Civil Procedure I: Schwarzschild






  1. Selecting a Proper Court
    1. Personal Jurisdiction
    1. Subject Matter Jurisdiction
      1. State Court- plenary jurisdiction
      1. Federal Court- limited jurisdiction
    1. Venue
  1. Commencing the Action
    1. Complaint
      1. Does P's complaint state a claim upon which relief can be granted?
        1. If it is deficient, complaint may be challenged by demurrer (code pleading states) or motion to dismiss (FRCP)
      1. Notice Pleading
        1. Short and plain stmt of the claim showing that pleader is entitled to relief (P still needs to set forth factual matter to support ea element of the claim)
    1. Summons
    1. Appearance (applies to state court)
      1. General= answer- general denial of all allegations in complaint
      1. Special= motion to quash- party’s request that court nullify process or action instituted by the other party
  1. Pleadings


  1. Answer
    1. Negative Defenses (deny material allegations of the complaint otherwise it's deemed admitted) and/or
    1. Affirmative defenses
    1. Counterclaim
  1. Pre-Trial
    1. Discovery




Requirements of due process

·         Pennoyer v. Neff – Defendant must be present in state for court to exercise in personam jurisdiction

·         Pennoyer exceptions

o   Domicile, residency and nationality sufficient for in personam even if served outside jdxn

o   Appearance to defend on merits confers in personam

o   Prior consent to confer in personam over a chosen court is sufficient to vest that court w/ jdxn

o   Nonresident motorist statutes (Hess v. Pawloski) [implied consent]

o   Long-arm statutes

o   Fair, just and reasonable under International Shoe

§  Minimum contacts

§  fairness

·         Nationality – U.S. citizenship is sufficient for federal court jdxn

·         Domicile (Milliken v. Meyer- WY man served in CO is OK)

·         Consent (Adam v. Saenger)






Three factors are generally considered in determining if it is “fair” to cause a D to stand trial in a particular state:

1)      Whether she has purposefully availed herself of the benefits of the forum

2)      Whether the action is related to her contacts with the forum

3)      Whether it was (or should have been) reasonably foreseeable to D that she might be haled into court in that state


State Long Arm Statutes – Does the state statute provide for PJ?

1)      Pennoyer-like

2)      Implied consent

3)      Long-arm


Constitutional Analysis (14th Amendment, section 1)

Nonresident corporations - Minimum contacts test where long-arm statute is used to establish PJ

·         International Shoe – Due process requires only that D have some “minimum contact” w/ forum state, and that the exercise of jurisdiction not violate “traditional notions of fair play and substantial justice”

o   Minimum contacts w/ forum state

§  purposeful availment requirement (Hanson v. Denckla )

o   Fairness

Specific Jurisdiction and State Long Arm Statutes

·         “Single contact” jurisdictional rule

o   McGee v. International Life Insurance Co. – PJ found where only contact b/n company and forum state was mailing of premiums by CA resident to office of company in TX

·         Injury as only contact

o   Gray v. American Radiator & Standard Sanitary Corp. (safety valves for hot water heaters) –

§  Relevant inquiry is whether D engaged in some act or conduct by which he invoked benefits and protections of the forum

§  commercial trxns of D’s products result in substantial and continuous use, so contact invoked protection of forum state’s laws

·         Foreseeability alone is not minimum contact

o   World-Wide Volkswagen v. Woodson (NY car exploded in OK) – Relevant foreseeability is that of D whose conduct and connection w/ forum would justify an anticipation of jdxn

·         Can have contact w/o entering forum

o   Calder v. Jones (article written in FL defamed CA citizen) – if have cause and effect, can have contact w/ forum w/o entering

General jurisdiction and State Long Arm Statutes

·         Cause of action arising outside of forum - Continuous and systematic contacts required

o   Helicopteros Nacionales de Colombia v. Hall (helicopter crash in Peru) – Training and purchases in TX do not constitute continuous & systematic activity to warrant exercise of in personam jdxn

§  Court may exercise specific in personam jurisdiction when controversy is related to or arises out of D’s contact w/ the forum (International Shoe)

§  When COA does not arise out of or relate to foreign corp’s activities in forum state, court may exercise in personam jurisdiction if D corp’s in-state activities are conducted on a continuous and systematic basis, not occasionally or irregularly (Perkins v. Benguet Consolidated Mining)

Technological Contacts

·         Purposeful availment through electronic means

o   Bellino v. Simon (online baseball sale and purchase) –

§  One unsolicited defamatory phone call from the forum state to a nonresident D does not establish contacts sufficient to support PJ

§  D1’s use of the visitor form on his website solicited the contact b/n himself and Aubert

§  In making allegedly defamatory remarks through use of phone and Internet, D1 purposefully established minimum contacts w/ LA such that he could reasonably anticipate being haled into court

·         Nonresident’s operation of website

o   Cybersell v. Cybersell – most courts require smthg more than just maintenance of website

·         Zippo Mfg v. Zippo Dot Com – sliding scale test – likelihood of PJ is directly proportionate to nature and quality of commercial activity that an entity conducts over the Internet (active v. passive websites)


Jurisdiction Based Upon Power Over Property

·         Jurisdiction in rem – state/court may render a valid judgment affecting interests of all persons in a thing where it has jurisdiction over the thing, even though it may not have jurisdiction over persons whose interests in the thing are affected

·         Jurisdiction quasi in rem – state/court may render a valid judgment affecting interests of a particular person in a thing when it has jurisdiction over the thing even though it may not have PJ over person whose interests are affected

·         Harris v. Balk – Debt follows the debtor

·         Modern interpretation of minimum contacts

o   Shaffer v. Heitner (Greyhound property in DE) – International Shoe minimum contacts test applies to quasi in rem cases

§  Statutory presence of Ds’ stock in forum state is unrelated to COA and insufficient to establish minimum contacts

§  In rem actions - largely unaffected by minimum contacts rule b/c tangible property is in forum state

·         Judgments can be enforced in other states – Full faith and credit (art 4 sec1)


Physical Presence

·         Transient Jurisdiction

o   Burnham v. Superior Court (child visitation agrmt) – PJ over nonresident who was personally served w/ process while temporarily in forum state for a claim unrelated to his in-state activities is constitutional


·         Parties can agree to jurisdiction in K

·         M/S Bremen v. Zapata Off-Shore


PJ for Diversity Jdxn cases – U.S. fed courts borrow long-arm statutes of forum state in which it is located



  1. Individual
    1. Presence
    2. Domicile
    3. Residence
    4. Nationality or citizenship
    5. Consent
    6. Appearance
    7. Doing business in state
    8. Doing an act in state
    9. Causing effect in state by act or omission done elsewhere
    10. Ownership, use or possession of thing in state
    11. Other relationships
  2. Business Entity
    1. Incorporation in state
    2. Consent
    3. Appointment of agent
    4. Appearance
    5. Doing business in state
    6. Doing an act in state
    7. Causing effect in state by act or omission done elsewhere
    8. Ownership, use or possession of thing in state
    9. Other relationships




Reasonable method of notification given the individual circumstances

·         Constitutional Standards

o   Mullane v. Central Hanover (common trust fund settlement) – fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under all circumstances, to reach the interested parties and afford them an opportunity to be heard

§  Method of publication was insufiicient unless beneficiaries and addresses unknown and not reasonably discoverable by due diligence

·         Technique of service

o   National Equipment Rental v. Szukhent (K boilerplate clause appt of in-state agent for SOP)

§  K term to appt agent to receive SOP is valid, even if party does not personally know agent and K does not req. agent to actually transmit notice

§  Cf Wuchter v. Pizzutti – appt by law

·         nonresident motorist statute invalid b/c adhoc notice by SoS

·         Immunity from Service of Process

o   Rationale – public policy, judicial convenience, general fairness

o   Extends to witnesses at other litigation, counsel for parties at other litigation, parties to another litigation, certain persons acting in some official capacity w/n forum state, e.g. marshals, officers of the court, government officials, investigators for the government

o   State ex rel. Sivnksty v. Duffield (vacationer hit/injured two kids, arrested and jailed for reckless driving) – Service with process in civil action to nonresident incarcerated due to his own voluntary actions is proper

·         Invalid service by fraud, force, involuntary entry into forum

·         Court may quash service of process at its discretion

o   Wyman v. Newhouse (induced by “dying” mother) – No enforcement of judgment procured in another state by fraudulent service of process


Service of process, even in conformity with the applicable state laws, must comport with due process (i.e., give such notice as is reasonably calculated given the circumstances to apprise the defendant of the action)

PLEADINGS (how to start a lawsuit) Sanctions found under Rule 11

To Start a Lawsuit:

1)      File a complaint with court clerk

2)      Present Summons to the clerk

3)      In proper form, date stamped, now valid and can be served


Purposes of traditional Code Pleadings

1)      Provide notice of nature of claim or defense

2)      Identify baseless claims

3)      Delineate each party’s view of the facts

4)      Narrow the issues

Modern pleadings only retain first two purposes


Detail required under the codes:

  1. Black letter requirements

1)      pleading of all major elements constituting COA of P

2)      pleading of ultimate facts that lead pleader to conclude these elements are present

3)      pleading of statutorily prescribed elements such as docket number, identity of parties and their attorneys, name of action, etc.

4)      pleading of relief sought by P

  1. Requirement of ultimate facts – P must not plead evidentiary facts or legal conclusions w/o supporting ultimate facts
  2. Alleging legal conclusions – complaint must contain statement of facts sufficient to give opposing party notice and to enable court to declare law upon facts stated. Mere legal conclusions are insufficient

·         Gillispie v. Goodyear Service Stores – P did not plead sufficient facts to support COA

o   If she had pleaded w/ more facts, her complaint might have been vulnerable as replete w/ evidentiary facts rather than ultimate facts

·         Weakness w/ Code pleading reqmts – lack of flexible application by overly formalistic courts


Detail required under Federal Rules


Complaint/Pleading  Rule 8(a)


For a complaint to be sufficient under the FRCP, it must contain: 1) a proper competency allegation, 2) a short, plain statement of the claim, and 3) a description of the relief demanded by the plaintiff. 


1) Includes:

a.       Statement revealing the grounds upon which the court’s jurisdiction depends, unless it already has jurisdiction

b.      Statement of the claim showing pleader is entitled to relief

c.       Identify the desired relief

2) Purpose

3)      Traditional Pleading Law

4)      Modern Pleading Law Rule 8(a)

5)      Time Permitted for a Response Rule 12(a)


1) Includes Rule 10(a)

2) Purpose Rule 4

3) How to Serve a Summons Rule 4(c)


Failure to respond to a pleading results in default judgment against D

·         Rule 54(c)= The amount awarded in a judgment by default cannot exceed the relief prayed for in the party’s pleading

o   BUT claimant may be awarded damages in excess of those demanded in his pleadings if the jury thought he was entitled to more.

o   A D who defaults is protected by a cap—the amount of relief requested in the pleading but a D who participates may be liable for more damages

o   D will not be deprived of more than he has been given notice of (Due Process).  If he goes to court, he will have notice.


·         Rule 8(b) Defenses by Responsive Pleading= short and plain statement of party’s defense to each claim asserted.  Admitting or denying the statements upon which the other party relies.

o   Not having enough information about a statement is equal to denial

o   D can either deny specific statements in the claim or the claim generally

o   Encompass denials and affirmative defenses (fraud, illegality, etc)

o   Rule 8(d) Failure to deny is deemed admitted.

o   Rule 12(e) Motion to Make a More Definite Statement

o   Only used if the complaint was too vague and ambiguous that it would be unreasonable to require the moving party to reply to it.

o        Rarely granted—vagueness and uncertainty must be addressed through discovery

o        Motion can only be made of pleading being attacked requires a response…if not response is permitted, motion is never proper

·         Rule 8(e) (2): party may plead alternative claims subject to obligations in Rule11



1)      Motion to Dismiss Rule 12(b)

Attacks the substance of the complaint, not an objection to the drafting/form of the complaint

·         Defenses Made by Motion= motions are made before pleading

(i)        Lack of jurisdiction over the subject matter

(ii)               Lack of jurisdiction over the person

·         State courts – special appearance is limited to challenging PJ

1.      If challenge suit on merits w/ challenge to PJ, then P consents to court’s jdxn

·         Fed courts

(iii)             Improper venue

(iv)             Insufficiency of process

(v)               Insufficiency of service of process

(vi)             Failure to state a claim upon which relief can be granted

o   If D makes this motion and it is granted, P is given 1 opportunity to amend the complaint

o   But if leave to amend is denied, it constitutes an adjudication on the merits and further action on the same claim are barred—res judicata.

o   Assuming the pleaded facts are true, do they constitute a legal claim which P is entitled to judicial relief

(vii)           Failure to join a party


·         American Nurses’ Assn v. IL (class action suit claiming sex discrimination in employment) – Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief (Conley v. Gibson)


2)      Motion for Judgment on the Pleadings Rule 12(c)

·         Treated as a motion for summary judgment Rule 56.

·         All parties given reasonable opportunity to present relevant material


3)      Motion to Strike Rule 12(f)

·         Court may order any insufficient defense or redundant, immaterial, impertinent or scandalous matter stricken from any pleading

·         The material must obviously be false and unrelated to the subject matter of the action

·         Motion can be used to attack separate portions of the complaint which are insufficient

·         Drastic remedy, viewed with disfavor and infrequently granted

·         Also applies if the pleading was filed to late and court approval had not been obtained.


All Motions under Rule 12 must be made in writing and must specify the grounds upon which it’s based Rule (b)(1). Facts need to established with affidavits, depositions, or other evidence.  The 12(b(6) motion is limited to the fact of the complaint.  Motion must be served within 20 days after service of a summons and complaint.


Motions under Rule 12 are not compulsory BUT if D does file a motion under Rule12, D must include ALL defenses and objections that she could then raise by motion.  Omitting an available defense or objection makes it unavailable—can’t raise it through Rule 12 motion again.  All Rule 12 motions must be consolidated and submitted together.



Objections to:



A D who faced a complaint could

1) Answer

2) Respond to each of the allegations

3) Demur

·         If demur overruled, D allowed to proceed to the merits

·         If sustained, P can choose to amend her complaint

Denials Rule 8(b)

(i)     Admit (Rule 8(d))= all allegations to which D doesn’t specifically deny is deemed admitted                                                                                                                                                                                                       

(ii)   Deny= to avoid unintended admission, D has to add a paragraph in their answers denying each and every allegation of the complaint unless otherwise admitted

They can also deny generally the whole thing but FRCP discourages the use of the general denial—only to be made in good faith situations and where everything in the complaint can be denied legitimately.

General denial is risky—if denial doesn’t meet the substance of the averments then the court can decided D admitted

(iii)  Plead insufficient information


AFFIRMATIVE DEFENSES (defendant introduces new information that he must prove in order to avoid P’s claim, assuming P’s allegations are true)


Rule 8(c)= when a party has mistakenly designated a defense as a counterclaim or a counterclaim as defense, the court shall treat the pleading as there had been proper designation.


Requiring the pleading of affirmative defenses, they prevent unfair surprise, D can’t ambush P with an unexpected defense and promote efficiency


These are considered disfavored and must be particularly pleaded by D and in looking at the relationship between the defense and the cause of action look at:

1) whether the matter is a necessary or extrinsic element in P’s cause of action

2) which party has better access to relevant evidence

3) policy considerations


19 Affirmative Defenses has to be raised specifically


Two Kinds of Affirmative Defenses


Ingraham v. United States (Fed Tort Claims Act suit, cap on dgs as aff. defense) – failure to raise an affirmative defense timely constitutes a waiver of that defense


AMENDING PLEADINGS (regardless of what you plead in the complaint or the answer, if different information comes out in discovery or at trial, the pleadings will be deemed to conform to what is presented at trial.)


Under FRCP 15(c), a claim contained in an amendment relates back to the original pleading, whenever that claim arose out of the occurrence set forth in the original document.


FRCP 15(a) states that leave to amend shall be given “when justice so requires”



Important Policies:

1)      Provides maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities.  Old rules didn’t allow amendments to change the original cause of action—this is a permissive approach to amendment requests

2)      Pleadings have limited role—only gives notice of the nature of pleader’s claim or defense and the transaction.  Pleadings no longer have the burden of revealing facts and issues—that is now done in discovery.


Rule 15

1)      party can amend pleading once, any time before responsive pleading is served or within 20 days after it is served. These are automatically allowed if no response is required.  Either party may amend his pleading once as a matter of right

o   Otherwise, can only amend by leave of the court or written consent of the other party—consent is liberally given prior to trial

2)      Issues not raised in pleadings but are tried and treated as if they had been raised in the pleadings and the pleadings conform to the evidence.  But failure to amend does not affect the result of the trial of the issues.

3)      An amended pleading relates back to the date of the original pleading when:

o   Permitted by law

o   Claim or defense asserted in the amendment arose out of that same conduct in the original pleading

o   Rule 15(c)(3)BUT if changing the party or naming the D ONLY RELATES BACK IF:

                                                              i.      The claim arises from the same transaction as the original &

                                                            ii.      Received notice of the action so D is not prejudiced in maintaining his defense on the merits

                                                          iii.      Knew or should have know that this action would have been brought against them had there not been a mistake (if the parties were designated as “unknown” it would NOT relate back to the original date)

                                                          iv.      New party was aware of the action within 120 days of the filing of the original complaint.

                                                            v.      This is ONLY about new D, relation back doesn’t seem to apply to new P

4)      With reasonable notice, a party may serve supplemental pleadings about events that have happened since the original pleading



Failure to name correct defendant

Beeck v. Aquaslide ‘N” Dive Corp. (personal injury) – D allowed to amend its answer to deny manufacture of water slide after P’s SOL ran


Mistake concerning party identity

Worthington v. Wilson (wrist injury from arrest) – FRCP 15(c) does not allow amendment to add a previously unknown party, which does not involve a mistake concerning the identity of the proper party





DETERRING ABUSIVE PLEADINGS (lawyer accountability)


Federal Rule 11 requires the attorney to sign “every pleading, motion and other paper” prepared for the client.


In garden variety lawsuits you don’t need verification.  Verification means you are under oath that the things you claim are true to the best of your knowledge, after reasonable investigation.  Anything under oath is subject to perjury.  Rule 23 makes certain types of complaints subject to verification requirements.  In garden variety lawsuits you won’t be guilty of perjury if you didn’t look at the complaint carefully to make sure it was right.


An attorney is entitled to rely on the objectively reasonable representations made by his client—he doesn’t have to certify that the client’s representations were well-grounded in fact, just that a reasonable inquiry showed the factual contentions made by the client had evidentiary support.


Rule 11

(a)    every pleading, written notice or other paper must be signed by one attorney or if no attorney, signed by the party or else it is stricken from the record unless it is corrected promptly Requires the filing party to continue to monitor the validity of the contents of every signed paper as the case proceeds

(b)   the attorney or party certifies that to the best of their knowledge, the information and belief formed after reasonable inquiry Requires attorneys to make a reasonable prefiling inquiry into both the facts and the law (not subjective good faith tests, objective reasonableness test)

1.      is not presented for improper purpose (harass, cause delay, increase cost of litigation)

2.      claims, defenses, and other legal contentions are warranted by law (has to argue concerning existing law)

3.      allegations/contentions have evidentiary support or are likely to have support after discovery

4.      denials of contentions are based on evidence or are reasonably based on a lack of info or belief

(c)    IF (b) has been violated, court may sanction the attorney, law firm or party that violated or are responsible for the violation

Doesn’t have to be monetary sanctions but can be.  Nonmonetary sanctions: disbar, humiliation (chewed out by the judge), publish in local paper that you violated Rule 11 and were reprimanded by judge.

Whatever sanction is imposed is limited to what is sufficient to deter repetition of the conduct by others similarly situated.


When the Attorney Signs a Pleading, He is Verifying:

1)                                                                                                                                                   it has evidentiary support

2)                                                                                                                                                   not for improper cause

3)                                                                                                                                                   is warranted by law

4)                                                                                                                                                   the denials have evidentiary support.


To Claim a Party has Violated Rule 11 You Can:

1)      Make a Motion

o   Describe conduct that violated subdivision (b)

o   Serve the violating party according to Rule 5

o   Motion cannot be filed or presented to the court UNLESS within 21 days of the service, the motion was not withdrawn or corrected. Safe harbor means that the court doesn’t hear about the complaint until you gave your opponent 21 days to withdraw what you are opposed to and if they do withdraw it, you withdraw the motion. No sanction if opponent withdraws.

o   Court may grant party prevailing on the motion expenses and attorney’s fees incurred for presenting or opposing the motion

2)      Court Initiated

o   Court may enter an order describing the conduct that appears to violate (b)

o   Party accused has to who why it has not violated (b)


Reasonable reliance on information client provides (Hadges v. Yonkers Racing Corp. – blackballed jockey)

 SUBJECT MATTER JURISDICTION (FEDERAL COURT) (specified in Article 3 and 28 USC §1331—court of limited jurisdiction.  Constitution must have given the court the capacity to take the case & an act of Congress must have supplied it)


U.S. district courts have limited SMJ under A3, can only hear cases arising under U.S. Constitution, federal law or treaties.











To determine whether P met the jurisdictional amount, the rule is that the sum claimed by P controls if the claim is apparently made in good faith and there is some legal possibility of recovering the minimum amount.

o   It must appear to be legal certainty that the claim is really for less than the $75K.01 to justify dismissal.

o   Counterclaim amounts don’t matter, only based on P’s claim

o   If only 1P and 1D, all claims can be aggregated between them to satisfy jurisdictional amount

o   If 1P and xDs, only the claims were Ds are jointly liable can be combined

o   If xPs and 1D, the claims can be aggregated if there is common ownership in the claims


3 Different Approaches:

1) Only the value to P may be used

2) Value to P exceeds the requirement amount regardless of the value to D

o   From the viewpoint of the party seeking to invoke federal jurisdiction

3) Look at the pecuniary result to either party which the judgment would directly produce.


The party asserting diversity jurisdiction has the burden of proving its existence.  A plaintiff who prefers to litigate in state court rather then federal court may attempt to destroy diversity of citizenship to make removal to federal court impossible for D.

Why do we have diversity-of-citizenship jurisdiction?

1)      Avoid discrimination against out-of-state residents in state courts

2)      availability of a federal tribunal afforded some measure of security for investors developing in other parts of the country


Criticisms of Diversity Jurisdiction:

1)      Congestion diversity cases case in federal courts

2)      Application of state law by federal judges is unnecessary, wasteful and inappropriate.

a.       State courts are authoritative on matters of substantive state law. Federal courts would have aim to follow state court decisions which is an unnecessary function or service.

3)      For federal courts to decide cases arising under state law upsets state autonomy

4)      Diverting litigation to federal courts may hinder the development of state law

5)      Diversity jurisdiction diminishes incentives for state courts to reform


Praise for Diversity Jurisdiction:

1)      Implements Constitutional guarantee that citizens of each state are entitled to all the privileges and immunities of citizens of the several states

2)      Claim federal court is superior to state courts—get as many cases out of state courts as possible

3)      Having both state and federal courts working to resolve disputes creates competition between the 2 systems that acts to spur higher standard of justice

4)      Quiets the fear of investors that local prejudice may exist but giving them another court to adjudicate in


28 USC §1332 Diversity Jurisdiction


Rule of “Complete Diversity”= there is no diversity jurisdiction if any P is a citizen of the same state as any D—no matter how many parties are involved in the litigation. P can be from the same state as another P.


Congress enacted 2 statutes that expanded the reach of diversity jurisdiction for certain kinds of large scale, state law tort actions



Domicile= place of true, fixed and permanent home and principal establishment and to which he has the intention of returning. (evidence may be registration to vote, drivers license)


A change in domicile may be effected only by

1) Taking up residence in a different domicile

2) With the intention to remain there


Citizenship of a Corporation:





The suit has to arise under the Constitution, defenses are employed by D and not part of the cause of action. None of the defenses which D may set up are taking into consideration unless there is first a federal question. Only P’s statement of the cause of action shows whether or not it involves a federal question.


Well-Pleaded Complaint Rule: The federal question must be raised in the complaint, federal questions raised in the answer are not sufficient. Don’t apply to cases appealed to SC













P is required to try his whole cause of action and his whole case at once.  A cause of action isn’t facts but the unlawful violation of a right which the facts show—if it is a single legal wrong, it is a single cause of action.  Even if there are multiple possible grounds for the wrong, if it cause the same injury, it is but one cause of action.


1)      28 USC §1367= once a federal court has jurisdiction over a claim (either through diversity or federal question) then it may hear all other claims arising under the same case or controversy. The court isn’t limited to adjudicating the federal question alone—can hear cases based on state law.

2)      Purpose - promotes judicial economy , allows all related controversies to be decided in one proceeding

3)      If SMJ is Based Upon

(ii)   Federal Question—supplemental jurisdiction is unlimited but is discretionary. NOT P’S RIGHT

Three Part Test:

o   If there are 2 distinct grounds for relief, the federal claim must be substantial to support federal question jurisdiction

o   Federal and non-federal claims must derive from a common controversy

o   Federal and non-federal claims must be such that P would expect to try them in one proceeding

(iii)  Only Diversity Jurisdiction—supplemental jurisdiction is limited

o   No supplemental over claims by P against person made parties under Impleader, Necessary Joinder, Permissive Joinder or Intervention if such persons would defeat complete diversity

4)      Declining Supplemental Jurisdiction 28 USC §1367(c)

Supplemental jurisdiction is exercised unless:

o   Claims raise a novel or complex issue of state law

o   Claim predominates over the claim which federal court has original jurisdiction The state claims may be dismissed without prejudice and left for the state courts to resolve.

o   Federal court dismissed all the claims over which it had original jurisdiction leaving only issues of state law

o   Look to see if Congress has expressly or by implication negated the exercise of jurisdiction over the particular nonfederal claim

o   Exceptional circumstances


o    Pendent Jurisdiction

§  P w/ jdxn-suff. claim (usu FQ) could join related claim ag same D, even if 2d claim not w/n ct’s SMJ

§  Aldinger v. Howard. P brought suit ag officer of WA and sought to join county as an add'l D. 

·         Court refused to apply pendent jurisdiction to an additional party to whom no independent basis of fed jurisdiction existed. 

·         =Limited approach to pendent party jurisdiction.

·         Very different to permit P, who has asserted a claim ag 1 D w/ respect to which there is fed juris, to join an entirely diff D on the basis of a state law claim over which there is independent basis of fed jurisdiction simply b/c his claim ag the 1st D and his claim ag 2nd D derive from a common nucleus of operative fact

o    Ancillary Jurisdiction

§  Party (usu D) could assert a related claim ag another D, the P, or a 3rd party, even though the 2nd claim was not itself w/in the court's jurisdiction

§  Finley v. United States.  P's husband and 2 children were killed when their plane struck electric power lines while landing in SD.  Filed suit alleging negligence under fed law.  P was not allowed to later amend complaint to allege state law tort claims. 

·         Even where there was exclusive fed jurisdiction over a fed claim ag 1 D, Court held that there could be no juris over a related, nonfederal claim ag a nondiverse party b/c a grant of juris over claims involving particular parties does not itself confer juris over additional claims by or against diff parties. 

·         Agreed to limited approach in Aldinger and casted doubt on all extensions of ancillary jurisdiction to claims ag added parties w/out express congressional authorization.


Common nucleus of operative fact


REMOVAL (Defendant’s ability to get his defense heard in federal court.  All D other than nominal parties must join the petition for removal.  Only D can remove, P cannot remove)


Under diversity SMJ, removal is ordinarily proper where 1) no defendant is a citizen of the state in which a diversity action had been commenced, and 2) all of the defendants concur in seeking removal.


Where a suit is properly commenced in a state court and “federal claim” SMJ is satisfied, the action may be removed to the U.S. district court in which the judicial district that encompasses the state court if 1) all the Ds join in the petition for removal and 2) removal is sought w/n 30 days of the time the moving party received service of process.


28 USC §1441 & 1446 Removal= moving from a state court to a federal court (can’t remove from federal court to state court)

1) more familiar with federal law

2) less bias to local interest, lack of prejudice against federal law

3) more independent judges—not elected, appointed

4) encourages uniformity


P can avoid federal-removal jurisdiction by pleading only state claims or by joining parties who will destroy diversity


3 Exceptions:


VENUE (location/particular court and geography the case will be heard in—this is defined by statute)


Before venue is decided 1) personal jurisdiction is decided, 2) subject matter jurisdiction is decided.  Then comes the venue decision.


Assuming PJ and SMJ are proper, the court must decide the proper venue.


 If there is personal jurisdiction and subject matter jurisdiction, there is always venue where D is domiciled—28 USC §1391.


A state venue rule allocates judicial business within a state.  A federal venue rule allocates judicial business within the nation.


If improper venue, then court can transfer to other U.S. district court or dismiss suit.


13 Fact Situations that May Determine Venue:


1)      subject of the action (where the subject of the action is located) trial convenience

2)      where the cause of action arose for the convenience of witnesses

3)      where some fact is present or happened

4)      where D resides for convenience of D since P controls the suit, this give D some leeway

5)      where D is doing business

6)      where D has an office or place of business

7)      Where P resides

8)      Where P is doing business

9)      Where P may be found—right of action follows the person

10)  Where D may be summoned or served

11)  in county designated by P’s complaint

12)  in any county

13)  Where seat of government is located—reserved for action by or against the government for the convenience of the government


If jurisdiction exists because of diversity of citizenship only (28 USC 1391 (a)(1), venue is proper

1)      where any defendant resides, if all defendants reside in the same State

2)      where a substantial part of the events giving rise to the claim occurred, or a substantial part of the property is situated

3)      Fallback venue a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced


If jurisdiction exists because of a federal question only, venue is proper

1)      where any D resides, if all reside in the same state

2)      where a substantial part of events giving rise to the claim occurred, or a substantial part of the property is situated

3)      Fallback venue where D is found (can be served with process)

*fallback venue applies only if the first 2 bases do not apply


Forum Non Conveniens (requires there to be another more convenient forum where P can obtain adequate relief)


On motion of any party, an action pending in a U.S. district court (meaning current venue is proper) may be transferred to any other U.S. district court where the case could have originally been commenced, if the “convenience of the parties and witnesses” and “…the interest of justice” so requires.


If P is a foreign citizen seeking a forum in the US because of the more liberal rule, Court are less solicitous.

Change in law inquiry—if the remedy provided by that alternative forum would be inadequate or unsatisfactory that there would be no remedy at all, then the uufavorable change in law is given substantial weight.


Piper Aircraft Co. v. Reyno (aircraft crash in Scotland) – Possibility of unfavorable change in law alone should not bar dismissal on FNC