1. Complaint – Filed by plaintiff in state court
  2. Notice – Provided by plaintiff
  3. Removal (If applicable) – In federal court by defendant (30 days max)
  4. Transfer (If applicable) – In federal district court, typically by defendant
  5. Answer – In federal court by defendant (21 days to answer)
    • 12(b) – Motion to dismiss by defendant for lack of
      1. Subject Matter Jurisdiction
      2. Personal Jurisdiction
      3. Venue
      4. Insufficient Process
      5. Insufficient Service of Process

Subject Matter Jurisdiction

Authority for a federal court to hear certain cases comes from Article III of the Constitution. However, the following statutes has limited the federal court’s ability to hear those cases.

Three possible ways to find Subject Matter Jurisdiction:

  1. Federal Question – 28 USC § 1331
  2. Diversity – 28 USC § 1332
  3. Supplemental – 28 USC § 1367

Federal Question Jurisdiction

Well-Pleaded Complaint Rule

Louisville & Nashville Railroad Co. v. Mottley

  • Subject Matter Jurisdiction can be raised at any time by any part or the court
  • The federal question must be derived in the complaint and not as an affirmative defense.
  • The claim in the complaint must arise from the Constitution or a matter of federal law. – Rule

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

  • Private claim was not a federal question.

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

  • Would substantially alter tax law.

Gunn v. Minton – Patent (legal malpractice claim) (Not allowed)

  • Similar fact pattern as Grable & Sons but was not allowed because it does not alter federal law.

Diversity Jurisdiction

State law claims that meet the requirements of:

  1. Complete diversity
  2. Amount in Controversy
Complete Diversity

Article III of the Constitution only requires minimal diversity. 28 USC § 1332 requires complete diversity.

Carden v. Arkoma Assocs.

  • Complete diversity = All the plaintiffs are domiciled in different states than all the defendants.
  • If complete diversity is lacking, the term of art is “destroys complete diversity“.
Domicile (Individual)

Gordon v. Steele

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

Partnerships and Unions follow the individual test for domicile for all parties.

Domicile (Corporation) (For purposes of SMJ)

Domicile for a corporation can be discovered in:

  1. Principle place of business
  2. State of incorporation

Hertz Corp. v. Friend

  • Principle place of business is the nerve center of the corporation – headquarters (absent any fraud).
Domicile (Foreign)

Redner v. Sanders

  • U.S. Citizens residing abroad are not allowed to be heard in federal courts according to 28 USC § 1332(a)(2).
  • Foreign nationals residing within the United States are considered citizens of the state they are domiciled in for purposes of Subject Matter Jurisdiction.
Amount in Controversy

Currently set to exceed $75,000. Meaning need at least $75,000.01.

Diefenthal v. C.A.B.

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

  • If the plaintiffs claim was made in good faith, amount of controversy is met.
  • This is true unless there is a legal certainty that the amount in controversy was less than the required amount. In other words, Good faith + lack of legal certainty = Amount of Controversy met.
Claim Aggregation

You can combine several claims to meet amount in controversy requirements:


  • 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

United Mine Workers v. Gibbs

28 USC § 1367

(a) Any state claim that is part of a case that is related (common nucleus of operative fact) to claims that can make it in through 1331 or 1332 can qualify for 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.

Szendrey-Ramos v. First Bancorp

28 USC § 1367(c)

Federal courts can dismiss supplemental jurisdiction claims for any of the following reasons:

  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

Personal Jurisdiction

You can find personal jurisdiction in four ways:

  1. Specific Personal Jurisdiction
  2. General Personal Jurisdiction
  3. Transient (TAG)
  4. Consent or Waiver

Specific Personal Jurisdiction

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.


Pennoyer v. Neff

  • Old rule – Had to be within the state

International Shoe Co. v. Washington

  • New rule – Sufficient minimum contacts
In Rem

Shaffer v. Heitner

  • In Rem becomes the same as in personum following the international shoe rule.
Long Arm Statutes

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

  • The federal courts will follow the state’s long-arm statute

McGee v. International Life Insurance Co.

  • California long-arm statute extends to the limits of due process.
  • One contact is sufficient to establish specific personal jurisdiction.

Busasan Restaurant Co. v. King

  • New York’s long-arm statute is more restrictive than what due process allows.

World-Wide Volkswagen v. Woodson

  • Focus on the purposeful availment of the defendant

Burger King v. Rudzewicz

  • A contract is a sufficient minimal contact depending on the context and the conduct of the defendant.
Stream of Commerce

Asahi Metal Industry Co. v. Superior Court of California

  • Brennen
    • It is foreseeable that they had purposefully availed themselves to the state because they were aware of sales and marketing in the forum state.
    • Must be reasonable.
  • O’Connor
    • Conduct must be more than foreseeable. More direct action.
    • Must be reasonable.
Recent Cases

Keeton v. Hustler Magazine, Inc.

Calder v. Jones

Walden v. Fiore

Bristol Myers-Squibb Co. v. Superior Court of California

Ford Motor Co. v. Montana Eighth District Court


Burdick v. Superior Court

General Personal Jurisdiction

Rule: A plaintiff can file a claim in the domicile state of the individual or corporation.

  • Individual
    • Physically present
    • Intent to remain indefinitely
  • Corporation
    • Principle place of business
    • State of incorporation
    • Essentially “at-home”

Perkins v. Benguet Consolidated Mining Co.

  • Introduced that the principle place of business can be a place where corporations are domiciled.
  • Nerve center is the principle place of business.

Helicópteros Nacionales de Columbia, S.A. v. Hall

  • General personal jurisdiction is not the same as specific personal jurisdiction.
Essentially 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%.


Burnham v. Superior Court

  • A person is within TAG jurisdiction if they are physically present in the forum state.
  • Actual service and summons must be given to the defendant while they are physically present in the forum state.
  • Venue is a limit on TAG.

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.


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.


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).

Title 28 USC § 1404

  • Allows a court a transfer from a proper venue to another proper transfer.

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 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

  • Considers Public and Private factors to determine whether to transfer
    • Private
      • 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 Private:
    • Public
      • Tranferee’s familiarity with governing law
      • Congestion of the courts
      • Local interest in resolving local conflicts.

Smith v. Colonial Ins. Co.

  • Won’t consider the convenience of attorneys.

Forum Non Conveniens

Piper Aircraft Co. v. Reyno

  • 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.


People need to know that they are being sued

  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).

Mullane v. Central Hanover Bank & Trust Co.

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.



Avitts v. Amoco Production Co.

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).

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.


  • 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.

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.


  • Follow York. Follow the state law rules for statute of limitations.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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