Page 1, Larry’s Civ Pro Checklist

PERSONAL JURISDICTION
Classic bases of PJ:
• in personam: most expansive authority – can claim all of D’s assets
• in rem: property itself = juris & stake in controversy
• quasi in rem: property= juris but not at stake; damages ltd. to prop value

Basic Analysis
• Traditional means of PJ? – IF NO TRADITIONAL, GO TO LONG-ARM
o Presence/Tag juris (Burnham)
o Residence (domicile) in state (even though D is out of state, Miliken v. Meyer)
o Implicit consent to PJ (Hess)
o Explicit consent - D can waive & simply allow PJ

• Long-arm analysis (1st inner circle = statute, 2nd outer circle = Constitution)
o Statutory: does long arm reach D?
 If no mention of long arm, say “I assume long arm reaches limits of DP”
 If 2 parts to long arm (substantial business/ tortious act) analyze both
 Tortious act: Gray (where injury occurred) v. Feathers (where D’s activity occurred)
 FED Long-arm, 4(k)1: response to Omni, tags Ds w/ contacts in US but not w/ particular state

IF LONG ARM DOESN’T REACH D, DO DP ANALYSIS ANYWAY

o Due Process/Const. analysis (14th Am. for state cases, 5th Am. for fed)
 Minimum Contacts Spectrum:

Contacts Casual or isolated, K Tort = single act Contin. but ltd. Continuous &
= unilateral K = bilateral K = K+ systematic
Jurisdiction? No Juris Specific Juris Specific Juris General Juris
K cases Hanson (unilateral K) McGee Burger King Perkins (yes)
Tort Cases WWVW (portable tort) Gray ?? Helicopteros (no)
• Stream of commerce: Gray
• Asahi is latest word on stream-of-commerce, but there’s plurality: do both
o O’Connor = “Stream+” = (1) advertising, (2) marketing, (3) specially designed
products, (4) service centers for help & convenience analysis below
o Brennan = awareness of stream-of-com + benefits from state law
• Portable Tort = no PJ: WWVW (“must show purposeful availment”)
• Contracts:
o McGee: bilateral K = sufficient for specific juris.
o Hanson: unilateral K insufficient; must invoke state benefits/purposeful avail
o BK: K+ necessary, includes activity before K, during K, dealings on K
 Choice-of-law provisions = evidentiary but not dispositive
 Convenience: rarely trumps Contacts (but in Asahi, it did)
• Burden to D: high burden if many witnesses/ev. that D must bring, special hardship,
etc. – mere inconvenience of traveling not enough w/ modern technology (McGee)
• Forum state’s interest in adjudicating: state’s interest in protecting citizens (Hanson)
• P’s interest in obtaining convenient & effective relief
• Interstate judicial system’s interest in getting efficient resolution
o E.g., where accident is, where witnesses would be
• Shared interest of several states’ social policy: novel laws, etc.
 Balancing Contacts & convenience
• High convenience may outweigh lesser showing of min. contacts (Brennan in BK)
• Severe inconvenience rarely trumps min. contacts (yes in Asahi)
Other PJ Considerations:
• No or few min contact required of P w/ forum (Shutts = class action, Keeton v. Hustler)
• Quasi-in-rem juris. still subject to Shoe min. contacts analysis (Shaffer v. Heitner)
• Mere effect in sate (tort analogy) not enough for purposeful availment (Kulko, dad buys kid plane ticket to CA)
Page 2, Larry’s Civ Pro Checklist

DUE PROCESS & PROPERTY

Generally:
• Due process (14th, 5th Am) requires oppty to be heard before deprivation of property
o Oppty to be Heard (Doehr) still required after notice & cuts across every step of a trial – before and after
trial, prejudgment and during execution of judgment
Notice
• Must be timely, must be reasonable given circumstances
• Mullane test: Must be “reasonably calculated under circumstances to provide actual notice”
o E.g., by using reasonable means, as if you really wanted to give notice (p 186)
• Circumstances affect quality of notice that you must provide
o Personal Service always suffices; can also leave w/ person of age
o Registered Mail & First Class usually okay – balance vs. test of resources
o Taping to door insufficient if evidence that it’s being torn down, Greene
• Test v. “reasonable alternatives” - Brennan
o If address available, notice by publication is insufficient (Mennonite, Walker, Schroeder)

Attachment & ex parte proceedings

• 3 kinds of attachment
o Jurisdiction – in rem or quasi in rem, property attached (frozen) to est. PJ; ex ante
o Security –freeze status quo b/c interest of P’s will be hurt (e.g., Poe house demolition); ex ante
o Enforcement – Attachment in execution of judgment; ex post (Mitchell v. Neff)
• GENERALLY DP REQUIRES PRE-ATTACHMENT HEARING, EXCEPT…
• Fuentes: Valid “extraordinary situations” for ex parte (largely government) seizures:
 (Must meet 1 or 2; & 3)
o (1) Seizure directly needed to secure important gov’t or general public interest
o (2) Special need for prompt action
o (3) State retains monopoly of legitimate force: gov’t official initiates seizure
 Ex: prevent bank failure, contaminated food, war, collect internal revenue
o Fuentes overturned? Mitchell v Grant (US 1974) [IGNORE THIS GENERALLY]
 Majority (dissent in Fuentes + Powell & Reinquist): says Fuentes facts different, LA statute is
constitutional
• CT v. Doehr: Private DP balancing test for pre-judgment, ex parte attachment:
 Generally, even more DP needed to justify private, non-government, seizures
o Private interest of D (property owner) affected by prejudgment measure
o Risk & magnitude of erroneous deprivation
o P’s interest & need for prompt action (likelihood D will abscond) & gov’t interest
 Adam StarChild = “Surprise or Abscond,” justified ex parte attachment
o White dictum: bond posted by D helps justify attachment
 Dissent: Bond might not make up damage to D; not all damage can be monetized
• Rule 65: Temporary Restraining Order (p 162, supp)
o Must show (1) immediate, irreparable harm w/o freeze (2) why shdn’t give notice
• 14th Am. protects “possessory interests,” not just undisputed ownership (223)
o E.g., even if you are leasing, you have property interest, not just owner
Page 3, Larry’s Civ Pro Checklist

SUBJECT MATTER JURISDICTION

Note: these analyses begin w/ Outer Circle (Constitution) and move to inner circle (Statute)

DIVERSITY
• Constitutional: Art III Section 2 only requires minimal diversity (ALWAYS SAY THIS)
• Statutory: 28 USC 1332 (Supp, p 246)
o Complete diversity requirement (Strawbridge v. Curtis); citizenship based on domicile
 Domicile requires (1) presence and (2) intent to remain (look at facts), Mas v. Perry
 Citizenship for diversity determined when suit is filed
 Aliens: can be party to suit (but can’t have only 2 aliens in suit, Lloyds Bank v. Norkin)
• Can’t sue stateless US citizens (domiciled outside US, like Liz Taylor)
• Can’t sue stateless aliens (Blair Holdings v. Rubenstein) or aliens from unrecognized
country (Cuba)
• Permanent residents have domicile, can be sued
 1332(c)(1): corporations have 2 domiciles (1) state of incorp. (2) primary place of business
• Primary place = nerve center (headquarters) or muscle center (most factories)
o Amount in controversy: can only dismiss if legal certainty that claim not over $75K (AFA Tours)

FEDERAL QUESTION (“arising under”) Harms

• Constitutional: Osborn, “federal element” anywhere in statute
o Const. may create cause of action: Bivens v. 6 Unknown Agents (damages for 4th Am violation)
• Statutory: 28 USC 1331
o Narrow test (Holmes): federal statute must create cause of action
o Wider test (Friendly in Harms): ask if “federal ingredient” needs to be resolved;
 Unlike Holmes, includes state-created actions that have fed issue that needs resolution
o Well-pleaded complaint = no juris; fed issue must appear on face of P’s complaint
 Can’t anticipating D’s response (Motley); can’t use declaratory judgment Skelly Oil
o Cort v. Ash for an implicit right of action under statute:
 Does statute create federal right in favor of P?
 Any indication of legislative intent, for or against remedy?
• No case if Congress shows negative intent, Merrell Dow
 Consistent w/ legislative scheme to imply a remedy?
 Is cause of action traditionally part of state law?

SUPPLEMENTAL JURISDICITON = 3 PART TEST (can you hear state claim w/ fed claim in fed ct?):
• [pre-test] = make sure there is a fed claim under diversity or fed question
• Constitution (Outer): Gibbs = is there common nucleus of operative facts (CNOF)? Same “case”?
o Probably yes if… for both state & fed claims, remedy, witnesses, evidence are the same
• Statute (Inner) 28 USC 1367 (p
o Aldinger: no supp juris if statute shows negative intent, express or implied
o Owen – no supp juris if claim destroys complete diversity
o Finley (Scalia) – Congress must explicitly indicate positive intent for supp juris
o 28 USC 1367: overturns Finley: supp juris exists unless expressly negated
 (a) if fed juris is not from diversity, any claim within CNOF is okay
 (b) if fed juris is from diversity, no supp juris if claim destroys complete diversity
 (c) see below
o Executive Software (not Sup Ct case) – discretion not random, can only dismiss for reasons in 1367
o Finn – must have CNOF but separate claims (i.e. different remedies; crumb, not cookie)
• Discretion (Innermost): Gibbs - judicial economy., convenience, fairness, & does state law predominate?
o 1367 (c) – discretion to decline if: (1) complex/novel issue of state law (2) state claim predominates over
fed. claim (3) ct. dismissed all fed claims (4) other exceptional circumstances
Page 4, Larry’s Civ Pro Checklist

REMOVAL JURISDICTION 28 USC 1441

• General: 1441 (a): Any action brought in state court over which fed original juris can be removed
o “Original Juris” includes supp juris cases under 1367
• Exceptions:
o No removal allowed if diversity case & D from in-state (removal meant to protect D from bias)
o No removal if expressly denied (e.g., Federal Employees Liab Act always lets P choose forum)
o No removal by P, only D can remove (Shamrock Oil)
o Supplement Juris & removal: Roe v. Little Co. of Mary Hospital (a tangle of errors)
 1441 & 1367 don’t work well together
• Other
o 1441(c) = supplemental juris & removal (hard)
o 1447 (d) – remand of removal not reviewable

1. A tangle of errors, (US Dist Ct, ND IL, 1992)

a. Facts: P had surgery, received AIDS-contaminated blood, sued doctor, hospital, and blood supplier (Red
Cross) for neg. in state ct.
i. Red Cross asks for removal under 1441, fed question
ii. Cites Red Cross v. S.G., which said Red Cross cases do not “arise under” per 1331 but have
specific grant of (“sue or be sued”) SMJ in 36 USC 2
iii. P could have sued Red Cross as fed question, but then would supp juris have allowed suit vs.
docs & hospital? Is there CNOF?
b. Key issue: discretion from 1367(c), 1447(d) – remand of removal not reviewable
i. 1441(c) says if non-fed claims joined w/ 1331 case, may remove & fed dist. ct. can remand
based on discretion
ii. This doesn’t work well w/ more stringent guidelines of supp juris in 1367
c. Judges says 1441 only applies to 1331 on fed question, not 36 USC 2
i. Therefore, can’t remand Red Cross claim, & enough CNOF to keep supp juris. over non-fed
cases vs. doc & hospital
d. Sexton: key issue of Red Cross unresolved – relation of 1441 & 1367
i. Could say 1441 (a) and (b) meant to include all that P could originally bring, including by virtue
of 1367 or by fed question
But then, what is 1441(c) for? Could say it’s the supp juris. part of 1441; but then, you run into this: 1441(c) starts off
saying that 1331 applies to affirmative removal and remand; therefore, if