Subject Matter Jurisdiction:

Can be asserted at any time; Never waived

12(h)3: Whenever it appears by suggestion of the parties or by the court that SMJ is lacking then the
court must dismiss if no SMJ

FEDERAL QUESTION
Article 3 Sec 2 and statutory laws (1331) govern whether a court has SMJ

Article 3, § 2 = all issues arising under the Constitution, laws and treatise of the United States

Arising Under = Entity only exists due to power granted by the federal government, even though
cause of action is on a state law contract/etc. claim

1331 = Federal courts have more interest, sympathy and knowledge of federal issues

Holmes test: arises under test

Smith Test = The primary issue that will decide the case is an application of a federal law, then
Federal Question

Merrell Dow = Add to Smith Test = The pivotal issue must not only relate to a federal question,
but the statute must also create a private right of action

Grable Test = Adds to Merrell and Smith Test = The claim must not create a stream of litigation
that upsets the balance between state and local power

Well-Pleaded Complaint = The federal question must appear on the face of the well-pleaded
complaint. The claim cannot arise out of a foreseeable defense

If dismissed due to any of the above (12(b)(1) – lack of SMJ dismissal), then:

Go to the right court – state court

If 12b6 – failure to state a claim upon which relief can be granted - dismissal, then there are no more
opportunities to litigate.

DIVERSITY JURISDICTION
Protect out-of-state plaintiff from bias in a state court

Sources are Article 3, § 2 and 1332 – original jurisdiction, 1441 –removal

Citizenship
 1st -- US Citizen = born, naturalized, or alien permanently residing; only one ( P or D)
must be a US Citizen. Other party can be alien without domicile in US

EXCEPTION: If P or D is US citizen but domiciled in foreign country, or P or D is

stateless

Citizen of state = must physically be present in state with the intent to stay
indefinitely

Complete Diversity = every P must be diverse from every D

EXCEPTION: MINIMAL DIVERSITY – in cases of interpleader(1335), there must

two diverse claimants (defendants) and the amount at issue must be greater than 500$;
happens when an entity has a thing that many people want to lay claim to such as a
bank account or insurance claim.

EXCEPTION 2: Class actions suits that are greater than 5 million, any member of
the class is citizen of a state different than D, WILL NOT WORK IF 2/3 rds of the P’s are
member of the same state of the D

Corporations: Citizenship (domiciled) in the state incorporated and the muscle test:
principle place of business; if inconclusive then incorporated and headquarters

Exception: unions and partnerships are domiciled in every place that a member or
partner resides.

To get diversity: P can move to new state; only intent matters not MOTIVE; Sell the
claim; NO DIVERSITY BY NAMING REPRESENTATIVE (1332c2)

AMOUNT IN CONTROVERSY

Must be greater than 75,000 (can not be equal to 75,000)

Tests: Claim is in good faith and legal certainty that amount of recovery will be greater than 75K

Aggregate and Tag Along: First, must be 1P v 1D

Single, indivisible harm = aggregate or tag along

If arising from same accident = OK under supplemental

If one claim >AIC and one claim less than = OK because court has never reversed

If mutual ownership, and combined amounts are greater than 75K, then ok
SUPPLEMENTAL JURISDICTION
1367a –CNOF? If same witnesses, accident

1367b –

REMOVAL JURISDICTION § 1441

Removal from state to federal court – OK – in diversity ALL the Def must be from different state
than forum. Removed to federal court embracing the action in which the claim was brought

Only D can remove, not the P

Territorial Jurisdiction – CAN BE WAIVED – must have BASIS and NOTICE!!!

In Personam – 5th and 14th admendments

Bases: Service, Domicile, Consent, Incorporation and Property

Minimum Contacts: International Shoe

Does not violate the notions of fair play and substantial justice: McGee

Puposefully avail to rights and privilege of the forum state

Constitutional limitations:

Specific or general jurisdiction: Helicopteros

Tests: sliding scale/all-or-nothing/But For – P’s claim would not arise but for the
D’s contacts with the forum

Does not offend the balance of power between states/Contacts more important
:Volkswagen

Family matters are separate from business matters: Kulko- sending his kid

Purposefully directed business to the forum, even though lesser contacts: Burger King

NOTE ADHESION CONTRACT: Gives power to the big guy, and is an issue in Carnival
Cruise’s choice of forum

Stream of commerce/Stream of commerce plus: Asahi

 SOC plus is when D design specifically for state, advertises in state, marketing
through dist. In state, or has customer service line for state purchases

Fairness Factors: State’s interest, P’s interest (convenience), D’s Burden, place of
evidence, necessity, AND (if D is a foreigner, then add this additional concern - interstate
interest in litigating the matter (all states or states surrounding the jurisdiction in question)

Advice – Do not settle because fairness test is more important when the P has received
their settlement vs. when the P has not

LONG-ARM STATUTES FOR STATES– states limited by 14th amendment

Cali-style (state follows constitutional limits in finding In Personam Jurisdiction) or

enumerated acts

Statutes provide for specific jurisdiction

IN PERSONAM FOR FEDERAL JURISDICTION – 4k

US District courts have long arm jurisdiction if any one of 5 elements are met

4k1A – uses traditional bases, then state court long-arm, then minimum contacts

4k1B- In Impleader or necessary joinder, the court can exercise jurisdiction within 100-
mile bulge of the US Dist. Court where the action is brought

4k1C – D’s subject to interpleader § 1335

4k1D – If FQ claim, does the person or corporation have minimum contacts with the US?

4k2 – when alien has minimum contacts with the US as a whole and violates some
federal statute, i.e. a FQ

INTERNET JURISDICTION

Not General Jurisdiction Issue

Think in terms of advertising in a magazine

Whether passive or interactive site – interactive if asks questions, allows order/buying, a

FAQ, user can search – extent of interactiveness will determine whether the site is interactive
and amenable to claims in the jurisdiction
PROPERTY BASED JURISDICTION

In Rem is far more limiting because court can only sever the D’s interest in the property,
but cannot offer monetary or equitable relief

Three Types of In-Rem

True In Rem – “Against all the world” – probate, imminent domain and forfeiture – No
one can claim the property after court renders decision

Quasi In-Rem – There are named parties and judgment only affects those names parties
and their rights to the property

Attachment – claim closely related to attached property or enforcing personal judgment

from another court(in which case the minimum contacts are irrelevant and not tested) or
attached property is land; the property is only used to gain jurisdiction over the D. Generally a
Personal claim against D (tort, contract). Prop must be in the state and attached at
commencement of suit

Attachment is useful in short long-arm statutes to expand the long-arm statute to gain
jurisdiction

Attached property will either be sold or given to P

Intangible property is in whatever state the entity does business

Limited appearance is allowed – allows D to dispute merits without court

gaining personal jurisdiction over the D

Shaffer CHANGES this; must be minimum contacts and traditional notions of fair
play and substantial justice – “ ALL assertions of state-court jurisdiction must satisfy minimum
contacts and traditional notions of fair pla and substantial justice”

Minimum contacts for Attachment are lessened because there is only a single
piece of property at stake

TRADITIONAL BASES (Consent, service, domicile, incorporation)

Service

Remember Shaffer says ALL require minimum contacts

Domicile
 Measured at the time complaint is filed for general jurisdiction and at time of act in specific
jurisdiction; usually fairness is met, only when the person is transient and moving from one place to
another might it not be fair

Consent and Waiver – notice that waiver cannot be applied to SMJ

General appearance acts as consent – special appearance allows to litigate the personal
jurisdiction of the court.

Statute provides for personal jurisdiction agreement for doing business in the state

In class action cases, must be notice, opportunity to be heard and opt-out option. If all are
given then consent is assumed and not all class members must ?????

Notice – constitutionally tied to basis

Notice must 1) be reasonably likely to reach affected 2) if not, then is method as good as any
other?

Types: personal service, certified mail, service by agent, court official, private process server

Email may be ok if “read” option is attached

Service of Process – The manner in which notice is given; a statutory construct

Makes judgment invalid if SoP is not proper (sometimes not, but for our class always)

Is a SUMMONS and a COMPLAINT

Can be made by sheriff, marshall or private process server giving to D

4e2 allows process to be served by leaving copy with person of suitable age and discretion who
resides in the dwellings

FEDERAL COURT SoP

RULE 4 –

4e – service can be made to all states and territories

4f – to a foreign country

4h1 – any corporation in US and 4h2- not in district of US

Only acts as jurisdictional basis if served within the forum state

Who can make? 4c – anyone not a party to the action and over 18
 Service can be by 4e1 – according to state laws

4e2 – personal service

4e3 – substituted service – by leaving the document with person of suitable age
and discretion who resides in the residence of the D

4d- by mail – D can waive service of process; notice, complaint and waiver are
mailed;

If waived, then 60 days to respond

If not waived, then 20 days to respond and D pays costs affecting service

Must return to waive service. No response means another method of

SoP must be selected and service is not yet valid

(ONLY THE ABOVE CONCERN FEDERAL SERVICE, NOW BACK TO THE SHOW)

SoP is not valid when D is lured into jurisdiction by fraud

Doctrine of Immunity:

Witness is immune while participating in judicial process

D (civil or criminal) is immune while participating in judicial proceedings

P: (MAJORITY) is immune; (MINORITY) is not immune because P is seeking the benefits and
protections of the state

D voluntarily enters the forum state and commits a crime while in the state, then not immune
from SoP

CHALLENGING JURISDICTION

PERSONAL

Default and Collateral – If default, then collateral attack on the personal jurisdiction but not the merits

Consider amount in litigation, inconvenience, merits of case, properness of

jurisdiction, differential costs (cost to go and litigate vs. do nothing)

Special Apperance – attack the PJ, but not the merits of the case.
 If PJ found, then; interlocutory appeal on jurisdiction (immediate), remain and litigate merits
and appeal jurisdiction in same forum state; No appeal if D stayed to litigate merits

Issue preclusion exists when special appearance is made. The D cannot later contest PJ
regardless of whether the issue was correctly or incorrectly decided

FEDERAL COURTS

Territorial jurisdiction must be applied during the first filing

12g/h state 12b2-5 are waived if not objection is not made in first filing

12b2- person jurisdiction

12b4 – objection to process

12b5- objection to the way process was served

PROPERTY

Default: may be able to use collateral attack, but since possession of property has changed, the
D might not be able to get property back

Special Appearance: Since minimum contacts are required, the D can make a special appearance
to litigate PJ and if attachment of property was improperly made

SUBJECT MATTER JURISDICTION

12b1 Motion

Issue preclusion: Three options

If litigated in F1, then cannot re-litigate in F2 – Durfee

If litigated in F1, then litigate in F2 is allowed – Kalb (F1 was state, F2 ws Federal)

If not litigated in F1, then not available in F2 – Chicot

VENUE

To ensure convenience of litigants and courts; secondary reason is make sure sovereign plan is followed
and no person is deprived of property – venue is primarily controlled by statutes

Can be waived or failure to show up (default) is waiver (12h1)

Local = land= situs of the land is proper

 Transitory = other stuff= where statute states is proper

1391A/B govern, but both are essentially the same A is for diversity and B is for FQ – NOTE THIS
APPLIES TO THE JUDICIAL DISTRICT not THE STATE

a/b1 = any DISTRICT where D resides, if all D’s reside in the STATE AND

a/b2= where substantial part of the activities or omissions occurred, or where land is
situatied OR

a/b3= ONLY IF 1391 1 and 2 do not apply, then wherever the PJ is proper AT THE TIME
THE ACTION IS COMMENCED

1391C – Corporations= venue where PJ is proper

1391D – Alien is amenable in any judicial district

CHANGE OF VENUE

When venue is WRONG (court can dismiss or transfer)

Dismiss 12b3

Transfer 1406 – transfer from one state court to another court in same state, or one US
Disst. Crt. to another Dist. Crt.

Transferor only needs SMJ, transferee must have SMJ, Venue and TJ

When the Venue is RIGHT but very inconvenient

Forum Non Conveniens – FNC

Original forum must have SMJ, TJ, Venue

P’s forum must be SERIOUSLY inconvenient – factors must weigh heavily in D’s
favor to change venues

Must be a more convenient forum

Convenience factors are public and private

Private factors: ease of access to proof; ability and costs to

witnesses; ability to get to site of accident; enforceability of judgment in
new court

Public factors: Public interest; jury duty is burden; local interest

in having localized controversies litigated; have trial in place courts are
best able to apply governing law
 If decided that court is inconvenient, then

Dismissal; stay the action (keep on docket); dismiss upon condition (D agrees to
waive some defenses)

TRANSFER OF VENUE (§ 1404)

Lesser showing of inconvenience since case will not be dismissed as in FNC

Convenience is more important than choice of law

Tranferor need SMJ, TJ and Venue; Transferee= “where the case might have
been brought” = court where case could have been heard before waivers were given by D

CHOICE OF LAW FOR TRANSFER AND FNC

D moves to transfer: Apply the law of original court

Reasons: D doesn’t have production burden (showing proof); nor

persuasive burden (persuade jury); P only chooses substantive law to apply and that should carry over
on transfer

Reasons2: Too troublesome to consider various choices of law, thus the

judge should only be concerned with the convenience of forum and not choosing forum for proper
choice of law

P moves to transfer: Apply law of transferor court

REASONS: P already choose forum, so law of forum follows; Too

inconvenient and confusing to have separate laws regarding which person transfers; convenience should
be the only factor that the judge is weighing when applying the transfer doctrine, asking the judge to
choose a proper law, especially when the judge may not be knowledgeable of many of the various laws
in different states, would ask the judge to create hundreds of permutations

FORUM CHOICE CLAUSES_____________________