1. CIVIL PROCEDURE CLASS 26 Professor Fischer Columbus School of Law The Catholic University of America November 20, 2001

2. ANNOUNCEMENTS IPLSA (Intellectual Property Law Students Association Meeting be rescheduled to November 27 at 5:00 p.m. in the Slowinski courtroom.

3. WRAP-UP OF LAST CLASS We continued our study of subject matter jurisdiction by learning about diversity jurisdiction and supplemental jurisdiction

4. WHAT WILL WE DO TODAY? Learn about the final subject matter jurisdiction topic on the syllabus: removal Continue our unit on jurisdiction by learning about personal jurisdictionl

5. PRACTICE EXERCISE 31 CB p. 839 Plaintiff: Nancy Carpenter (NH) Ds: Dee (MA), Ultimate (MA) 3d Party Ds: McGills Garage (MA), Dale McGill (NH) Motion to dismiss for lack of subject- matter jurisdiction Motion to sever impleader

6. REMOVAL What is removal? Why is it said to be an exception to the general rule that the plaintiff is master of his claim? What is the policy justification for removal a. For diversity cases? b. For federal question cases?

7. LEGAL SOURCES FOR REMOVAL PROCEDURE NOT IN U.S. CONSTITUTION So, removal is purely statutory. There have been federal removal statutes since 1789. These have consistently been upheld as constitutional by the courts. What is the current general removal statute?

8. LIMITS ON REMOVAL Can a plaintiff remove? Can a plaintiff remove if there is a counterclaim? Can a case be removed to a state court in a different state? To a federal court in the same state? To a federal court in a different state? From federal to state court? Are any types of actions non-removable? Please see 28 U.S.C. sect. 1441(b), 1445

9. HYPO Sophie (NY) sues Nicole (MD) in state court in Maryland for negligence. Can Nicole remove? Sophie (NY) sues Nicole (MD) and Erik (NJ) in state court in Maryland for negligence. Can Nicole and Erik remove?

10. WHEN IS A CASE REMOVABLE? There must be original subject-matter jurisdiction in federal court Basic rules of federal question and diversity/alienage apply Well-pleaded complaint rule applies Artful pleading rule

11. WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION? P brings action in state court Can D remove? See 28 U.S.C. section 1441(e)

12. REMOVABLE CLAIM JOINED WITH NON-REMOVABLE CLAIM What is the effect of 28 U.S.C. 1441 ( c)? “separate and independent” test

13. PROCEDURE FOR REMOVAL How does a defendant remove ? (see 28 U.S.C. section 1446) Can a defendant waive her right to remove? How many defendants must agree to remove a case? Can a defendant remove if the case only becomes removable after the plaintiff amends the complaint?

14. NOTICE OF REMOVAL What must be in a notice of removal? Filing requirements what provision of 1441 for civil actions? Notice requirements what provision of 1441 for civil actions?

15. NOTICE OF REMOVAL What must be in a notice of removal? Filing requirements what provision of 1441 for civil actions? 1441(b) Notice requirements what provision of 1441 for civil actions? 1441(d)

16. CHALLENGING REMOVAL How does a plaintiff challenge removal? Can a plaintiff waive her right to challenge removal? Are there any applicable time limits? If so what?

17. PROCEDURE AFTER REMOVAL What happens after removal?

18. Burnett v. Birmingham Board of Education (N.D. Ala. 1994) What is Ps cause(s) of action? Federal or state? What is the procedural issue for the court to decide on the motion at issue? What are the grounds for the motion? How does the court rule on the motion? What is the court’s reasoning?

19. PERSONAL JURISDICTION What is personal jurisdiction? What constitutional limitations exist on personal jurisdiction

20. PERSONAL JURISDICTION Due process clause of the 14 th amendment is outer limits of power to exercise jurisdictional power State legislatures can only authorize courts to exercise jurisdiction up to borders of due process clause, but they can also confer only part of the constitutionally permissible jurisdiction

21. LONG-ARM STATUTES State statutes granting power to courts to exercise personal jurisdiction Some states have statutes that give courts the power to exercise personal jurisdiction to limits of due process clause (e.g. California) Others have narrower provisions (“enumerated” long-arm statutes permitting jurisdiction over defendants based only on certain specific types of contact with the forum state) Remember that long-arm must comport with constitutional due process requirements

22. PENNOYER v. NEFF (1877) Supreme Court made clear that due process clause set limits on court’s power to hear cases over non-resident defendants Pennoyer appliked a traditional concept of jurisdiction, which required the physical presence of the defendant or his property within the forum state

23. BREAKDOWN OF PENNOYER Pennoyer proved too confining as the nation’s economy expanded and, in particular, interstate trade grew Courts began to resort to legal fictions to permit personal jurisdiction over non-resident defendants who were not physically present in the forum state, such as “implied consent” or “constructive presence”

24. INTERNATIONAL SHOE Co. v. WASHINGTON (1945) LEADING MODERN CASE ON PERSONAL JURISDICTION IF YOU REMEMBER ONLY ONE CASE NAME FROM THIS COURSE, PLEASE REMEMBER INTERNATIONAL SHOE THE SUPREME COURT FINALLY DOES AWAY WITH FICTIONS LIKE IMPLIED CONSENT Why does the Supreme Court discard such legal fictions?

25. INTERNATIONAL SHOE Why did Washington State sue the International Shoe company? What is the issue for decision? Describe International Shoe’s argument on this issue?

26. INTERNATIONAL SHOE Describe International Shoe’s contacts with Washington. How do the Washington state courts rule on the jurisdiction issue? How does the U.S. Supreme Court rule on this issue?

27. THE SUPREME COURT: MODERN STANDARD FOR PERSONAL JURISDICTION According to Chief Justice Stone, what is the modern standard for a state’s assertion of personal jurisdiction over a non-resident defendant?

28. P. 664CB “But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defenant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”

29. MINIMUM CONTACTS Does Stone articulate any criteria for assessing a corporation’s contacts or activities in the forum state?

30. FAIR PLAY AND SUBSTANTIAL JUSTICE Second prong of 2 prong test in International Shoe

31. CONTACTS: Can a state validly assert personal jurisdiction over a nonresident defendant if: Such D has no contacts with the forum state? There is a single act or contact by D with the forum state? There are systematic and continuous business activities within the state

32. SPECIFIC JURISDICTION GENERAL JURISDICTION What is general jurisdiction? (see, e.g.,Perkins v. Benguet Consolidated Mining Co. CB p. 671) What is specific jurisdiction? (see,e.g., McGee v. International Life Insurance Co. CB p. 671)

33. PURPOSEFUL AVAILMENT What is purposeful availment? (See Hanson v. Denckla CB pp. 674-75)

34. APPLICATION OF LAW TO THE FACTS Why does Stone find that there was personal jurisdiction over International Shoe? Why does Justice Black disagree?

35. IMPORTANT NOTE: PERSONAL JURISDICTION IN FEDERAL COURT The 14th Amendment due process clause only limits state power. Although there are no CONSTITUTIONAL constraints on a federal court’s exercise of jurisdiction over a defendant not resident in the state where the court sits, Congress has limited the jurisdiction of federal courts See FRCP 4(k). NB “100 mile bulge rule”.

36. WORLD-WIDE VOLKSWAGEN V. WOODSON Who are the plaintiffs? Where are plaintiffs resident? Who are the defendants? Which challenge personal jurisdiction? Where is each defendant who contests jurisdiction incorporated ? Where does each such defendant have its principal place of business?

37. WORLD-WIDE VOLKSWAGEN: PLAINTIFFS’ CLAIMS Where do plaintiffs file their action against defendants? What claim(s) do plaintiffs make against defendants?

38. WORLD-WIDE VOLKSWAGEN: CLAIMED BASIS FOR JURISDICTION What is the legal basis for plaintiffs’ claimed assertion of jurisdiction over defendants?

39. LONG-ARM STATUTES After International Shoe, many states enacted such statutes Long-arm statutes authorize states to exercise personal jurisdiction over non- resident defendants in certain enumerated situations Look at NY CPLR section 302 (at CB 669). What acts give rise to jurisdiction under this long-arm statute?

40. CAN A COURT EXERCISE JURISDICTION OVER A NON-RESIDENT DEFENDANT UNDER A LONG-ARM STATUTE? 2 step test 1. DOES THE STATUTE APPLY TO THE FACTS OF THIS CASE? 2. IS THE STATUTE CONSTITUTIONAL UNDER International Shoe’s minimum contacts test? SOME LONG-ARM STATUTES, e.g. CA, permit courts to exercise jurisdiction to the full extent permissible under the U.S./CA Constitutions

41. BACK TO WORLD-WIDE VOLKSWAGEN How do the NY defendants challenge the court’s personal jurisdiction in this case? How does the trial court rule on this challenge? How does the Oklahoma Supreme Court rule? What is the legal issue for decision in the U.S. Supreme Court? How does the U.S. Supreme Court rule?

42. REASONING OF U.S. SUPREME COURT IN WORLD-WIDE VOLKSWAGEN The U.S. Supreme Court endorses the “minimum contacts” test set out in International Shoe According to Justice White, what are the two functions of the minimum contacts test? Which prong of the International Shoe test should be examined first?

43. APPLYING THE MINIMUM CONTACTS TEST TO THE NY Ds How does Justice White apply the International Shoe test to the facts of World-- Wide Volkswagen? Is it relevant that the NY defendants arguably could foresee that the Audi would enter Oklahoma? Is the concept of “purposeful availment” important to White’s decision? Why or why not?

44. HYPO ON “STREAM OF COMMERCE” Change the facts of World-Wide. What if the Robinsons were from Oklahoma but were temporarily in New York, where they purchased an Audi from Seaway, informing Seaway that they planned to return to Oklahoma. Should Seaway have foreseen being sued in Oklahoma and thus be subject to suit there? What if the facts were basically the same as the real case except that the Robinsons were from NY and had their accident in NJ?

45. ANOTHER HYPO Assume the driver of the car that hit the Robinsons’ Audi was from Texas. Could an Oklahoma court have exercised personal jurisdiction over the driver for a claim in negligence brought by the Robinsons? Why do you think the Robinsons might choose not to sue the driver of the car?

46. WORLD-WIDE: DISSENTS Please explain the basis for Justice Brennan’s dissent. Please explain the basis for Justice Marshall’s dissent. Please explain the basis for Justice Blackmun’s dissent. Do you agree with the majority or any of the dissents? Why or why not?