Civ Pro Exam One

2 WAYS TO WAVE CONSENT

(1) Don't object on the outset of a lawsuit, in your pre-answer motion or in your answer default judgment doesn't work. (2) Consent by contract

Three threads of due process:

1: Defendant convenience 2: State interest 3: Purposeful Availment

Rule 12(b) Defenses (7)

1: Lack of subject-matter jurisdiction 2: Lack of personal 3: Improper venue 4: Insufficient process 5: Insufficient service of process 6: Failure to state a claim upon which relief can be granted 7: Failure to join a party under Rule 19

Daimler AG v. Bauman

Although MBUSA distributes cars to and maintains offices in California, MBUSA distributes cars to every state. The affiliations of MBUSA and Daimler with California are not so continuous and systematic as to render the companies at home in California ----Mb has no authority to or for Defendant

When is the third venue option available?

1: The case involves more than one defendant and the defendants do not all reside in the same state; AND 2: The events giving rise to the claim (or the property that's subject of the claim) occurred outside the U.S.

Contacts must:

1: be related 2: Not violate fair play and substantial justice

International Shoe Co. V. Washington

For a state to subject a nonresident defendant to in personam jurisdiction, due process requires that the defendant have certain minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

long arm statute

statutes authorizing courts to reach beyond their own borders. Jurisdictional arms. ---Under statute there is no separate problem of analyzing the coverage of the long-arm statute: if jurisdiction is constitutional, it is also authorized under the statute. ---Other states have long-arm statutes limiting jurisdiction to specified situations

None of the federal rules...

Deal with jurisdiction

Rule 12

Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

forum non conveniens

the right of a court to refuse to hear a case if it believes that justice would be better served if the trial were held in a different court ---State and federal

Bristol-Myers Squibb Co. v. Superior Court

Plavis not marketed in CA, didn't sell it there, nonresidents didn't claim they got it in CA. Appeals court-no general but specific jurisdiction maybe specific-flipped the two.

Defendant makes no pre-answer motion but answers the complaint, including in her answer a defense based on personal jurisdiction.

She hasn't waived it, but she needs to file.

Why couldn't there be a specific jurisdiction argument In Goodyear:

o Why couldn't specific jurisdictions be established-none of the relevantly 45,000 in N.C. had produced injury in France. IF ONE of the tires had cause the problem, it would've almost certainly been specific jurisdiction---none were related so they tried to argue general

Elements of *issue* preclusion (collateral estoppel)

o a final, valid judgment; o the same parties, plus others in privity with them [or at least the same party to be precluded, in jurisdictions where mutuality has been abandoned]; o an identical issue in the new claim; o the issue was actually litigated and determined;

Rule 4(e)(1)

permits P to serve D under the state service rules of the state in which the action is pending OR the state in which D is served.

General Jurisdiction

can hear any kind of claim between any persons unless there is legal authority saying that they cannot hear a particular kind of case. --Domicile/Corporation/Place of business -at home

If you challenge personal jurisdictionIf you don't fight personal jurisdiction, you can deal with it in a collateral attack---need to raise it early though. Bundle it

you can't try it again in a collateral attack, but you appeal--bundle it.

Twin Aims of Erie

· Discourage forum-shopping · avoidance of inequitable administration of the laws.

Convenience factor test (Five fairness factors)

• Burden on defendant "always the primary" • Forum state's interest • Plaintiff's interest • Interstate Efficiency interest • Interstate Policy Interest

Independent trucker, based in Ohio, who regularly hauls shoes from MO to WA, collides in WY with WA tourist, who sues in WA. Jurisdiction in WA? What two questions would want to know (based on International)?

• How many trips to Washington do you make to Washington? • Did the collision occur on one of those trips?

stream-of-commerce plus/Balancing test

• Need relationship to claim, • purposeful availment, • Stream of commerce---foreseeability of suit. • Stream of Commerce PLUS (stream of commerce is not enough) • Manifest intent to submit to sovereign.

State courts can transfer

only in states

When you move a case from state to federal court

venue is always proper in a federal court within the district the case was removed from.

Time After:

30-60 days

Choice of Law:

Burger King-contained such a clause-do provide the substantive law of a particular jurisdiction will govern disputes arising under the contract

A losing party appeals a judgment on the ground that it was not supported by the evidence.

Not barred by claim preclusion

Rule 4(k)(1)(A)

PJ of a federal court shall be the same as the court of a state in which the federal court is sitting.

Defendants under b1 must

Reside in the same state, depends on their citizenship

Rule 4: Summons (a)(b)(c)(d)

a: Contents, Amendments b: Issuance c: Service d: Waving Service

Rule 4 (c): Service

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. (3) By a Marshal or Someone Specially Appointed.

1391(b)(1)

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

Sliding Scale Test "Zippo"

•One end --D clearly does Internet business. If he does transactions repeatedly over the internet to a forum state, PS is proper . Other end: Simply posted information available to users of foreign jurisdiction. --- does not provide jurisdiction •Middle Ground: Interactive websites Exchange info with the host computer-exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchanged info occurring on the website.

1391 c-Residency

(1) a natural person, including an alien c admitted for permanent residence in the U.S. shall be deemed to reside in the judicial district in which that person is DOMICILED; (2) an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and (3) a defendant not resident in the U.S. may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.

P Corp., incorporated in DL with its headquarters in MD, sued D, a citizen of VA, living in EDVA and E Corp., a NY corp w/headquarters in EDNC (claim arose there). D wants case transferred to the EDVA. E Corp. doesn't want to litigate in VA. Can the case be transferred to the Eastern District of Virginia and why?

-No. Because the case could not have been brought originally in the Eastern District of Virginia. HAS TO BE A PLACE IT WOULD'VE BEEN FINE WITH

Contents of a summons

(A) name the court and the parties; (B) be directed to the D; (C) state the name and address of P's attorney or--if unrepresented--of P; (D) state the time within which D must appear and defend; (E) notify D that a failure to appear and defend will result in a default judgment against the D for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal.

Failure to waive

(A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

Mullane creates a REASONABLY CALCULATED to apprise interested parties so that they can appear

-Required: Reasonable efforts, watching his pennies -Not required: Doesn't require to get notice, just need to require reasonable notice. They don't actually need to know about my lawsuit.

Domicile

1. physical presence (however fleeting); AND 2. intent to remain (or lack of intent to go anywhere else).

Order of assertion:

1: Can you serve process in the state *if yes* 2: Is the Jurisdiction Constitutional? 3: Venue 4: Is it convenient

Pennoyer after Shaffer,

---Just property in the state alone is not enough, you need sufficient, related contacts. ---There WOULD be jurisdiction in Pennoyer with Shaffer, but in the contacts not the land.Fair warning you could be held in court.

Min contacts test and Sliding Scale

-Have to have min contacts that ARE RELATED TO THE CLAIM! Light contacts support jurisdiction only over claims related to those contacts "Specific jurisdiction" Heavy contacts support jurisdiction over unrelated claims "General jurisdiction"

28 USC § 1404. Change of Venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.C

Transfer of Venue Using 28 U.S.C. § 1406

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue. (Can dismiss-unlike above-and has to include improper forum)

Most important in determining jurisdiction?

-----Burden on defendant "always the primary" "traditional notions of fair play and substantial justice"-below test determines if it has been violated or not.

What did WWV say about minimum contacts (2 functions)

-convenience of the defendant. Inconvenient litigation is described in terms of "reasonableness" or "fairness" ---want to keep fair play and substantial justice -Sovereignty of the state.

The elements of claim preclusion are the following:

1) a final, valid judgment on the merits; 2) the same parties, plus others in privity with them; and 3) the entire claim, including all matters that were or should have been litigated

THREE CRITICAL POINTS ABOUT THE ERIE DOCTRINE

1,L Erie doctrine comes from both fed statutes and U.S. Supreme Court. 2, the Erie doctrine applies when the fed courts decide issues of state law. If you're not in federal court, the Erie doctrine does not apply. Similarly, if you're in federal court but the court is deciding only issues involving the U.S. Constitution, federal statutes, or other types of federal law, you don't have to worry about the Erie. 3: the basic Erie rule is that, when a federal court is deciding a state-law issue, it should use state substantive law and federal procedure. There's a special Erie doctrine test, which we'll get to, for distinguishing substantive and procedural law.

When does the Erie Doctrine apply? (3)

1: Comes from both fed statutes and SCOTUS decisions. 2: Applies when the fed courts decide issues of state law. If you're not in fed court, ERIE doesn't apply. If you're in federal court but the court is deciding only issues involving the Constitution, fed statutes, or other types of fed law, no Erie doctrine. Third, the basic Erie rule is that, when a federal court is deciding a state-law issue, it should use state substantive law and federal procedure.

Rule 4 (d): Waving Service

1: Requesting Waiver 2: Failure to Waive 3: time to answer after waiver 4: Result of Filing a Waiver 5: Jurisdiction and Venue Not waived

Rule 4(e) authorizes 5 different methods of service on individuals in the United States

1: means that P can serve an individual by following the service rules of the state in which the fed action is pending. 2. P can serve an individual by following the service rules of the state where service is made. 3. "delivering a copy of the summons and of the complaint to the individual personally." 4. "leaving a copy at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there." 5. Rule 4(e)(2)(C) authorizes service by "delivering a copy of [the summons and complaint] to an agent authorized by appointment or by law to receive service of process."

How many days to serve defendant under 4m

90. If longer court must extend the time for service for an appropriate period if the plaintiff shows good cause for failing to serve the defendant, but if the plaintiff doesn't show good cause then the court can either dismiss the action or order that service be made within a specified time.

Rules and Decisions Act

: We need to apply laws of the several states---when conflict is substantive

Piper Aircraft v. Reyno

A large proportion of the relevant evidence is located in Scotland and the court would have to apply two sets of laws if the case were tried in PA. The central purpose of a forum non conveniens inquiry is to ensure that the trial is convenient. A plaintiff may not defeat a motion to dismiss on grounds of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum.

Burnham v. Superior Court

A non-resident is properly served if he is physically present in the forum state, and the forum state may exercise personal jurisdiction over him without violating due process. ----TRANSIENT JURISDICITON

Goodyear Dunlop Tires Operations, S.A. v. Brown

A state court may not exercise general jurisdiction over a foreign subsidiary of a United States-based corporation unless it engages in continuous and systematic activities in the forum state.

Hanson v. Denckla

A state court may not exercise personal jurisdiction over a party located outside the state in which the case was filed unless the party has substantial contacts with the state. ---- Need "purposely avail oneself"

...action is again brought in the federal district court for the District of Mass. Herrick serves copies of the summons and complaint by having them delivered in hand to Daniel, Marlowe's service manager, at the garage. Is service proper?

Rule 4(e)(2)(B) only permit service on an agent "authorized by appointment or by law to receive service of process." Daniel may act generally for Marlowe in the shop, but this general authority to conduct his business is not the same as being specifically appt to receive service of process.

Burger King

Began to lose money, BK terminated relationship and brought suit in Florida, invoking federal diversity jurisdiction (choice of law clause) --By entering a long-term agreement with a corp known to be based in Florida, in a contract that called for the application of Florida law, and training in Florida-enough to warrant jurisdiction in Florida.

Gibbons v. Brown

Brown alleged as a basis for FL jurisdiction over Gibbons that Gibbons had subjected herself to the personal jurisdiction of Florida courts by bringing the prior lawsuit two years earlier. In order to acquire jurisdiction over a defendant under a long-arm statute, the plaintiff must allege sufficient jurisdictional facts within the coverage of the long-arm statute and must show sufficient minimum contacts with the state to satisfy due process---wasn't there in this case. Wasn't a current case, it wasn't enough.

Defendant files a 12(b)(6) motion, which is denied. He then files an answer, including lack of personal jurisdiction in the answer as an affirmative defense. Plaintiff moves to strike the personal jurisdiction defense under Rule 12(f). What result?

By making a Rule 12(b)(6) motion without including the 12(b)(2) defense, defendant waived his personal jurisdiction defense under 12(h)(1)(A). It does not matter that he later included the defense in his responsive pleading because he already lost the defense by omitting it from an earlier Rule 12 motion.

Rule 8: General Rules of Pleadings

Claim for Relief. A pleading that states a claim for relief must contain

Statute 1404

Codificiation of forum non conviens that allows for transfer in the interest of justice "ONLY FOR FEDERAL"

Rule 13

Counterclaim (A) (1) In general, a pleading must state as a counterclaim any claim that, at the time of its service-the pleader has against an opposing party if the claim: Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and Does not require adding another party over whom the court cannot acquire jurisdiction.

Calder Test (3)

Defendant's tortious acts can serve as a source of pj only when the plaintiff makes prima facie showing that defendants actions: • Were intentional • Were uniquely expressed/aimed at forum state • Caused harm, the brunt of which was suffered and which the defendant knew was likely to be suffered in the forum state.

P1 is a corporation, INC New York, PPB Maine P2 is a citizen of New Hampshire D is a corporation, INC Delaware, PPB Vermont (both states have one district) E is a corporation, INC Delaware, PPB Rhode Island (both states have one district). P1 and P2 want to sue D and E in federal court on a cause of action arising from an environmental incident at a plant in the Northern District of Ohio owned and operated by D (allegedly without safety precautions), due to actions by a delivery truck driven by an employee of E. In which district(s) would venue be proper under § 1391(b)(1)?

Delaware and the Northern District of Ohio

P is a citizen/domiciliary of Texas (living in Austin, the Western District or WDTX) D Corp. is INC in Delaware, with PPB in Houston, Texas (Southern District or SDTX) E Corp. is INC in Delaware, with PPB in Montana (only one district) P wants to sue D Corp. and E Corp. in federal court, alleging that D and E conspired to restrain trade, a violation of the federal antitrust laws. P alleges that the conspiracy was created in Houston and was aimed at P, who is a major competitor of D and E. Looking at § 1391(b) as a whole, what are the possible places where venue would be proper?

Delaware works because all defendants reside there. SDTX (Houston) is where the conspiracy was maintained so it satisfies § 1391(b)(2). And WDTX is the place at which the conspiracy was focused. That may satisfy both § 1391(b)(1) (both defendants subject to personal jurisdiction there) and (b)(2) (significant events occurred there).

Suppose P (lives in California) wishes to sue D Corp. (INC Del, PPB Nevada) [both Nevada and Delaware have one judicial district] on a claim arising from a tort that took place in Wyoming (also one judicial district). Under § 1391(b)(1), where would venue be proper?

Delaware, Nevada, and Wyoming. B. General jurisdiction exists where the corporation is incorporated and where it has its principal place of business. And specific jurisdiction exists where the tort occurred. Since there is only one defendant, any of those districts ought to be proper.

Reasonable anticipation test:

Didn't personally avail themselves-could not reasonably anticipate b/c they had not engaged in purposeful activity in the state. There are no contacts, ties or relationships ---Absence of 'affiliating circumstances' that are necessary predicate' • No activity, no sales, no services, gain no privileges, trying to base it on one isolated circumstance

The "interest of justice" standard is very similar to the standards used under §§ 1404(a) and 1406, except that

it does not expressly incorporate the convenience of parties and witnesses. Nevertheless, courts tend to use factors essentially like those used under the other transfer statutes to decide whether and where to transfer under § 1631.

Milliken v. Meyer

Extended general jurisdiction of their place of domicile

1441

File for removal --Need to refile to a federal court in the same district and division as the state court.

Thompson v. Greyhound Lines, Inc.

First, Alabama cannot be an appropriate venue under 1391 b(1), because not all the defendants reside in the same state. Second, Alabama cannot be an appropriate venue under 1391 b(2), because nothing that happened in Alabama contributed to the claims against Greyhound. 1391 b(2) does reveal an appropriate venue, so the court transferred the case to the Southern District of Mississippi pursuant to section 1404 (change of venue).

J. McIntyre Machinery, Ltd. v. Nicastro

For a defendant to be subject to a state's personal jurisdiction, it must purposefully avail itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. The Supreme Court held that because J. McIntyre never engaged in any activities in New Jersey that revealed an intent to invoke or benefit from the protection of the State's laws, New Jersey is without power to adjudge the company's rights and liabilities, and its exercise of jurisdiction would violate due process. action of the intermediary is not enough to constitute jurisdiction.

World-Wide Volkswagen Corp. v. Woodson

Foreseeability alone is not sufficient to authorize a state court's assertion of personal jurisdiction over a non-resident defendant that has no contacts, ties, or relations with the forum state.

Shaffer v. Heitner

Jurisdiction cannot be founded on property within a state unless there are sufficient contacts within the meaning of the test developed in International Shoe. ---Undid quasi in rem, "Fair warning"

Plaintiff is injured in a multi-car accident. After obtaining a judgment against Driver 1, he files a claim against Driver 2. Claim preclusion

No-unless it was in privy

R buys an Audi from FL car dealership. He drives it to IL, where he has an accident, and the driver's air bag fails to deploy, aggravating his injuries. R believes the dealership was negligent in preparing the air bag. He sues J in an IL state court, basing jurisdiction on the provision of IL's long-arm statute that authorizes jurisdiction if the defendant "commits a tortious act in IL."

Long-arm statute authorizes jurisdiction, but it would be unconstitutional for the court to require Jackson to defend this case in Illinois. NO purposeful avail.

Hanson in terms of International Shoe:

MGEE: Sold to Cali resident. FL--the money was going from Delaware to Florida. Did not sell to it, not purposefully valuable its. McGee stands for the assessment of inconvenience is relevant to the jurisdictional inquiry. Hanson shows convivence is not everything, but minimal contacts are still necessary.

Asahi Metal Industry Co. v. Superior Court

Minimum contacts sufficient to sustain jurisdiction are not satisfied simply by the placement of a product into the stream of commerce, coupled with awareness that the product would reach the forum state. ---Stream of commerce isn't enough

A corporation's principal place of business is usually its

its headquarters, or the place from which it directs, coordinates and controls the company.

D is a toy maker in NY. P is a FL citizen claims to have been seriously injured in FL by a toy made by D in NY and shipped to a store in FL. P has brought a diversity action against D, based on strict product liability, in the U.S. District Court FL. Assume that if the action had been brought in the Florida state courts, no Florida statute would have permitted P to serve process on D outside the boundaries of Florida. In the fed action, P caused a licensed process server to travel to NY, where the process server visited D's headquarters, and personally handed the summons and complaint to D's president. Does the fed court for the FL now have personal jurisdiction over D?

No. Normally, service in a fed court action (whether based on diversity or federal question) must either take place within the confines of the state where the fed court sits, or must be made out of state in a way that is expressly permitted by that state's own long-arm statute. (Exception for where Congress has allowed for nationwide service of process, and for the 100-mile bulge provision of Fed Rule 4(f), neither of which is applicable here.) Since the facts tell us that FL would not allow service on the NY corporation to be made in NY on these facts, and since D is not found within FL (as it would be if, say, it had its principal place of business there), the fed court may not take jurisdiction either.

In a federal court case, are there different venue rules depending upon whether subject matter jurisdiction is based on the existence of a federal question or diversity of citizenship/alienage?

No. Venue over any civil action is proper in any judicial district where: ---Any defendant resides (domicile), if all the defendants reside of the state in which the forum district is located; or ---A substantial part of the events giving rise to the claim occurred, or if the subject matter relates to property, where the property is located; or If neither 1 nor 2 work, then anywhere any D is subject to personal jurisdiction when the action commences, i.e., when the P files a complaint in federal court.

Mullane v. Central Hanover Bank & Trust Co.

Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ---There: Need to mail, you know where they are ---Not there: Newspaper is just as anything else.

Consent to Jurisdiction

Parties consent to suit in a particular place, thus waiving challenges to personal jurisdiction • National Equipment Rental. (Precedent)

Kyle, a citizen of Colorado, is a restaurant reviewer for Yelp.com. After visiting Guy's New York Diner, Kyle posted a review on Yelp accusing Guy of serving rancid horsemeat at the restaurant. Guy, the owner of the restaurant and resident of New York, sues Kyle in New York for defamation. When Kyle moves to dismiss for lack of personal jurisdiction, the court will:

Reject because the entire loss to Guy would be from potential dinners staying away from the New York restaurant, the case is directly analogous to Calder v. Jones, and distinguishable from the prior question about Bruce and Billy.

P is a citizen of Alaska D is a corporation, INC Delaware, PPB Southern District of New York (SDNY) E is a citizen of New York, residing permanently in Manhattan--the Southern District of New York F is a citizen of Canada, residing permanently in Montreal, Canada P wants to sue D, E, and F for a federal civil rights claim that arose in Manhattan (assume that F is an executive of D who was working temporarily in Manhattan and committed acts there relevant to the claim). In what districts would venue be proper under § 1391(b)(1)?

SDNY--where the tort arose.

Marvell brings a pro se diversity action against Donne for breach of contract. He serves Donne by having a copy of the complaint delivered to Donne personally at his summer home on Cape Cod, in Hyannis, Massachusetts. Is service proper?

Service is improper because Marvell has only delivered a copy of the complaint itself. Rule 4(c)(1) requires both the summons and the complaint to be served on the defendant.

National Assurance Corporation, an insurer, brings an action under the Federal Interpleader Act, 28 U.S.C. §1335, against a number of defendants, The action is brought in the federal district court for the District of Massachusetts. A special service statute, 28 U.S.C. §2361, applies to actions under the Interpleader Act. It authorizes service "addressed to and served by the United States marshals for the respective districts where the claimants reside or may be found." National's counsel serves process on Drayton, a co-owner of the building and one of the defendants, by mailing the summons and complaint, certified mail, return receipt requested, to Drayton at his home in Louisiana. Drayton has no contacts with Massachusetts.

Service: No Personal Jurisdiction: Maybe Ordinarily, this would be authorized by Fed. R. Civ. P. 4(e)(1), which allows use of state service methods. However, Rule 4(e) begins with the loaded caveat, "except as otherwise provided by federal law." Here, federal law provides otherwise: It requires service by the federal marshals. If a federal statute mandates another method of service, the methods in Rule 4(e) do not apply,

Atlantic Marine Construction Co. v. U.S. District Court

Should've argued the enforcement under 1404. ---This is a codification of forum non conveniens, and the previous court erred because unless there is a severe reason, you should always enforce the contract forum.

Assume that P is a citizen of New York (and lives in Manhattan, the Southern District of New York or SDNY) Assume that D is a citizen of California (and lives in Los Angeles, in the Central District of California or CDCal) Assume that E is a citizen of California (and lives in San Francisco, the Northern District of California or NDCal) Assume that F is a citizen of Nevada (which has only one district), who works full time in San Diego, California (in the Southern District of California or SDCal) P wants to sue D, E, and F in federal court based on a federal question. Using only § 1391(b)(1), and assuming that all parties are natural persons, in which district(s) is venue proper?

Since all defendants are not domiciled in the same state, § 1391(b)(1) does not give us any valid choice for venue here. (As we shall see, there are other possibilities under §§ 1391(b)(2) and (3), but that's not what the question asked.)

FEDERAL NON CONVENIENS:

Since federal courts are not bound by state lines, they can either dismiss or transfer cases that should be tried elsewhere. However, under 28 USC §1404, a case may be transferred only to a district in which the suit could have been brought in the first place. Federal courts also may dismiss actions under forum non conveniens when the actions should be prosecuted in a foreign country

STATE NON CONVENIENS:

Since the courts of one state have no power to transfer cases to other states, a court in one state may dismiss the action with the proviso that the defendant consent to jurisdiction in another state.

Rules Enabling Act

Supreme court shall have power to prescribe general rules... allows for general rules.

Requesting Waiver of service

THIS IS THE CHEAPEST OPTION FOR PLAINTIFF!!!!

Arbitration:

Takes disputes out of the hands of the judicial system and place them in an arbitration system largely beyond judicial review.

What's important when precluding a claim or issue?

That the plaintiff had the opportunity to litigate and that there's an opportunity for someone to do a better job on their own claim.

B is the VP of an IL company, Compu-Drive. She learns that Mercy Hospital, a major research facility in VA, is planning to contract w/Compu-Drive's main competitor, a VA company with its offices in VA. B calls Mercy's vice president for operations and shortcomings of MediSoft's products. Mercy backs out of agreement, and MediSoft sues B for interference with advantageous business relations. It sues in VA. B moves to dismiss for lack of personal jurisdiction.

The motion will likely be denied, because Boyarin's contacts suffice to support jurisdiction over her for this claim.

What is "venue"?

The place where a given action will be heard. Venue is an issue only after jurisdiction over the parties exists. ---is determined as of the time the action is filed (not the time when the claim arose). WHEN: either by FRCP 12(b) motion or in the D's answer. ---If venue is improper and D objects, remedy generally is to transfer the case to a court with proper venue, not to dismiss . 28 USC §1406. ---that state courts can transfer only in state; fed courts are not limited by state boundaries. A state court can, however, dismiss a case on the condition that the D agrees to jurisdiction in a proper venue elsewhere

28 U.S.C. § 1631

Transferring venue

Pennoyer v. Neff

Under the Due Process Clause, no person is subject to the jurisdiction of a court unless she voluntarily appears in the court, served within the state, or has property in the state that the court has attached. ----Notice=power(doesn't directly deal with notice

Defendant makes a pre-answer 12(b)(1) motion, which is denied; she then makes a 12(b)(2) motion.

Waived already, too early

12(b)(6) denial-defendant then files an answer containing both a defense on the merits and a 12(b)(2) defense, asserting no personal jurisdiction

Waived defense-didn't do it early enough and an answer doesn't count as

12(b)(6) denial-then does a motion to dismiss on jurisdiction

Waived, she didn't do it early enough. You need to do it with the initial filing-courts don't look kindly on this. (12gi)

Jurisdiction and Venue Not waived:

Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

Abdouch v. Lopez

Website was directed "at the entire world---" internet was not just for that area, so Nebraska didn't have jurisdiction.

McGee v. Int'l Life Ins. Co: 355 U.S. 220

When a state courts jurisdiction is based on a contract that has a substantial connection with another state, due process is satisfied. In other words, a state court can enforce a judgment from another state, if there are " minimum contacts" with their own state.

Result of Filing a Waiver

When the plaintiff files a waiver, proof of service is not required, and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

Do all defendants need to agree to removal?

Yes

When you make offending statements aboutt a company that causes them damages, can venue be in the plaintiff's state

Yes

"Judge" Crater is driving his car one night and broadsides a car driven by Misty O'Time. He realizes she's going to sue him and moves out of his house without telling any authority of his forwarding address. The process papers are served on the insurance company that carries Crater's car insurance. Will such service be constitutionally sufficient?

Yes, probably. The key is estoppel—Crater's own acts have made it impossible to serve him with process by any traditional means, e.g., personal service, registered mail, or papers left at dwelling. Thus, service on his insurance company—which would not otherwise suffice—will be valid for notice purposes.

General jurisdiction may be asserted for foreign corps to hear any against when

affiliations with state CONTINUOUS AND SYSTEMATIC to render them essentially at home in the forum state.

Rule 12b

allows a defense of lack of personal jurisdiction to be raised either by pre answer motion or as a part of the answer (if there has been no pre-answer motion)

A prevailing party files a second lawsuit to recover more damages than he was awarded by an earlier adjudication of the same claim.

barred by claim preclusion

Atlanta Precision Drill Corporation makes drill presses in GA. It sells them to several wholesale distributors, including Emporia Distributors in PA. It sells 500 drill presses to Emporia and agrees to give them a price rebate on any presses resold into MD, a state in which it has no distributor. Emporia resells five presses to Modern Tool and Die Co. in mD. A local machine shop buys one from Modern, and Edwards, an employee, is injured using it in MD. He sues Atlanta Precision in state court in MD for his injuries. Atlanta Precision has no other contacts in MD. After (Nicastro) the MD court will probably conclude that it

has jurisdiction over Atlanta Precision, because it has purposely engaged in conduct calculated to serve the market for its products in Maryland. ----It has not cast its products into the stream to flow wherever they will; it has encouraged their resale in Maryland by its price break to Emporia.

Rule 12(g)

if 12(b)(2)-12(b)(5) motions are not properly bundled together or included in an answer/allowable amendment to an answer, they are waived. Additionally, because 12(b)(1) motions are so fundamental, they may never be waived throughout the course of litigation, and 12(b)(6) and 12(b)(7) motions may be filed at any time until trial ends.

Semteck (hypo)

may grant the motion if the law of F1 considers statute of limitations to be substantive, extinguishing the plaintiff's rights.

Peter sues Denise in state court for a violation of the state antitrust law. Judgment is entered for Denise. Peter subsequently sues Denise in federal court for violation of the federal antitrust laws, which the federal courts have exclusive jurisdiction over. When Denise moves to dismiss Peter's claim on the basis of claim preclusion, the court will probably:

not preclude the claim because the state court did not have jurisdiction over the federal claim.

Carnival Cruise Lines v. Shute

o Whether court of appeals correctly refused to enforce a forums election clause contained in the ticket by petitioner. o Terms: The acceptance of this ticket by the person named as passengers shall be deemed to be an acceptance and agreement by each of them of all of the terms and conditions -It is agreed by and between the passenger and carrier that all disputes and matters in connection with the Contract shall be litigated before a court located in the State of Florida, to the exclusion of all the Courts.