Civil Procedure

Civil Procedure Flowchart

Choosing a Proper Court: The Three Rings

1. Personal Jurisdiction

A. There must be either a statute (usually long-arm statute) or rule enabling the

court to exercise jurisdiction

B. The exercise of personal jurisdiction must be within constitutional limits

i. Domicile: where a person plans to stay indefinitely

ii. Consent: inferred if objections waived

iii. Presence

iv. Personal service within jurisdiction

v. Minimum contacts

a. substantial/pervasive: general jurisdiction

b. single or continuous but limited: specific jurisdiction

c. no contacts or casual/isolated: no jurisdiction

d. purposeful availment (stream of commerce)

C. If jurisdiction enabled and constitutional, there must be no special

circumstances (extreme inconvenience to , lack of state interest in enforcing)

to merit denial of jurisdiction

D. Personal jurisdiction may be challenged

i. Common law, special appearance rule: can only make appearance to

object to jurisdiction; objection is waived if any issues are raised on the

merits

ii. FRCP 12: objections to personal jurisdiction can be raised with other

objections; objection is waived if not raised before answering to merits

iii. Can default judgment in rendering court and challenge jurisdiction in

enforcing court; however, cannot defend against the merits

iv. Cannot challenge jurisdiction in enforcing court if challenged in

rendering court

E. Federal courts have personal jurisdiction over a  who could be subjected to it

by a state court in which district the district court is located

2. Subject Matter Jurisdiction for Federal Courts

A. Federal question: does not require minimum amount in controversy

B. Specific issues that exclude state court jurisdiction; eg. copyright cases

C. Diversity

i. Complete diversity (no  with same citizenship as any , except where

supplemental jurisdiction allows)

ii. Citizenship of persons determined by domicile, corporations by

incorporation or principal place of business (Ð'§1332)

iii. Requires amount in controversy ($75,000)

a. single  may aggregate claims against single 

D. State courts have general subject matter jurisdiction, except as stated in (b)

3. Venue (Ð'§1391)

A. Venue based on residence

i. allows any district any  resides in, if all s reside in same state

B. Venue based on event giving rise to the claim

i. allows any district where substantial part of events giving rise to the

claim occurred

C. Fallback provisions

i. if case based solely on diversity, then venue is proper in any district  is

subject to personal jurisdiction, if no other district available

ii. if not diversity, then venue proper in any district  can be found, if no

other district available

D. Venue can be waived by  if fail to object (FRCP 12)

4. Removal (Ð'§1441)

A. Federal court must have original jurisdiction over a case before it can be

removed from state court; however,  in a diversity case may not remove if 

is citizen of state in which action is brought

B. Removal must be to the federal district court for the district where action is

pending

C. Federal venue rules do not apply in removed actions

D. Cases get removed, not claims

E. Notice of removal must be filed within 30 days of receiving pleading

State Law in Federal Courts

1. There must be a direct conflict between a Federal Rule or federal statute and state law

2. Conflicts between a federal Constitutional provision and a state law: Constitution wins

3. Conflict between federal statute and state law

A. If statute is arguably procedural, then statute wins

4. Conflict between a Federal Rule and state law

A. If Federal Rule does not "abridge, enlarge, or modify" a substantive right

(Ð'§2072), then Federal Rule wins

5. Conflict between federal law and state law

A. If state law is not outcome determinative, then apply federal law

B. Outcome determinative test guided by prevention of forum shopping