Civ Pro

Ford- To have the requisite connection for specific jurisdiction, the cause of action must either


  1. Arise out of the forum contacts- be caused by them OR

  2. Relate to the forum contacts- something less than causation (but not entirely clear what)



Shaffer- Must apply “minimum contacts” test to In Rem Cases: Meaning


  • Quasi in rem- Most impacted; look like in personam cases


“Tag” still sufficient for in personam jurisdiction over an individual-no minimum contacts analysis required.



-Gen jurisdiction analysis after Burnham


  • In personam (over persons)

- Min contacts: Intl Shoe


-Specific jurisdiction

  1. Purposeful availment



Finishing up PJ: Consent to jurisdiction


  • Ways to consent PJ

  1.  Voluntary general appearance

  1. By contact via agreement of forum selection clause

  2. Litigation conduct (Ex. filing suit in that court, failing to comply with court order and being sanctioned)

  3. Appointing an agent for service of process in the forum state (Ex. registration statutes)

(All states now require statutes)(registration statutes can require gen. PJ)

Exam takeaway: Appointing agent for service of process still valid basis for consent to PJ, scope of consent under registration statutes can vary by states.



-Personal jurisdiction and the internet


Rule: “Internet based contacts do not give rise to any particularly expansive or special minimum contacts test.” 



-State statutory limits on Personal Jurisdiction


Long arm statutes: State statute setting out the extent of personal jurisdiction that courts in that state are authorized to exercise.


(Cannot exceed constitutional boundaries, but CAN be more restrictive than constitutional boundaries)



  • All states allow in personam jurisdiction when:

  1. Defendant is domiciled in state

  2. Defendant is personally served with process in the state


  • All other situations- States vary, with long arm statutes falling into 3 categories


1.Explicit full extent of due process (Ex. California)

2. Detailed (Ex. Georgia)

And 3. Hidden full extent of due process (Ex. Oklahoma. Note, 1 pg. 211)



In rem- Property in state and attached PLUS minimum contacts



PJ in Fed. Court


Pennoyer- 14th amendment “no state shall deprive any person of life, liberty or property without due process of law” (restrictions on state powers)


Due process clause of 5th amendment same as 14th amendment


Hence, PJ analysis the same in Federal and State court



Personal Jurisdiction in Fed Court

FRCP 4(k)

  1. In general serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant

  1. Who is subject to the jurisdiction of a court of gen. Jurisdiciton in state where the fed. Dis. Court is located.



Challenging Personal Jurisdiction


-Personal jurisdiction is personal right that is waivable, if we don’t raise challenge to personal jurisdiction at right time or right way we waive 



Two types of attacks on court’s PJ


  1. Direct attack: Two procedural mechanisms (depends on court)

  1. Motion to dismiss for lack of PJ (applies in Fed. Court and many state courts have similar procedural rules 


2. Collateral attack- challenging personal jurisdiction in a later proceeding seeking to enforce a default judgment (defendant cannot contest merits of first case-only challenge PJ)


Attorneys will almost always advise direct attack




Feb 18th


Subject Matter Jurisdiction


-Court needs both personal and subject matter jurisdiction to try case in that court


Subject matter: court’s authority to hear the particular type of case filed.

(which court system case can be filed in)(inv. States v. court systems)


  • State courts are courts of general subject matter jurisdiction- can hear any case (with few exceptions)

  • Fed courts are courts of limited subject matter jurisdiction- Can ONLY hear certain kinds of cases authorized by constitution and fed. Statutes



-State courts and gen. Subject matter jurisdiction


  • States vary in how they divide SMJ among their courts

  1. Types of case (probate, family, criminal)

  2. Amount in controversy = amount of money plaintiff is seeking to recover


  • State courts general SMJ is in aggregate (at least one state court can hear every case)


Narrow exception: Cases over which federal courts have “exclusive jurisdiction” (patent, copyright, bankruptcy) (cannot try in state courts)


-With exception of exclusive jurisdiction cases, all cases that can be filed in fed. Court can also be filed in state court- concurrent jurisdiction



Fed courts and limites SMJ


-Constitutional grants of Fed. SMJ


The judicial power shall extend to all cases, arising under this constitution

Two categories of Fed. SMJ

  1. Fed question jurisdiction- “arising under the constitution and the laws of the U.S.”

  2. Diversity of citizenship and alienage jurisdiction

-Between citizens of different states

-between a state or the citizen thereof and foreign states, citizens or subjects.



Plaintiff’s burden to establish federal SMJ


-Presumption against federal SMJ- plaintiff has burden to plead and prove


FRCP 8(A)(1)- Plaintiff’s pleading “must contain a short and plain statement of the grounds for the court’s jurisdiction.


Parties cannot consent to or waive subject matter jurisdiction- lack of subject matter jurisdiction can be raised at any time by parties or court.




-Diversity of Citizenship and Alienage Jurisdiction


U.S. Cons. Art. III Section 2:


-The judicial powers shall extend to all cases between citizens of different states and between a state, or the citizen thereof and foreign states, citizens or subjects


28 U.S.C.


-The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 75,000 exclusive of interest and costs and is between-

  1. Citizens of different states

  2. Citizens of a state and citizens or subjects of a foreign state, except that the district court shall not have original jurisdiction under this subsection of an action between citizens of a state and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the U.S. and are domiciled in the same state

  3. Citizens of different states and in which citizens or subjects of a foreign state are additional parties


No plaintiff shares diversity with any defendant


Statute- Complete diversity


Art. III Cons- Minimal diversity, at least one plaintiff has different citizenship from at least one defendant




-Determining citizenship of individuals


To be citizen of U.S. state under SS 1332 an individual must be

  1. A citizen of the U.S. AND

  2. A domiciliary of that state


“Domicile”- person’s “true, fixed and permanent home and principal establishment and which he has the intention of returning whenever he is absent therefrom.”


  • In other words, where the person 1. Resides and 2. Intends to remain indefinitely


-A person changes their domicile by

  1. Residing in a different state

  2. Has the intention to remain there indefinitely 



-No alienage jurisdiction between citizen of state and foreign state who is both

  1. Lawfully admitted for permanent resident in state

  2. Domiciled in the same state



Citizenship is determined at the time the complaint is filed and jurisdiction is unaffected by subsequent changes in citizenship.



Expatriate = U.S. Citizen domiciled abroad


SS 1332, an Expatriate cannot sue or be sued in fed. Court under diversity jurisdiction.



-The amount in controversy is determined by the amount claimed by the plaintiff in “Good faith.”


A person cannot have more than one domicile


-People in D.C. and Puerto Rico treated as citizens of state.



Feb 20th


SMJ- Court’s authority to hear the particular type of case filed


-Two categories of federal SMJ

  1. Diversity and alienage 

  2. Fed. Question jurisdiction



Diversity of Citizenship Jurisdiction:

  1. Suit between citizens of different states, requires complete diversity (no plaintiff shares citizenship with any defendant)      AND

  2. Amount in controversy greater than 75k, determined by plaintiff good faith allegations


Citizenship is determined when a complaint is filed.




-Determining Citizenship of Entities


Citizenship of Entities: Two relevant categories


  1. Corporations

  2. Unincorporated associations (LLC’s, companies, partnerships joint ventures etc..)



-Citizenships of corporations

28 USC (1)- “Corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the state where it has principal place of business. 


-No such thing as business domicile, only person can have a domicile



“To consider a case not properly within the jurisdiction of the Federal courts, it is not simply wrong but indeed an unconstitutional invasion of the powers reserved to states.”



Removal= Procedure allowing defendant to move a case filed in state court to fed. Court IF there is federal subject matter jurisdiction.



-Corporations principal place of business is “nerve center.”


Nerve Center- the place where the corporation’s high level officers direct, control and coordinate the corporations activity’s, typically corporation’s headquarters.

(Corporation can only have ONE nerve center and therefore only one principal place of business)



-Citizenships of unincorporated associations (not yet defined by congress)


Courts have determined: An unincorporated association is a citizen of all states of which its members or partners are citizens.


  • Individuals are citizen of their state of domicile

  • Corporation is citizen of its state of incorporation and principal place of business



Limited liability companies are citizens of every state of which any member is a citizen.


-Just citizenship of members is important for unincorporated associations




-Representative Suits and Assignment of Claims


28 USC 1359

“A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise has been improperly or collusively made or joined to invoke the jurisdiction of such court.”

(If collusion, court will only look at citizenship of Assignor)



-Representative Suits


28 USC 1332

“The legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same state as the infant or incompetent. 







-Domestic relations and Probate Exceptions


Even if there is complete diversity and the amount in controversy exceeds 75k a fed. Court cannot exercise diversity or alienage jurisdiction over


  1. Domestic relations cases- those involving issuance of divorce, alimony or child custody decree OR

  2. Probate cases- those involving the probate of wills or the administration of an estate



Amount in controversy requirement-


-Amount has to be in excess of 75k for alienage or diversity of jurisdiction


-Amount in controversy is determined by the amount claimed by the plaintiff in “good faith” 

(Challenging defendant must show to a legal certainty that the claim is for less than jurisdictional amount >75k)


28 USC SS 1332

“Except when express provision thereof is otherwise made in a statute of the US, where the plaintiff who files the case originally in the federal courts is finally adjudged to be entitled to recover less than the sum or value of 75k, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition , may impose costs on the plaintiff.



-Aggregation of claim amounts to satisfy the amount in controversy requirement 

  1. A single plaintiff may combine all of their claims against a single defendant, EVEN IF they are unrelated

  2. Multiple plaintiffs MAY NOT combine their claims even if they are related.

(Exception-if multiple plaintiffs have a common, undivided interest JOINT OWNERSHIP)

  1. A single plaintiff MAY NOT combine their claims against multiple defendants

(Exception- if the defendants are jointly liable for the same damages)



  • For Equitable Claims- AIC is met if EITHER of the following is greater than 75k

  1. Harm to the plaintiff (cost to plaintiff if equitable relief NOT granted)

  2. Cost to defendant of complying with equitable relief


Feb 25


Subject Matter-Federal Question Jurisdiction



US Cons. Art. 3 Sec. 2


“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the US and the treaties made, or which shall be made, under this authority.”


28 U.S.C SS 1331:


“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the U.S.”


-Two key requirements for Fed. Question Jurisdiction

  1. Well pleaded complaint- A suit arises under the Constitution and laws of the US only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that constitution.


-Not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution



SCOTUS Appeals from State Court-

28 U.S.C. ss 1257


  1. Final judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the Supreme Court by Writ of Cert where the validity of a treaty of statute of the U.S. is drawn in question or where the validity of a statute of any state is drawn in question



-Declaratory Judgment Cases


Declaratory judgment claim- request for a court order declaring the parties’ rights  (usually one party anticipating a lawsuit and filing first)


Fed. Declaratory Judgment Act 28 U.S.C. ss 2201- allows these claims in fed. Court (Not itself a basis for SMJ)


-Court has SMJ if the coercive action underlying the declaratory judgment claim would invoke SMJ (either Fed. question or diversity/alienage)



Centrality of the Fed. Issue


Centrality Requirement- Is the federal issue raised in the well-pleaded complaint central enough to the dispute?



-American Well Works- “Holmes Test” - suit arises under the law that created the cause of action.


-Smith v. Kansas City Title & Trust Co- “where it appears from the complaint that the right to relief depends upon the construction or application of the constitution or laws of the US, and that such federal claim rests upon a reasonable foundation, the District Court has jurisdiction.”




Feb 27


There is Fed Question jurisdiction over a state-law claim with an embedded federal issue IF federal law is:

  1. Necessarily raised

  2. Actually disputed

  3. Substantial AND..

-Focuses on whether issue is important to federal gov., not case

  1. Capable of resolution in federal court without disrupting the federal-state balance that is approved by congress. 

-Merrell Dow- negligence per se cases will never satisfy this requirement



SS1331- Fed. Courts have subject matter jurisdiction over cases “arising under” the Constitution or Fed. law- two requirements (need both for jurisdiction)


  1. Satisfied well pleaded complaint rule- plaintiffs cause of action must raise a federal issue



-Supplemental Jurisdiction


  • Allows the federal court to hear the state law claim despite the lack of federal SMJ, but ONLY IF the federal and state claims are so closely related as to constitute part of the same case or controversy under Art III.




-Removal & Remand


Removal- procedure allowing defendant to move a case filed in state court to federal court IF there is federal SMJ.


Reasons a party may want a federal forum

  • Avoid local bias (diversity/alienage)

  • Benefit from fed. Court expertise on fed. Issues (fed. questions)

  • Prefer unelected art. III judges over elected state judges

  • Prefer or are more familiar with fed. Court procedures

  • Prefer Fed. court jury (from a wider geographic area) over state court jury.



28 USC ss 1441


  1. Generally…

“Except as otherwise expressly provided by Act of Congress, any civil action brought in a state court of which the district courts of the U.S. have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the US for the district court and division embracing the place where such action is pending.



USC 1444

  1. Removal based on Diversity of Citizenship (alienage/diversity)

“A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) (diversity/alienage) of this title may not be removed if any of the parties in interest are from the forum state”



USC 1446

  1. Generally…

  • Defendant has to file notice of removal within 30 days of receiving the complaint

  • All defendants must be joined in court and consent to removal

  • Each defendant shall have 30 days after receipt by or service on the defendant of the initial pleading or summons described in paragraph 1 to file the notice of removal.

  • If defendants are served at different times and later served defendant filed a notice of removal, any earlier served defendant may consent to the removal even though their case removal period may have expired.



-Remand= Essentially the opposite of removal


Remand- order by the fed. Court sending the case back to state court

  • Plaintiff can move for remand or court can raise on its own


28 USC ss 1447


“Motion to remand the case on basis of any defend other than lack of SMJ, be made within 30 days after the filing of the notice of removal under 1447. If at any time before final judgment it appears that the district court lacks SMJ the case shall be remanded.”



-Challenging Federal SMJ


  • Methods to challenge SMJ

  1. Filing rule, motion to dismiss on lack of SMJ FRCP 12B

  2. Filing motion to remand under ss1447


  • Either can be done at any time, including on appeal

  • FRCP 12 b(3)- If the court determined at any time that it lacks SMJ, the court must dismiss the action

  • Court can also raise lack of SM Sue Sponte at any time.