equal to $75,000, no original federal jurisdiction
exists.
The parties must be not only citizens of different states, but also completely
diverse. This means that, in cases with multiple plaintiffs and/or defendants, you
have to be sure that none of the plaintiffs share citizenship with any of the
defendants. As soon as you find common citizenship between even one plaintiff
and one defendant, you do not have diversity jurisdiction.
B. Supplemental federal jurisdiction
If you see a claim that is not within original federal jurisdiction, it may still be an
appropriate part of a federal lawsuit if it is within supplemental federal
jurisdiction under 28 U.S.C. § 1367. A claim is within supplemental jurisdiction if
it is part of the “same case or controversy” as any claim that is within original
jurisdiction. When every claim in a lawsuit is within either original or
supplemental jurisdiction, the lawsuit can go forward in federal court.
Sometimes, a claim may satisfy the requirements for supplemental jurisdiction,

but still be ineligible for federal court. This can happen if each of the original
jurisdiction claims are diversity claims under § 1332, and the party asserting the
claim is a plaintiff.
In these cases, § 1367(b) withdraws supplemental jurisdiction if the supplemental

claim is one that a plaintiff joined under Rule 19 or Rule 24 (see the “Joinder”
topic, below) has asserted. If the plaintiff asserting the supplemental claim
joined the action other than under Rules 19 or 24, you have to evaluate the
person against which the plaintiff is asserting the supplemental claim. If the
party defending that claim joined the action under any of Rules 14, 19, 20, or 24,
the statute withdraws it from supplemental federal jurisdiction.
C. Removal
Remember that the plaintiff decides where to file the action, and since state
courts are courts of general jurisdiction, plaintiffs can choose to file claims in
state court that they could have chosen to file in federal court. Original
jurisdiction, you will recall, is not about where the plaintiff actually filed the claim,
but about whether the conditions exist that would allow the plaintiff the option
to file in a particular court.
When a plaintiff files an action in state court that it could have filed in federal
court (original federal jurisdiction exists), the defendant can force the action into
federal court through the removal process. The defendant has 30 days from the
date of service of a removable action to file a document called a “removal
notice.” Once the defendant files that notice, the state court has to send the file
to the local federal district court.
Certain limitations on removal exist. One is that, if the case involves multiple
defendants, all of them have to agree to remove the action.
Two other limitations arise only if the original federal jurisdiction exists only
under § 1332 (diversity). In such cases, if even one defendant in the action is a
citizen of the forum state, removal is improper. Also in such cases, removal can
only happen within one year of the date the plaintiff filed the initial complaint.
V. Pleading
A. Pleadings Generally
Pleadings are documents that a party files with the court for the distinct purposes
of presenting claims of and defenses to liability. Rule 7(a) lists the pleadings, and
you can divide them into the “presenting claims” and “presenting defenses”
categories as follows:
Presents
Pleading Presents Claims?
Defenses?
Complaint Yes No
Yes
Answer (to a complaint) (if it contains Yes
counterclaims)
Answer (to a counterclaim) No Yes
Crossclaim
Yes No
(a special kind of complaint)
Yes
Answer (to a crossclaim) (if it contains Yes
counterclaims)
Third-Party Complaint Yes No
Answer Yes Yes
(if it contains
(to a third-party complaint)
counterclaims)
Reply to an Answer No No
The diagram on the following page shows the typical party alignment associated
with each pleading, and which party could file which pleading.
B. A Pleadings Diagram
Π1 v. Δ1 v. Δ(3d party)
Complaint Third-Party Complaint
Crossclaim
Answer Answer to Third-Party Complaint
(Can contain counterclaims) (Can contain counterclaims)
Answer to Counterclaim, if any,
or Reply to Answer, if ordered
Answer to Crossclaim
(Can contain counterclaims)
Π2
The diagram is not exhaustive – for instance Π1 and/or Δ1 would file Answers to
Counterclaims if, respectively, the Answer to Crossclaim or Answer to Third-
Party Complaint contained counterclaims.
C. Functions of Pleadings
Each pleading performs a certain function.
Complaints state the pleader’s (the “Plaintiff” for a regular complaint; a

defending party for a counterclaim; the “Third-party Plaintiff” for a third-party
complaint – we will study third-party practice in Civil Procedure II) claim for relief.
Every civil action has a single complaint, as amended complaints completely
replace any earlier versions.
Answers state a defending party’s opposition to a complaint, counterclaim,

crossclaim, or third-party complaint. Depending on which pleading asserts a
claim, any party might file an answer, as you saw in the diagram. Note that Rule
7(a)(3) calls for answers to counterclaims “designated” as such. You may
sometimes, in practice, come across an answer in which the opposing lawyer has
labeled as a “counterclaim” what is really an affirmative defense. Though you
may enjoy the protections of Rule 8(c)(2), the safest course is to answer that
mistakenly designated “counterclaim” to avoid the risk that you may admit
something you should have denied, Rule 8(b)(6).
Counterclaims are, functionally, complaints. They appear in Answers and set

forth a defending party’s claims. For example, imagine that you and I got into a
car accident and you sued me for negligence. I might feel that I was not
negligent, and furthermore, that you were negligent and I suffered harm as a
result. In my answer to your complaint, I would deny liability, and assert an
affirmative defense based on your negligence. Beyond all that, though, I could
also state my own counterclaim for negligence against you (my assertion that
you were negligent could function, for me, as both a defense to liability and a
claim for damages).
Crossclaims are specialized complaints in which a party states a claim against a

co-party (another party on the same side of the “v.”). Crossclaims do not appear
as a separate pleading category in Rule 7(a) because they are nothing more than
complaints. Functionally, crossclaims usually appear in a particular section of
some party’s answer, although they can appear as completely separate
documents, and parties who have no need to file an answer can file them.
Replies to answers are rare, and are available only if the court orders them. For
example, a court may order a reply to an answer when that answer contains an
affirmative defense, and the court wants a response to the affirmative defense.
The law automatically considers allegations in an affirmative defense denied or
avoided by operation of Rule 8(b)(6), but sometimes judges want a reply anyway
to help define the issues. Some jurisdictions prohibit replies to affirmative
defenses. See, e.g., Gen. Credit Corp. v. Pichel, 44 Cal. App. 3d 844, 850-51 (1975)
(recognizing that California prohibits replies to affirmative defenses).
D. Pleading Standards
Pleadings in which a party is stating a claim for relief must state the grounds for
the court’s jurisdiction (unless a new jurisdictional allegation is unnecessary), a
“short and plain statement” of the claim itself, and a demand for relief. Fed. R.
Civ. P. 8(a). This pleading standard, a “notice” standard, was designed as a more
liberal pleading standard than existed under common-law or code pleading
regimes.
For years, that standard was extremely liberal. The notice pleading standard’s
purpose is to give defending parties fair notice of the claim and the grounds on
which it relies. Conley v. Gibson, 355 U.S. 41 (1957). A pleading stating a claim or
defense was sufficient if the court and opposing party could understand it, and
the opposition could sufficiently prepare to counter it. Id.; Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993).
Recent Supreme Court jurisprudence, however, has apparently raised the notice
pleading bar significantly. Now, claims must not only notify the defending party
of the claim(s) against it, but also include enough facts to make the claim(s)
facially plausible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded
facts allow the court to reasonably infer liability for the defending party, which
requires more than just pleading facts that are merely consistent with liability.
Iqbal, 129 S. Ct. at 1949.
The recent jurisprudence, however, did not address Rule 84 of the Federal Rules
of Civil Procedure. Rule 84 provides that the forms in the Rules Appendix,
including the form complaints in Forms 10 through 21, are sufficient under the
Rules. Fed. R. Civ. P. 84. The Forms, however, contain minimal factual
allegations, if indeed they contain any factual allegations at all.
What that means, at least for now and at least presumably, is that a complaint is
sufficient if it conforms to one of the Forms, or if it satisfies the facial plausibility
standard from Twombly and Iqbal. Watch for further pronouncements from the
Circuit Courts or the Supreme Court as to whether Rule 84 provides an easier
pleading standard based on the Forms, or for a potential revision or complete
strike of Rule 84.
Aside from the developments in Twombly and Iqbal, the Rules themselves
already contain a higher pleading standard. If a complaining party is alleging
fraud or mistake, that party must plead such a claim “with particularity.” Fed. R.
Civ. P. 9(b). Functionally, however, the courts have not required that a party
pleading fraud or mistake plead significantly more facts than the party would
ordinarily plead; the party need only, according to the Rule’s terms, plead the
“circumstances,” not some specific quantity of “additional facts.” Id.; see, e.g.,
Consumers Time Credit, Inc. v. Remark Corp., 227 F. Supp. 263 (E.D. Pa. 1964).
The degree to which a complaining party must plead fraud or mistake with
particularity can differ in different cases, but the factors courts consider when
determining how specific or particular the pleading must be include (citations are
to representative cases):
 the pleader’s access, pre-discovery, to the facts, In re Rockefeller Center

Properties, Inc. Securities Litigation, 311 F.3d 198 (3d Cir. 2002);
 the claim’s complexity, the parties’ relationship, and the context in which
the fraud or mistake occurred, In re GlenFed, Inc. Securities Litigation, 60
F.3d 591 (9th Cir. 1995);
 the amount of specificity the adverse party needs to craft its responsive
pleading, Dudley v. S.E. Factor & Finance Corp., 446 F.2d 303 (5th Cir.
1971), cert. denied, 404 U.S. 858 (1971).
Many courts require the following in a fraud pleading: when and where the false
representations took place, the content of those representations, the speaker’s
identity, how the representations misled the plaintiff, and what the speaker
gained. See, e.g., Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309
(11th Cir. 2007); BJC Health System v. Columbia Cas. Co., 478 F.3d 908 (8th Cir.
2007); Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007).
How the particularity requirement in Rule 9(b) is or will be distinguished

conceptually and analytically from the pleading standard announced in Twombly
and Iqbal remains to be seen.
E. Amending Pleadings
Frequently, a party may wish to amend a pleading for some reason. A party may
decide to clarify something in the pleading; add, drop, or modify facts; add, drop,
or modify claims; or add, drop, or modify parties.
Parties have the right (“as a matter of course”) to amend pleadings once – and
only once – as long as they amend within an appropriate time. A party can
amend any pleading within 21 days after serving the pleading as a matter of
course.
If the pleading the party wishes to amend is one that requires a responsive
pleading, the amending party has the 21 days after serving to amend as a matter
of course, as just stated in the previous sentence. In addition, the right to amend
as a matter of course is available for the earlier of either of two periods: 1) the 21
days following service of a motion under Rules 12(b), 12(e), or 12(f) in response to
the pleading; or 2) the 21 days following service of the responsive pleading.
Thus, a party who wants to amend a pleading that requires a responsive pleading
has three options for amending that pleading automatically, but is only able to
exercise that automatic right once.
If a party wishes to amend a pleading, but is outside of the limited circumstances

for which amendment can happen as a matter of course, amendment is possible
only with the opposing party’s written consent, or with the court’s leave.
Rule 15(a) provides that the court should grant leave “freely,” if “justice so
requires.” The decision of whether to grant an amendment is within the court’s
discretion. Courts should generally view motions for leave to amend favorably,
because the parties ought to be able to test their claims or defenses on the
merits. Foman v. Davis, 371 U.S. 178 (1962).
A court should not deny leave to amend unless the court finds prejudice to the
opposing party, undue delay (either that the amending party did not pursue a
timely amendment or that the action would suffer undue delay), or bad faith or
an improper motive on the amending party’s part. Id.; see also Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321 (1971); Kenda Corp., Inc. v. Pot O’ Gold
Money Leagues, Inc., 329 F.3d 216 (1st Cir. 2003); Wade v. Knoxville Utilities Bd.,
259 F.3d 452 (6th Cir. 2001); Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789
(9th Cir. 2001); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir.
2003); Jackson v. Rockford Housing Auth., 213 F.3d 389 (7th Cir. 2000) (indicating
that prejudice to the opposing party is the most significant factor); Harrison v.
Rubin, 174 F.3d 249 (D.C. Cir. 1999).
If an amendment is appropriate, either as a matter of course, due to consent, or

with the court’s leave, an amendment may be moot unless it is treated as though
it were filed on the date of the original pleading. Such a situation might arise, for
example, if the statute of limitations on some claim or defense asserted for the
first time in the amendment expired at some point after the original pleading but
before the amendment.
In such a situation, the amending party will want the court to treat the
amendment as though the party had included it in the original pleading (the
timely pleading). The court will only treat an amendment as though the
amending party included it in the original pleading if the amendment “relates
back.”
An amendment relates back, according to Rule 15(c), under any of three

circumstances. First, if the law providing the relevant statute of limitations
allows relation back, the amendment relates back.
Second, if the amended pleading states a claim or defense that arises out of the
same conduct, transaction, or occurrence set out (or attempted to be) in the
original pleading, the amendment relates back. The concept of “same
transaction or occurrence,” is very prominent in Intro to Civil Litigation II, but for
now, we will let it suffice to say that claims or defenses arise from the same
conduct, transaction, or occurrence if the facts necessary for each overlap
significantly.
You will recall that supplemental jurisdiction requires the “same case or
controversy,” and that we test for that by looking for a common nucleus of
operative fact. The significant overlap that we are looking for when testing for
“same transaction or occurrence” is narrower than the “common nucleus” test –
that is, the claims must relate more closely than sharing a common nucleus for us
to say that they are part of the same transaction or occurrence.
The final set of circumstances under which an amended pleading relates back has
to do with situations in which the amendment seeks to change the party against
whom a claim is asserted or to change the name of an existing party. Under
those circumstances, the amendment must satisfy the “same transaction or
occurrence” test along with two other requirements: 1) the party to be named in
the amendment must have received, within 120 days of filing the action’s original
summons and complaint, enough notice of the action that it will not suffer
prejudice in defending itself on the merits; and 2) the party to be named in the
amendment knew or should have known that, if not for a mistake as to identity, it
would have been named in the original complaint.
F. Truth in Pleading
Rule 11 imposes a duty on counsel to sign any papers filed with the court, with
that signature representing counsel’s statement that all allegations and
arguments in the filed document are not frivolous. Further, counsel represents
that the statements in the document currently or potentially have evidentiary
support, and that counsel is not filing the document or stating anything for an
improper purpose.
Rule 11 only covers documents filed in the course of litigation in federal district
courts. It does not cover appellate-level litigation; rather, Rule 38 of the Federal
Rules of Appellate Procedure does. Parties file notices of appeal, however, in
district court, so a Rule 11 violation may occur in the notice of appeal. Becker v.
Montgomery, 532 U.S. 757 (2001).
Rule 11 also does not govern pleadings filed in state court when the defendant
removes the action to federal court. This fact means that a party who fails to
update or amend a pleading filed in state court to bring it into compliance with
Rule 11 does not automatically become a Rule 11 violator. See, e.g., Bisciglia v.
Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223 (7th Cir. 1995). Documents filed in
the federal district court after removal, however, are subject to Rule 11.
Rule 11 requires four specific representations:
1. Counsel is not filing the document for any improper purpose (harassment,
undue delay, or unnecessarily increasing the cost of litigation);
2. Existing law or nonfrivolous arguments for extending or changing existing
law support the document’s legal arguments;
3. Currently-held evidence supports the document’s factual allegations, or
further investigation is likely to yield evidence that will support them; and
4. Counsel filed the document only after reasonably inquiring as to the factual
and legal representations made therein.
A party or attorney may find itself sanctioned for violating Rule 11(a) or 11(b).
Violating Rule 11(a) by failing to sign the document filed with the court carries a
sanction of having the court strike the document unless the party or attorney
promptly corrects the failure to sign.
A party believing that the opposition has filed a document in violation of Rule
11(b) may move the court for sanctions against the opposing party or counsel. 9
Parties must file motions for Rule 11 sanctions separately from other motions,
and must allege the specific violation. Parties must serve motions for Rule 11
violations, and then wait 21 days for the challenged party to correct or withdraw
the challenged filing, before the challenging party files the motion for sanctions
with the court. If the party files the motion with the court, the court has
discretion to decide whether sanctions are appropriate, and if so, what the
sanction(s) should be.
The court may also initiate the sanctioning process on its own (sua sponte). The
court may do so by ordering the party to show cause as to why it has not violated
9
Note that the motion for sanctions is itself a document that the attorney must sign and file with the court,
making it subject to Rule 11.
Rule 11, and the court is not required to afford the responding party any “safe
harbor,” as the party would have if the other party challenged it under Rule 11(c)
(2).
Sanctions are imposed not to compensate the other party for any harm or
inconvenience, if any, it suffered from the Rule 11 violation. Sanctions are
available, rather, to deter the offender, or others similarly situated, from
engaging in the conduct leading to the violation.
VI. Discovery
Rules 26-37 of the Federal Rules cover the discovery process. Remember that the
first and last of these (26 & 37) govern the entire process, and that the others
make up the litigator’s “discovery toolbox.”
A. Scope of Discovery
All information relevant to a claim or defense and that is not privileged is

discoverable. The information need not be admissible into evidence, nor does
discoverable information actually have to lead to admissible evidence. Relevant,
nonprivileged information need only “appear[s] reasonably calculated to lead to
the discovery of admissible evidence.” Rule 26(b)(1).
The court may broaden the scope of discovery even further, to include
information relevant to the action’s subject matter, upon a showing of good
cause. The court can also limit discovery if doing so is appropriate under Rule
26(b)(2).
B. Discovery Tools
1. Disclosures: information that each party must send the other Rule 26(a)
2. Depositions: pretrial oral or written testimony under oath Rules 27-32
3. Interrogatories: written questions from one party to the other Rule 33
4. Requests for production: method of compelling another party to turn
over documents or other tangible things or to allow entry onto land for
inspection, testing, or surveying Rule 34
5. Physical or mental examinations Rule 35
6. Requests for admission: compulsory admission or denial of specific

statements for use at trial Rule 36
C. Privilege
If material is subject to an evidentiary privilege, it is not discoverable despite its

relevance to a claim or defense. A party need not disclose such information,
whether as part of the required voluntary disclosures or as a matter of
compulsion under the other discovery rules. The applicable substantive law
defines the privileges that may exist; the most common include communication
between spouses, attorneys and clients, and doctors and patients.
Keep in mind that privilege protects the communication, but not the underlying
facts.
D. Work Product Doctrine
Trial preparation materials, or work product, also receive protection from

discovery. To determine whether material qualifies for this protection, you must
determine whether it was prepared in anticipation of litigation or trial by or for a
party or a party representative. Rule 26(b)(3).
A party can overcome work product protection and discover the information if
the party can show substantial need for the material and that obtaining the
equivalent is impossible without undue hardship. Rule 26(b)(3) expressly protects
“documents and tangible things” as work product; the leading case, Hickman v.
Taylor, 329 U.S. 495 (1947), also protects intangibles.

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Introduction to Civil Procedure Packet

I. Civil Litigation Basics, Generally

Rule 4 allows a federal plaintiff to serve the complaint in a manner consistent

provides for various methods of enforcing judgments; e.g., seizing money in a

II. Personal Jurisdiction

One of the earliest theories of personal jurisdiction, the territorial theory,

An in rem judgment, however, could not operate as a binding judgment against

One nuanced aspect of in rem jurisdiction developed from the practice of

Consider the following to illustrate the distinctions between in personam, in rem,

Gerald’s personal jurisdiction options with respect to Michael are, of course,

A summary of the different forms and purposes of traditional personal

Type of Court Reason for What is Extent of

Type of Court Reason for What is Extent of

Pennoyer v. Neff: Traditional Theory’s Apex

Everybody seems to have a Pennoyer v. Neff story. My own favorite

One such idler, his appearance more appropriate to a Dickens novel

I was somewhat impressed by the boldness of this addition, but

Pennoyer v. Neff, by God!” He then proceeded to shout, precisely,

As mentioned earlier, the territorial theory of personal jurisdiction was prominent

Oregon law provided for service of process by publication if a defendant’s

John H. Mitchell was an interesting character. Known as John Hipple (probably

Neff, remember, relocated to California while attempting to secure the Oregon

We can describe these requirements as “power” and “notice.” Due process

We will highlight a few of the problems that emerged from application of

counterclaim was dismissed and Pennoyer’s defense of the damage

Following the litigation, Neff disappeared into obscurity; not so

The Daily Oregon Statesman reported that the Senate adjourned

Traditional theory, as discussed above, is a very formal, categorical approach to

1. the defendant was a citizen or resident of the state;

Also, as discussed above, traditional theory viewed personal jurisdiction’s

As the 20th Century progressed, the incompatibility between traditional theory

International Shoe represents a watershed moment in personal jurisdiction

Consider the diagram below:

In addition to possessing minimum contacts with a defendant, a forum’s exercise

1. the defendant’s burden of litigating in the forum;

2. the forum’s interest in adjudicating the dispute;

3. the plaintiff’s interest in efficient relief;

4. the effect on the judicial system’s efficiency; and

5. concerns of social policy.

Personal jurisdiction has to satisfy both tests (minimum contacts and

C. Effect of State Law

Condensing all of the above provides a general view of whether personal

1. The defendant waived its jurisdictional objection under Rule 12(h)(1);

Even if the plaintiff’s chosen venue is appropriate, a defendant can seek to

IV. Subject Matter Jurisdiction

Subject matter jurisdiction is a court’s power to hear particular claims. Subject

A. Original federal jurisdiction

Under § 1331 (“federal question jurisdiction”), federal courts have original

B. Supplemental federal jurisdiction

Sometimes, a claim may satisfy the requirements for supplemental jurisdiction,

In these cases, § 1367(b) withdraws supplemental jurisdiction if the supplemental

Each pleading performs a certain function.

Complaints state the pleader’s (the “Plaintiff” for a regular complaint; a

Answers state a defending party’s opposition to a complaint, counterclaim,

Counterclaims are, functionally, complaints. They appear in Answers and set

Crossclaims are specialized complaints in which a party states a claim against a

 the pleader’s access, pre-discovery, to the facts, In re Rockefeller Center

How the particularity requirement in Rule 9(b) is or will be distinguished

If a party wishes to amend a pleading, but is outside of the limited circumstances