Legal terminology

Plaintiff (complainer, entity who files the complaint), defendant (answerer, entity who files the answer to the complaint), trial courts (initial court), appellate courts (intermediate courts), supreme courts (final say, depending on which jurisdiction, the name may be different), jurisdiction (whether the court is allowed to hear the case), civil lawsuits (when one private party sues another), circuit courts (federal appellate courts), appeal (asking for a judgment from next tier of court), judgment (court decision)

Federal and State Court Systems in comparison

The federal and State court systems follow a parallel system. Both have a trial court and both have an appeals process.

For the federal system, the procedure follows:

  1. US District Courts (trial court)
  2. US Court of Appeal (Circuit courts)
  3. If cert is granted, then the US Supreme Court

For state courts, the procedure follows

  1. State district courts (sometimes have different names)
  2. Court of Appeals (depending on the state, the names change)
  3. State Supreme Court (again, depending on the name, the name changes. States may also have different number of tier levels).

Why do we have federal courts?

Because the U.S. Constitution authorizes the use of federal courts. Federal courts are allowed to hear two types of cases. First, cases that present a federal question (28 USC § 1331). Second, state law issues where the parties are diverse and reach a certain amount in controversy called diversity jurisdiction (28 USC § 1332).

By definition, this means that the federal courts have limited jurisdiction (can only hear certain types of cases), while state courts have general jurisdiction (meaning they can hear all types of cases, including federal questions).

Structure and Composition of the Federal Courts


  • 28 USC § 1—Supreme Court Justices
  • 28 USC § 41—Court of Appeals Circuits
  • Appointment of Circuit Judges – 28 USC § 44
  • 28 USC § 132—Appointment of District Judges
  • 28 USC § 133—Appointment of District Judges

Overview of Subject Matter Jurisdiction

28 U.S.C. § 1331: Federal Question Jurisdiction

28 U.S.C. § 1332: Diversity Jurisdiction

Although different, another way to find subject matter jurisdiction is through Supplemental Jurisdiction authorized in 28 USC § 1367.

Overview of Personal Jurisdiction

Different types of personal jurisdiction

Specific Personal Jurisdiction

General Personal Jurisdiction

Transient Presence (TAG) Personal Jurisdiction

Waiver of/Consent to Personal Jurisdiction

Specific Personal Jurisdiction

Pennoyer v. Neff 

Two lawsuits—

Suit #1: Mitchell v. Neff (for unpaid attorney fees) (Oregon state court)

Suit #2: Pennoyer v. Neff (ejectment action) (Oregon federal court) – Was there personal jurisdiction?

Appellate jurisdiction—SCOTUS hears Pennoyer’s appeal of Oregon federal court’s judgment against Pennoyer in Neff’s ejectment action

Territorial jurisdiction concept of personal jurisdiction

In personam jurisdiction – Jurisdiction over an entity and its assets

In rem jurisdiction – Jurisdiction over an entity’s assets

Tag or transient presence jurisdiction – Jurisdiction over a person where they are located

Specific Personal Jurisdiction

What is Specific Personal Jurisdiction?

Specific Personal Jurisdiction is where the plaintiff has a claim against a defendant in the forum state because the defendant chose to purposefully avail themselves to the forum state.

What is a forum state?

This is where the plaintiff files suit.


International Shoe Co. v. Washington

Here, International Shoe was based in Missouri but had salesman in Washington and refused to pay unemployment. Washington sued in Washington not Missouri. International Shoe then claimed that there was no personal jurisdiction because the suit occurred in Washington not Missouri (issue from Pennoyer). The court overruled and said that International Shoe had Sufficient Minimum Contacts in Washington, they were hoping to benefit from Washington, so they were subject to personal jurisdiction in Washington.

In Rem

Shaffer v. Heitner

Here, the defendants were executive directors of Greyhound which had a principle place of business in Arizona. The claim arose out of issues in Oregon. The defendants claimed in rem jurisdiction in Delaware because the directors had property (stock) in Delaware. The court said that the rule for in rem is the same as in personam is the same as outlined in International Shoe (see below).

In rem is where a court can assert jurisdiction for property within the forum state. However, ever since Shaffer, the rule for in rem and in personam is the same. That is, the for the plaintiff to find specific personal jurisdiction, the plaintiffs claim needs to arise from or relate to the defendants sufficient minimum contacts with the forum state.

Contacts Contd. + Strong-Arm Statutes

McGee v. International Life Insurance Co.

Here, Franklin had a life insurance policy with a company in Arizona. International Life Insurance Co. purchased the Arizona company and sent a renewal notice to Franklin in California. Franklin passed, McGee was the beneficiary but couldn’t collect and sued in California (California claimed personal jurisdiction because of the strong-arm statute). Because the defendant established a Contact, they purposefully availed (chose to become subject to) themselves to the State of California.

The result would have been different had the policy holder lived and died in Florida. The beneficiary could sue in Florida for Specific Personal Jurisdiction. The beneficiary could sue in Texas for General Personal Jurisdiction. But the case did not arise out of California and the defendant had not purposefully availed themselves to California. Therefore, the suit could not be filed in California.

Strong-Arm Statutes

Think of Strong-Arm Statutes as a funnel. The Constitution tells us what the limit is to find Personal Jurisdiction and is typically more broad. Strong-Arm Statutes tell a state’s courts how much jurisdiction they can have. This is often more limiting than the Constitution (although some states say that they can have jurisdiction as long as it is Constitutional).

Federal Rules of Civil Procedure 4(k)(1)(A)

This rule limits the number of cases that people file federally. It simply says that the federal courts will apply the strong-arm statute of the state that the district court resides in. So, even though the Constitution is typically more broad than the state requirements for personal jurisdiction, the federal courts will abide by the state laws where the court resides.

Busasan Restaurant Co. v. King – Trademark of the “Blue Note”

Here, New York has a long-arm statute that limits the amount of jurisdiction. Plaintiff is in New York, and the defendants are in Missouri. Although there might have had personal jurisdiction through the due process clause, they did not meet jurisdiction through the New York long-arm statute. Therefore, there is no personal jurisdiction and the case is dismissed.

Contacts In-Depth


World-Wide Volkswagen v. Woodson – Car Accident in Oklahoma (Due Process)

The parties matter. Ask ourselves why a party may sue in a certain court and why the defendants want to be in a certain jurisdiction.

Foreseeability isn’t enough (it is a factor), but the conduct of the defendants determine whether the contacts are sufficient.

Even if a person is lost and causes an accident in that state, they could have foreseen being lost and their conduct resulted in the claim.

Here, the courts said that the plaintiffs unilaterally decided to take the product outside of the state. Although the defendants could have foreseen the product would leave the state, their conduct did not avail them to any other state.


Burger King v. Rudzewicz – Breach of Franchise agreement (Due Process)

From this case, we learn that physical presence of the defendant in the forum state is not required under the due process clause. Therefore, a contract alone can serve as a sufficient contact as long as the defendant purposefully avails themselves to the state.

Stream of Commerce

This is a principle where one may find specific personal jurisdiction through their stream of commerce. This is when one company may build a component, which is used in another product, which is then sold to the consumer.

Asahi Metal Industry Co. v. Superior Court of California – Component parts for Honda

We learn that when the courts provide divided concurrences, then there is no binding law. So, we still don’t have a binding law for the stream of commerce principle.

Here, O’Connor says that foreseeability through stream of commerce is not enough to find the corporation purposefully availed themselves to the jurisdiction. Instead, we also need to see the defendant doing something to target the forum state.

Brennan disagrees saying that foreseeability is useful, but the the awareness that the product could make it into the jurisdiction, and the benefit from such actions, is enough to establish specific personal jurisdiction.

However, the burden on the defendant must be reasonable. So, we must weight the interest of the forum state on the burden of the defendant. To do so we consider the interest of the forum state, plaintiff’s interest in obtaining relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental social policies.

Finally, if we pass O’Connor’s purposeful availment test, then we will also find that the jurisdiction is reasonable.

Modern Cases

“Plaintiffs claim must arise from or relate to the defendants conduct in the forum state.”

Keeton v. Hustler Magazine, Inc. – Defamation

Case arose from the companies conduct (tort)

Calder v. Jones – Defamation

Case arose from the writer and editors conduct (tort) because they gathered sources from the forum state.

Walden v. Fiore – Police confiscating money

Even though the injury felt by the plaintiff was in the forum state, the conduct of the defendant occurred (tort) in another State. Awareness that the injury felt is not enough to establish specific personal jurisdiction.

Bristol Myers-Squibb Co. v. Superior Court of California – Prescription drugs

Looking at whether the claim is related to the defendants conduct. Because the plaintiffs were not injured in the forum state (injured elsewhere but tried to file suit in California), the conduct is not related to the claim and therefore there is no specific personal jurisdiction.

Ford Motor Co. v. Montana Eighth District Court – Accident from another state purchased

This is another case where we are looking at the whether the claim is related to the defendants conduct. Because the injury and claim occurred in the forum state, the claim was related to the conduct of the defendant. Therefore, there is specific personal jurisdiction.


Burdick v. Superior Court – Facebook defamation

Being aware of tortious effects in the forum state is not good enough to establish specific personal jurisdiction, there must be some conduct of the defendant expressly aimed or directed towards the forum state.

Here, even though the conduct can be seen everywhere, none of the content was targeted specifically to California.

We also have the Zippo test, where there is a sliding scale. For instance, active websites (selling products) will likely have SPJ wherever they send their products. On the other hand, passive websites (viewing purposes only) will not usually have SPJ.

General Personal Jurisdiction

Overview of the Rule

To find general personal jurisdiction, we look at the domicile of an individual or company. For a company domicile includes

  1. Principle place of business
  2. State of incorporation
  3. “At-home” in unusual cases

Introductory Cases

Perkins v. Benguet Consolidated Mining Co. – WWII

Here, we add the principle place of business as a rule to find general personal jurisdiction. Previously, we only had state of incorporation.

Helicópteros Nacionales de Columbia, S.A. v. Hall – Helicopter crash

Here, the courts emphasized that there is a difference between specific and general personal jurisdiction and you need to assert the correct one to find jurisdiction. In other words, contacts does not equal general personal jurisdiction. We need domicile.

Understanding “At-Home”

To determine if one is at home in the forum state, we look at the percentage of sales and employees in that forum state compared to the percentage with the rest of the world. Although we don’t know the cutoff point, for our purpose, we will just assume that number is 90%.

For example, if a farmer is incorporated in one state, manages offices from another, but farms completely in a third, that third state could be seen as “at-home”. Again, using the “at-home” principle is used in very unusual cases.

Transient Presence (TAG)

Burnham v. Superior Court – Divorce Case

Where you are physically present in the forum state and served while in that forum state, then there is TAG jurisdiction. If a tort is committed in one state, you are domiciled in another, and currently visiting a third while served there, you are subject to TAG jurisdiction in the third state.

If there is one thing to note: for TAG to occur, actual service (summons and complaint) must be given in that state at the time when they are in the forum state. This is true, “no matter how fleeting [the] visit.”

When you serve a corporation, you serve the registered agent in that state.

Consent and Waiver


Can happen in one of several ways

  1. Appearing in court and not raising an issue with jurisdiction
  2. Conduct (i.e. plaintiff filing a claim is subject to personal jurisdiction to defendants filing counterclaims in the same jurisdiction)
  3. Forum selection clauses
  4. Engaging in forum related conduct (i.e. business activity)

This trumps specific personal jurisdiction.However, this applies only to contracts.


Failure to raise an issue about jurisdiction waives the right to bring an issue with it later.


So far process has been pretty straightforward. Here’s how procedure is supposed to function:

  1. File a summons and a complaint (plaintiff)
    • You file the complaint with the court
    • You serve the file stamped copy along with the summons to the defendant.
  2. An answer must be filed within 21 days of the moment the defendant has been provided notice through service (defendant’s response).
  3. Defendants are likely to file a Rule 12(b) Motion to dismiss

As a side note, never do this, but in theory, one could default in one state by not answering in time and make the argument solely on personal jurisdiction grounds in their home state (Called a collateral attack).

All of this is central to the idea that there must be notice. That is, someone must be notified that they are being sued. Notice is a Constitutional right through the Due Process clause and adequate notice must be provided.

Mullane v. Central Hanover Bank & Trust Co. – Trust Fund

The constitutional standard of what counts as service sufficient to be notice varies depending on the circumstances. Here are some of the ways that may be sufficient:

  1. In person (through a processor afterwards providing a certificate of service)
  2. By the mail
  3. Service by publication

Consider this in descending order of preference.

If possible, you should always provide notice in person. This would be reasonable if there is only one or a few people to serve. However, if it is expensive to do so, sending notice through the mail may be sufficient. If there is a lack of information concerning the address or any other contact information, then service by publication may be sufficient.

In Mullane, service by publication was not sufficient because there was a more reasonable way to notify the group of individuals (mail was inexpensive and easy – not burdensome).

Subject Matter Jurisdiction

The Constitution in Article III outlines two ways to find Subject Matter Jurisdiction

  1. Diversity Jurisdiction
  2. Federal Question Jurisdiction

Diversity Jurisdiction is when citizens from different States bring a claim about a state issue. § 1332.

  • State
    • State Constitution
    • Statutes and Code
    • State Common Law

Federal Question Jurisdiction relates to federal issues. § 1331

  • Federal
    • U.S. Constitution
    • U.S. Code
    • Common Law

Federal Question Jurisdiction

This is all based on 28 USC § 1331:

“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

  • District court = Trial courts
  • Original jurisdiction = First place where the court hears a case (trial level jurisdiction).
  • Arising Under = Not every federal question arises under the Constitution. The Supreme Court interpreted this to mean the “well-pleaded complaint rule”. See Mottley.

Well-Pleaded Complaint Rule

Louisville & Nashville Railroad Co. v. Mottley – Lifetime transportation passes revoked
  • This is a state claim (Contract law).
  • They are both from Kentucky so diversity jurisdiction is not an option.
  • The plaintiffs filed in federal court because they said that there was a federal aspect (Affirmative defense in the complaint – meaning plaintiff’s predict the answer will relate federal claims).

The Supreme Court said that there was no SMJ because of the Well-pleaded complaint rule. What is the well-pleaded complaint rule? Even though the claim was related to federal statutes, that is not sufficient. The plaintiff’s claims itself must arise under the Constitution and other statues.

To simplify, this means that the federal question must arise out of the main claim of the complaint, not the answer.

The purpose of this rule was to reduce the number of cases getting onto federal documents. This is not supposed to happen, the Supreme Court changed the law. This rule only applies to 28 USC 1331.

A counterclaim is a claim brought by the defendant (in the answer) against the plaintiff. This acts like a complaint. So, even though a counterclaim can bring a federal question and is not an affirmative defense, because it is in the answer, it cannot go to federal court through the §1331.

Holmes’s Creation Rule

Holme’s follows the Mottley test but applies a rule that says that the law must create the claim. In other words, this rule exists to help us understand when and how Mottley can be applied.


Merrell Dow Pharmaceuticals v. Thompson – Labeling (Not allowed)

Defendant wanted to remove a state issue to a federal court. Was not allowed because the plaintiff’s claim was related to the right to sue for injuries, not the right to sue for not properly warning. The defendant is only liable to the FDA for those suits.

Grable & Sons Metal Prods. v. Dare Eng’g & Mfg. – Notice of property sale (Allowed)

Defendant wanted to remove a state issue to a federal court. Was allowed to do so because the plaintiff could only win their case by relying on the federal law. Meaning, he had to show that notice was necessary to win his case. So, although property law is a state issue, notice, as a federal issue, was necessary to win.

Gunn v. Minton – Patent (legal malpractice claim)

Here we have a state law claim being brought (legal malpractice). However, in order for the plaintiff to win, he depends on a favorable determination on federal law.

The reason why the Supreme Court heard this case was to outline how difficult it is to meet the exception that a state law claim can make it through a federal question jurisdiction (§ 1331). To outline whether a claim can meet the exception, there are four elements that need to be met.

  1. Necessarily raised (Does winning depend on federal law? Here, it’s met)
  2. Actually disputed (… Here, it’s met)
  3. Substantial (What is the consequences of a positive outcome? In Grable, it would change the whole law. Here, it would only change his outcome, not the law. Thus, not met)
  4. Balance (Does winning affect the balance between federal and state governments? If so, not met)

In other words, the federal courts are concerned about the significant impact claims have on the federal law.

Diversity Jurisdiction

28 USC § 1332

To find a claim under diversity jurisdiction there needs to be:

  1. Domicile of different states between parties
  2. Amount in Controversy


Majority test for domicile (Individuals)
Gordon v. Steele – Idaho or Pennsylvania

Use this test primarily for all intent and purposes.

Domicile = 1) Physical presence + 2) Intent to remain indefinitely

Minimal Diversity

Difference between §1332 and Article III of the Constitution. Article III establishes minimal diversity whereas §1332 establishes complete diversity

There is some diversity between a few of the parties. (i.e. A Wisconsin plaintiff and a Minnesota plaintiff v. a Minnesota defendant). This is permissible under the Constitution but not under §1332.

Complete Diversity
Carden v. Arkoma Assocs. – Arizona and/or Louisiana

All the parties on either side of the “v.” are on from different states (A Wisconsin plaintiff and an Iowa plaintiff v. a Minnesota defendant.) All the plaintiffs need to be from different states than all the defendants. This meets §1332 requirements. This rule is set up in Carden.

The issue here is that the plaintiff is a Limited Partnership. Not a corporation. If it was a corporation, we would have only looked at the owners and what was their principle place of business or their place of incorporation. Instead, because this is a limited partnership, we need to look at all the parties involved in the partnership.

This “destroys” complete diversity.

As long as there is complete diversity at the time of filing then the lawsuit can carry on, even if there is no diversity once the trial begins.

Hertz Corp. v. Friend

Note: Partnerships are not corporations.

Note: There is a difference for general personal jurisdiction and diversity jurisdiction for domicile. General looks at State of Incorporation, Principle Place of Business, and essentially “at-home”. Diversity excludes looking at “at-home”.

Principle place of business for diversity jurisdiction means the headquarters. This is the place where the communication comes from a single place to give direction to other parts of the company.

U.S. Citizens Residing Abroad
Redner v. Sanders

§ 1332(a)(2) foreign diversity – Will be on the exam.

Because there is nothing in §1332 about US citizens residing abroad, the courts are not allowed to hear those cases. The absence of express authorization to hear a case means that they cannot hear it at all.

When we are talking about US citizens domiciled abroad, that is the only time the terms “domicile” and “citizen” are not going to be used interchangeably. Instead, we will us the term “resident” to reference those domiciled abroad.

However, foreign nationals who have presence in the United States, will be considered a citizen of that state (even though they are not a US citizen) for purposes of domicile.

The issue here is that the plaintiff did not have any definite plans to return to California. Therefore, he has not changed his domicile and the case will be dismissed on grounds 12(b)(1). However, the plaintiff could still sue in state court.

Amount in Controversy

Currently, in §1332(a), the claim needs to have at least $75,000 in dispute. The purpose of doing so reduces the claims with a lower dollar amount to minimize the burden on district courts.

The burden of proof during trial to show that amount in controversy was met is on the plaintiff. Pretrial, burden of proof is on the defendant.

Note: Injunctive relief (court order saying to do or not to do something), as well as monetary damages, counts for the amount in controversy determinations.

Diefenthal v. C.A.B. – 1st class smoking to 1st class

Before Diefenthal, the Supreme Court heard St. Paul Mercury Indemnity Co. v. Red Cab Co., which said that if the plaintiffs claim was made in good faith, unless there is a legal certainty that the amount in controversy was less than the required amount, the courts would hear the case. In other words, Good faith + lack of legal certainty = Amount of Controversy met.

Plaintiff’s have the benefit of the doubt in the early stages.

Aggregate Claims

This is when you can combine several claims under one case to combine the damages to meet an amount in controversy requirement.

The basic rule for an aggregate (summed up) claim is that a plaintiff can combine several claims against one defendant that can reach the amount in controversy rule. For instance, when the requirement is 75,000, a plaintiff can claim breach of contract for 40,000 and a fraud claim for another 40,000 and would satisfy the requirement.

Other parts of the rule mean that several plaintiffs can’t combine against one defendant. Additionally, a single plaintiff can’t combine against multiple defendants. Each claim must be made at a base level. Here are a couple examples where the requirement is not met.

  • Plaintiff A has claim of 60,000 and Plaintiff B has claim of 60,000 against Defendant A.
  • Plaintiff A has a claim of 60,000 against Defendant A and another claim of 60,000 against Defendant B.

For example, property and personal issue claims are different, but we can aggregate the claims (combine them).


  • Single plaintiff can aggregate claims to a single defendant
  • Single plaintiff cannot aggregate claims against several defendants even if the claims are related
  • Multiple plaintiffs can aggregate claims against a single defendant if one of the plaintiffs meets the requirement through supplemental jurisdiction.
  • Multiple plaintiffs cannot aggregate claims against a single defendant if neither could state a claim alone even if the claims are related.

Supplemental Jurisdiction

28 USC § 1367

There is still a way to make it into a federal court when either 1331 or 1332 is lacking from a claim. If the claim is related to another claim that does meet either 1331 or 1332 requirements, then the claim can make it into federal court under 1367. In other words, these claims are anchored to 1331 or 1332.

Related means that the claim comes from the same facts that allowed the other claim to be successful.

These supplemental claims are all state law claims but are lacking either complete diversity or amount in controversy under 1332.

United Mine Workers v. Gibbs – Coal Mine


  • This case was the first case that introduced supplemental jurisdiction.
  • Permitted by Constitution because it talks about Cases, not claims. So, you can attach a claim to a case as long as the claim is related to the case.
  • Related = Common nucleus of the operative fact = Federal and State claims deal with the same facts.
  • § 1367(b) only applies to plaintiffs based in diversity jurisdiction. All it is saying is that supplemental jurisdiction in not allowed to override complete diversity. It does not say anything about the amount of controversy, so focus on diversity on exams. A defendant can use the plaintiff’s claims as an anchor for counterclaims, regardless of the diversity.
Szendrey-Ramos v. First Bancorp – Attorney issues in Puerto Rico

This case relates solely to §1367(c) which allows the the court to dismiss a case. This case is simply an example of that application. It is important to note that a court can only dismiss supplemental claims, not diversity claims. In other words: “1367(c) allows district judges to dismiss supplemental claims (can dismiss state claims, not 1331 or 1332 cases) that meet 1367(a).”


§1367 allows state law claims to be added to a federal claim as long as they come from the same nucleus of a case. However, the federal courts have the discretion to disallow the claims if they fall under one of the categories outlined in 1367(c)

  1. Complex state law
  2. State law claims predominate over federal claims
  3. District court dismisses all federal claims
  4. Other compelling reasons to deny jurisdiction


Avitts v. Amoco Production Co. – Oil damage

Removal statutes: §§ 1441, 1446-48

State court complaints are filed in county courts. If a plaintiff has a claim that can be filed in both the state courts and the federal courts, then the defendant has the option to remove to a federal court. However, removal to the federal court must be where the county is located.

So, once there is a complaint, do not answer it if you want to remove. Instead, file a notice of removal. This is filed in the federal court with the state court clerk cc’d on the notice. We have 30 days to remove. However, if the answer is due within 20 days, there is really only 20 days to file the removal.

All claims made on the complaint will be removed. Any claims that are not eligible for removal will be remanded by the federal court. However, the plaintiff has 30 days to move for a remand.

What is the forum defendant rule? A defendant who is sued in their home state may not remove to federal court if the sole basis of the court’s jurisdiction is diversity. For example, if a defendant is sued in a state court in Iowa, then the defendant cannot remove to a federal court. The reason for removal is to take out “hometown bias”. If a defendant is already sued in their hometown, there is no need to remove for the sake of hometown bias. This does not apply for federal question jurisdiction (only applies to 1332, not 1331).


Personal jurisdiction is all big picture about the state. Subject matter jurisdiction tells us if things can be done in a federal or a state court. But it doesn’t tell us which federal court.

So what does tell us what court a claim can be filed in? Venue which is defined by judicial district not state.

28 USC § 1391(b) defines venue rules:

(b) Venue in General. – A civil action may be brought in

  1. A judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located;
  2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  3. If there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

1391(b)(1) applies to situations where there is only one defendant or where multiple defendants are in the same state. If defendants are from different states, you can’t find venue based on location of defendants. They can still be at different districts within the same state.

1391(b)(2) tells you that you can sue in the district where a substantial part of the claim arises. You will need to use this if multiple defendants reside in different states. However, this will always be an option, even if 1391(b)(1) applies. This only does not apply if the substantial part of the claim arises in foreign soil.

1391(b)(3) simply says that if (b)(1) and (b)(2) is not available, then you use (b)(3). Then all you need to worry about is personal jurisdiction of the defendants.

Our focus is going to be on (b)(1) an (b)(2).

Venue is a limitation on TAG personal jurisdiction. This is because the defendant must reside in the state where the venue is. For example, if a person resides in Ohio, an accident occurs in New York, and sued in South Dakota (while visiting the state). TAG jurisdiction would be available, but the venue is improper because (b)(1) is available in Ohio and (b)(2) is available in New York. Therefore, he would need to find proper venue within the districts in those states.

Uffner v. La Reunion Francaise – Sinking ship

This is all about a dispute over § 1391(b)(2). We are trying to determine if the boat catching fire was a substantial part of where the claim arises. The defendant claims that this is only a breach of contract dispute and has nothing to do with Puerto Rico. Instead, everything was negotiated in France.

The court disagrees with this narrow approach. The contract was about his boat, and his boat sank. These two things are related. As such they event was considered substantial for purposes of venue.



Filed in state court, and you want it in a federal court in a different state, what is the process for getting it there?

  1. Remove from state court to federal court (Federal judge makes the decision)
  2. Transfer from that federal court to another federal court (choice of the original judge).

The crucial question to ask for transfer if the original venue is proper or improper. If the venue is proper, then the choice of law of the original venue goes with the transfer. If the venue is improper, then the choice of law of the original venue does not go with the transfer.

Transfer will always occur from one federal district court to another federal district court.

28 USC § 1404 allows a court a transfer from a proper venue to another proper transfer.

Why would a party want to transfer? We want the evidence to be easy to collect.

28 USC § 1406 allows a court a court to transfer from an improper venue to a proper transfer. This is an alternative to a 12(b)(3) motion to dismiss. Most courts prefer a 1406. Why? Because it saves the paper work, and keeps things sufficient.

28 USC § 1631 allows a court to transfer a case where it was filed in an improper venue with a lack of personal jurisdiction to a proper venue. This is a way for the courts to avoid the running of statute of limitations.

MacMunn v. Eli Lilly Co. – DES


Must show that venue is proper in the forum state and consider private and public interest factors.


  • Plaintiff’s choice of forum
  • The defendant’s choice of forum
  • Whether the claim arose elsewhere
  • Convenience for the parties
  • Convenience of witnesses
  • Ease of access to proof


  • Tranferee’s familiarity with governing law
  • Congestion of the courts
  • Local interest in resolving local conflicts.
Smith v. Colonial Ins. Co. – 40 mile drive

Funny case, illustrating the significance the courts hold for the convenience of attorneys verses the considerations of the parties and their witnesses.

Forum Non Conveniens

Piper Aircraft Co. v. Reyno – Scottish airplane crash
  • If there is a sufficient forum abroad, and it makes more sense to file there, then the court has a common law rule to dismiss (only one) so it can be refiled abroad.
  • Only used for foreign cases.

Choice of Law


  • There is no general federal common law.
  • Applies to federal diversity jurisdiction and supplemental jurisdiction cases. Federal courts will be applying state common law.
  • Erie Guess: When there is no state law ruled on for an issue, federal courts must guess how the state will rule. Applies only to diversity jurisdiction cases. If the State later rules on the issue, the federal courts must follow the state’s process.
  • Sometimes, states allow you to certify the issue to send it over to the state courts to resolve the issue.
  • Most of the time, will apply state substantive law and federal procedure law. We will not apply federal procedure if it changes state substantive law.
  • Only time the exception applies is when it comes to statute of limitations.
  • Follow York. Follow the state law rules for statute of limitations.
  • In federal diversity cases, we follow the federal procedure law.
  • This was a case where there was a dispute about whether the parties needed to follow federal or state rules of procedure for service of process.

Forum Selection

Stewart v. Ricoh
  • Follow the forum selection clause in contracts. Federal courts strongly support forum selection clauses because they are procedural.
  • You will use the choice of law rules of the forum state.
  • Choice of law are statutes within the state that say which substantive laws (which state) they will apply.
Van Dusan
  • If venue is proper and the party moves to transfer under 1404, then you use the choice of law rules of the forum state of the original venue.
Atlantic Marine
  • If venue is proper but a forum selection clause was violated, a 1404 transfer does not bring the choice of law rules of the forum state. In other words, if a forum selection clause was violated, Van Dusan does not apply.



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