Civil Procedure I Outline-Professor Ross

Fall 2009

I) Modern Pleading
A) The Complaint
1) Detail Required Under the Codes
(a) Gillespie v. Goodyear
(i) Failure to state facts is not sufficient to constitute a cause of action. “It is not
sufficient to allege the mere happening of an event of an injurious nature”.
The issuable facts of the case must be stated and allege “the material, essential
and ultimate facts upon which the P’s right of action is based.”
(b) Cook, Statement of Facts in Pleading Under the Codes
(i) The pleading should give the adversary and the court reasonable notice of the
real nature of the claim or defense; nothing more should be required.
2) Detail Required Under the Federal Rules
(a) Rule 8(a) General Rules of Pleading
1. This is the only rule regarding pleading requirements in Federal Courts.
(i) Claim for Relief. A pleading that states a claim for relief must contain.
(1) a short and plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support
(2) a short and plain statement of the claim showing that the pleader is entitled
to relief; and
(3) a demand for the relief sought, which may include relief in the alt. or diff.
types of relief (monetary or injunction)
(b) Rule 12(b) How to Present Defenses- Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. A party
may assert the following defenses by motion.
(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(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
(c) Dioguardi v. Durning (CLARK)
(i) There is no pleading requirement of stating ‘facts sufficient to constitute a
cause of action,’ but only that there be ‘a short and plain statement of the
claim showing that the pleader is entitled to relief” pursuant to Rule 8(a).
(1) Here, the court found that Dioguardi had presented sufficient facts to
indicate that he had a potential claim. The nuts and bolts could be sorted
out later through the process of discovery.
(2) Rule 12(e) – P normally has right to amend his pleading if complaint was
dismissed for failure to plead a valid cause of action

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(d) Conley v. Gibson
(i) A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the P can prove no set of facts in support of his
claim which would entitle him to relief.
(ii) Affirms the court’s ruling in Dioguardi. No requirement for the claimant to
set out in detail the facts upon which he bases his claim. Discovery is used to
further exhibit the basis of the claims, facts, and issues.
(iii) “Notice Pleading:
(iv)“No set of facts” doctrine eventually overruled by TWOMBLY
(e) Swierkiewicz v. Sorema N.A.
(i) An employment discrimination complaint need not include such facts and
instead must contain only a “short and plain statement of the claim showing
that the pleader is entitled to relief”.
(f) Bell Atlantic Corp. v. Twombly (SOUTER)
(i) The P, telephone subscribers, filed a class action suit against telephone
companies claiming they violated the Sherman Antitrust Act by keeping all of
their services the same price.
(ii) A heightened fact pleading of specifics is not required, but only enough facts
to state a claim for relief that is plausible on its face.
(iii) The factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are
true. Cant merely speculate! – Need something more
(iv)Something beyond the mere possibility of impropriety must be alleged so that
Ps with groundless claims cannot be allowed to take up the time of other
people during the discovery phase (court decided this as a matter of PUBLIC
POLICY (typically congress’ job)
(v) BOTTOM LINE - Court seems to be wanting more rigor in the complaint for
more complicated cases such as Antitrust
(vi)Keep in mind – this only applies to FEDERAL litigation – states not bound
(g) Erickson v. Pardus (decided one month after Twombly)
(i) “Specific facts are not necessary; the statement need only “give the D fair
notice of what the…claim is and the grounds on which it rests””
(ii) Seems to backtrack on its holding in Twombly
(iii) Court was probably bending over backwards for a pro se plaintiff
(h) Rule 8(a)(2)
(i) A short and plain statement of the claim showing that the pleader is entitled to
relief”
(i) Garcia v. Hilton Hotels International, Inc.(ROBERTS)
(i) The P felt he was violently discharged by the D for bringing prostitutes into
the hotel and sued for defamation.
(ii) There was enough evidence present for the P to be able to state a claim upon
which relief can be granted (Rule 8(a)), but the D’s motion for a more definite
statement is required for them to prepare a responsive pleading to the
complaint; though a complaint might survive a motion to dismiss it might not
survive a motion for a more definite statement (Rule 12(e)) or motion to strike
(Rule 12(f)).

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 (A) The claim should put the D on notice to the c-o-a.
(iii) Slander- Spoken; Libel- written.
(iv) Absolute Privilege – “slanderous testimony” before a court or other legal
body.
(1) Conclusive Defense – can raise this upon 12(b) motion to dismiss
(v) Conditional Privilege – “slander” when D told P why he was being fired and
others heard.
(1) Qualified Defense – cannot raise this as motion to dismiss b/c what was
said is a question of fact for the jury as to whether it was made maliciously
or privilege was abused. BUT can raise this as a motion for more definite
statement so D can formulate a response.
(j) Rule 12(e) Motion for a More Definite Statement
(i) A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. The motion must be made before
filing a responsive pleading and must point out the defects complained of and
the details desired. If the court orders a more definite statement and the order
is not obeyed within 10 day [proposed revision to allow 14 days] after notice
of the order or within the time the court sets, the court may strike the pleading
or issue any other appropriate order.
3) The Burden of Pleading and The Burden of Production
(a) The burden of pleading an issue usually is assigned to the party who has the
burden of producing evidence on that issue at trial, but it doesn’t need to coincide
with the burden of producing evidence.
(b) P normally does not have to plead matters on which the D must introduce proof.
(c) Sometimes the P is required to plead in the complaint the nonexistence of certain
defense upon which the D has the burden of proof. (suit for nonpayment of a note)
(though this is illogical)
(d) By placing the burden of pleading defenses on the defendant, the court and parties
know exactly on which of the many possible defenses he intends to introduce
evidence, thus making preparation for trial and the actual work at trial more
manageable.
4) Pleading Special Matters
(a) Rule 9 Pleading Special Matters
(i) Capacity or Authority to Sue; Legal Existence……
(b) Denny v. Carey (LORD)
(i) The P alleged that the D conspired to conceal the true picture of the
company’s financial situation. D said allegations didn’t state circumstances
constituting fraud under 9(b).
(ii) Rule 9(b) is met when there is sufficient identification of the circumstances
constituting fraud so that the D can prepare an adequate answer to the
allegations.
(iii) In such cases where a P has satisfied the minimum burdens of this rule
they should be allowed to flesh out allegations in the complaint through
discovery.
(iv)Decided prior to TWOMBLY and the PLSRA

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 (c) Denny v. Barber (brought by same P as in Deny v. Carey)
(i) D’s fraudulently concealed the D’s true financial picture by not revealing they
had made risky and speculative investments etc.
(ii) Court said that there must be more than vague allegations and that the
admission of the P’s counsel that they could provide no further facts w/o
discovery is significant.
(iii) Congress became dissatisfied with Rule 9(b) in securities fraud cases and
in response enacted the Private Securities Litigation Reform Act (PSLRA)
(1) Imposes a heightened pleading standard
(2) Complaint must specify each statement alleged to have been misleading
(d) Dura Pharmaceuticals Inc. v. Broudo (BREYER)
(i) A private plaintiff who claims securities fraud must prove that the D’s fraud
caused an economic loss (damage – remedy)
(ii) “An artificially inflated purchase price is not in itself a relevant economic
loss”

(e) Rule 9(b) Fraud or Mistake; Conditions of Mind

(i) In alleging fraud or mistake, a party must state with the particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.
(ii) Why is there a heightened pleading here?
(1) Protection of reputation
(2) Deterrence of frivolous or strike suits
(3) Defense of completed transactions
(4) Providing adequate notice.
(f) Tellabs, Inc. v. Makor Issues & Rights, LTD. (GINSBURG)
(i) PLSRA requires a P to state with particularity both the facts constituting an
alleged violation and the facts evidencing scienter.
(1) Scienter- a degree of knowledge that makes a person legally responsible
for the consequences of his or her act or omission.
(ii) Rules for interpreting PSLRA when facing 12(b) motion to dismiss:
(1) With 12(b) motion to dismiss, courts must accept all factual allegations in
the complaint as true
(2) Courts must consider the complaint in its entirety
(A) Inquiry is whether all the facts alleged, taken collectively, give rise to
a strong inference of scienter
(3) In determining whether the pleaded facts give rise to a strong inference of
scienter, the court must take into account plausible opposing inferences
5) Alternative and Inconsistent Allegations
(a) Rule 8(d) Pleading to Be Concise and Direct; Alternative Statements;
Inconsistency.
(i) In general. Each allegation must be simple, concise, and direct. No technical
form is required.
(ii) Alternative Statements or Defense.

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 (iii) Inconsistent Claims or Defenses.
(iv)Virtually all courts today permit inconsistent allegations, whether separately
pleaded or not, if they are made in good faith to the above rule.
(v) Separate-Statement Requirement.
(1) Rule 10(b) Paragraphs; Separate Statements: “As far as practicable:
each paragraph will be limited “to a single set of circumstances.”
Separation of claims founded on different transactions “if doing so would
promote clarity” and some courts even read it as requiring separate counts
for distinctive statutory and constitutional claims.
6) Pleading Damages
(a) Rule 9(g) Special Damages- If an item of special damage is claimed, it must be
specifically stated.
(b) Ziervogel v. Royal Packing Co. (McCULLEN)
(i) Issue of whether the trial court was correct in allowing the P to make claims
of increased blood pressure at trial
(ii) Although there was some evidence to indicate that the D might have been
aware of the P’s claims, the P was not allowed to bring up such evidence
because it related to “special damages” which were not in its petition.
(iii) Can’t plead “general” damages and recover for “special” damages. The
law is not ambiguous in this respect. Special damages must be plead in
considerable detail.
(iv)RULE: You have to plead special damages in order to introduce them at trial,
unless the injuries are a necessary and inevitable result of the alleged injury
(v) General damages – can be alleged w/o particularity
(1) Pain and suffering
(2) Loss of income
(3) Loss of bargain
(vi)Special Damages – require considerable detail
(1) Medical expenses (some courts see this as general damages)
(2) Loss profits
(3) Consequential damages
(4) Damages to reputation
7) The Prayer for Relief
(a) Rule 8(a)(3) General Rule of Pleading
(i) A demand for the relief sought, which may include relief in the alternative or
different types of relief.
(b) Rule 54 (c) Demand for Judgment; Relief to Be Granted
(i) A default judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings. Every other final judgment should grant the relief
to which each party is entitled, even if the party has not demanded that relief
in its pleadings.
(A) The terminology of “should” and not “must” allows for flexibility in
the granting of relief.
(c) Bail v. Cunningham Brothers (PELL)
(i) P originally sought 100k and tried to amend for a higher amount, but was
denied. The trial court still found for him with a verdict of 150k. The D sought

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 for remittance to a lower sum. The issue was whether the court erred in
allowing the P to seek leave post verdict and amend the ad damnum clause to
150k. No.
(ii) The essence of the complaint is to put the D on notice to prepare a defense.
The facts and arguments are not going to vary significantly in a trial for 100K
and a trial for 150K, so the change in the complaint was not prejudicial to D.
(iii) A final judgment should grant the relief to which each party is entitled,
even if the party has not demanded that relief in its pleadings, except in cases
of default judgments or when damages can be “shown to be excessive” or
were “dictated by passion or prejudice” pursuant to Rule 54(c)

B) Responding to the Complaint

1) The Time Permitted for a Response
(a) Rule 12(a) Time to Serve a Responsive Pleading
(i) Usually 20 days from service of complaint to respond by a motion pursuant to
Rule 12 or an answer to the complaint.
(ii) Extensions are routinely consented to under Rule 6(b).
2) Motion to Dismiss
(i) Rule 12(b) How to Present Defense
(ii) Rule 12(c) Motion for Judgment on the Pleadings
(iii) Rule 12(d) Result of Presenting Matters Outside the Pleadings
(iv)Rule 12(f) Motion to Strike
(b) The Motion to Dismiss for Failure to State a Claim- Rule 12(b)(6)
(1) Designed to screen out frivolous and non-meritorious cases.
(2) Facts/allegations must be assumed true and read to favor plaintiff; the
facts in the pleading need not be dispositive of the issues in controversy
(Rule 8(a)) and fail to state a claim only if it “appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson.
(3) American Nurses’ Association v. Illinois (Posner): A complaint does not
fail to state a claim merely because it does not set forth a complete and
convincing picture of the alleged wrongdoing. Allegations that do not state
a cause of action do not cancel out allegations that do state a cause of
action; the valid claims are not dependent on the invalid claims.
3) Other Motions Attacking Pleadings
(a) When a party has included scandalous, impertinent, or irrelevant matter in a
pleading, traditionally, the remedy afforded is a motion to strike. Rule 12(f)
(b) Both because striking a portion of a pleading is a drastic remedy and because it
often is sought by the movant simply as a dilatory tactic, motions under Rule
12(f) are viewed with disfavor and infrequently granted.
(c) Gateway Bottling, Inc. v. Dad’s Rootbeer Co.
(i) To strike material as scandalous it must be obviously false and unrelated to
the subject matter of the action.
(d) Cobell v. Norton
(i) Under Rule 12(f) “immaterial” matter consists of statements and averments

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 bearing no essential or important relationship to the claim for relief or the
defense being pled.
4) Answering the Complaint
(a) Denials
(i) Rule 8 requires the D to make one of three responses to the contents of the P’s
complaint: Admit, Deny, or Plead insufficient information in response to each
allegation.
(ii) Under this rule and many state rules a D may generally deny the entire
complaint, but this defeats the purpose of pleading as a means of narrowing
the focusing on the issues in controversy. (usually disfavored)
(iii) If part of the allegation is true and part false, DENY EVERYTHING, then
backtrack and say “Except that we admit X” – provides a catchall (see below)
(iv)Rule 8(b)(6) Effect of Failing to Deny- An allegation- other than one relating
to the amount of damages- is admitted if a responsive pleading is required and
the allegation is not denied. If a responsive pleading is not required, an
allegation is considered denied or avoided.
(v) Zielinski v. Philadelphia Piers, Inc. (VAN DUSEN)
(1) In a case where defendant failed to specifically deny agency relationship
in its pleadings and specifically admit to others (or during discovery),
defendant was barred from amending its complaint once the statute of
limitations had run. Principles of equity – i.e. estoppel – required that
defendants be estopped from denying agency because, otherwise, its
inaccurate statements and statements in the record, which it knew (or had
the means of knowing within its control) were inaccurate, will have
deprived plaintiff of his right of action.
(2) Defendant answered in a sloppy manner was held to its answer because
plaintiff relied on it
(3) A specific denial of parts of the complaint and specific admission of other
parts would have warned the P that he had sued the wrong D.
(4) RULE: When denying an allegation that is both true and untrue, a D may
not generally deny the allegation.
(5) You may generally deny all that is not expressly admitted, even if you
don’t respond to every allegation in the complaint.
(vi)Improper Forms of Denial
(1) Denials for Lack of Information
(A) A D can’t deny for lack of information when should be within the D’s
knowledge. BUT can do this if it truly does lack the info.
(2) Negative Pregnant
(A) P alleges D owes her 90K. D then “denies that he owes P 90K.”
(B) Issue of slight technicality is not a proper form of denial and should
instead be an order for a more definite statement Rule 12(e).
(3) Conjunctive Details
(A) P alleged D “made, executed and delivered its contract for goods to
the P.” D denied the allegation specifically, using the identical words
of the complaint. HELD: A denial using identical words of the
complaint was evasive and therefore admitted the existence of a

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 contract
(b) Affirmative Defenses
(i) Rule 8(c)- An affirmative defense encompasses a pleading that 1) admits the
allegations of the complaint but suggest some other reason why there is no
right of recovery 2) one that concerns allegations outside the P’s prima facie
case that the D therefore can’t raise by a simple denial in the answer.
(A) Function of the rule is to notify the P of the possible existence of
defenses and the D’s intention to advance them.
(ii) Ingraham v. United States (POLITZ)
(1) P sought malpractice and was granted judgment. Later, the D sought to be
relieved from judgment with the basis that the damages exceeded the limit
imposed by the Medical Liability and Insurance Improvement Act of
Texas. It was denied on the basis of not being timely, and later affirmed
(2) Under Rule 8(c), a D must present affirmative defenses at the pleading
stage in response to P’s allegations. – Prevents unfair surprise.
(3) Had the P’s known of the cap on damages before trial, they could have
changed their approach and made adjustments to prove damages outside
the scope of the Malpractice Act.
(iii) Taylor v. United States:
(1) P’s wife was awarded 500K in noneconomic damages after patient
received permanent brain damage during treatment at an Army hospital.
Gov’t moved to reduce damages after they were awarded under the
California Civil Code, which limits recovery for non-economic damages
to 250K. Court ruled differently from Ingraham in this case because they
found the limitation of liability is not an affirmative defense and therefore
did not need to be specifically stated in a timely manner. If P does not
have to plead extent of damages sought (such as the case w/ noneconomic
damages), D should not be required to plead limitation of damages.
(2) Federal Rules
(c) The Reply
(i) Rule 7(a) Pleadings. Only these pleading are allowed:
(1) A complaint;
(2) An answer to a complaint;
(3) An answer to a counterclaim designated as a counterclaim;
(4) An answer to a cross-claim;
(5) A third-party complaint;
(6) An answer to a third-party complaint; and
(7) If the court orders one, a reply to an answer.
(d) Amendments
(i) Governed by Rule 15 which reflects two of the most important policies of
the federal rules:
(1) First, the rule’s purpose is to provide maximum opportunity for each claim
to be decided on its merits rather than on procedural technicalities.
(2) Second, assigns pleading the limited role of providing the parties with
notice of the nature of the pleader’s claim or defense and the transaction
event, or occurrence that has been called into question.

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 (3) Foman v. Davis p. 625 Sup. Ct had occasion to construe Rule 15(a)
(A) This case was an authoritative interpretation of what Rule 15 means
(B) Test the case on its merits.
(C) Held in the absence of apparent or declared reason (such as undue
delay, bad faith, or dilatory motive on the part of the movant) the leave
sought should be “freely given.”
(D) If an amendment is to show prejudice to a party then the court may not
grant leave to amend.
(E) This rule is structured in a way that favors defendants.
(ii) Beeck v. Aquaslide ‘N’ Dive Corp. (BENSON)
(1) The P was injured while sliding down what he believed to have been a
product of Aquaslide. On three separate occasions insurance companies
verified it was their slide, but after the statute of limitations was up the
president of Aquaslide visited and decided to the contrary. D sought to
amend its previously admitted pleading.
(2) Under Rule 15(a) the leave to amend “shall be freely given when justice
so requires”. Unless:
a. The court finds something such as bad faith and undue delay which
may prevent the granting of an amendment, but no such things
were found.
(3) The P still has the opportunity to prove in trial that the D was in fact the
manufacturer of the slide.
(4) Contrasted with Zielinski
(A) Beeck was much more of an honest mistake that plaintiff did not
necessarily rely on to its detriment – the court’s decision here did not
sound the death knell for plaintiff’s litigation and did not prove the
material fact of whether defendant was manufacturer of the slide or
not.
(B) Zielinski, the P should have done more investigation with the denial by
the D as to who was the real D.
(C) Beeck, the P wasn’t required to further investigate who was the owner
of the slide after the D admitted it was his.
(5) The P could use Rule 15(c) Relation Back Amendments to attempt to
bring another manufacturer into the picture, if it was aware of the incident
within 120 days, but this is unlikely.
(iii) Rule 15(c) Relation Back of Amendments
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back.
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out- or attempted to be set out- in the
original pleading; or
(C) the amendment changes the party or the naming of the party against
who a claim is asserted, if Rule15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m)(120 days) for serving the summons

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 and complaint, the party to be brought in by amendment:
a. received such notices of the action that it will not be prejudiced in
defending on the merits; and
b. Knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.
(iv)Worthington v. Wilson (MANION)
(1) The P was injured while being arrested. He filed a complaint listing “three
unknown police officers”. He later sought the right to amend his complaint
and insert the names of two of the officers. The two moved to dismiss,
arguing the amendment didn’t relate back to the filing of the original
complaint under Rule 15(c).
(2) An amended complaint which changes the name of the defendant will
relate back to the filing of the original complaint only if it arises out of the
same conduct contained in the original complaint and the new party was
aware of the action within 120 days of the filing of the original complaint
and if the change in name was necessary because of MISTAKE
(requirement).
(3) Rule 15(c): Party has received notice and knew or should have known,
BUT FOR A MISTAKE concerning the identity of the proper party, the
action would have been brought against the party. Federal courts absorb
state law only when federal law neglects the topic.
(4) Court disallowed P’s amendment in this case because the use of fictitious
parties was not a mistake but ignorance of the officers’ names – ignorance
is not a mistake pursuant to Rule 15(c).
(5) RULE: Under Rule 15(c), adding an additional party by amendment of the
pleadings only relates back to the date of the original complaint if the
parties originally listed were listed by mistake. Mistake means the wrong
name, not listing “unknown” or something of the like to indicate lack of
knowledge or identity of the true party.
(e) Supplemental Pleadings
(i) Rule 7(a)
(1) Look above--^
(ii) Rule 15(d) Supplemental Proceedings On a motion and reasonable notice,
the court may, on just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date
of the pleading to be supplemented. The court may permit supplementation
even though the original pleading is defective in stating a claim or defense.
The court may order that the opposing party plead to the supplemental
pleading within a specified time.
(f) Provisions to Deter Frivolous Pleadings (possible essay – p. 640)
(i) Rule 11
(1) Attempts to curb abuse of the federal pleading rules by imposing
affirmative duties on attorneys and by raising the possibility of sanctions
for failure to discharge them.
(2) Allows more court discretion in the imposition of monetary sanctions, and

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 has added a 21 day “safe harbor” during which the filing party may
withdraw the challenged paper without censure
(3) Attorneys no longer required to have a “good faith” motive for an
argument and instead simply a requirement that the argument be
nonfrivolous.
(ii) Hadges v. Yonkers Racing Corp.
(1) Judge had imposed a Rule 11 sanction on Hadges and his attorney for
failing to make adequate inquiry as to the truth of the P’s affidavits and for
failing to inform the court of the pending state litigation.
(2) The Rule 11 sanctions were unwarranted because neither the P nor his
attorney had received the 21 day safe harbor and if they had received it the
motions would have been fixed.
(iii) If an attorney can reasonably believe that what the information their client
provides them is objectively reasonable evidence from which an attorney
could suggest that a trier of fact could find it true then they have certification.
(iv)Rule 23.1
(v) Problem with the “Safe Harbor provision” – allows the attorney to have his
cake and eat it too. Make a claim and then yank it back before the 21 day
period. Rule 11 itself became a way for attorneys to submit frivolous
litigation.
II) Providing Notice and Opportunity to Be Heard
A) The Requirement of Reasonable Notice
(i) The parties to an action must have reasonable notice of the commencement of
the action and the issues involved in it. To this end, the law requires service of
process pursuant to specific rules set forth in Fed. R. Civ. P. 4.
(ii) Mullane v. Central Hanover Bank & Trust: (JACKSON) Where P (the
beneficiary of a trust) objected to the consolidation of a number of trust funds
and never “received” notice, the court held that the chance of a party receiving
notice via a small advertisement in the back pages of a local newspaper is
remote. Rather, publication or public posting affords an additional measure of
notification – not as a primary measure of notification (particularly to known
10.5
(1) The court in Mullane emphasized that when parties and their addresses are
known to the plaintiff (as they were sure to have been in this case), then
notice by mail in proceedings such as these is required.
(2) Where interested parties or beneficiaries are unknown to D, D has no
obligation to search for and find the parties in order to effect personal
service or notice by mail. However, where such parties are known to D,
“the reasons disappear for resort to means less likely than the mails to
apprise them of its pendency.”
(3) “The statutory notice to known beneficiaries is inadequate, not because in
fact it fails to reach everyone, but because under the circumstances it is not
reasonably calculated to reach those who could easily be informed by
other means at hand.”
(4) Publication is not the first line of notice, but can be a fallback.
(5) States that attachment of a chattel or real estate, together with publication,

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 may provide adequate notice because property owners usually are aware
of and concerned about the status of their property.
(6) BOTTOM LINE - Mullane seems to require notice that is reasonably
likely to succeed.
(iii) Greene v. Lindsey
(1) The Sup. Court held that posting notice of eviction on a tenant’s door does
not satisfy minimum standards of due process.
2) When is the government’s use of mail service sufficient to provide notice under the
Due Process clause?
(a) Dusenbery v. United States (2002)
(i) Involved the adequacy of notice given by the FBI to an incarcerated prisoner.
FBI published notice in newspaper, sent certified mail to petitioner in the
federal prison, his residence at the time of arrest, and stepmothers home
(ii) Held: Service was sufficient
(iii) Dissent(Ginsburg): Prison’s mail delivery system too lax to reliably ensure
that a prisoner will receive legal notice
(b) Jones v. Flowers (ROBERTS)
(c) Homeowner who had failed to pay property taxes was sent notice by certified
mail informing him of the pending sale of his property, but made no further effort
to contact him after the notice was returned unclaimed
(d) HELD: Govt was required to have taken “additional reasonable steps if it is
practical to do so.” Failure to follow up was unreasonable despite the fact that the
certified mail was reasonably calculated to reach their intended recipients when
delivered to the postman.
B) The Mechanics of Giving Notice
1) Introduction
(i) Rule 4
2) Specific Applications of the Service Provisions
(a) Rule 4(d): “Waiving Service”
(i) Strongly encourages waiver of formal service. An action commences when
the P sends the “Notice of Lawsuit and Request to Waive Service if
Summons” by mail or some other “reliable means.” Domestic D’s have 30
days from the date on which the waiver was sent to return the waiver;
otherwise the will be charged with the costs of service.
(ii) D’s receive an incentivein that they are allowed 60 days after the date on
which the waiver was sent to answer the complaint id the waiver is returned in
a timely fashion.
(iii) Broadly authorizes federal courts to use the procedures governing the
manner of service of the law of the state in which the District Court is sitting.
(iv)Maryland State Firemen’s Association v. Chaves (MESSITTE)
(1) The method of service was not valid- the D knowing of the case doesn’t
matter, even if the D’s attorney had spoken w/ P’s attorney multiple times.
The addressee still has to consent and the waiver still has to be returned.
The D never returned the waiver, and therefore the MFSA’s method of
service was invalid.
(2) “Unless the addressee consents, receipt of the request under the revised

12
 rule does not give rise to any obligation to answer the lawsuit and does not
provide a basis for default judgment.”
(b) Rule 4(e): Personal Delivery on Natural Persons
(i) Unless federal law provides otherwise, an individual other than a minor,
incompetent person, or a person whose waiver has been filed- may be served
in a judicial district of the United States by:
(1) Following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or
where service is made; or
(2) Doing any of the following
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there;
or
(C) Delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
(ii) The most common mode of service – “personal service” – involves the use of
a process server physically handing the papers to the defendant to-be.
(iii) Process servers may engage in a degree of trickery in order to effectuate
the end of providing actual and legal notice to defendants but may not coerce
or deceive an individual into a particular jurisdiction for the purposes of
service. A defendant must willingly be in the jurisdiction in question at
the time of service.
(c) Rule 4(e)(2)(B): Service on a Person Residing in Defendant’s Dwelling or
Usual Place of Abode
(A) An alternative to personal delivery; “leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of suitable
age and discretion who resides there”
(ii) National Development Co. v. Triad Holding Corp.
(1) A person may have more than one place of dwelling, and because the D
was actually living there on the day of service it was most likely to be the
most effective place to leave the summons.
(d) Federal Rule 4(e)(2)(C): Delivery to an Agent Authorized by Appointment
(i) The parties to a contract or other agreement may appoint an agent for the
purposes of service of process in the event of litigation.
(ii) National Equipment Rental v. Szukhent (STEWART)
(1) D signed a contract with National in which it agreed to designate
Weinberg as an agent for service of process. The agency provision was in
the last of 18 paragraphs in the lease, and D’s were not acquainted w/
Weinberg.
(2) Whether a party to a private contract may appoint an agent to receive
service of process within the meaning of Rule 4(e)(2)(C) where the agent
is not personally known to the party, and where the agent has not
expressly undertaken(via contract) notice to the party. Yes.
(3) Parties to a contract may agree in advance to submit to the jurisdiction of a

13
 given court, to permit notice to be served by the opposing party to an
agent so authorized, or even to waive service altogether. Since she
promptly notified D, Weinberg effectively validated the agency
relationship that existed between she and D and satisfied service of
process under Rule 4(e)(2)(C).
(4) Had she not delivered service promptly, her failure to do so would have
invalidated the agency.
(iii) Wuchter v. Pizzutti
(1) Where a statute provided that the Secretary of State shall be appointed a
resident’s agent for the purposes of receiving out-of-state service, that
statute did not require notice to be furnished to the resident and the agent
was not authorized by either knowledge or consent of the party. Hence, the
agency relationship is invalid and violates due process.
(2) Issue of consent is key in the difference between Szukhent and Wuchter –
the parties in Szukhent consented to the agency relationship which was
validated by Weinberg’s delivery of notice. In Wuchter the parties were
unaware of the agency relationship, did not consent to it, and were not
furnished with proper notice in violation of their rights to due process.
(3) Contrast with Hess v. Pawloski which held a similar statute to be
constitutional since it DID require the plaintiff to notify the defendant by
registered mail and, thus, did not violate the defendant’s right to notice
and due process.
(e) Federal Rule 4(h): Serving a Corporation, Partnership, or Association
(i) Authorizes service upon corporations, partnerships, and unincorporated
associations that are subject to suit under a common name.
(ii) The most frequently invoked portion of the rule is the part permitting service
by delivery of process to an officer, a managing agent, or a general agent.
(iii) Insurance Co. of North America v. S/S Hellenic Challenger
(1) Rule 4(h) does not require that service be made solely on a restricted class
of formally titled officials, but rather permits it to be made ‘upon a
representative so integrated with the organization that he will know what
to do with the papers. “Well integrated”
(2) US Marshall left the summons with a claims adjuster at the office of the
D. Adjuster was not expressly authorized by D to accept process, but had
accepted service on at least two prior occasions. Adjuster also had easy
access to D because a glass wall was the only separation between their two
offices.
(3) “Generally, service is sufficient when made upon an individual who stands
in such a position as to render it fair, reasonable and just to imply the
authority on his part to receive service.”
(f) Rule 4(f): Serving an Individual in a Foreign Country
(i) Service may be made either in accordance with the law of the nation in which
service is to be made or by a particular method requested by the applicant
(unless requested method is incompatible with that law).
3) Return of Service
(i) After the process-server has delivered the papers, she must file a return, which

14
 should disclose enough facts to demonstrate that the D actually has been
served and given notice that he is required to appear in court.
(1) A proper return is ordinarily necessary to enable the trial court to conclude
it has jurisdiction.
(ii) The return of service is considered strong evidence of the facts stated, but it is
not conclusive and may be controverted by proof that the return is inaccurate.
(1) The D’s own testimony generally will not be sufficient to impeach the
return unless it is corroborated by other evidence.
(iii) Hague Convention–the most important internationally agreed means of
service of process – adopted by 59 countries.
(iv)U.S. v. Brand Jewelers “Sewer Service”
(1) U.S. sought and obtained an injunction preventing the D from obtaining
default judgment against economically disadvantaged people by utilizing
the sewer service techniques: "a process-server disposes of the papers and
makes a false affidavit of the service.”
(2) Responding to criticism of sewer service, NY subsequently lessened its
requirements and allowed process servers to leave service w/ someone of
suitable age and discretion at the place where the D actually works or
dwells and by mailing a second copy to D’s last known address/
4) Service of Process and Statutes of Limitations
a. When is a suit “commenced” for purposes of a statute of limitations? In
some states, an action is not deemed “commenced” until process is served
on the defendant. In these states a defect in service can be fatal to the
plaintiff’s claim, because the statute of limitations may run before the
plaintiff has a chance to correct his error.
b. Rule 3 governs when federal actions commence – most states follow this
rule – and holds that federal actions commence upon filing of the
complaint.

C) Immunity from Process and Etiquette of Service

1) Immunity From Process
(a) Although the doctrine may help a party avoid suit, it does so not for the benefit of
the party, but for the benefit of the court. Witnesses, parties, and attorneys who
come to a state to participate in a lawsuit often are granted immunity from service
of process in other suits.
(b) State ex rel. Sivnksty v. Duffield
(i) D was involved in wreck, while visiting the county, and injured two children.
While incarcerated for criminal charges he was served for civil charges as
well.
(ii) Purpose of doctrine is to encourage people to come into the jurisdiction for
criminal charges and not fear civil process.
(iii) A person who is not in a jurisdiction for the purposes of taking on criminal
charges is not protected from civil process. (Even if they are in jail for
criminal charges relating to the same civil charge like in this case)
(iv)In this case the D entered the jurisdiction his own volition – not in response to
a criminal charge.

15
 (v) A person confined in jail on a criminal charge or imprisoned on conviction of
such charges is subject to service of civil process, irrespective of the question
of residence, at least if he was voluntarily in the jurisdiction at the time of the
arrest.
(vi)Note: Although immunity from process serves legitimate goals, when carried
to extremes it ignores the plaintiff’s desire to litigate in a local forum (essay?)
2) Etiquette of Service
(a) Wyman v. Newhouse
(i) The appellee was induced to enter the jurisdiction of the state of FL by a fraud
perpetrated upon him by the appellant in falsely representing her mother’s
illness, her intention to leave the U.S., and her love and affection for him,
when her sole purpose and apparent thought was to induce him to come w/in
the FL jurisdiction so as to serve him for damages.
(ii) RULE: When service of process is procured through a luring of one to
another jurisdiction by another for the sole purpose of tricking them into that
state to be served, it lacks jurisdiction and is null and void.
(b) Gumperz v. Hoffman
(i) If a D enters a jurisdiction voluntarily and trickery is used to serve process it
can be upheld.
(c) Tickle v. Barton
(i) It was speculated that the P lured the D into the county by inviting him to a
football banquet that was taking place.
(ii) Court held that the plea of abatement by the D was enough to render invalid
the service of process upon the D in the county because his presence was
induced or procured by trickery, artifice, or deceit practiced upon him by an
attorney for the P.
III) Jurisdiction Over the Parties or Their Property
A) The Traditional Bases for Jurisdiction
(a) Pennoyer v. Neff (FIELD)
(i) Case at hand where Mitchell was attempting to collect an unpaid legal fee. He
brought suit against Neff and published notice in an Oregon newspaper but
did not serve Neff personally. Neff failed to appear because he was out of
state and unaware of suit and default judgment was entered against him.
Mitchell had not attached the land at the outset of the charge, but still bought
the land and later sold to Pennoyer. Neff was suing Pennoyer for his land.
(ii) Three types of jurisdiction
(1) In personam- A state may exercise jurisdiction over any person
physically within their borders.
(2) In rem- In order to obtain jurisdiction over a party out of state a court may
attach property that is the subject matter of the action.
(3) Quasi-in-rem- The court renders judgment for or against an absent D but
recovery is limited to the value of the real and personal property that is
within the jurisdiction and thus subject to the courts authority.
(4) HELD: Oregon court did not have personal jurisdiction over Neff b/c he
was not served in Oregon. The lower court’s judgment would have been
valid if Mitchell had attached Neff’s land at the beginning of filing suit.

16
 (5) RULE: A court may enter judgment against a non-resident only if the
party 1) is personally served with process while in the state, pr 2) has
property within the state, and that property is attached before litigation
begins (quasi in rem jurisdiction).
(b) Milliken v. Meyer (Supreme Court)
(i) Where a Wyoming resident was sued in a Wyoming court but was served
process in Colorado, the court held jurisdiction to be proper based on D’s
domiciliary status. Held, “domicile in the state alone is sufficient to bring an
absent defendant within the reach of the state’s jurisdiction for purposes of a
personal judgment by means of appropriate substituted service.”
B) Expanding the Bases of Personal Jurisdiction
(a) Hess v. Pawloski (BUTLER)
(i) The D was an out of state resident who was involved in a wreck with a
resident of that Massachusetts. Mass. had a statute which allowed nonresident
motorists to be served with process via the registrar of the state for any lawsuit
growing out of motor vehicle accidents. Nonresident motorists were deemed
to accept this statute by simply operating a vehicle in Mass.
(ii) The statute was held valid under due process because of an implied consent
rule, limited to accidents with nonresidents, and because the D was actually
sent service.
(iii) “There must be actual service within the state of notice upon him or upon
someone authorized to accept service for him.” If a persona judgment is
rendered against a nonresident who has neither been served with process nor
appeared in the suit, it is w/o validity.

C) A New Theory of Jurisdiction

(a) International Shoe Co. v. Washington (STONE)
(i) “Due process requires only that in order to subject a D to a judgment in
personam, if he not be present within the territory of the forum, he have
certain minimum contacts with it such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.”
(1) Minimum Contacts
(A) Continuous and systematic?
(B) Related to the cause of action?
a. Agents
b. Delivery of Products
c. Relatedness
d. Transaction of Business
(2) Fair Play and Substantial Justice
(A) State’s interest in the lawsuit
(B) Convenience to P
(C) Convenience to D
(ii) International Shoe enjoyed the benefits and protection of the laws of WA,
including the right to resort to WA courts for the enforcement of its rights.
(iii) Court also held the service of process within the state upon an agent
whose activities establish the company’s presence was sufficient.

17
 (b) Note 2 p.91
(i) General Jurisdiction- a D may have sufficient contact with the forum to
warrant asserting jurisdiction over it for all matters.
(ii) Specific Jurisdiction- a D may have sufficient contact with the forum to
warrant asserting jurisdiction over it for matters related to its activity with the
forum w/o having sufficient contact with the forum to warrant general
jurisdiction.
(iii) The distinction depends on:
(1) Nature and number of contacts w/in the forum.
(2) Determining what constitutes sufficient business within the state.
(3) What matters are related to activity within the state.
D) Specific Jurisdiction and State Long-Arm Laws
1) The Development of Long-Arm Laws
(i) The Supreme Court’s decision in Hess encouraged the states to utilize police
powers to enact a number of statutes asserting jurisdiction based not only on
the operation of automobiles w/in the state, but also engaging in a variety of
other hazardous activities or enterprises.
(b) Gray v. American Radiator & Standard Sanitary Corp.
(i) Where an Illinois resident was seriously injured due to the faulty manufacture
of a safety valve later installed in a hot water heater (valve manufacture in
Ohio, installed and purchased in Pennsylvania) and later shipped to Illinois
who had a long-arm statute specifying jurisdiction when a tortious act has
been committed.
(ii) The Illinois Supreme Court ruled that jurisdiction was appropriate under the
statute and the commission of the tortious act (which occurred when the
safety-valve failed in Illinois – not with its manufacture in Ohio) was a
sufficient minimal contact under International Shoe.
(1) It was now sufficient for a minimal contact that the act or transaction itself
had a substantial connection with the State of the forum.
2) Due Process and Long-Arm Statutes
(i) It must be asked whether the statute, as interpreted, is consistent with the Due
Process Clause of the Constitution.
(b) McGee v. International Life Insurance Co.
(i) Where P, a California resident, was a beneficiary of a life-insurance policy
issued by an Arizona corporation which was subsequently bought out by D
(Texas company) and D refused to pay benefits under the policy leading to the
lawsuit. The Supreme Court held that exercise of jurisdiction by California
was proper and did not violate the due process rights of D.
(1) The “bilateral contacts” stemming from this case are thought to be
determinative: P sent premiums from the forum state to D corporation and
D “sent” insurance coverage back to California under the contract in
satisfaction of International Shoe minimal contacts.
(2) This case is representative of jurisdiction being deemed proper based on
one single act or contract.
(ii) McGee used two step approach to question of personal jurisdiction:
(1) Whether sufficient minimum contacts exist as to make the exercise of

18
 personal jurisdiction permissible?
(2) Balance the interests of the plaintiff, defendant, and the forum to
determine if exercise of jurisdiction is desirable.
(c) Hanson v Denckla (WARREN)
(i) The deceased had established a trust in DE naming a DE bank as trustee. She
later moved to FL where she executed her last will and testament. After her
death the P (her daughters left in the will) attempted to sue the D (her 3rd
daughter) in FL. D argued suit could not go forward b/c FL had no
jurisdiction. Supreme Court found that because the DE bank’s contacts with
FL had been less than minimal, FL could not exercise jurisdiction.
(ii) The unilateral activity of those who claim some relationship with a
nonresident D can’t satisfy the requirement of contact with the forum state.
(iii) RULE: It is essential in each case that there be some act by which the
D purposefully avails itself of the privilege of conducting business in the
forum state, thus invoking the benefit and protection of its laws.
(1) In this case, the DE bank was an indispensible party and had no office in
FL, any business transactions in FL, no assets in FL, and no solicitation of
business in FL.
(d) World-Wide Volkswagen Corp. v. Woodson (WHITE)
(i) Court held that the presence of the D’s product in the state was not enough to
show minimum contacts and even thought it could have been foreseeable that
the D’s car could have ended up in OK, mere forseeability is not enough to
subject the D to OK jurisdiction.
(ii) If the court would have held that the location of the car in OK was sufficient
to exercise jurisdiction of the D, then a seller could be liable anywhere their
product cause an injury. Amenability to suit would travel with the chattel.
(iii) Need to count the contacts to help in determining legitimacy of
jurisdiction.
(e) Keeton v. Hustler Magazine
(i) Supreme Court held that a NH court would be justified in holding jurisdiction
over Hustler Magazine because Hustler had more than the minimum contact
requirement from the thousands of magazines it sent into the state every
month.
(ii) Supreme Court held it does not require a nonresident P to have minimum
contacts with the forum state before permitting that state to assert personal
jurisdiction over the nonresident D. (Not a defense for the D when challenging
personal jurisdiction.)
(f) Kulko v. Superior Court
(i) The purchasing of a plane ticket for his daughter was not enough to prove that
the D had benefitted enough from California laws to exercise jurisdiction. The
D had not “purposefully availed himself” of the “benefits and protections” of
CA laws by sending his daughter there, or of any financial benefit.
(g) “Calder Effects Test” Calder v. Jones – Intentional Torts
(1) Committed an intentional act;
(2) Expressly aimed at the forum state;
(3) Causing harm, the brunt of which is suffered- and which the D knows is

19
 likely to be suffered- in the forum state.
(4) Bottom Line – Intentionally targeting wrongful conduct towards a
forum resident will support an assertion of jurisdiction in the victim’s
state of residence if they suffer harm there.
a. Note: If Calder Effects test satisfied, no need for the second prong
reasonableness analysis.
(h) Burger King Corp. v. Rudzewicz (BRENNAN)
(i) Mich. D entered into a franchise contract with P in which the K was governed
by FL law, and called for payment of all monthly fees and relevant notices to
be sent to the Miami headquarters.
(ii) Jurisdiction is proper where the minimum contacts proximately result from
actions by the D that create a substantial connection with the forum state.
(A) Minimum contacts can’t solely be based on the fact that the D had a
contract with the out of state party.
(iii) RULE: Where the D deliberately has engaged in significant activities
within a state, or has created continuous obligations between himself and
residents of the forum, he manifestly has availed himself of the privilege
of conducting business there, and it is not unreasonable to require him to
submit to the burdens of litigation in that forum.
(iv)Distinguished from Hanson, because in that case the position of the Delaware
trustee was passive.
(v) Once minimum contacts have been established, the burden shifts to the D to
prove the defense of the suit in the forum state is “fundamentally unfair”.
(i) Asahi Metal Industry Co. v. Superior Court (O’CONNER)
(i) Addresses “stream of commerce” issue
(ii) Whether mere awareness on the part of a foreign D that the product it
manufactured, sold, and delivered outside the US would reach the forum state
in the stream of commerce constitutes minimum contacts with the forum
state? HELD: NO
(1) First prong – Minimum Contacts
(iii) Purposeful Availment Test: requires “some act” to prove that the D
purposefully availed itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of the laws.
(iv)O’CONNER’S approach: Mere placement of a product into the stream of
commerce is insufficient to establish minimum contacts; rather, the party
must intend to serve the forum state when they participate in the stream of
commerce.
(v) BRENNAN’S approach: Placing a product into the stream of commerce
with the awareness that it would be marketed in the forum state sufficed to
establish minimum contacts.
(1) Second prong - Reasonableness of jurisdiction in this case:
(A) Burden on D was severe (they were in Japan)
(B) P’s interest was slight (did not demonstrate convenience of litigating in
California vs. Japan)
(C) State forum’s interest was slight (P was not a Cal resident and
indemnification claim did not arise in Cal.)

20
Distinction between Gray and Asahi:
1.Gray was still in the lawsuit, Zurcher (injured motorist) had settled out and the dispute was one
of indemnity b/t the two Japanese companies.
2. Possibly more foreseeable for American Radiator to see their products enter Illinois than
Asahi to see their products enter California

E) General Jurisdiction and State Long-Arm Laws

(a) Perkins v. Benguet Consolidated Mining Co.
(i) Supreme Court held that Ohio had jurisdiction over a Phillipine Corporation.
(ii) Activities such as business correspondence, banking, director’s meeting, etc.
are enough to make it fair and reasonable to subject a corporation to
proceeding in personam in that state.
(1) At least insofar as the proceedings in personman seek to enforce causes of
action relating to those very activities or to other activities of the
corporation within that state.
(b) Specific Jurisdiction- affiliations between the forum and the underlying
controversy normally support only the power to adjudicate issues deriving from or
connected with the very controversy that establishes jurisdiction.
(c) General Jurisdiction- power to adjudicate any kind of controversy when
jurisdiction is based on relationships, direct or indirect, between the forum, and
the person or person whose legal rights are to be affected.
(d) Helicopters Nacionales De Colombia, S.A. v. Hall (BLACKMUN)
(i) Where D/Petitioner had certain limited contacts with the forum state in the
past (unrelated to the incident in question), such contacts were deemed
insufficiently continuous and systematic to warrant jurisdiction. Held:
“Purchases and related trips, standing alone, are not a sufficient basis for a
State’s assertion of jurisdiction” over a non-resident, foreign corporation.
(1) In this case, Supreme Court recognized a distinction that had been made
by some state courts between “general jurisdiction” and “specific
jurisdiction.” When D has contacts with the forum state but the cause of
action does not arise out of defendant’s forum related activities, general
jurisdiction must be found. Specific jurisdiction is asserted when the
defendant’s forum contacts are sporadic, but the cause of action arises out
of those contacts.
(A) In this case, SCOTUS ruled that general jurisdiction was required
because the parties had argued jurisdiction in the lower courts based
on that characterization.
(B) The Court concluded that D’s contact were neither continuous nor
systematic and were unrelated to the cause of action.
(ii) If there are sufficient contacts between the state and foreign corporation, but
the cause of action is not related to the contacts, then due process is not
offended by subjecting a foreign corporation to its in personam jurisdiction.
(This is not the case here – not sufficient contacts)

I. General Jurisdiction (Note 2 p.91)

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 a. Physical Presence (Pennoyer; Burnham)
b. Domicile (Milliken)
c. Substantial Activity in the forum (Helicopteros)??

II. Specific Jurisdiction

a. Consent (Hess, Wuchter, Szukhent)
i. Contract (Szukhent; Burger King)
ii. Statute (Hess v. Pawloski)
b. State-Directed Acts (Shoe) – continuous & systematic and/or related to the forum
PLUS fair play & substantial justice.
i. Tortious Acts (Gray, Hustler)
ii. Business Activity (Burger King; McGee; cf. Volkswagon)
1. Exp. Burger King could not have been sued in Fl for any other
reason than their business activity within that state.
iii. Use or ownership of property (Pennoyer)
1. Ex: In-rem jurisdiction
iv. Litigation (Hanson; Kulko)

Minimum Contacts
1. Agents in the state (Shoe)
2. Contract to provide services (McGee)
3. Delivery of products or services (Shoe)
4. Transaction of Business (Shoe)
5. Relatedness (Shoe)

Fair Play & Substantial Justice

1. Forum state’s interest (Shoe)
2. Convenience to D (Asahi)
3. Convenience to P (availability of an alternative forum?)
4. Convenience of witnesses
5. Choice of Forum Clause
6. Choice of Law
7. Who initiated contacts? (Hanson)
• Ms. Donner initiated the contacts unilaterally towards the Delaware trustee. DE did not
reach out/interject itself, therefore no minimum contacts with the state.
Minimum Contacts + Fair Play & Substantial Justice = Jurisdiction

Two Step Analysis for Jurisdiction:

1. Minimum Contacts (Continuous/Systematic & Related)?
2. Fair Play & Substantial Justice (Reasonableness)?

Notes on Personal Jurisdiction:

1. Concept rooted in Sovereignty – court can only litigate lawsuits over people which it
has authority.

22
 2. Contemporary Doctrine – “based upon a review of the relationship that exists among
the place where the underlying transaction took place, the parties, and the territory of the state
where suit is brought.”

Two Parts of Personal Jurisdiction:

1. Due Process
2. Federalism

Three types of Personal Jurisdiction:

1. In personam – against a person
2. In rem – power to establish the status of property
3. Quasi In-rem – judgment against a person but recovery limited to the value of the property.
Essentially establishes jurisdiction over the person via the property,

Attaching the property puts the owner on notice of service of process. In theory, the property
owner manages/is in control of his land and is more likely to find out about service than other
secondary means. Doesn’t always work in the real world.

“Field Theory” of jurisdiction – a state can authorize jurisdiction over virtually anybody within
its boundaries.

F) Internet and Other Technological Contacts

(a) Pebble Beach Co. v. Caddy
(i) Where the sole basis for asserting jurisdiction is a non-interactive passive
website, the fact that the D’s website is not directed at the particular state (or
location) is controlling.
(ii) NOTE: Supreme Court has yet to consider the issue of personal jurisdiction
based on internet contact.
G) Jurisdiction Based Upon Power Over Property
(a) Pennington v. Fourth National Bank (BRANDEIS)
(i) Although the petitioner did not reside in the forum state, the Court held that
attachment of his in-state bank account satisfied due process.
(ii) Jurisdiction of a state over property within its borders, regardless of the
residence or presence of its owner, extends to tangible and intangible
property. Indebtedness due to a resident from a nonresident is property within
the state.
(iii) . The thing belonging to the absent D is seized and applied to the
satisfaction of his obligation. (Quasi In-rem)
(iv)RULE: The only things essential to the exercise of the state’s power are
presence of the res within its borders, its seizure at the commencement of the
proceedings, and the opportunity of the owner to be heard,
(b) Harris v. Balk
(i) The case dealt with Harris owing Balk $180, and Balk owing Epstein $344.
(ii) While in Maryland Epstein instituted a garnish against Harris for the money
he owed to Balk. Harris was served, consented, and paid Epstein.

23
 (iii) Balk later commence an action in NC for the money, but Harris asserted
that he no longer owed him the money because of the MD suit.
(iv)Trial court ruled in favor of Balk and NCSC affirmed because MD court had
no jurisdiction because situs of the debt was in NC.
(v) Supreme court reversed.
(1) Obligation of the debtor to pay his debt clings with him wherever he goes.
(2) This obligation can be enforced by the courts of the foreign state after
personal service of process therein, just as well as by the courts of the
domicile of the debtor.
(c) Seider v. Roth
(i) Two New Yorkers where involved in a wreck with a Canadian while in VT.
(ii) They used the Canadians insurance policy located in NY to gain jurisdiction
and sue him. OVERRULED BY SAVCHUK
(d) Rush v. Savchulk
(i) Minn. P sued Indiana D in Minnesota arising out of an auto accident in
Indiana and attempted to obtain jurisdiction over D by D’s insurer, Allstate,
which did business in Minnesota.
(ii) RULE: Supreme Court found attachment of an insurance policy to effect quasi
in-rem jurisdiction to be unconstitutional.
(A) D’s contacts with the forum state are separate from his insurer’s
contacts with the forum state.
(e) Shaffer v. Heitner (MARSHALL)
(i) RULE: The mere existence of property owned by the D and present in the
state where suit is brought, will not in and of itself confer jurisdiction upon the
out of state D, but it still can be used for the purpose of enforcing judgment.
(ii) The presence of property in a state may bear upon the existence of providing
minimum contacts. BUT, where as in a quasi in-rem action, the property now
serving as the basis for state-court jurisdiction is completely unrelated to the
P’s cause of action, the presence of the property alone will not support
jurisdiction.
(iii) If:
(1) In rem- there would probably be minimum contacts because the subject of
the lawsuit is the land that is present in the state.
(2) Quasi in rem- there may or may not be minimum contacts. Simply the
property being present is not dispositive when the land is not related to the
litigation.
(iv)RULE: If property is connected to the lawsuit, jurisdiction likely exists.
(v) Shareholder derivative- allows someone to sue a company in which they own
stock, the purpose is to help the corporation by pursuing the litigation and not
hurt it.

H) A Refrain: Jurisdiction Based Upon Physical Presence

(a) Burnham v. Superior Court (SCALIA)
(i) D (NJ resident) was in Cal. to conduct business and visit his daughters when
he was served with Cal. summons from his estranged wife. D claimed in the
absence of continuos and systematic contacts with the forum, a nonresident

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 could only be subject to jurisdiction only as to matters that arise out of or
relate to his contacts with the forum.
(ii) Issue: Whether Due Process allows a state jurisdiction over a nonresident who
was personally served with process while temporarily in that state, in a suit
unrelated to his activities in that state?
(iii) RULE: Mere physical presence is enough to apply personal jurisdiction if
the person is served while present in the state.
(iv) International Shoe’s continuous and substantial minimum contacts
requirements apply to situations in which the D wasn’t present in the forum
state.
(v) SCALIA-The standard of minimum contacts was developed by analogy to
physical presence, and it would be perverse to say physical presence could
now be turned against minimum contacts.
(vi)BRENNAN- Concur in the outcome but did not agree w/ Scalia’s reasoning.
Simply b/c physical presence has been a standard, does not mean it is within
Due Process. Courts are constantly looking at cases from subjective
standpoint and should not base decisions on the “pedigree” of a law. By
visiting a forum state a D actually avails himself of significant benefits
provided by the state. There is little burden on a D to return to the forum state
and defend himself if he has already been there in the first place.
(vii) Remember- The Constitution sets the floor not the ceiling. It sets
minimum requirements, but states may require more than those requirements
in order to assert jurisdiction (i.e., something more than mere physical
presence.) However, they must be careful not to violate the plaintiff’s
constitutional rights in exercising jurisdiction over D. (possible exam essay)
I) Another Basis of Jurisdiction: Consent
(a) Insurance Corp. of Ireland v. Compagnie Des Bauxite (WHITE)
(i) Supreme Court ruled that by submitting to the jurisdiction of the court for the
limited purpose of challenging jurisdiction, the D agrees to abide by the
court’s determination on the issue, and the manner in which the court
determines whether it has jurisdiction may include discovery.
(ii) Insurance Corp of Ireland was obligated to follow the court orders to
providing the requested documents so P could attempt to prove jurisdiction.
(iii) Having put the issue in question, Insurance Corp. did not have the option
of blocking the reasonable attempt by P to meet its burden of proof.
(iv)When this happens, D is held to be within the court’s jurisdiction.
(v) RULE: It is possible to challenge personal jurisdiction only at the outset of the
trial. BUT it is never too late to challenge subject matter jurisdiction.
(vi)General Rule: In most states a foreign corporation that registers as a
condition of doing business in a state is regarded to consent to suit in the
courts of that state, EVEN IF the cause of action is not related to the
corporation’s activities in that forum.

Forum Selection Clause – location of where litigation will take place

Choice of Law Clause – applicable law that will apply to any disputes b/t the parties

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 (b) M/S Bremen v. Zapata Off-Shore
(i) Supreme Court upheld a jurisdictional forum clause in a contract between a
Houston based company and German based company that sated all suits
arising out of the contract would be settled in a London Court.
(c) Carnival Cruise Lines, Inc. v. Shute
(i) P attempted to sue the D for negligence while the P was injured on a cruise.
(ii) A forum clause was printed on the P’s ticket for the D’s cruise line which
stated that all litigation would take place in FL.
(iii) Supreme Court held forum-selection clauses were not limited to contracts
between businesses.
(iv)Reasonableness and fairness are the key factors when taking into
consideration the selection of forum clause. A reasonable forum-selection
clause is reasonable for several reasons:
(1) A large co. may have a special interest in limiting the forum to which it
can be sued, b/c it could open it up to litigation from passengers all over
the world.
(2) A clause establishing the forum dispels any confusion about where suits
must be brought
(3) Passengers benefit b/c of reduced fares reflected in the savings the cruise
line enjoys by limiting the forum to which it can be sued (travel, etc.)
(v) Forum selection clauses are usually upheld by a court UNLESS there is some
sort of overreaching or the requested forum may not be practical to uphold or
the P may not physically be able to or appear in that forum.

J) Jurisdictional Reach of The Federal Courts

(a) Rule 4(k) establishes the territorial limits of “effective service”. It acts as a sort of
federal long-arm provision for federal courts to assert jurisdiction where they
might not otherwise be able to.
(i) Rule 4(k)(1)(A)- a general service rule that the federal court may use when a
federal statute does not otherwise authorize jurisdiction. Under the Rule, the
federal court “piggy backs” on the long arm statute of the state in which it sits.
(ii) Rule 4(k)(1)(B)- is a special service rule that applies to parties joined under
Rules 14 and 19 and allows for service “within a judicial district of the US
and not more than 100 miles from where the summons was issued.” (The topic
of the joinder of claims and parties covered in Chapter 9, infra)
(iii) Rule 4(k)(1)(c)- permits service when authorized by a federal statute (for
example, the Anti-Terrorism Act allows for service “in any district where the
D resides, is found, or has an agent,”.
(iv)Rule 4(k)(2)- is a limited federal long arm provision that establishes personal
jurisdiction “for a claim that arises under federal law” if the D “ is not
subjected to jurisdiction in any state’s courts of general jurisdiction” and
“exercising jurisdiction is consistent with the US Constitution and laws.”
(b) United States v. Swiss American Bank, LTD.
(i) A D who wants to preclude use of Rule 4(k)(2) has only to name some other
state in which the suit could proceed. Naming a more appropriate state would
amount to consent to personal jurisdiction.

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 (c) Pendent Personal Jurisdiction: Once a district court has personal jurisdiction over
a defendant for one claim, it may ‘piggy back’ onto that claim other claims over
which it lacks independent personal jurisdiction, provided that all the claims arise
from the same facts as the claim over which it has proper personal jurisdiction.

K) Challenging a Court’s Exercise of Jurisdiciton Over the Person or Property

1) Raising the Jurisdictional Issue Directly
(a) Rule 12(b); (g); (h)
2) Special Appearance
(a) Raises the issue directly where D challenges the court’s exercise of personal
jurisdiction without submitting to the court’s jurisdiction for any other purpose.
3) Collateral Attack on Personal Jurisdiction
(a) A D who makes no appearance whatsoever remains free to challenge a default
judgment for want of personal jurisdiction.
4) The Limited-Appearance Problem
(a) A “limited appearance” allows a D in an action commenced on a quasi-in-rem
basis to appear for the limited purpose of defending his interest in the attached
property without submitting to the full in personal jurisdiction of the court.
(b) Without provision for such limited appearance, a D must choose between
appearing, and thereby risking the possibility of an in personam judgment in
excess of the value of the attached property, or not appearing, thereby as a
practical matter, suffering the forfeiture of the property.

IV)Subject Matter Jurisdiction (required for court to hear a case)

A) Subject-Matter Jurisdiction in State Court
(a) Determined by the state constitution, state statutes, and judicial decisions.
(b) For a court to make a ruling over an issue:
(i) Personal jurisdiction over the person, and
(ii) Subject over claim
(c) Hughes v. Fetter
(i) Supreme Court held a state court of general jurisdiction is permitted and may
be under Constitutional duty to hear a cause of action arising under the laws of
another state.
(d) A state may apply its own shorter statute of limitations even though the claim
would be timely under the law of the state under which the cause of action arose.
(e) Conversely, a state may apply its longer statute of limitations even though the
claim would have been time barred under the law of the state under which the
cause of action arose.
(f) Tafflin v. Levitt
(i) “System of Dual Sovereignty” – a state court is presumed to habe concurrent
jurisdiction and may entertain an action even though it is based entirely on
federal law
(g) Lacks v. Lacks (New York – State Subject Matter Jurisdiction)
(i) Where the parties had suffered through a painful divorce process, the husband
was ultimately granted a judgment of divorce which was affirmed by the
intermediate appellate court, and two years later, the wife moved to vacate the

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 judgment on the ground that the court lacked subject-matter jurisdiction due to
the husband’s failure to meet certain residence requirements, the court held
that “subject matter jurisdiction only goes to the substantive elements of a
cause of action and does not challenge the competency of a court to hear a
case nor hand down a judgment.”
(1) Subject-matter jurisdiction goes to the prima facie elements of a cause of
action; the court’s authority relates to its power to hand down a judgment
in a particular type of case (divorce, bankruptcy, etc.)
(ii) Wife mischaracterizes subject matter jurisdiction. The court had the power
to hear divorce cases – any challenge to husband’s residency should be
raised at trial or on appeal. (Not two years after the judgment is rendered)
(iii) When litigation has gone to final judgment and the right to review by
appeal has been exhausted, this is the end of the matter. (Res Judicata)

B) The Subject Matter Jurisdiction of the Federal Courts- Diversity of Citizenship

(a) Federal Subject Matter Jurisdiction
(i) Federal Question
(1) Cases arising under Federal Court
(2) US Constitution
(3) Federal Statutes
(4) Treaties
(5) Ambassadors
(ii) Diversity of Citizenship
(1) Suits between two states
(2) Suits between citizens of different states
(A) Rule of Complete Diversity (Chief Justice Marshall)
a. No diversity if any P is citizen of the same state as any D
b. Marshall sought to avoid discrimination against out of state
residents in state courts.

(b) Generally Federal Courts are:

(i) Faster
(ii) More favorable to corporate interests than individuals.
(iii) Jury pools may contain a different sort of person.

(c) Article III - I established the basic jurisdiction of the Federal Court System

(d) 28 U.S.C. § 1332 – Scope of Diversity Jurisdiction

(i) 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 of a foreign counrty
(3) Citizens of different States and in which citizens of a foreign country are
additional parties; and
(4) A foreign country, as P and citizens of a state or of different states.

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Rule: A US citizen that is not domiciled in a particular state cannot bring an action in
federal court under diversity of citizenship against a citizen of a particular state. Why?
- There is no diversity, only one state is in the lawsuit (D’s)

(e) 28 U.S.C. § 1359

(i) 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.
(1) Keeps people from adding a party to a suit simply to slide in under federal
jurisdiction
(f) 28 U.S.C. § 1369
(i) The district courts shall have original jurisdiction of any civil action involving
minimal diversity between adverse parties that arises from a single accident,
where at least 75 natural persons have died in the accident at a discrete
location, if-…..
(g) Eerie Doctrine – requires the federal courts to apply state law to substantive
issues in diversity cases.

2) Two area where federal courts will not act even with diversity
(a) Probate Matters
(b) Domestic Relations

VERY IMPORTANT: 11th Amendment exception to diversity of citizenship

11th Amendment holds that a citizen of one state cannot sue another state in federal
court (citizen must go to the state court he is suing).
(1) Ex: Alabama resident cannot sue Tennessee in Fed. Court.
(2) Overturned Chism v. Georgia

1. Determining Citizenship
(c) Mas v. Perry
(i) Where P1 was a domiciliary of France and P2 a domiciliary of Mississippi but
both were living in Louisiana and D, a domiciliary of Louisiana, contested the
subject-matter jurisdiction of the court based on a lack of complete diversity,
the court held that “for diversity purposes, citizenship means domicile; mere
residence in the State is not sufficient.”
(1) Domicile - the place of his true, fixed, and permanent home and principle
establishment, and to which he has the intention of returning whenever he
is absent therefrom.”
(2) Two-Part Domicile Test: “A change of domicile may be effected only by
a combination of two elements: (a) taking up residence in a different
domicile with (b) the intention to remain there.”
(ii) In general, to be a citizen of a state, the litigants must (1) be domiciled in that
state and (2) be a citizen of the United States. Citizenship is the key to
determining whether diversity jurisdiction may be asserted. The party
asserting diversity jurisdiction has the burden of proving its existence.

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 (iii) Diverse citizenship must be present at the time the complaint is filed.
(time filed not process served) Then they remain diverse throughout the
pendency of the lawsuit regardless of such changes.
(iv)*Diverse party may go to federal court, but it is not required to*
(v) Section 1332(a) also provides jurisdiction for aliens. Thus also giving it
diversity of citizenship.
(d) Jurisdiction of a Corporation
(i) A corporation can be a citizen of more than one state.
(ii) A corp. is a citizen of
(1) The state(s) in which it is incorporated.; and
(2) The state in which it has its principal place of business.
(A) It is generally accepted that a corp. can have only one principal place
of business for purposes of diversity jurisdiction.
(iii) 3 Tests for deciding corp.’s principal place of business:
(iv)Nerve Center Test: ***Supreme Court Made this the test last summer***
(1) Where the headquarters are located with the corporation’s officers and
decision makers.
(v) Muscle Test: (OBSOLETE)
(1) Greater weight is attached to the location of a corp.’s production or service
activities in determining the principal place of business under this test.
(vi)Total Activity Test: (Hybrid Test)
(1) Considers all the circumstances surrounding a corp.’s business to discern
its principal place of business.
(2) Combines Nerve Center and Muscle
(vii) Licensing does not satisfy this jurisdiction, incorporation does.
(e) Kramer v. Caribbean Mills, Inc.
(i) Court of appeals held the assignment was “improperly or collusively made”.
(ii) “Manufacture of Federal jurisdiction: was the very thing which Congress
intended to prevent when it enacted Section 1359 and its predecessors.
(iii) Prohibits “stick figure plaintiffs”

(f) Amount in Controversy

(g) A.F.A. Tours, Inc. v. Whitchurch
(i) Where P sued D, a former employee, for an injunction to prevent him from
using confidential company information and customer lists and the court held
the facts indicated abundant evidence that there was potentially a large enough
amount in controversy to warrant a finding that the amount in controversy
requirement was satisfied.
(ii) RULE: The sum claimed by the plaintiff controls, if the claim is apparently
made in good faith (P has burden of showing pleading is proper). It must
appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify a dismissal (D has burden to disprove sum
claimed).
(1) When applying this test, a court must look at the circumstances at the time
the complaint is filed.

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 (2) Actual damages and punitive damages may be taken into consideration in
requiring a P’s claim to satisfy the jurisdictional amount.
(A) This makes it hard on D to disprove amounts, because it is difficult to
disprove punitive damages.
a. However, may be able to get around it by claiming P is not entitled
to punitive damages
(h) Aggregation of Claims
(i) In general, one P can aggregate all of her claims against one D to meet the
amount in controversy even when those claims are not related except for the
identity of the parties.
(ii) Multiple P’s who join together can only aggregate their claims if they are
seeking to enforce a single title or right in which they have a common and
undivided interest (can’t aggregate if the claims are not related.)
(i) Determining Amount in Controversy for Injunctive Relief
(i) Three Approaches:
(1) The value of the injunction to the P
(2) The value of the injunction to the party seeking to invoke federal
jurisdiction
(3) “Either Viewpoint Rule” – the pecuniary result to either party which the
judgment would directly produce
C) The Subject-Matter Jurisdiction of the Federal Courts-Federal Questions
(a) Article III § 2 extends the judicial power of the US to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made under their Authority.
(b) 28 U.S.C. § 1331- The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States. Three
purposes:
(i) To promote the uniformity of federal law;
(ii) To encourage judicial expertise in interpreting federal law;
(iii) And to protect against possible state-court hostility to claims arising under
federal law.
(c) Osborn v. Bank of the United States (MARSHALL)
(i) “Reflects a broad conception of ‘arising under’ jurisdiction, according to
which Congress may confer on the federal courts jurisdiction over any case or
controversy that might call for the application of federal law.
(d) Louisville & Nashville R. Co. v. Mottley (MOODY)
(i) The Ps seem to be bringing an contract dispute and not necessarily a federal
question regarding a statute Congress enacted banning free passes of
transportation.
(ii) RULE: A suit arises under federal law only when the P’s cause of action
shows that it is based upon federal law.
(iii) “A suggestion of one party in his complaint, that the D will or may set up
a defense under the Constitution or laws of the United States, does not make
the suit one arising under that Constitution or those laws.”

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(e) “Artful Pleading”- describes an attempt by the P to create a federal question
jurisdiction through the anticipation and inclusion of a federal defense on the face
of its complaint.
(f) Must be a Federal question at the time of filing the complaint.
(g) T.B. Harms Co. v. Eliscu
(i) The main issue of this case is whether or not Eliscu executed the assignment
to Dreyfus and this requires an interpretation of a contract, not an
interpretation of the Federal Copyright Act 28 U.S.C. § 1338 (if it does the
complaint doesn’t show it).
(h) Well-Pleaded Complaint Rule: for a litigant to invoke general federal question
jurisdiction, it is necessary both that:
(1) The case “arise under” the Constitution or some other aspect of federal
law; and
(2) That this fact appears on the face of a well-pleaded complaint.
(ii) Issues that the defendant raises in the answer or issues relating to a defense
that the plaintiff anticipates in the complaint are irrelevant for jurisdictional
purposes. No matter how decisive or important federal law may turn out to be
in the later stages of the litigation, if a substantial federal issue is not raised as
a legitimate part of the plaintiff’s own claim for relief, there is no federal
question jurisdiction under the statute.
(i) Private Rights of Action- suits brought by private litigants against private
persons allegedly acting in violation of a statute.
(i) **Not in the book** Congress, by enacting a statute, can allow a P to bring a
cause of action in either state or federal court. Several reasons for this – but
Congress wants to be P friendly.
(j) Court v. Ash
(i) Supreme Court announced a four part test for determining whether a private
right of action should be implied from a federal statute that does not expressly
provide for a private remedy.
(ii) Four Part Test:
(1) Is the P one of the class for whose special benefit the statute was enacted;
i.e. does the statute create a federal right in favor of the P?
(2) Is there any indication of legislative intent, explicit or implicit, either to
create such a remedy or deny one?
(3) Is it consistent with the underlying purposes of the legislative scheme to
imply a remedy for the P?
(4) Is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to
infer a cause of action based solely on federal law?
(iii) Central inquiry is solely whether Congress intended to create a private
right of action (#2)
(k) Smith v. Kansas City Title & Trust Co.
(i) The general rule is that where it appears form the bill or statement of the P
that the right to relief depends upon the construction or application of the
Constitution or laws of the United States, and that such federal claim is not
merely colorable, and rests upon a reasonable foundation, the District Court

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 has jurisdiction.
(l) Moore v. Chesapeake & Ohio Railway Co.
(i) A suit brought under a state statute which defines liability to employees who
are injured while engaged in intrastate commerce, and brings within the
purview of the statute a breach of the duty imposed by the federal statute,
should not be regarded as a suit arising under the laws of the United States
and cognizable in the federal court in the absence of diversity of citizenship.
(Seems to contradict Smith)

(m) Merrell Dow Pharmaceuticals Inc. v. Thompson (STEVENS)

(i) Issue: Whether the incorporation of a federal standard in a state-law private
action, when Congress has intended there not be a federal private action for
violations of that federal standard, makes the action one “arising under the
Constitution, laws, or treaties of the United States?”
(ii) Ruling: There is no federal cause of action for FDCA violations. Using the
Cort v. Ash 4-part test, Congress did not intend a private federal remedy for
violations of the statute that it enacted. The mere presence of a federal issue
in a state cause of action does not automatically confer federal-question
jurisdiction. Presence of a federal issue as an element of the state tort is not
the kind of adjudication for which jurisdiction would serve congressional
purposes. A complaint alleging a violation of a federal statute as an
element of a state cause of action, when Congress has determined that
there should be no private right of action, does not state a claim “arising
under the Constitution, laws, or treaties of the U.S.”
(iii) Congress would have put the private right of action in the statute if they
intended for one to be there. If Congress did not create a private remedy, then
Court concludes there is not a federal cause of action.
(iv)In the absence of a Federal remedy, it is extremely unlikely that there will be a
federal question.

Hypo: Can P sue in Federal Court?

Tort Contract Copyright
AL Plaintiff sues FL Def + TN Def + AL Def

Answer: Yes. Diversity of citizenship exists over the first two Defs. Then, bring AL Def. in
under federal subject matter jurisdiction (copyright). Don’t need diversity over all of the parties
if a federal question exists as to the third party.

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V) Answering a Subject-Matter Jurisdiction question for the Exam
A) Is this a case which constitutionally may be granted to the federal courts because the
power for them to hear is granted in Article III, § 2 of the constitution?
B) If this case does fall within the constitutional category, has congress actually conveyed
jurisdiction over this type of case in a federal statute?
1) §1332—Diversity Jurisdiction
(a) Is the amount in controversy in excess of $75,000?
(b) Is each plaintiff domiciled in a different state from each defendant?
(c) If it involves a corporation, where is the corp. incorporated OR where its principle
place of business is located?
2) §1331—Federal Question Jurisdiction
(a) Is the claim for jurisdiction based upon the plaintiff’s claim for a cause of action?
(i) An anticipated defense or counter-argument is not sufficient.
(b) Holmes Test: Does the source of the plaintiff’s enforceable legal right against the
defendant arise out of a federal law? Need to answer yes tot both of the following.
(i) Does the federal law create the underlying substantive right being sought.
(1) If the Statute ONLY establishes a substantive right, but does not expressly
provide the right to sue, then the court must decide whether there is an
implied private right of action.
(2) If implied right of action, then subject matter jurisdiction
(3) If no implied right of action, then §1331 will not generally support
jurisdiction.
(ii) Does the federal law authorize the plaintiff to go to court for a remedy.
(1) No federal question if the statute only creates a right to a remedy, but does
not create a substantive claim.
(c) EXCEPTION: If the claim arises under state law, is it essential for the plaintiff to
establish a federal proposition in order to prove her claim?
(1) If yes, then Federal Question.

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