Civil Procedure Outline (Federal) PDF

CIVIL PROCEDURE—FEDERAL TABLE OF CONTENTS I. INTRODUCTION  21 A. PERSONAL JURISDICTION  21 B. SUBJECT MATTER JURISDICTION  21 1. Diversity of Citizenship Jurisdiction  21 2. Federa...

CIVIL PROCEDURE—FEDERAL TABLE OF CONTENTS I. INTRODUCTION  21 A. PERSONAL JURISDICTION  21 B. SUBJECT MATTER JURISDICTION  21 1. Diversity of Citizenship Jurisdiction  21 2. Federal Question Jurisdiction  21 3. Removal Jurisdiction  21 4. Supplemental Jurisdiction  21 C. VENUE  22 D. DISCOVERY  22 E. MULTIPLE PARTIES  22 II. PERSONAL JURISDICTION  22 A. OVERVIEW  22 1. Limitations on Personal Jurisdiction  22 a. Statutory Limitations  22 b. Constitutional Limitations  22 c. Personal Jurisdiction in Federal Courts  23 2. Three Types of Personal Jurisdiction  23 a. In Personam Jurisdiction  23 b. In Rem Jurisdiction  23 c. Quasi In Rem Jurisdiction  24 1) Defendant Is Not Bound Personally  24 B. STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION  24 1. Physical Presence at Time of Personal Service  24 2. State Law Exceptions to Traditional Rule  24 a. Service by Fraud or Force Invalid  25 b. Immunity of Parties and Witnesses  25 3. Domicile  25 a. Defined  25 b. Citizenship  25 4. Consent  25 a. Express Consent  26 1) By Contract  26 5 CIVIL PROCEDURE—FEDERAL 2) Appointment Required by State to Do Business  26 b. Implied Consent  26 c. Voluntary Appearance  26 5. Long Arm Statutes  26 a. Unlimited Long Arm Statutes  27 b. Limited (or Specific) Long Arm Statutes  27 1) Limitations in Tort Cases  27 2) Limitations in Contract Cases  27 3) Limitations in Property Actions  27 4) Limitations in Marital Dissolution Cases  27 C. CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION  28 1. Sufficient Contacts with the Forum  28 a. Traditional Rule: Physical Power  28 b. Modern Due Process Standard: Contact, Relatedness, and Fairness  28 1) Contact  28 a) Purposeful Availment  28 (1) “Stream of Commerce” Cases  30 (2) Internet Cases  31 b) Foreseeability  31 2) Relatedness of Claim to Contact  32 a) Claim Arising from Activity in the State (Specific Jurisdiction)  32 b) Claim Not Arising from Activity in the State (General Jurisdiction)  33 (1) Registration to Do Business in a State  33 (2) “At Home” in the State  33 3) Fairness  34 a) Convenience  34 b) Forum State’s Interest  34 c) Other Factors  35 2. Notice  35 a. Traditional Methods of Personal Service Satisfy Due Process Notice Requirements  35 b. Requirement that Agent Notify Defendant  36 c. Requirements for Cases Involving Multiple Parties or Unknown Parties  36 d. Knowledge that Notice by Mail Was Not Received  36 D. IN REM JURISDICTION  36 1. Statutory Limitations  36 2. Constitutional Limitations  37 a. Nexus  37 6  CIVIL PROCEDURE—FEDERAL 1) No Jurisdiction If Property Not Located in State  37 2) No Jurisdiction If Property Brought in by Fraud or Force  37 b. Notice  37 E. QUASI IN REM JURISDICTION  37 1. Statutory Limitations  37 2. Constitutional Limitations  38 a. Nexus  38 1) Quasi In Rem Type I  38 2) Quasi In Rem Type II  38 3) Procedural Requirements  39 b. Notice  39 III. DIVERSITY OF CITIZENSHIP JURISDICTION  39 A. INTRODUCTION  39 B. DIVERSITY AMONG THE PARTIES  39 1. Complete Diversity When Action Is Commenced  39 a. Multiple Parties—Complete Diversity  39 1) But Note  40 b. “Alienage” Jurisdiction  40 1) Aliens as Additional Parties  40 c. Diversity When Action Is Commenced  41 2. Questions of Citizenship  41 a. State Citizenship of an Individual—Domicile  41 b. Citizenship of a Corporation—Possible Multiple Citizenships  42 1) Special Rule for Direct Actions  42 2) Incorporation or Principal Place of Business in Foreign Country  42 c. Unincorporated Associations  42 1) Capacity  42 2) Citizenship  43 3) Class Action  43 4) Partnerships  43 5) Limited Liability Companies  43 d. Legal Representatives  43 e. Class Actions  43 f. Nonresident United States Citizens  44 3. Collusion and Devices to Create or Defeat Diversity  44 a. Assignment of Claims  44 b. Class Actions  44 c. Voluntary Change of State Citizenship  45 7 CIVIL PROCEDURE—FEDERAL 4. Realignment According to Interest  45 a. May Create or Destroy Diversity  45 b. Shareholder Derivative Actions  45 5. Supplemental Jurisdiction over Additional Claims  45 6. Joinder or Subsequent Addition of Parties  46 a. Restriction on the Use of Supplemental Jurisdiction in Diversity Cases  46 b. Intervention of Right  46 c. Permissive Intervention  47 d. Substitution of Parties  47 e. Third-Party Practice—Impleader  48 1) Subject Matter Jurisdiction Required  48 f. Cross-Claims  49 1) Subject Matter Jurisdiction Required  49 C. JURISDICTIONAL AMOUNT: IN EXCESS OF $75,000  50 1. What Is “In Controversy”?  50 a. Collateral Consequences of the Judgment  50 b. Interest and Costs  50 c. Equitable Relief  51 d. Punitive Damages  51 2. Aggregation of Separate Claims  51 a. One Plaintiff Against One Defendant  51 b. One Plaintiff Against Several Defendants  52 c. Several Plaintiffs Against One Defendant  52 d. Significance in Class Actions  52 3. Supplemental Jurisdiction over Claims Not Exceeding $75,000 in Diversity Cases  53 4. Counterclaims  53 a. Compulsory Counterclaim Need Not Meet Jurisdictional Amount  54 b. Permissive Counterclaim Must Meet Jurisdictional Amount  54 c. No Removal to Federal Court Based on Counterclaim  54 D. ERIE DOCTRINE AND THE LAW APPLIED UNDER DIVERSITY JURISDICTION  55 1. Federal Statutes or Federal Rules of Civil Procedure  55 a. Caution  56 2. If There Is No Federal Statute or Rule on Point, Is the Issue Substantive or Procedural?  56 a. Some Situations Are Clearly Established  56 b. Law Is Unclear in Other Situations  57 8  CIVIL PROCEDURE—FEDERAL 3. Statutes Involving Both Substance and Procedure  57 4. Interpreting State Law  58 a. De Novo Review of District Court’s Decision  58 b. Subsequent State Court Decisions  58 E. FEDERAL COMMON LAW  58 1. When Federal Courts Create Federal Common Law Rules  58 a. Interpretation of Federal Statute or Constitution  58 b. Creating Rules to Fill Gaps in Federal Regulatory Schemes  58 1) Formulating Uniform Federal Standard  58 2) Borrowing State Standard  59 2. When Federal Courts Create Federal Implied Rights of Action  59 a. Implied Right of Action Based on Federal Statute  59 1) Need for Affirmative Congressional Intent  60 b. Implied Right of Action Based on Constitution  60 F. EXCEPTIONS TO DIVERSITY OF CITIZENSHIP JURISDICTION  60 1. Domestic Relations  60 2. Probate Proceedings  60 G. MULTIPARTY, MULTIFORUM TRIAL JURISDICTION ACT  61 1. Requirements  61 a. The Action  61 b. Minimal Diversity  61 c. One Additional Condition  61 d. Limitation on Jurisdiction  61 2. Intervention  62 3. Service of Process  62 IV. FEDERAL QUESTION JURISDICTION  62 A. INTRODUCTION  62 B. FEDERAL QUESTION MUST APPEAR IN THE COMPLAINT  62 1. Defendant’s Answer or Defense Is Irrelevant  62 2. Anticipation of a Defense  62 C. IMPLIED FEDERAL RIGHT OF ACTION  63 D. FEDERAL CORPORATIONS  63 E. SUPPLEMENTAL (PENDENT) JURISDICTION OVER STATE CLAIMS  63 1. Supplemental (Pendent) Claims  63 9 CIVIL PROCEDURE—FEDERAL a. Effect of Dismissal of Federal Claim on Supplemental (Pendent) Claim  64 2. Pendent Parties  64 F. SPECIFIC STATUTORY GRANTS  65 1. Exclusive Jurisdiction  65 V. VENUE  65 A. SUBJECT MATTER JURISDICTION DISTINGUISHED  65 B. GENERAL RULES  65 1. General Rules for Most Civil Actions  65 2. Special Venue Provisions  66 C. RESIDENCE  66 1. Natural Persons  66 2. Business Entities  66 a. Note for Corporations  67 3. Nonresident of United States  67 D. IMPROPER VENUE MAY BE WAIVED  67 E. TRANSFER  67 1. Original Venue Proper  67 2. Original Venue Improper  68 3. Effect of Forum Selection Clauses  68 4. Original Court Lacks Personal Jurisdiction  68 F. LAW APPLICABLE UPON TRANSFER  68 1. Original Venue Proper  68 2. Original Venue Improper  68 VI. REMOVAL JURISDICTION  69 A. ORIGINAL JURISDICTION NECESSARY  69 1. When  69 2. Federal Defense Insufficient  69 3. State Court Need Not Have Had Jurisdiction  69 B. ONLY DEFENDANT MAY REMOVE; ALL MUST SEEK REMOVAL  69 C. VENUE  70 D. DEFENDANT MAY REMOVE SEPARATE AND INDEPENDENT FEDERAL QUESTION CLAIM  70 10  CIVIL PROCEDURE—FEDERAL E. DISMISSAL OF NONDIVERSE PARTY ALLOWS REMOVAL  70 F. LIMITATIONS ON REMOVAL IN DIVERSITY OF CITIZENSHIP CASES  70 1. Defendant Citizen of Forum State  70 2. One-Year Rule  71 G. PROCEDURE FOR REMOVAL  72 1. Notice of Removal  72 a. Allegation of Amount in Controversy  72 2. Thirty-Day Rule  72 a. Effect of Multiple Defendants on the Thirty-Day Rule  72 b. Effect of Amendment on Thirty-Day Rule  72 3. Procedure After Removal  73 4. Right to Jury Trial  73 a. Demand for Jury Trial  73 b. Demand Not Required  73 5. Remand  73 a. Based on Procedural Defects  73 b. Based on a Lack of Subject Matter Jurisdiction  73 c. When All Federal Claims Have Been Adjudicated  74 d. Appellate Review of Remand Order  74 VII. CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS  74 A. FULL FAITH AND CREDIT EXTENDED TO FEDERAL COURTS  74 B. INJUNCTIONS AGAINST PENDING STATE PROCEEDINGS  74 C. INJUNCTIONS AGAINST THREATENED STATE CRIMINAL PROSECUTIONS  74 D. INJUNCTIONS AGAINST STATE TAX PROCEDURES  74 VIII. THE FEDERAL RULES OF CIVIL PROCEDURE  75 A. COMMENCEMENT OF THE ACTION  75 B. SERVICE OF PROCESS  75 1. Who May Serve  75 2. Time Limit for Service of Process  75 3. How Service Is Made  75 a. Individuals  75 b. Minors or Incompetent Persons  75 c. Corporations, Partnerships, Etc.  75 d. Service Under State Rules  76 e. Waiver of Service by Mail  76 11 CIVIL PROCEDURE—FEDERAL 1) Effect of Waiver  76 2) Effect of Failure to Waive  76 4. Parties Served Outside State  76 5. Parties Served in Foreign Country  77 6. Immunity from Process  77 C. TIME PERIODS  77 1. Counting Time  77 2. Extensions of Time  78 D. INTERLOCUTORY INJUNCTIONS  78 1. Temporary Restraining Order  78 a. Requirements for Ex Parte Temporary Restraining Orders  78 1) Specific Facts Showing Immediate and Irreparable Injury  78 2) Efforts to Give Notice  79 3) Security  79 b. Notice of Hearing vs. Actual Notice  79 c. Time Limit  79 2. Preliminary Injunction  79 a. Requirements for a Preliminary Injunction  79 E. PROVISIONAL REMEDIES  80 F. PLEADINGS  80 1. Complaint  80 2. Pre-Answer Motions  80 a. Rule 12(b)  80 b. Motion for More Definite Statement  81 c. Motion to Strike  81 3. Answer  82 a. Must Contain Denials or Admissions and Any Affirmative Defenses  82 b. Time  82 c. Counterclaims  82 d. Effect of Failure to Answer—Default and Default Judgment  82 1) Default  83 2) Default Judgment  83 a) Default Judgment Entered by the Clerk  83 3) Notice Required  83 4) Setting Aside a Default or a Default Judgment  83 12  CIVIL PROCEDURE—FEDERAL 4. Inconsistent Claims or Defenses  83 5. Special Pleading  84 a. Capacity  84 b. Fraud or Mistake  84 c. Conditions of the Mind  84 d. Conditions Precedent  84 e. Official Document or Act  84 f. Judgment  84 g. Timing  84 h. Special Damages  84 6. Reply  85 7. Amendment and Supplemental Pleadings  85 a. Amendment  85 1) Relation Back  85 2) Changing Party  85 3) Conform to Evidence  86 4) Due Process Limitation  86 b. Supplemental Pleadings  86 8. Rule 11  86 a. Certification upon Presenting Paper to Court  86 b. Sanctions  87 1) Court’s Initiative  87 2) Party’s Motion  87 G. JOINDER  87 1. Joinder of Parties  87 a. Capacity  87 b. Compulsory Joinder (Indispensable Parties)  87 1) Should the Absentee Be Joined?  88 2) Can the Absentee Be Joined?  88 3) Should the Action Proceed Without the Absentee?  88 c. Permissive Joinder—Requirements  89 2. Joinder of Claims  89 a. Successive Claims  89 b. Jurisdiction  89 c. Class Actions  90 1) Prerequisites  90 2) Consideration in Treating Case as a Class Action  91 a) Court Must Define Class Claims, Issues, or Defenses  91 b) Appointment of Class Counsel  91 3) Effect of Judgment  91 13 CIVIL PROCEDURE—FEDERAL 4) Class Action Not Mooted If Class Representative’s Claim Mooted  91 5) Notice  91 a) Notice Required in Common Question Suits  91 b) Notice Discretionary in Other Types of Class Action Suits  92 6) Jurisdiction  92 a) Diversity Action  92 b) Federal Question Action  92 7) Court Approval of Dismissal or Settlement  92 a) Notice of Dismissal or Settlement  92 b) Procedures for Settlements of Class Action Suits  93 (1) “Opt Out” Provision  93 (2) Court Approval Required for Payment in Connection with Objection  93 c) Appeal of Approval of Settlement  93 8) Appeal of Class Action Certification Decision  93 d. Class Action Fairness Act  94 1) Subject Matter Jurisdiction Under the CAFA  94 2) Removal Under the CAFA  94 3) Excluded Actions  94 a) Primary Defendants Are States or Governmental Entities  94 b) Claims Based on Securities Laws or Regarding Corporate Governance  94 4) Local Considerations May Defeat Jurisdiction  94 a) Mandatory Decline of Jurisdiction  95 b) Discretionary Decline of Jurisdiction  95 5) Protections Under the CAFA  95 a) Coupon Settlements  95 b) Protection Against Loss by Class Members  95 c) Protection Against Discrimination Based on Geographic Location  96 d) Notification of Federal and State Officials  96 e. Shareholder Derivative Suits  96 1) Minority Shareholder Allegations  96 2) Corporation Named as Defendant  96 3) Jurisdictional Amount and Venue  96 4) Court Approval  97 f. Interpleader  97 1) Purpose Is to Avoid Double Liability  97 2) Rights of Plaintiff Stakeholder  97 3) Jurisdiction  97 a) Rule 22 Interpleader  97 14  CIVIL PROCEDURE—FEDERAL b) Federal Interpleader Statute  97 c) When to Use Which  97 g. Intervention  98 1) Intervention of Right  98 2) Permissive Intervention  98 3) Caveat  98 h. Third-Party Practice (Impleader)  99 1) Claims for Indemnity or Contribution  99 2) Non-Indemnity or Non-Contribution Claims  99 3) Severance of Third-Party Claims  99 4) Response of Impleaded Party  99 5) Impleading Insurance Companies  99 i. Cross-Claims  99 H. DISCOVERY  100 1. Duty of Disclosure  100 a. Types of Disclosure Required  100 1) Initial Disclosures  100 a) Exemptions from Initial Disclosure Requirement  101 2) Disclosure of Expert Testimony  101 3) Pretrial Disclosures  101 2. Discovery of Electronically Stored Data  101 a. Format for Producing Electronic Documents  102 b. Destruction of Electronically Stored Information  102 c. Remedies  102 d. Party Acted with Intent to Deprive  102 3. Scope of Disclosure and Discovery  102 a. In General  102 b. Trial Preparation Materials  103 1) Procedure for Claiming Work Product  103 c. Inadvertent Disclosure of Trial Preparation or Privileged Materials  103 d. Experts  103 e. Protective Orders  104 f. Supplementation of Disclosures and Discovery Responses  104 4. Types of Discovery  104 a. Pre-Action Depositions  104 1) Contents of Petition  104 2) Notice and Appointed Counsel  104 3) Court Order  104 b. Depositions  104 1) Oral Deposition of a Witness, Including a Party- Witness  105 15 CIVIL PROCEDURE—FEDERAL a) Compulsory Appearance of Witnesses  105 (1) Subpoena Not Needed for Parties  105 (2) Nonparties Should Be Subpoenaed  105 (3) Costs When Notifying Party Fails to Attend  105 2) Deposition of Witnesses on Written Questions  106 c. Interrogatories to the Parties  106 1) Option to Produce Business Records  106 d. Production of Physical Material; Inspection  106 e. Physical and Mental Examinations  106 1) Order for Examination  106 2) Report of Findings  107 f. Requests for Admission  107 5. Enforcing Disclosure and Discovery  107 a. Motion for an Order Compelling Disclosure or Discovery  107 1) Motion Granted or Discovery Is Provided After Filing  107 2) Motion Denied  108 3) Motion Granted in Part and Denied in Part  108 b. Failure to Comply with a Court Order  108 c. Failure to Disclose or Supplement an Earlier Response  108 d. Failure to Admit  108 e. Party’s Failure to Attend His Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection  109 6. Use of Depositions at Trial or Hearing  109 7. Errors and Irregularities in Depositions  109 a. As to Notice  109 b. As to Manner of Taking  109 c. As to Completion and Return  109 d. As to Form of Written Questions  110 I. PRETRIAL CONFERENCES  110 1. Rule 26(f) Conference of Parties—Planning for Discovery  110 2. Rule 16(b) Scheduling Conference  110 3. Pretrial Conferences  110 4. Sanctions  111 J. ALTERNATIVE DISPUTE RESOLUTION  111 1. Contractual Arbitration  111 a. Procedure  111 1) Judicial Review of Award  111 16  CIVIL PROCEDURE—FEDERAL 2. Judicial Arbitration  112 3. Mediation  112 K. TRIAL  112 1. Jury Trial Problems  112 a. Right to Jury Trial  112 b. Jury Trials in Diversity Cases  113 1) Right to a Jury Trial  113 2) Motion for New Trial Based on Excessiveness of Verdict  113 c. Jury Size  113 d. Jury Selection  114 1) Jury Venire  114 2) Voir Dire  114 3) Jury Challenges  114 e. Jury Instructions  114 f. Jury Deliberations  115 g. Jury Verdicts  115 1) General Verdict  115 2) Special Verdict  115 3) General Verdict with Written Questions  116 4) Erroneous Verdicts and Inconsistent Findings  116 5) Juror Misconduct  116 2. Consolidation and Separate Trials  116 3. Involuntary Dismissals  116 4. Voluntary Dismissals  117 a. Without Leave of Court  117 b. With Leave of Court  117 5. Offer of Judgment  117 6. Summary Judgment  117 a. Standard  117 b. Applicable to All Civil Actions  118 c. Time  118 d. Partial  118 e. Support  118 f. Affidavits  118 g. Nonappealability  119 h. Relationship to Motion to Dismiss  119 i. Relationship to Motion for Judgment on the Pleadings  119 7. Motion for Judgment as a Matter of Law (Formerly Directed Verdict)  119 8. Renewed Motion for Judgment as a Matter of Law (Formerly Judgment Notwithstanding the Verdict (“JNOV”))  119 17 CIVIL PROCEDURE—FEDERAL 9. Motion for New Trial  120 a. Reasons for Granting New Trial  120 1) Remittitur  120 2) Additur  120 b. Renewed Motion for Judgment as a Matter of Law with Motion for New Trial  120 10. Effect of Failure to Move for a Renewed Judgment as a Matter of Law or for a New Trial  121 11. Nonjury (Bench) Trials and Judgments on Partial Findings  121 IX. ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL  121 A. RELIEF FROM JUDGMENT OR ORDER  121 1. Clerical Mistakes  121 2. Motions to Amend Prior Orders or Renew Prior Motions  121 3. Other Grounds for Relief from Judgment  121 B. INDEPENDENT ACTION IN EQUITY TO SET ASIDE THE JUDGMENT  122 X. FINAL JUDGMENT AND APPELLATE REVIEW  122 A. JUDGMENT  122 1. Relief that May Be Given  122 2. Judgment on Multiple Claims or Parties  122 3. Final Decision on Merits May Be Valid Despite Lack of Subject Matter Jurisdiction  123 B. TIME FOR APPEALS  123 1. Extension of Time for Appeal  123 C. REVIEWABLE ORDER  123 1. Interlocutory Orders as of Right  124 a. Injunction  124 b. Receivers  124 c. Property Possession  124 2. Interlocutory Appeals Act  124 3. Fewer than All Claims or Parties  124 4. Collateral Order Rule  124 5. Review of Nonappealable Orders by Writ  124 6. Certification of Class Actions  125 D. STANDARDS OF REVIEW  125 18  CIVIL PROCEDURE—FEDERAL 1. On Matters of Law  125 2. On Questions of Fact  125 3. On Mixed Questions of Law and Fact  125 4. On Discretionary Matters  125 E. STAY PENDING APPEAL  125 1. Execution  125 2. Bond  126 3. Injunction Order  126 a. Power of Trial Court  126 b. Power of Appellate Court  126 F. SUPREME COURT JURISDICTION  126 1. Court of Appeals Cases  126 2. Cases from Highest State Court  126 XI. EFFECTS OF JUDGMENT ON FUTURE CASES  127 A. CLAIM PRECLUSION (RES JUDICATA)  127 1. Definition  127 2. Terminology Used to Describe Effect—“Merger” and “Bar”  127 3. Requirements for “Merger” and “Bar”  127 4. Valid, Final Judgment  127 5. “On the Merits”  127 6. Same Claimant Versus Same Defendant  128 7. “Cause of Action”  128 a. Common Examples  128 1) Accidents  128 2) Installment Obligations  129 B. ISSUE PRECLUSION (COLLATERAL ESTOPPEL)  129 1. Definition  129 2. Requirements  129 a. Final Judgment  129 b. Issue Actually Litigated and Determined  130 c. Issue Was Essential to the Judgment  130 d. Due Process and Mutuality Considerations  130 1) Against Whom Is Issue Preclusion Used?  130 2) By Whom Is Issue Preclusion Used?  130 3) Exceptions to Mutuality When Judgment Used Defensively  131 19 CIVIL PROCEDURE—FEDERAL 4) Exceptions to Mutuality When Judgment Used Offensively—Consider Fairness  131 C. CLAIM AND ISSUE PRECLUSION IN SPECIAL SITUATIONS  132 1. In Rem Judgments  132 2. Quasi In Rem Judgments  132 D. WHICH PERSONS ARE BOUND BY A JUDGMENT?  132 1. Parties Are Bound  132 2. Privies to Parties Are Bound by Issue Preclusion  132 3. Represented Parties May Be Bound by Claim Preclusion  132 E. WHICH CHOICE OF LAW RULES APPLY TO PRECLUSION QUESTIONS?  133 1. Case One Decided in State Court  133 2. Case One Decided in Federal Court Under Diversity Jurisdiction  133 20  CIVIL PROCEDURE—FEDERAL I. INTRODUCTION This outline is designed to acquaint you with commonly tested areas within the fields of federal jurisdiction and procedure. These are: personal jurisdiction, subject matter jurisdiction, venue, discovery, and joinder of multiple parties. A. PERSONAL JURISDICTION Personal jurisdiction refers to the ability of a court to exercise power over a partic- ular defendant or item of property. It may be categorized as in personam, in rem, or quasi in rem. The primary limitations on a court’s power to exercise personal jurisdiction are found in the United States Constitution and state statutes. B. SUBJECT MATTER JURISDICTION The subject matter jurisdiction of the federal courts is limited to that authorized by the Constitution as implemented by federal statute and decisional law. In general, it may be categorized as follows: 1. Diversity of Citizenship Jurisdiction Diversity of citizenship jurisdiction under 28 U.S.C. section 1332 is grounded historically in the desire to protect out-of-state parties from local prejudice. Its main requirement is that there be complete diversity between opposing parties. Each plaintiff must be of diverse citizenship from each defendant. Also, the amount in controversy must exceed $75,000. 2. Federal Question Jurisdiction Federal question jurisdiction under section 1331 presents fewer specific difficulties. The principal problem in this area is to determine when an action “arises under” federal law. A secondary problem is to know what types of actions are within the exclusive jurisdiction of the federal courts under other specific statutes. 3. Removal Jurisdiction Removal jurisdiction allows defendants to remove an action brought in a state court to a federal court if the federal court would have had original jurisdic- tion over the action. 4. Supplemental Jurisdiction The doctrine of supplemental jurisdiction is codified under section 1367 and includes, under a single name, the concepts of “ancillary” and “pendent” jurisdiction. In any form, supplemental jurisdiction allows a federal court to entertain certain claims over which it would have no independent basis of subject matter jurisdiction; that is, claims that do not satisfy diversity or federal question jurisdiction requirements. It is important to note that supplemental jurisdiction operates only after some claim has met the requirements for federal subject matter jurisdiction. 21 CIVIL PROCEDURE—FEDERAL Supplemental jurisdiction operates to bring additional claims into that case that arise from the a common nucleus of operative fact as the original claim. C. VENUE Venue is the designation of the proper geographic district in which to bring an action. Venue will depend on where the cause of action arose and on the nature of the parties (whether corporate or natural persons). D. DISCOVERY Discovery is the process by which litigants gather information from each other before trial, enabling them to know what evidence may be presented during the trial. The discovery issues that typically arise in court or during pretrial proceedings principally revolve around the scope of the examination allowed in discovery, the uses of depositions at trial, and the available methods of enforcing discovery rights. E. MULTIPLE PARTIES Multiple party questions concern whether various types of joinder are permitted under federal law and, if so, whether there is a jurisdictional basis for a particular attempted joinder. The majority of the issues that arise in this area are grounded in the interpretation or application of statutes and the Federal Rules of Civil Procedure (“Federal Rules”), and also require knowledge of subject matter jurisdic- tional bases, especially supplemental jurisdiction. II. PERSONAL JURISDICTION A. OVERVIEW There are two branches of jurisdiction: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction involves the court’s power over a partic- ular type of case. Personal jurisdiction involves the ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property. This section discusses personal jurisdiction. 1. Limitations on Personal Jurisdiction The exercise of personal jurisdiction generally must be authorized by statute and constitutional. a. Statutory Limitations States have the power to decide over whom their courts may exercise jurisdiction. Therefore, the first place to look to determine whether the court has properly exercised personal jurisdiction usually is state law. If no state statute grants the court the power over the parties before the court, the court lacks personal jurisdiction. b. Constitutional Limitations The Due Process Clause of the Constitution places two restrictions on the exercise of personal jurisdiction. First, the defendant must have 22  CIVIL PROCEDURE—FEDERAL such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable. Second, the defendant must be given appro- priate notice of the action and an opportunity to be heard. Exercise of personal jurisdiction over a defendant in violation of these constitutional requirements is not valid, even if a statute purports to grant the court jurisdiction. c. Personal Jurisdiction in Federal Courts The main jurisdictional problem in state courts arises when the defen- dant over whom power is sought lives in another state. Since the federal borders encompass all states, one might expect that federal courts would encounter problems of personal jurisdiction only when the defendants were foreign nationals. However, Rule 4 of the Federal Rules provides that, absent some special federal statute, each federal court must analyze personal jurisdiction as if it were a court of the state in which it is located. Thus, in most cases, the assessment of whether the court has personal jurisdiction over the defendant will be exactly the same in federal court as it is in state court. Rule 4 also authorizes jurisdiction without regard to state long arm statutes over third-party defendants and parties required to be joined under the compulsory joinder rules, provided the party is served within 100 miles from the place where the summons was issued. (See VIII.B.3., infra.) 2. Three Types of Personal Jurisdiction a. In Personam Jurisdiction In personam jurisdiction exists when the forum has power over the person of a particular defendant. (Jurisdiction over a plaintiff is generally not an issue because the plaintiff accedes to the court’s jurisdiction by bringing suit in that court.) In these cases, the court may render a money judgment against the defendant or may order the defendant to perform acts or refrain from acting. Such a judgment creates a personal obliga- tion on the defendant and is entitled to full faith and credit in all other states; in other words, if a defendant is ordered to pay a sum of money to a plaintiff, the plaintiff may enforce the judgment against the defen- dant’s property in any other state where that property is located. b. In Rem Jurisdiction In rem jurisdiction exists when the court has power to adjudicate the rights of all persons in the world with respect to a particular item of property. This jurisdiction is limited to situations where the property is located within the physical borders of the state and where it is neces- sary for the state to be able to bind all persons regarding the property’s ownership and use. This occurs with respect to actions for condem- nation (eminent domain cases), forfeiture of property to the state (for example, when the property is used for the unlawful transportation of narcotics), and settlement of decedents’ estates. 23 CIVIL PROCEDURE—FEDERAL c. Quasi In Rem Jurisdiction One type of quasi in rem jurisdiction exists when the court has power to determine whether particular individuals own specific property within the court’s control. Unlike in rem jurisdiction, however, it does not permit the court to determine the rights of all persons in the world with respect to the property. A second type of quasi in rem jurisdiction permits the court to adjudicate disputes other than ownership based on the presence of the defendant’s property in the forum (see E.2.a.2), infra, regarding applicable constitutional limitations). 1) Defendant Is Not Bound Personally The basis of a court’s power to exercise quasi in rem jurisdiction is the property within the state. (See E., infra.) The judgment does not bind the defendant personally and cannot be enforced against any other property belonging to the defendant. B. STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION Each state is free to prescribe its own statutory bases for personal jurisdiction. Of course, the exercise of jurisdiction in a given case must also satisfy the constitu- tional requirements. (See C., infra.) Most states have statutes granting their courts in personam jurisdiction in the following four situations: (i) Where the defendant is present in the forum state and is personally served with process; (ii) Where the defendant is domiciled in the forum state; (iii) Where the defendant consents to jurisdiction; and (iv) Where the defendant has committed acts bringing him within the forum state’s long arm statutes. Each of these bases of in personam jurisdiction will be discussed in detail below. 1. Physical Presence at Time of Personal Service Most states grant their courts in personam jurisdiction over any defendant who can be served with process within the borders of the state, no matter how long he was present, even if merely passing through. The Supreme Court has upheld this type of jurisdiction, allowing a transient defendant to be served with process for a cause of action unrelated to his brief presence in the state. [Burnham v. Superior Court, 495 U.S. 604 (1990)] 2. State Law Exceptions to Traditional Rule Even though jurisdiction through presence at the time of service has been upheld under the Constitution, state statutes and court decisions have limited the power of their courts in certain situations. 24  CIVIL PROCEDURE—FEDERAL a. Service by Fraud or Force Invalid If a plaintiff brings a defendant into a state by fraud or force to serve process, most courts will find the service invalid for exercising personal jurisdiction over the defendant. [See, e.g., Copas v. Anglo-American Provision Co., 73 Mich. 541 (1889)] EXAMPLE While in Tennessee, a driver from Ohio was in a car accident with a me- chanic from Tennessee. The accident was clearly the mechanic’s fault, so the driver suggested that the mechanic repair his car and return it to him in Ohio as a means of avoiding a lawsuit. The driver immediately went back to Ohio and filed suit. When the mechanic returned the car to the driver in Ohio, the driver delayed the mechanic long enough to have the process server serve the mechanic with the summons and complaint. The fact that the mechanic was served in Ohio cannot be used as a basis for personal jurisdiction over the mechanic in Ohio. b. Immunity of Parties and Witnesses Most states likewise grant immunity from personal jurisdiction to nonresidents who are present in the state solely to take part in a judicial proceeding, or who are passing through the state on their way to a judicial proceeding elsewhere. 3. Domicile Most states grant their courts in personam jurisdiction over persons who are domiciliaries of the state, even when the defendant is not physically within the state when served with process. a. Defined Domicile refers to the place where a person maintains her permanent home. If a person has legal capacity, her domicile is the place she has chosen through presence (even for a moment), coupled with the inten- tion to make that place her home. If a person lacks capacity, domicile is determined by law (for example, an infant is a domiciliary of the custo- dial parent’s home state). b. Citizenship A United States citizen, even though domiciled abroad, is subject to personal jurisdiction in the United States. The scope of this basis for jurisdiction is unclear, because states have never attempted to enact laws or rules enabling their courts to obtain jurisdiction solely on the basis of citizenship. 4. Consent Virtually every state provides for in personam jurisdiction through the defen- dant’s consent. Such consent may be express or implied or through the making of a general appearance. 25 CIVIL PROCEDURE—FEDERAL a. Express Consent A party’s express consent to the jurisdiction of local courts, whether given before or after suit is commenced, serves as a sufficient basis for in personam jurisdiction. 1) By Contract A party can, by contract, give advance consent to jurisdiction in the event a suit is brought against him. In fact, the party can be required to appoint an agent to receive service of process as part of the contract. The terms of the contract determine the extent of the agent’s power and thus the scope of the jurisdiction conferred. 2) Appointment Required by State to Do Business When a state authorizes a party to do business within its borders, the state will often require the party to appoint an agent for service of process. Some states view that appointment as consent to general jurisdiction within the state, whereas other states view appointment as consent to specific jurisdiction or a mere ministe- rial appointment for service. The Supreme Court has held that it does not violate due process for a state to require a party to consent to general jurisdiction by registering to do business in the state and appointing an agent for service. [Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028 (2023)] b. Implied Consent When the state has substantial reason to regulate the in-state activity of a nonresident of the state, it may provide that by engaging in such activity, the nonresident thereby appoints a designated state official as his agent for service of process. Thus, for example, the Supreme Court has upheld statutes that use such implied consent to subject a nonresi- dent motorist to jurisdiction in any state in which he has an accident. [Hess v. Pawloski, 274 U.S. 352 (1927)] c. Voluntary Appearance A defendant may consent to jurisdiction by a voluntary appearance, such as by contesting the case without challenging personal jurisdiction. Generally, any sort of appearance provides a sufficient basis for juris- diction, but many states allow “special appearances” through which a defendant can object to the court’s exercise of jurisdiction. The defen- dant usually must make this special appearance—by stating grounds for his objection to jurisdiction—in his initial pleading to the court; other- wise, the defendant will be deemed to have consented to jurisdiction. 5. Long Arm Statutes Virtually all states grant their courts in personam jurisdiction over nonresi- dents who perform or cause to be performed certain acts within the state or who cause results within the state by acts performed out of the state. 26  CIVIL PROCEDURE—FEDERAL In personam jurisdiction is granted regardless of whether the defendant is served within or outside the forum, but is limited to causes of action arising from the acts performed or results caused within the state. a. Unlimited Long Arm Statutes A few states, such as California, have long arm statutes that give their courts power over any person or property over which the state can constitutionally exercise jurisdiction. (See C., infra.) These are known as unlimited long arm statutes. b. Limited (or Specific) Long Arm Statutes Most states, however, have long arm statutes that specify in detail the situations in which their courts can exercise jurisdiction. 1) Limitations in Tort Cases Some statutes permit jurisdiction when a “tort” occurs within the state, while others require a “tortious act.” The latter language has caused problems where an out-of-state manufacturer puts his products into the stream of commerce knowing that some items will end up in the forum state. When the gravamen of the complaint is negligent manufacture, some courts have read “tortious act” narrowly and confined jurisdiction to the place of manufacture; others have read it to mean “the place the tort occurred,” inter- preting that to be the place of injury. 2) Limitations in Contract Cases Many statutes permit jurisdiction if the cause of action arises out of the “transaction of business” in the state. Some states require the defendant or his agent to have been physically present in the state at the time the transaction took place, but others have taken a broader view—for example, New York has upheld jurisdiction over a California resident who made telephone bids from California on paintings being sold in New York. 3) Limitations in Property Actions Many state statutes permit jurisdiction over a nonresident defen- dant when the cause of action arises from ownership of property within the state—as in the case of a tort action based on negligent maintenance of realty or a contract action regarding the sale of the property. Some statutes include chattels, while others are confined to realty. 4) Limitations in Marital Dissolution Cases All states provide that when a married couple last lived together in the state and one spouse then abandons the other, the remaining spouse may obtain personal jurisdiction over the absent spouse for divorce or legal separation proceedings. States vary on whether the 27 CIVIL PROCEDURE—FEDERAL plaintiff spouse must be living in the state at the time of abandon- ment (or other cause for dissolution) or whether jurisdiction may be acquired whenever the plaintiff has acquired domicile in the state. C. CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION Once it is determined that a state has a statute that allows the court to exercise in personam jurisdiction over the parties before it, the constitutionality of the exercise must next be determined. There are two components of the constitutional aspect: contacts with the forum and notice. 1. Sufficient Contacts with the Forum a. Traditional Rule: Physical Power Traditionally, jurisdiction over a person (or res) was a consequence of the state’s physical power to carry out its judgment; i.e., it was based on the power to arrest the person to force compliance with a judgment. Accordingly, the Supreme Court upheld exercises of juris- diction whenever the defendant was served with process within the forum state. [See Pennoyer v. Neff, 95 U.S. 714 (1878)] The Court later expanded the states’ physical power to extend not only to those defen- dants who were served within the state, but also to those defendants who consented to the state’s power or who were domiciled in the state, regardless of where they were served. b. Modern Due Process Standard: Contact, Relatedness, and Fairness The concept of power by which a state could enforce its judgments was greatly expanded by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945). No longer was power controlled solely by whether one of the traditional bases of presence, residence, or consent was present. Instead, the focus became whether sufficient minimum contacts exist between the defendant and the forum so that maintenance of the suit against the defendant does not offend “tradi- tional notions of fair play and substantial justice.” The Supreme Court has listed a series of factors by which to assess the constitutionality of personal jurisdiction. In general, the factors fall under three headings: contact, relatedness, and fairness. 1) Contact International Shoe requires that the defendant have “such minimum contacts” with the forum that the exercise of jurisdiction would be fair and reasonable. In considering whether there are such contacts, a court will look to two factors: purposeful availment and foreseeability. a) Purposeful Availment Defendant’s contact with the forum cannot be accidental. Rather, the contact must result from her purposeful availment 28  CIVIL PROCEDURE—FEDERAL with that forum. The defendant must reach out to the forum in some way, such as to make money there or to use the roads there. The court must find that through these contacts the defendant purposefully availed herself “of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” [Hanson v. Denckla, 357 U.S. 235 (1958)] EXAMPLES 1) A plaintiff is injured in a car accident in Montana and brings a products liability action against Ford, the manufacturer, in Montana. The car was designed in Michigan and manufac- tured in Kentucky. Furthermore, the car was not sold in Mon- tana but in another state. The Court held that Ford was subject to personal jurisdiction in Montana. By advertising in a state, shipping original replacement parts to the state, and maintain- ing a network of dealers that sell and repair used cars in the state, Ford created a market for its cars within Montana. Ford thus has purposeful contacts with the state, and the cause of action relates to those activities, as those contacts encour- age people in the state to buy and drive Ford products. [Ford Motor Company v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021)] Whether the court would have had general personal jurisdiction was not addressed in the case. 2) Defendants, Michigan residents, entered into a franchise contract with a Florida corporation. The agreement required, among other things, that fees be sent to the franchisor’s home office in Florida, and provided that Florida law would govern any dispute. The Court held that the defendants could be sued in Florida; their contact with Florida resulted from their purposeful availment of that state. [Burger King v. Rudzewicz, 471 U.S. 462 (1985)] COMPARE 1) Father, in New York, agreed to give up custody of Daughter to Mother in California. Mother sued Father in California for ad- ditional support. Father’s only contact with California was letting Daughter go there. The Court held that California could not obtain in personam jurisdiction over Father because, in acting in the interest of family harmony, Father could not be said to have purposefully availed himself of the benefits and protections of California laws. [Kulko v. Superior Court, 436 U.S. 84 (1978)] 2) Defendant, a New York car dealer, was sued in Oklahoma based on an injury that Plaintiff received from an accident in 29 CIVIL PROCEDURE—FEDERAL Oklahoma. The only basis for jurisdiction over Defendant was the sale of the allegedly defective car in New York by Defen- dant, who knew no more than that any vehicle sold might be driven elsewhere. The Court found that there was no purpose- ful availment of the privileges or protections of Oklahoma. Note that this case is unlike Ford Motor Company, above, because the dealer, not the car manufacturer, was contesting personal jurisdiction. The New York dealer had insufficient contacts with Oklahoma. [World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)] (1) “Stream of Commerce” Cases There is great difficulty in assessing purposeful avail- ment in “stream of commerce” cases. Stream of commerce cases typically arise when Defendant manufactures its product in State A (or even Country A) and sells them to a second party in State B, thereby placing the product in the stream of commerce. The product eventually winds up in another state (State C) and causes an injury therein. The question is whether Defendant purposefully availed itself of State C. The Supreme Court has failed to reach a consensus as to when placing an item in the stream of commerce subjects the defendant to personal jurisdiction in the state where the product winds up. [Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011)] For bar exam purposes, the important points to remember are: (a) Merely placing an item in the stream of commerce, by itself, is not a sufficient basis for personal jurisdiction. (b) It is unresolved whether placing an item in the stream of commerce with the knowledge or hope that it will wind up in a particular state would be a sufficient basis for personal jurisdiction (but probably unlikely). If you encounter such a question on the exam, you should scour the question for facts showing an intentional targeting (purposeful availment) of the forum. (See (c), below.) (c) Placing an item in the stream of commerce coupled with some other acts that show the intent to serve a particular state, for example, by modifying its product to comply with state law, 30  CIVIL PROCEDURE—FEDERAL by maintaining sales offices within the state, by maintaining repair capabilities in the state, etc., is a sufficient basis for personal jurisdiction. (2) Internet Cases The Supreme Court has not set out a specific test or standard for assessing purposeful availment based on the defendant’s Internet activity. Many courts will look at whether the defendant has a passive website that allows people to view only content, an active website that allows people to order and download products, or something in between. The maintenance of a website for only informational purposes, without more activity in the forum, is insufficient to exercise jurisdiction over the defendant for all causes of action (that is, general jurisdiction), but it may be sufficient for a claim arising from the maintenance of the website itself and brought under the state’s long arm statute (thus using specific jurisdiction) if the defendant is specifically targeting readers in the forum. On the other hand, maintenance of an active website alone would be sufficient for the exercise of general jurisdiction (that is, a claim unrelated to the website activities) if the “at home” test is satis- fied. Specific jurisdiction hinges on whether the defen- dant was purposefully directing his activities to the forum. [Snowney v. Harrah’s Entertainment, Inc., 35 Cal. 4th 1054 (2005)—Nevada hotel subject to personal jurisdiction in California when it specifically targeted California consumers by providing rate information to and accepting reservations on its website, by touting its proximity to California, and by providing driving direc- tions from California] b) Foreseeability It must be foreseeable that the defendant’s activities make her amenable to suit in the forum. In other words, the defen- dant must have known or reasonably anticipated that her activities in the forum would render it foreseeable that she may be “haled into court” there. EXAMPLES 1) A national magazine is subject to in personam jurisdiction for libel cases in every state in which the magazine is mar- keted. Its publishers may reasonably anticipate causing injury in every state in which the magazine is sold, and thus should reasonably anticipate being haled into court in each state. 31 CIVIL PROCEDURE—FEDERAL [Keeton v. Hustler Magazine, 465 U.S. 770 (1984); Calder v. Jones, 465 U.S. 783 (1984)] 2) In Ford Motor Company v. Montana Eighth Judicial District Court, supra, the Court held that, by creating a market for its used cars in the forum state, and by continuously and delib- erately exploiting that market, Ford should have reasonably anticipated being haled into a court of the state where its product failed due to an alleged design defect. 2) Relatedness of Claim to Contact One important factor is whether the claim asserted against the defendant arises out of or relates to the defendant’s contacts with the forum. If it does, the court is more likely to find that jurisdiction is fair and reasonable. This assessment requires the court to determine the nature and quality of the defendant’s contacts with the state. Some authorities consider this factor to be part of the “contact” or the “fairness” assessment; others consider it, as we do here, to be part of the “relatedness” assessment. On an essay, the important point is that you address the issue in your answer, whether under the contact, relatedness, or fairness prong of the analysis. On an MBE question, remember that if the cause of action does not arise from or is unrelated to the defendant’s activities in the forum, there must be general personal jurisdiction over the defendant. a) Claim Arising from Activity in the State (Specific Jurisdiction) If the defendant’s in-state activity is based on isolated acts committed within the jurisdiction, personal jurisdiction over the defendant will be proper only for causes of action arising from or relating to that in-state activity; in other words, the court will have “specific jurisdiction.” When there are multiple claims or parties involved, each claim of each plaintiff must arise from or relate to some in-state activity for there to be specific jurisdiction. EXAMPLE Eighty-six plaintiffs from California and 592 plaintiffs from oth- er states sued Bristol-Myers Squibb, a pharmaceutical compa- ny incorporated in Delaware and headquartered in New York, in California, alleging that the drug Plavix injured them. None of the non-California plaintiffs alleged any connection to Cali- fornia with regard to their treatment. Because there was no activity in California as to the nonresident plaintiffs, the court lacked personal jurisdiction over Bristol-Myers Squibb as to the claims of the non-California plaintiffs, even though Bristol- 32  CIVIL PROCEDURE—FEDERAL Myers Squibb was subject to personal jurisdiction in California with respect to the California plaintiffs. The fact that the place of injury was outside the forum state also distinguishes this case from Ford Motor Company v. Montana Eighth Judicial District Court, supra. The place of injury is thus significant in accessing whether there is personal jurisdiction. [Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017)] Note: When the injury does not take place in the forum state, there also could be a lack of statutory authorization because no state would authorize personal jurisdiction over a defen- dant who commits an out-of-state act that produces an out-of- state injury. However, California has an unlimited long arm statute, so the statutory authorization issue essentially rolled into the constitutional issue. Note also: The court specifically stated its ruling does not apply to class actions. b) Claim Not Arising from Activity in the State (General Jurisdiction) General jurisdiction (that is, in personam jurisdiction for any cause of action against the defendant, even if the claim does not relate to the defendant’s contacts with the forum) might be available when the defendant (1) has registered to do business and appointed an agent in the state for service of process; or (2) is “at home” in the state. (1) Registration to Do Business in a State The Supreme Court has held that a state may require foreign businesses to consent to general personal juris- diction when they register to do business in the state. [Mallory v. Norfolk Southern Railway Co., supra] If a state requires such consent and it has a statute authorizing general jurisdiction over such business (as some states do), general jurisdiction may be exercised over a regis- tered business. Of course, if a state does not have such a statute, or if its courts have held they won’t extend personal jurisdiction this far, general jurisdiction cannot be exercised on this basis. (2) “At Home” in the State In addition to basing general jurisdiction on the contacts discussed above, a defendant can be subject to general personal jurisdiction if they were “at home” or “essen- tially at home” in the state. A person is “at home” in the 33 CIVIL PROCEDURE—FEDERAL state in which they are domiciled, and a corporation is “at home” in the state in which it was incorporated and the state in which it has its principal place of business. [Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011); Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Railway Co. v. Tyrrell, 581 U.S. 402 (2017)] 3) Fairness In addition to the defendant’s having relevant contacts with the forum, International Shoe requires that the exercise of jurisdiction not offend “traditional notions of fair play and substantial justice.” The Court has listed several factors relevant to assessing whether jurisdiction would be fair. It is possible that an especially strong showing of fairness might make up for a lesser amount of contact (although minimum contacts are always required). Note, however, that fairness is not a factor for the exercise of general jurisdiction. a) Convenience A defendant will often complain that the forum is inconve- nient. The Supreme Court has emphasized, however, that the Constitution does not require that the forum be the best of several alternatives. The forum is constitutionally accept- able unless it is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.” [Burger King v. Rudzewicz, supra] This is a very difficult standard to meet, and the defendant usually will not be able to meet it simply by showing that the plaintiff has superior economic resources. b) Forum State’s Interest The forum may have a legitimate interest in providing redress for its residents. EXAMPLES 1) Decedent, a California resident, purchased a life insurance policy by mail from a Texas company. Decedent regularly mailed his premiums from California to the Texas company, which had no other contacts with California. In a suit brought by the beneficiary of the life insurance policy, the Supreme Court held that California had personal jurisdiction over the Texas company. Among other things, the Court noted that California had a strong interest in protecting its citizens from alleged misfeasance by insurance companies. [McGee v. Inter- national Insurance Co., 355 U.S. 220 (1957)] 2) Asahi, a Japanese manufacturer of tire valves, shipped valves to a Taiwanese manufacturer of motorcycle tire tubes. 34  CIVIL PROCEDURE—FEDERAL The valves were incorporated into tires and sold in California, where a resident was injured by a defective tire. The Tai- wanese manufacturer was sued in a California court, where it sought to implead Asahi. The main case was settled, leav- ing only the indemnity claim by the tire manufacturer against Asahi pending. Held: Even though Asahi placed the defective goods in the stream of commerce knowing that some would be used in California, exercise of jurisdiction by the California court would be unreasonable considering the severe burdens of Asahi in defending in a foreign legal system, the slight interest of the Taiwanese manufacturer and California in the exercise of jurisdiction, and the international interest in not subjecting an alien corporation to United States jurisdiction. [Asahi Metal Industry Co. v. Superior Court, supra] c) Other Factors The Supreme Court has listed other factors relevant to the assessment of whether the exercise of jurisdiction would be fair and reasonable, but has not discussed these factors in detail: (1) the plaintiff’s interest in obtaining convenient and effective relief, (2) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (3) the shared interest of the states in furthering fundamental substantive social policies. 2. Notice In addition to the requirement that the defendant have such minimum contacts with the forum to render the exercise of jurisdiction there fair and reasonable, due process also requires that a reasonable method be used to notify the defendant of a pending lawsuit so that she may have an oppor- tunity to appear and be heard. Due process requires that notice be “reason- ably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” [Dusenbery v. United States, 534 U.S. 161 (2002)—quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)] a. Traditional Methods of Personal Service Satisfy Due Process Notice Requirements Any of the traditional methods of personal service satisfy due process notice requirements. These include personal delivery to the defendant; leaving papers with a responsible person at the defendant’s residence or place of business; delivery to an agent appointed to accept service; or delivery by registered mail, return receipt requested. (See VIII.B., infra, for discussion of methods of service of process.) 35 CIVIL PROCEDURE—FEDERAL b. Requirement that Agent Notify Defendant If an agent is appointed by contract, in a case where the plaintiff chose the agent for his own benefit, or the agent is appointed by operation of law (as under a nonresident motor vehicle statute), the failure of the agent to notify the defendant will prohibit jurisdiction—since the defen- dant will in fact be deprived of an opportunity to be heard. (This is not true when the defendant voluntarily selects his own agent, since any failure of the agent can and will be attributed to the principal.) c. Requirements for Cases Involving Multiple Parties or Unknown Parties In Mullane v. Central Hanover Bank & Trust Co., supra, an action was brought against a number of trust beneficiaries scattered throughout the world. The Supreme Court held that the Constitution did not require personal service on each beneficiary since the cost would have been prohibitive. However, every beneficiary had to be notified by the best practical means available. Thus, those whose addresses were known or could reasonably be ascertained had to be notified by ordinary mail, while those whose names or addresses were unknown could be notified by publication. Such methods of notice are valid only if all defendants have substantially identical interests. d. Knowledge that Notice by Mail Was Not Received Although Mullane v. Central Hanover Bank & Trust Co., supra, does not require actual notice, if a party knows that the notice by mail was not received, he may not proceed in the face of such knowledge if practi- cable alternatives to apprise the defendant of the action exist. EXAMPLE In Jones v. Flowers, 547 U.S. 220 (2006), the state sent a certified letter to a homeowner to inform him that he was delinquent on taxes and that failure to pay would make his property subject to public sale. By statute, the taxpayer was required to keep his address updated. The letter was returned “unclaimed,” after which the state took no further steps (such as using first class mail or posting notice on the property) to notify the tax- payer. The Court held that taking no further steps to provide notice with the knowledge that notice had not been received violated due process. D. IN REM JURISDICTION As stated in A.2.b., supra, in rem actions adjudicate rights of all persons with respect to property located in the state. An in rem judgment does not bind the parties personally, but is binding as to the disposition of the property in the state. 1. Statutory Limitations Most states have statutes providing for in rem jurisdiction in actions for condemnation, title registration, confiscation of property (such as vehicles 36  CIVIL PROCEDURE—FEDERAL used to transport narcotics), forfeiture of a vessel, distribution of the assets of an estate, and a grant of divorce when only the complaining spouse is present and subject to personal jurisdiction. In the last case, the “property” is the marital status of the complainant. 2. Constitutional Limitations a. Nexus In in rem actions the basis of jurisdiction is the presence of the property in the state. The state has a great interest in adjudicating the rights of all the world regarding this property. Therefore, the presence of the property in the state is constitutionally sufficient for the exercise of juris- diction over the property. 1) No Jurisdiction If Property Not Located in State A court has no in rem power over property outside the state; for example, in settling a decedent’s estate, the court has no in rem power over property in other jurisdictions. 2) No Jurisdiction If Property Brought in by Fraud or Force The exercise of in rem power is prohibited when the property is brought into the state by fraud or force. b. Notice The requirements of Mullane v. Central Hanover Bank & Trust Co., supra, apply to in rem actions. Thus, persons whose interests are affected and whose addresses are known must at least be notified by ordinary mail. [Walker v. City of Hutchinson, 352 U.S. 112 (1956)] E. QUASI IN REM JURISDICTION Quasi in rem jurisdiction permits a court without in personam jurisdiction to deter- mine certain disputes between a plaintiff and defendant regarding property when the property is located in the forum state. (See II.A.2.c., supra.) 1. Statutory Limitations There are two types of quasi in rem jurisdiction (see 2., infra). The first type (type I) involves disputes between parties over their rights in property within the state. The second type (type II) involves disputes unrelated to the in-state property and has been severely limited by the Supreme Court. In quasi in rem cases, the plaintiff is unable to obtain personal jurisdiction over the defen- dant, but the defendant has property in the state that the plaintiff attaches. The court then adjudicates the dispute between the parties on the basis of its power over the property. Since the court’s sole basis of jurisdiction is the property, any judgment against the defendant can be satisfied only out of that property. 37 CIVIL PROCEDURE—FEDERAL 2. Constitutional Limitations a. Nexus The minimum contacts standard is applicable to every exercise of personal jurisdiction. The mere presence of property within a state is not, by itself, sufficient to permit a court to exercise personal jurisdiction over a defendant merely because she happens to have property in the state when the action is not related to the property. [Shaffer v. Heitner, 433 U.S. 186 (1977)] 1) Quasi In Rem Type I Thus, when the dispute involves the rights of the parties in the property itself (quasi in rem type I), jurisdiction based upon the presence of the property in the state is proper. The close connec- tion between the litigation and the property provides the neces- sary minimum contacts. EXAMPLE A brother, who lives in State A, and a sister, who lives in State B, own antique furniture together. The furniture is located in State B. The sister brings an action in State B against the brother to deter- mine who has rightful possession of the furniture. Because the fur- niture is located in State B, a court in State B would have personal jurisdiction over the brother in this suit to determine ownership of the furniture. 2) Quasi In Rem Type II When the dispute is unrelated to the ownership of property (quasi in rem type II), jurisdiction cannot be based solely on the presence of property in the forum state; there must be minimum contacts between the defendant and the forum. However, if the defendant has minimum contacts with the forum, it is also likely that a court could exercise in personam jurisdiction over a defendant under the forum’s long arm statute, thus removing the limit on recovery to the defendant’s in-state property. As a result, use of quasi in rem jurisdiction type II will be rare. EXAMPLE A contractor, a resident of Maine, flies to Ohio and enters into a contract with a homeowner, a resident of Ohio. All performance is to occur in Ohio. The contractor flies home to Maine. The home- owner breaches the contract. The contractor does not want to fly to Ohio to sue the homeowner, but he discovers that the home- owner has a boat docked in Maine. Attaching the boat would not provide the court with personal jurisdiction over the homeowner; 38  CIVIL PROCEDURE—FEDERAL the ­contractor would have to show minimum contacts between the homeowner and Maine. 3) Procedural Requirements To obtain quasi in rem jurisdiction, a plaintiff must “bring the asset before the court” by attachment (or garnishment). This will inhibit the sale or mortgage of the defendant’s interest, since a new owner must take subject to the decision of the court. Serious questions have been raised as to whether such a pretrial interfer- ence with a defendant’s property rights is constitutional unless the defendant is afforded a hearing on the necessity of such procedures. Most commentators think the process is valid, but the Supreme Court has thus far avoided the issue. b. Notice As in in rem cases, quasi in rem cases require the best practical notice. Therefore, posting of notice or notice by publication will be insufficient where the addresses of persons affected by the action are known or reasonably ascertainable. The federal statute for the enforcement of liens or other claims to real or personal property requires personal service if practicable and service by publication if personal service is not practicable. If the defendant is not personally served, he may appear within one year of final judgment, and the court must set aside the judgment on payment of costs as the court deems just. [28 U.S.C. §1655] III. DIVERSITY OF CITIZENSHIP JURISDICTION A. INTRODUCTION The federal courts have been given subject matter jurisdiction over controversies between citizens of different states, even though the controversies do not involve questions of federal substantive law, in order to protect an out-of-state party from possible local bias in state courts. B. DIVERSITY AMONG THE PARTIES 1. Complete Diversity When Action Is Commenced a. Multiple Parties—Complete Diversity Diversity jurisdiction requires “complete diversity,” meaning that no plaintiff may be a citizen of the same state as any defendant. If one defendant and one plaintiff are co-citizens of the same state, complete diversity is lacking and there is no diversity jurisdiction. EXAMPLE A, B, and C bring an action against X, Y, and Z. A and B are citizens of New York; X and Y are citizens of Florida; and C and Z are citizens of 39 CIVIL PROCEDURE—FEDERAL Texas. Since no diversity exists between C and Z, the requirement of complete diversity is not satisfied, and, as structured, the case cannot be brought in federal court under diversity jurisdiction. 1) But Note The rule of complete diversity does not require that every party be of diverse citizenship from every other party. It requires only that no plaintiff be a co-citizen with any defendant. Thus, two plaintiffs who are both citizens of Missouri may invoke diversity of citizen- ship jurisdiction against three defendants, all three of whom are citizens of Kansas. b. “Alienage” Jurisdiction Most bar exam questions in this general area involve basic diversity of citizenship jurisdiction, in which the dispute involves “citizens of different states,” as discussed immediately above. However, section 1332(a)(2) grants subject matter jurisdiction over “alienage” cases, in which the dispute is between a citizen of a U.S. state and an “alien”—meaning a citizen or subject of a foreign country. Jurisdiction is denied, however, if the case is between a citizen of a state and a citizen of a foreign country who has been admitted to the United States for permanent residence and domiciled in the same state as the U.S. citizen. Also note that the U.S. Constitution does not provide for federal jurisdiction over cases by an alien against an alien; there must be a citizen of a U.S. state on one side of the suit to qualify for alienage jurisdiction. EXAMPLES 1) A, a citizen of Venezuela, sues B, a citizen of New York. This dispute would invoke alienage jurisdiction (assuming the amount in controversy requirement was also met), because it is between a citizen of a U.S. state and a citizen of a foreign country. 2) A, a citizen of Venezuela, sues B, a citizen of France. This dispute would not invoke alienage jurisdiction, because it is not between a citi- zen of a U.S. state and a citizen of a foreign country. There is no citizen of a state involved here. 3) A, a citizen of New York, sues B, a permanent resident alien domiciled in New York. Alienage jurisdiction would be denied because B has the same U.S. domicile as A. 1) Aliens as Additional Parties 28 U.S.C. section 1332(a)(3) grants jurisdiction in a case between citizens of different states in which citizens or subjects of a foreign country are additional parties. The foreign parties are disre- garded for jurisdictional purposes. It appears that the restriction in example 3) above does not apply—by the statutory language, 40  CIVIL PROCEDURE—FEDERAL it applies only to section 1332(a)(2) actions. Although not entirely clear from case law, there also appears to be no subject matter jurisdiction when there are U.S. citizens on one side of the action and aliens on both sides. EXAMPLE A plaintiff from State A sues a defendant from State B and a resi- dent alien who is domiciled in State A. By the face of the statute, jurisdiction apparently is not defeated by the fact that the resident alien is domiciled in the same state as the plaintiff. c. Diversity When Action Is Commenced Diversity of citizenship (or alienage) must exist as of the time the suit is instituted. [Grupo Dataflux v. Atlas Global Group, 541 U.S. 567 (2004)] It need not exist at the time the cause of action arose, and it is not defeated if, after commencement of the action, a party later becomes a citizen of the same state as one of his opponents. EXAMPLES 1) A buyer from State A breaches an $80,000 contract with a seller from State A. Solely to create diversity, and prior to filing suit, the seller moves to State B. Diversity of citizenship exists because the seller is considered to be a citizen of State B even though it was a citizen of State A when the cause of action arose. Its intent is irrelevant. 2) A buyer from State X breaches an $80,000 contract with a seller from State Z. Solely to defeat diversity, the seller moves to State X prior to filing suit. Diversity of citizenship does not exist because the seller is considered to be a citizen of State X even though it was a citizen of State Z when the cause of action arose. Its intent is again irrelevant. 3) A buyer from State C breaches an $80,000 contract with a seller from State D. After suit was filed, the seller moves to State C. Diversity of citi- zenship is not defeated by this post-filing move. 2. Questions of Citizenship a. State Citizenship of an Individual—Domicile The determination of the state of citizenship of a natural person depends on the permanent home to which he intends to return. The concept is the same, except in name, as domicile. A new state citizen- ship may be established by (1) physical presence in a new place and (2) the intention to remain there, that is, no present intent to go elsewhere. The citizenship of a child is that of her parents. In most cases, the citizenship of a party will be determined by the court, but it may be left to the jury. 41 CIVIL PROCEDURE—FEDERAL b. Citizenship of a Corporation—Possible Multiple Citizenships For diversity purposes, a corporation is deemed to be a citizen of every state and foreign country in which it is incorporated and the one state or foreign country in which it has its principal place of business. [28 U.S.C. §1332] A corporation’s “principal place of business” is the state from which the corporation’s high level officers direct, control, and coordinate the corporation’s activities (that is, its “nerve center,” which will usually be the corporation’s headquarters). [Hertz Corp. v. Friend, 559 U.S. 77 (2010)] Thus, many corporations have two citizenships—their state of incorpora- tion and the state in which their principal place of business is located. Although rare, it also is possible for a corporation to have more than two state citizenships because a corporation may be incorporated in more than one state. It is impossible, however, for a corporation to have more than one principal place of business. If an opposing party is a citizen of any of the corporate party’s states of citizenship, there is no diversity. 1) Special Rule for Direct Actions The rules of corporate citizenship are subject to a special rule in direct actions against an insurer. When a plaintiff sues an insurer on a policy or contract of liability insurance, and does not also join the insured, the insurer (whether incorporated or not) is treated as a citizen of all of the following: (1) the state or foreign country in which the insurer is incorporated (if it is); (2) the state or foreign country in which the insurer has its principal place of business; and (3) the state or foreign country of which the ins