Você está na página 1de 9


• (A) DIVERSITY § 1332

◦ Between Citizens of Different States
▪ 1) Between
• No plaintiff can can be a citizen from the same state as a any defendant
• Statutory law; Congress can technically allow “minimal diveristy”
▪ 2) Citizens
• Natural Persons
◦ 1. Domicile Test
▪ Physical Presence/Residence in the state
◦ 2. Intent to return/remain indefinitely
▪ Consider intent on exact date when lawsuit is filed.
• Corporations
◦ 1. State of Incorporation
◦ 2. Principal Place of Business
▪ a) Nerve Center Test (Where all the important decisions are made:
regarding course and scope of company)
▪ b) Muscle Test (Where an overwhelming majority of operations or
company conduct takes place)
• Associations
◦ Through agency principles, these organizations are considered citizens of any
state in where a member resides
▪ 3) Of different states
• A citizen of a US state may sue an alien or vis-a-versa
• Citizens of different states suing each other may include an alien as an
additional P or D
• Problems arise when an alien is domiciled in one of the American states
• Can be a citizen of the US without being a citizen of any state
◦ Amount in Controversy Greater Than $75K
▪ 1) To-A-Legal Certainty Test
• Presumption is AIC is satisfied, unless party opposing SMJ can establish TLC that
P cannot make jurisdictional amount
• Valid as long as P's claim “would likely” or “probably would award less but might
rationally award more” → requirement still met
▪ 2) Exclusions
• Costs taxed to loser but not counted in AIC:
◦ Fees, Putting up Jurors, Expert Witnesses, Court reporting service, documents
produced, travel to and from depositions, etc.
• Interest on
• Attorney's fees unless suing for attorney's fees
▪ 3) Plaintiff's No-Aggregation Rule
• Multiple P's cannot add up their claims to reach the jurisdictional amount
◦ Exceptions:
▪ Single P with multiple claims, okay to add up
▪ More than 1 P with different amounts suing for but essentially suing on an
undivided claim
• Stated Differently
◦ A P can add up the amounts of all her claims against D, whether related or
◦ However, cannot aggregate claims against different D's unless they are being
sued for a common undivided interest
▪ 4) Non-$ Relief Tests
• Not suing for $ or they are and it's not enough to meet AIC
◦ 1. Specific Performance: do or refrain from doing something
◦ 2. Look at P's perspective and ask what if: May need to look at both
▪ a) What if P loses: If worth 75K and not getting then he's losing it and
that's the dollar value of the AIC.
▪ b) What if D loses: look at how much they would lose – what would it cost
to comply with the loss?
◦ Arising Under Requirement (EFI)
▪ 1. Explicit Federal Right and Remedy
• There is a federal cause of action for the violation of any federal law.
◦ (Employment discrimination laws, Securities Exchange Act, Treaties, Sources
in Consitution)
• Except where congress determined there's no private, federal cause of action for
▪ 2. Federal Law is Essential Element
• Most common. Must be a substantial element of the P's claim.
• When a federal element is not the basis of the claim, it sometimes may be
sufficient to warrant “arising under” jurisdiction. (When relief rests on application
of federal law)
• When a federal judge is in doubt about SMJ, doubt goes against SMJ. Must have a
substantial element – separate which is state law and which is federal in your
▪ 3. Important Federal Policy
• Very rare. (Policies promoting: Uniform Federal Labor Laws, Encouraging
entrepeneurship in the arts, ensuring uniform tax policies, constitutional rights to
◦ 2) Well-Pleaded Complaint Rule (Motley Rule)
▪ 1. Need a federal question in P's claim – What is P suing for and is there a federal
question raised?
▪ 2. Not a federal question in D's defense.
• 1) Giveth (Gibbs Test) (SSC)
◦ Independent and State law Claim(s) must arise out of:
▪ 1. Same case or controversy;
▪ 2. Same transaction or occurrence;
▪ 3. Common nucleus of operative fact(s)
• 2) Taketh Away (No Plaintiff Diversity Claims)
◦ If diversity is sole basis for independent claim → P's cannot assert supplemental
◦ If diversity is sole basis for independent claim → D's can assert supplemental claims
▪ (Impleader; cross-claims okay) However, they must arise out of the same case or
transaction as P's claim.
• 3) Conditioneth (NSIO)
◦ If none of the following apply, the claim may stay
▪ 1. Novel or Complex State Law
• New or difficult question of state law in supplemental claim, federal court
does not like to decide because it would require the to word as it is beyond a
“run-of-the-mill case”
▪ 2. State Law Claim Predominates
• A) State law claims out number federal claims; B)State claims worth more
• C) State claims are more important – gravity turns on application of the law.
▪ 3. Independent Claim (s) Dismissed
• Sliding scale analysis → look at investment of judicial resources
◦ A) If beginning of case, supplemental claim should be dismissed too.
◦ B) If later on in the case, keep in b/c there is already investment of
judicial resources
▪ 4. Other compelling reasons
• Exceptional circumstances (ie: Would trying claims together create jury

◦ 1. Physical Presence
• Non-resident D subject to PJ where they are properly served with with process
while physically present in forum state, or by D's voluntary appearance.
▪ In personam: Transient jurisdiction, physically present within the state, or above in
a plane.
▪ In rem: Substiute for D's body.
• True in rem: Property being seized is the same as the subject of the lawsuit →
basis for PJ
• Quasi in rem: Property being seized that is not the subject of the lawsuit → used
to satisfy judgment
◦ 2. Citizenship
▪ Citizenship = Domicile (same as SMJ): Forum state citizen always subject to PJ, no
matter where they are served.
◦ 3. Consent or Waiver
▪ On Purpose:
• Forum Selection Clause: Can be expressly written within the K, in the event that
a dispute arises out of this K, it will be litigated in state or federal court in state
X. (Unreasonable only if:
◦ A) Not vital to K: What is the link between clause and K?
▪ Place of business?
▪ Language of clause itself – is it silent or does it explicitly say why is it
▪ Applies to everyone or one-time occurrence?
▪ Not feasible to be called to defend all over. Predictable forum.
◦ B) Selects remote and alien forum: Does forum have anything to do with
claim filed? How far and burdensome will it be litigate here?
▪ Place where transactions have been or are to be performed.
▪ Location of the parties.
▪ Convenience of prospective witnesses and accessibility of evidence.
◦ C) Was negotiated in bad faith: Show that it's more than adhesive K.
▪ Overreaching
▪ Fraud
▪ Takes advantage of one party.
▪ Bad faith: Small type face, denial of the right to talk to a lawyer,
deliberate use of complicated terms, use of foreign language, legal ease.
▪ By Accident
• No special appearance = waiver
◦ Modernly, a non-resident D is subject to personal jurisdiction in any state where 1) the
state's LAS purports to reach them and 2) they have such minimum contracts with the
forum state that defending there would not offend traditional notions of fair play and
substantial justice.
◦ 1. Does the long arm statute purport to reach?
▪ Specific Acts Statute: Long-arm statute specifies the acts that subject a person to
PJ i.e. a long arm statute that allows jurisdiction for claims “arising out of tortious act
committed in this state.”
▪ Cop-Out Statutes: Court may exercise PJ on any basis not inconsistent with the
Constitution of this state or the US. “Intended to reach to the limits of Due Process”
→ watch out for this
◦ 2. International Shoe Test (MC = FP + SJ)
▪ The D must have purposefully availed itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protections of its laws. This
language emphasizes that the D must have made a deliberate choice to relate to
the state in some meaningful way before D can be made to bear the burden of
litigating there. Unilateral contracts by any P will simply not suffice.
▪ Minimum Contacts
• Purposeful Availment (IS) HISCG
◦ Has Effects
◦ Intentional
▪ 1) Solicits Business; 2) Advertises; 3) Agents; 4) Property/Offices, 5)
Designing Product for the Market, 6) Marketing Product Through a Forum
Distributor, 7) Negotiations
◦ Substantial
▪ 1. Continuous and systematic activities – actual course of dealings
▪ 2. Even single or occasional acts, due to their, quality & circumstance,
may be enough.
▪ 3. Money exchanged/large volume transacted
▪ 4. Future consequences → Contract
◦ Confers Benefit: A) Gets money; B) Laws and protections of the state
◦ Gives Rise to the Claim: “But for” test
• Purposeful Availment (AIN'T) NAIUF
◦ No impact
◦ Accidental: Acts of God
◦ Insignificant: Isolated and sporadic. Casual and irregular.
◦ Unilateral by non-D
◦ Foreseeable: Just because the company may have been “merely aware”
that their products might end up through distribution in the forum state is a
far cry from purposeful availment.
▪ Fair Play and Substantial Justice
• In addition to Minimum Contracts, the P must still show the reasonableness of
personal jurisdiction over the out-of-state D. In addition, it is possible to have
weak minimum contacts yet strong argument for the reasonableness, and
comport with the due process clause of the 14th Amendment.
• 1. Plaintiff's Interest In Litigating Forum (C, W & E, I)
◦ a) C: Citizen of the forum; b) W: relative ease of access to witnesses &
evidence already located in forum; c) I: place of injury; d) notice here, D's
interest are the same except in D's interest we also consider the BURDEN to
• 2. Defendant's Interest in Avoiding the Forum (W & E, B)
◦ a) Opposite of P's interest; b) W: D's access to relevant witnesses & evidence
may be beyond subpoena power, not in the state; c) B: too far to litigate –
large out of pocket costs; d) burden too great? Modern transportation &
communication have made it easier. D must show actual hardship.
• 3. Forum State's Interest (P, P, B, C)
◦ Not asking if there is another state with a better interest, just if the interest
is strong enough. Connections with the case.
◦ a) P: Protect injured citizens; b) B: Businesses affected? Did state benefit
from D's actions; c) P: forum's policies implicated?; d) C: choice of law
provision: evidence of strong state interest → state X is best at interpreting
State X law; e) Use of state resources; f)
• 4. Interstate Judicial System's Interest
◦ Burden on court system – efficiency and economy → avoid duplicate
◦ a) Interest is avoiding hearing the same case with the same evidence more
than once; b) collection of all state and federal courts whose resources might
be implicated by bringing this suit: If more than 1 place where case can be
tried, does it pose a burden to bring the suit in 1 state as opposed to
• 5. Shared Substantive Interest of Several States
◦ Does it serve policy interests of all states?
◦ a) Promotion of public good and social justice; b) if there is some
fundamental policy interest (safety of cars) shared by two states, and there is
more than one state where the suit may be brought, then leave the lawsuit in
the forum state; c) if case affects more than 1 state or has a different policy,
may not be wise to keep in forum; d) if forum state isn't going to promote
good policy you may not want to litigate there b/c the first judgment is
binding in other states.
◦ 1. Direct Attack

◦ 2. Collateral Attack

• Rule 12(b)(5) – is a motion to dismiss for service of process [has to do with the manner]
• Must distinguish this form …. A defect in the notice itself i.e. the writing “Surrender
Dorothy” lacked the proper language.
• Rule 12(b)(4) – when serve summons without complaint or vice versa …. written in foreign
language …. words don't convey that this is a wrongful death action based on the house
falling on the witch's sister.
◦ 1. Upon Natural Persons
▪ In-hand delivery: Best type. Placing and leaving with D.
▪ Substituted service:
▪ Appointed agent:
▪ Other (forum's law):
◦ 2. Upon Fictitious Defendant's
▪ Manager Partner or General Officer
• CFO, CEOs, certain VPs, certain Stock Holders
• Limited Partnerships: look for managing partners, those that can make company
• Unions: President
▪ Appointed agent: most laws require appointment of agent to receive service
◦ 3. Other (forum's law)
◦ Is the method of service, authorized by law, constitutional under the circumstances?
◦ 1. Reasonably Calculated: most effective means. Cost benefit analysis → more
expensive, less reasonable. (Mullane: Newspaper not good enough for known
◦ 2. Under the circumstances: Wuchter: motorist statute didn't require notice. Greene:
taking on door insufficient – taken down by children.
◦ 3. To give actual notice: Not always required, attempt may be good enough.

◦ Look at first two rules, then look at 3rd. Need only one to transfer venues. Which district
court in the federal system should hear the case? Transfer from one district court within
the federal system to another in a different state or district.
◦ A) Any Defendant Resides, If All in Same State
▪ If 1 D: Venue is proper in the district where the D resides
▪ If multiple D's: Venue is proper if at least 1 D resides in the district and no D's are
from outside the state.
▪ Exception: Does not work if any D is from another state.
• Residence: Courts equate residence with domicile for venue purposes.
◦ B) Event(s) or Omission(s) Occurred
▪ Venue is properly laid in any district where a substantial part of events or omissions
giving rise to the claim occurred (or a substantial part of property that is the subject
of the action is situated.)
▪ Focus is on the basis of the claim instead of the residents/citizenship. A crucial piece
of claim must have incurred in venue.
• If contract → where was the K created? OR wherever the substantial part of the K
• If tortious act occurs → where did the tort occur?
◦ C) Last Chance Option
▪ Diversity: All D's = PJ
• Diversity actions may be brought in “a judicial district in which any D is subject
to PJ at the time the action is commenced”
◦ If case is in federal court on diversity, venue is proper in any district where all
D's are subject to some basis on PJ.
◦ Use PJ analysis on venue considered. 1) Traditional Basis and 2) International
Shoe Test
▪ If no PJ → No last chance option
▪ Federal Question: Anywhere a D can be found
• Federal Q cases may be brought in a judicial district “in which any D may be
◦ If a federal Q case → we do not care about PJ. In a federal Q matter, the US is
the sovereign power that's exercising jurisdiction (limited by 5th not 14th so
long as US has contact with D.
◦ Where any single D can be found w/sufficient contacts – typically applies to
corporate D (chain stores)
◦ 12(b)(3) → Motion to dismiss the claim because of no proper venue
▪ If the above three don't work, then there is still a place the person can be sued →
State Court
◦ 12(b)(3) is disfavored and the motion to transfer is favored.
• (C) TRANSFER OF VENUE §1404 & §1406
◦ IF venue IS properly laid, and one of the D's say it's not fair for the venue to exist here.
◦ Purpose:
▪ This is a remedy for filing in the wrong court w/o having to dismiss the case
▪ Venue may be appropriate to transfer where the transferor venue is the venue but
the transferee venue is appropriate.
▪ If the transferor venue is proper and the transferee venue is proper but the
transferee venue is better
◦ Transferee Venue Satisfies §1391
▪ Transferee venue is better venue (If not satisfied then not appropriate)
▪ P's motion: Where D could have initially been served.
▪ D's motion: Where P could have had the right, independent of A's wishes, to bring
the action. Consent of D will not permit transfer where the action could not have
been originally commenced.
◦ Convenient for litigants, Witnesses
▪ Venue is oriented toward D but this also adds P and Witnesses
▪ Look for easy access to relevant witnesses
• 1404(a) – for convenience of parties & witnesses, in the interest of justice a
district ct may transfer any civil action to any other district or division where it
might have been brought – although P may have laid proper venue.


• A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by
the venue statute → allows D to have suit thrown out b/c the forum which is technically
correct is inconvenient.
◦ 1. We've exhausted all venue possibilities and we're at the 12(b)(3), and there's a better
▪ Here, we would entertain a motion to dismiss based on FNC grounds → not
transferring, simply pointing them where to go.
◦ 2. If after 12(b)(3) stage, where argument made IN state court that another state is a
better forum.
• (A) DIFFERENCES TO VENUE: Leads to dismissal or stay, not transfer.
◦ Unlike venue (where preferred remedy is to transfer case to proper or better Venue),
only remedy for FNC is DISMISSAL.
◦ Unlike Venue (where only about challenge to Fed venue), 90% of FNC cases will be in
state court.
◦ 1) When present litigation filed in state court: When federal is not option and
lawsuit is in one state court, and there's another feasible forum in another state's court,
use FNC.
▪ Can't transfer to another state court – must be dismissed from one, then taken to
▪ Wouldn't have a problem if we were originally in federal court. With federal, you can
transfer venues b/c under one sovereign court system.
◦ 2) When there's another potential forum in another country:
▪ No place to go but to another forum abroad
▪ Remedy is dismissal b/c can't transfer to another state of country b/c they are
different sovereign court system.
◦ 1) Feasible alternative forum, and:
▪ D has to show that there is another reasonably feasibly forum in either another state
court system or foreign country system.
▪ Go where P can get reasonable amount of relief. Doesn't have to be better or as
good as, or even the same as. Fact that you no chance of winning does not make it
◦ 2) Public/Private Interests Favor it (look at the court we are in):
▪ If there is a feasible forum, go back & see if current forum is not convenient.
Inconvenient forum can be dismissed but secure in knowledge that P has another
forum. If you don't find another feasible forum in Question 1, then don't need to
even answer this question.
• Public Interests
◦ 1. Administrative Burden: How much of hassle is it going to be for this court
to hear this case?
▪ a) Ask what kind of time, trouble, and expenses will original court face?
▪ b) State has an interest in not burdening its courts with litigation not
connected with the state.
▪ c) Too many lawyers/parties – inconvenient for public
▪ d) Things to look for:
• i. Unwieldy piece of evidence (jet from scotland)
• ii. Difficulty in selecting jurors/ time consuming (picking jurors who
have not been exposed to the news)
◦ 2. Foreign Choice of law: Court may be reluctant to take case depending on
the extent of which the court has to apply foreign law. Legal merits of case
would be too difficult to argue in this court. Allow better equipped forum to
handle case.
▪ a) Courts more likely to apply foreign law that's part of the common law
tradition → similar to ours can go to the law library – Canada, UK,
Australia, NZ
▪ b) Courts less likely to apply foreign law that is of a different tradition.
◦ 3. Local Interests: To what extent are citizens of the forum going to be
affected by outcome of litigation?
▪ a) Strong → whenever blood is on the ground; court will hear case.
▪ b) Weak → dismiss case
• Private Interests
◦ To what extent is D going to be put out to defend case in original forum?
◦ 1. Private burden on D
▪ a) Look at other than PJ factors
▪ b) Look at burden: Distance to be traveled, expenses, taken away from
business too long, lost opportunities, etc.
◦ 2. Access to evidence, witnesses
▪ a) Ease of access to witnesses & evidence
▪ b) How difficult will foreign witnesses be to get into US forum?
▪ c) Where subpoena not available, will probably dismiss.
▪ d) See if people controlling evidence would not voluntarily cooperate


• (A) REMOVAL §1441 (noticed by D):
◦ State → Federal Court Only. D's as well as P's should have the option to choose federal
court for cases within the federal jurisdiction since jurisdiction is intended to protect
both parties so both parties should have access to it.
◦ 1. Original P's Jurisdiction Rule:
▪ Non-Waivable Rule: Federal court has removal jurisdiction over any lawsuit that
originally could have been filed in federal court by the P, but wasn't.
▪ D has to talk about what the P could have originally done and P has to talk about
how he couldn't have filed in federal court.
▪ Can bring any federal question in state court except copyright.
▪ Run the risk of the D removing it if there's diversity.
▪ Have to look at each individual claim.
▪ Any claims not independent (fed/div) or supplemental have to be sent back to state
◦ 2. No D's from forum state rule (in a diversity case): D does not have hometown
vantage concern so there's no need to seek a neutral forum. But D's can remove if
there is a federal question.
◦ 3. All-Or-Nothing rule:
▪ All claims go or no claims go. No such thing as removing just the arguably federal
▪ Remove everything and then send back what doesn't belong in federal court.
▪ If multiple D case, all D's have to agree to remove. If they don't agree, no one goes.
◦ 4. Timing Rule:
▪ General 30-Day Rule:
• 1) Applies to all cases for which there might be removal.
• 2) 30 days from the date that removal becomes possible (receipt of complaint
and summons) to notify court.
• 3) When the make-up of the parties changes, left over D's can remove.
◦ As long as it's due to diversity, AND
◦ Done within 30 days of notice
• 4) If a lawsuit is filed on day 1 and some event happens that makes P amend his
suit, D can remove as long as he does so within 30 days of hearing about
amended suit.
• 5) If the addition of non-diverse parties destroys SMJ, can either remand or
refuse to allow defeating removal.
▪ Diversity 1- year cap rule: (after commenced in state court)
• 1) In diversity, no matter what happens after, D only has 1 year total, from the
date the lawsuit is filed, to remove.
• 2) Events may happen that creates diversity later on → irrevelant
• (B) REMAND §1446 & §1447 (sought by P):
◦ Federal Court → State Court only. Can't dismiss a case from federal court if it has
been removed from state to federal. Send back to state.
◦ 1. When Removal Rules are Violated
◦ 2. Claim-by-Claim analysis:
▪ a) Look at each claim and decide whether it can stay or go.
▪ b) Might be remanded on any theories that a supplemental claim can be remanded
▪ c) Can be remanded based on the violation of the 30-day rule or failure of all-or-
nothing rule.
▪ d) Motion has to be made in federal court.
◦ 3. Timing (30-day Rule)
▪ a) P must make a motion to remand, on the basis of any defect other than lack of
SMJ, within 30 days of removal.
▪ b) Exception: Failure of P to make a timely motion based on a total failure of SMJ.
The moment you find no SMJ, case has to remanded.