Forum Selection & Law Selection

Picking the right court

What three requirements must be met for any court to hear a case?

(1) personal jdx over the defendant;

(2) subject matter jdx over the claim; and

(3) proper venue

What two requirements must be met for any court to have personal jdx over a defendant?

(1) a state long arm statute that authorizes the federal court to exercise personal jdx; and

(2) the exercise of personal jdx must be constitutional

When is personal jdx constitutional? And what two types of personal jdx satisfy this constitutional requirement?

Personal jdx is constitutional if the defendant has such minimum contacts with the forum state that the exercise of personal jdx would not offend traditional notions of fair play and substantial justice. The exercise of jdx is constitutional if the court has either over the defendant: (1) general jdx or (2) specific jdx.

When does a court have general jdx over a defendant?

A court has general jurisdiction if the defendant’s contacts are so continuous and systematic that he is essentially considered at home in the forum state.

Where is an individual considered at home for purposes of general jdx?

An individual is considered at home where he is domiciled. That is, where he is present and intends to permanently reside.

Where is a corporation considered at home for purposes of general jdx?

A corporation is considered at home in any state where it is incorporated and the state where its principal place of business is, which is where its high-level officials make the important business decisions.

Other than the contacts analysis, how else can a court constitutionally exercise personal jdx over a defendant?

(1) defendant is present in the state when served with process;

(2) defendant consents to personal jdx; or

(3) XXX

What factors are assessed to determine whether a court has specific jdx over a defendant?

(1) contacts;

(2) relatedness; and

(3) fairness

What two requirements must be shown to prove contacts for purposes of specific jdx?

Defendant must have purposefully availed himself of the forum state and it must have been foreseeable that he could be haled into suit there.

What must be shown to prove relatedness for purposes of specific jdx?

Plaintiff’s claim must be related to defendant’s minimum contacts with the forum state.

To determine whether it is fair to exercise specific personal jdx, the court looks at what factors?

(1) burden on the defendant;

(2) burden on witnesses;

(3) plaintiff’s interest; and

(4) state’s interest

What documents must be served on the defendants for service of process to be valid?

Complaint and summons

Who can serve process?

Anyone who is not a party to the lawsuit and is at least 18 years old.

When should process be served? and what must be shown to extend the time?

Process must ordinarily be served within 90 days of filing of the complaint. This deadline may be extended upon showing good cause.

What are the acceptable forms of service on an individual under federal law?

(1) personal service;

(2) service at the defendant’s abode on someone of suitable age who lives there;

(3) service on an authorized agent; or

(4) service by any method authorized under the state’s law.

How should process be served on an organization?

(1) delivering to an officer or a managing or general agent; or

(2) using any method permitted by the state’s law.

How should service be made on a minor or incompetent?

Service on a minor or incompetent should be made in accordance with the state’s laws. Hwo

How should service be made on parties in a foreign country?

Service on parties in a foreign country should be made in accordance with international agreement. If there is no agreement, then by any of the following: (1) as directed by the US court; (2) method authorized by the foreign country; (3) method directed by a foreign official in response to a letter rogatory from a US court; (4) personal service unless prohibited by the country’s laws; or (5) mail sent by the clerk of the US court unless prohibited by the country’s laws.

How should a plaintiff go about requesting waiver of service?

Plaintiff must mail the defendant a copy of the complaint and two copies of the waiver form, with prepaid means of returning the form.

How long does a defendant have to return the service waiver?

30 days if in the US; 60 days if outside of the US

When does the waiver become effective?

The waiver becomes effective when the plaintiff' filed the waiver in court.

What is the penalty for failing to waive service if waiver was requested?

If a defendant fails to waive service, the defendant must pay for the costs of formal service unless good cause is shown for failing to waive.

What types of claims can a state court not hear?

(1) patent infringement;

(2) bankruptcy;

(3) some federal securities; and

(4) anti-trust claims

What are the three ways a federal court can have subject matter jdx over a claim?

(1) federal question;

(2) diversity citizenship; or

(3) supplemental

What are the requirements of diversity citizenship jdx?

A court may exercise diversity citizenship over a claim if: (1) the amount in controversy exceeds $75 based on plaintiff’s good faith allegations in the complaint; and (2) the parties are completely diverse.

What must be shown for the parties to be completely diverse for purposes of diversity citizenship jurisdiction?

Every defendant must have a different citizenship from every plaintiff.

When is citizenship determined?

At the time the complaint is filed.

How is citizenship of an individual determined for purposes of diversity citizenship?

An individuals citizenship is where they are domiciled. A person’s domicile is where they are present and intend to permanently reside.

How is citizenship of a corporation determined for purposes of diversity citizenship?

A corporations citizenship is any state where the corporation is incorporated and the state where its principal place of business is located, which is where its high level officers make the controlling business decisions.

How is the citizenship of an unincorporated organization determined?

The citizenship of an unincorporated organization is determined by the citizenship of its individual members.

How is the citizenship of a decedent, minor, or incompetent determined for purposes of diversity citizenship?

Even thought a representative brings the claim on behalf of a decedent, minor, or incompetent, the citizenship is based on the individual being represented.

How is citizenship of a class action determined for purposes of diversity citizenship?

Citizenship of a class action is based on the citizenship of each individual class representative.

When may multiple claims be aggregated to meet the amount in controversy requirement?

(1) any claims, even unrelated, of a single plaintiff against a single defendant;

(2) claims by multiple plaintiffs against a single defendant if the claims are based on a single right; or

(3) claims by a single plaintiff against multiple defendants if the defendants are jointly liable.

How is the amount in controversy requirement determined for equitable claims?

Courts look at either the plaintiff’s or the defendant’s viewpoint. That is, if the relief is granted, is the value to plaintiff or the cost to defendant more than $75k.

What cases may a federal court never hear?

(1) divorce;

(2) alimony;

(3) child custody; or

(4) probate

When does a federal court have federal question jdx over a claim?

A court has federal question jdx over a claim if the claim arises under the laws, treatises, or constitution of the united states. The federal question must be asserted in plaintiff’s well-pleaded complaint; it cannot be based on some anticipated defense.

As a general rule, when can a case be removed to federal court?

As a general rule, a case can be removed to federal court if the case could have been originally filed in federal court.

What must a defendant do procedurally to remove a case to federal court?

To remove a case, the defendant must file a notice of removal in federal court no later than 30 days after service of the paper that shows the case is removable. The defendant must serve a copy of the notice of removal on all adverse parties and file a copy in state court.

What if there are multiple defendants, what additional step must be done to remove the case?

If there are multiple defendant, all defendants join the removal. The parties need not join in one document.

If there are multiple defendant and defendants are served at different times, when does the time to remove trigger?

If there are multiple defendants and defendants are served at different times, only one defendant must timely remove the case within 30 days. The other defendants, even if their time for removal have expired, may still join the timely removed defendant.

What are the limitations for removing a case to federal court? And what types of cases do they apply to?

The limitations only apply to cases removed solely on the basis of jurisdiction. In such cases, a case cannot be removed if: (1) any of the defendants is a citizen of the forum state; or (2) more than a year after the case was filed unless the delay was due to plaintiff’s bad faith. H

How is venue determined in removal cases?

Venue is proper in a federal court that embraces the state court in which the case was initially filed. The ordinary venue statutes do not apply.

When must a motion for remand be made to be proper?

A motion for remand must be made within 30 days of the notice of removal, except when the remand is due to lack of subject matter jdx.

What generally is required for a federal court to have supplemental jdx over a claim?

A court may exercise supplemental jdx over a claim if: (1) there is a claim in which the court has federal question or diversity citizenship jdx over; and (2) the supplemental claim shares a common nucleus of operative facts with the claim that satisfied smj.

What are the limitations to supplemental jdx? And what types of cases do they apply to?

The limitations on supplemental jdx only apply to cases that got into federal court based solely on diversity citizenship. If a federal court sits in diversity, plaintiffs cannot assert supplemental jdx unless the there are multiple plaintiffs and one plaintiff’s cannot satisfy the amount in controversy requirement.

Can a court decline to exercise supplemental jdx over a claim that satisfies the general test? If so, in what circumstances would a court decline supplemental jdx over a claim?

Yes, in the following circumstances:

(1) state law claim is complex or novel;

(2) state law issues would predominate over federal ones; or

(3) if the claim in which got the case into federal under SMJ is dismissed early in the case.

When could an Erie analysis be triggered?

The case is in federal court based on diversity citizenship jdx. If the case is based on federal question, no Erie analysis is required.

What is the first step of an Erie analysis?

Determine whether there is a federal law on point that directly conflicts with state law. If yes, the federal law should be applied based on the supremacy clause, and the analysis ends.

What is the second step to an Erie analysis?

If there is no federal law directly on point that conflicts with state law, the court should apply state law on substantive issues and federal law on procedural issues.

What types of laws are always considered substantive as it relates to Erie?

(1) choice of law rules;

(2) elements of a claim or defense;

(3) statute of limitations;

(4) tolling of statute of limitations; and

(4) standards for granting a new trial because the jury award was excessive or inadequate.

If the law does not fall into one of the always substantive categories as it relates to the Erie doctrine, the court should consider what factors to determine whether the law is substantive or procedural?

(1) whether applying or ignoring the state rule would affect the outcome of the case;

(2) the state and federal interests in having its rule applied; and

(3) whether ignoring the state law would cause parties to forum shop to federal court.

What law should a federal court sitting in diversity apply to preclusion issues?

The federal court should apply federal common law, which incorporates state law. In other words, the federal court should apply state law.

Where is venue proper under the basic venue statutes?

Venue is proper: (1) in any district where a defendant resides if all defendants reside in that state; (2) where substantial amount of events giving rise to the claim occurred or substantial amount of property is located; or (3) if neither apply, any district where any defendant is subject to personal jdx.

How is venue determined in removal cases?

When a case is removed from state court to federal court, venue is proper in the federal court that embraces the state in which the suit was originally filed.

When does the ordinary venue statute rules apply?

Only when the case is initially filed in federal court.

How is an individual’s residence determined for purposes of venue?

An individual resides where he is domiciled. That is, where he is present and intends to permanently reside.

Where is a business’s residence determined for purposes of venue?

A business resides anywhere the business is subject to personal jdx for that case.

When can a case be transferred to an improper venue?

A case may be transferred to an improper venue only if: (1) the case was originally filed in a court with proper venue; (2) the parties consent to venue in the transferee court; and (3) the court finds good cause for the transfer.

When can a case be transferred from a proper venue to a proper venue?

If the original district is a proper venue, the court can order transfer to a proper venue, in the interest of justice, based on the convenience of the parties and the witnesses. In making this determination, the court should consider both public and private factors.

What are the public factors as it relates to transfer of venue?

(1) what law applies;

(2) what community should be burdened with jury service;

(3) the desire to keep the controversy local.

What are the private factors a court should consider for purposes of transfer of venue?

Convenience

What is the choice of law when the case is transferred to a proper venue?