MBE Civil Procedure Guide
Civil Procedure - answer
Jurisdiction and Venue
1. Federal Subject Matter Jurisdiction
2. Territorial Jurisdiction
3. Personal Jurisdiction
4. Service of Process and Notice
5. Venue, Transfer, and Forum Non Convenient - answer
Jurisdiction and Venue
1. Federal Subject Matter Jurisdiction
A. Federal Question Jurisdiction
B. Diversity Jurisdiction
C. Supplemental Jurisdiction
D. Concurrent Jurisdiction
E. Removal
F. Dismissal - answerA. Federal Question Jurisdiction
Rule/Federal Question Jurisdiction: (a) Federal district courts have original jurisdiction
over all civil action arising under the Constitution, laws, and treaties of the United
States. A case arises under federal law if the federal question appears on a fair reading
of a well pleaded complaint [28 U.S.C. Sec. 1331]. [e.g., The S. Ct. rules that the federal
court did not have subject matter jurisdiction over the Motley's claim when the Motleys
lost their free railroad passes when Congress passed a law that banned those passes;
the court held there was no federal court subject matter jurisdiction because the case
"arose under a federal law, which was insufficient to establish federal question
jurisdiction, (Louisville & Nashville Railroad Company v. Motley, 211 U.S. 149 (1908)].
(b) The Constitution or federal statutes may create a right of action. In that case, federal
court have jurisdiction to hear those suits. (c) The defendant's use of federal law as the
basis for her defense will not, by itself, create a federal question jurisdiction. Under the
"well pleaded complaint rule," to create federal question jurisdiction, the federal question
arise within the plaintiff's affirmative claim - regardless of any defense the defendant
might raise. (d) A violation of a federal statute does not create a federal cause of action
unless the statute also provides a remedy for the violation. (e) A state question that
involves a question of federal law may be sufficient to create a federal question
jurisdiction. The mere presence of federal law in a claim is insufficient to create
jurisdiction. The federal law must have a substantial impact on the state law issue [e.g.
(1), Federal question jurisdiction was found to arise in a landowner's state law claim to
quiet title against someone who had purchased
,Jurisdiction and Venue
2. Territorial Jurisdiction - answerRule/Territorial Jurisdiction: Territorial jurisdiction is
the authority of a court to bind a party to the action. There are three essential ways to
establish territorial jurisdiction: (a) federal court has territorial jurisdiction over the state
in which that federal district is located; (b) a federal statute that creates a cause of
action may provide that federal courts have nationwide jurisdiction; or (c) the "100 mile
bulge" rule states that a federal court may exercise jurisdiction over a defendant outside
the state in which the court is located if the defendant joined under Rule 14 and 19 and
is served within a judicial district of the United States not more than 100 miles from
where the summons was issued. (1) In order for jurisdiction to be proper under this rule,
the defendant must have the type of minimum contact with the "bulge" hat would
support personal jurisdiction for a court in the "bulge."
Jurisdiction and Venue
3. Personal Jurisdiction - answerA. Personal Jurisdiction
Rule: a court's authority over a defendant. PJ must be established separately for each
defendant. There are three types of personal jurisdiction: (1) in personam -jurisdiction
over the parties; (2) in rem - jurisdiction over the parties that is the subject of the action;
and (3) quasi in rem - jurisdiction over property that is attached to satisfy the judgment
attached
B. In personam jurisdiction.
Rule: The defendant typically is physically present in the forum state, or has some
significant contacts with the state. To determine whether a federal court has personal
jurisdiction over a particular party, the personal jurisdiction law of the state in which the
federal court sits must be satisfied and the exercise of personal jurisdiction must comply
with the U.S. Const.
Rule/Long Arm Statute: For a federal court to have personal jurisdiction over the
defendant, the state court in which the federal court sits must be able to exercise
personal jurisdiction over the defendant. If the state court cannot exercise PJ over the
defendant, then the federal court may not assert personal jurisdiction either.
Rule/Long Arm Statute: A state court may exercise personal jurisdiction over an out-of-
state defendant if authorized by the state's long-arm statute. Long-arm statues place
limitations on the state's ability to establish personal jurisdiction b setting out the types
of contacts that will support jurisdiction. Typically, the types of contact that establish PJ
include the following: (1) the defendant transacts business within the state; (2) the
defendant contracts to supply goods and services anywhere within the state; (3) the
defendant owns, uses, or proposes any real property within the state.
Rule/Long Arm Statute/Constitutional Considerations: Just because a state law permits
personal jurisdiction
, Jurisdiction and Venue
4. Service of Process and Notice - answerRule/Service of Process: (a) The plaintiff is
charged with service of process; (b) summons must be served with a copy of the
complaint. Unless both the complaint and summons are served on the defendant at the
same time, process has not been completed - (i) the plaintiff is responsible for any
insufficiency of either the service of process or the process itself; (c) service of process
must occur within 90 days of filing of the complaint - (i) if the plaintiff does not timely
serve the defendant with process, the court must dismiss the suit without prejudice
unless the plaintiff can show good cause why service was not timely; (d) service may
effected by an person who is: (i) 18 years of age; and (ii) not a party to the suit.
Rule/How Process is Served: (1) Process can be served on the defendant (whether a
mutual person or corporation, partnership, or association) by following the manner
prescribed by the state court in the state where the federal suit has been filed or the
state court in the state where the defendant will be served; (2) if the defendant is a
natural person, process can also be served by doing any of the following: (a) personally
delivery the process to the defendant himself wherever he may be; (b) leaving process
at the defendant's usual place of abode with a person of suitable age and discretion
who resides there; or (c) serving the defendant's registered agent. (3) If the defendant is
a corporation, partnership, or association, process can also be served by delivering a
copy of the summons and the complaint to: (a) an officer; (b) a managing agent or
general agent; or (c) any other agent authorized by appointment or by law to receive
service of process. Note: that if the agent is one authorized by law and the law requires
service by mail, process must be served by personal delivery to the agent and by
Jurisdiction and Venue
5. Venue, Transfer, and Forum Non Conveniens - answerRule/Venue/Dictating Region:
(a) While subject matter jurisdiction dictates whether a suit can be brought in the federal
court system, and personal jurisdiction informs the plaintiff what state the suit can be
brought in, "venue" dictates the region within a particular state (known as the judicial
district) where a suit can occur. (b) The venue of an action is the federal court in which
the action is filed. (c) In any action venue is proper in: (1) the district in which any
defendant resides, if all of the defendants reside in the same state [e.g., Plaintiff a
resident of MN, brings a diversity action against Defendant A, a resident of Madison, WI
(located in the Western district of WI), and Defendant B, a resident of Milwaukee
(located in the Eastern district of WI). Venue is appropriate in either the Eastern or
Western district]. (2) the district in which a substantial part of the events or omissions
giving rise to the claim occurred on the district in which a substantial party of the
property that is the subject of the action is located; or (3) the district in which any
defendant would be subject to personal jurisdiction, if there is no other district in which
the action could be brought.
Civil Procedure - answer
Jurisdiction and Venue
1. Federal Subject Matter Jurisdiction
2. Territorial Jurisdiction
3. Personal Jurisdiction
4. Service of Process and Notice
5. Venue, Transfer, and Forum Non Convenient - answer
Jurisdiction and Venue
1. Federal Subject Matter Jurisdiction
A. Federal Question Jurisdiction
B. Diversity Jurisdiction
C. Supplemental Jurisdiction
D. Concurrent Jurisdiction
E. Removal
F. Dismissal - answerA. Federal Question Jurisdiction
Rule/Federal Question Jurisdiction: (a) Federal district courts have original jurisdiction
over all civil action arising under the Constitution, laws, and treaties of the United
States. A case arises under federal law if the federal question appears on a fair reading
of a well pleaded complaint [28 U.S.C. Sec. 1331]. [e.g., The S. Ct. rules that the federal
court did not have subject matter jurisdiction over the Motley's claim when the Motleys
lost their free railroad passes when Congress passed a law that banned those passes;
the court held there was no federal court subject matter jurisdiction because the case
"arose under a federal law, which was insufficient to establish federal question
jurisdiction, (Louisville & Nashville Railroad Company v. Motley, 211 U.S. 149 (1908)].
(b) The Constitution or federal statutes may create a right of action. In that case, federal
court have jurisdiction to hear those suits. (c) The defendant's use of federal law as the
basis for her defense will not, by itself, create a federal question jurisdiction. Under the
"well pleaded complaint rule," to create federal question jurisdiction, the federal question
arise within the plaintiff's affirmative claim - regardless of any defense the defendant
might raise. (d) A violation of a federal statute does not create a federal cause of action
unless the statute also provides a remedy for the violation. (e) A state question that
involves a question of federal law may be sufficient to create a federal question
jurisdiction. The mere presence of federal law in a claim is insufficient to create
jurisdiction. The federal law must have a substantial impact on the state law issue [e.g.
(1), Federal question jurisdiction was found to arise in a landowner's state law claim to
quiet title against someone who had purchased
,Jurisdiction and Venue
2. Territorial Jurisdiction - answerRule/Territorial Jurisdiction: Territorial jurisdiction is
the authority of a court to bind a party to the action. There are three essential ways to
establish territorial jurisdiction: (a) federal court has territorial jurisdiction over the state
in which that federal district is located; (b) a federal statute that creates a cause of
action may provide that federal courts have nationwide jurisdiction; or (c) the "100 mile
bulge" rule states that a federal court may exercise jurisdiction over a defendant outside
the state in which the court is located if the defendant joined under Rule 14 and 19 and
is served within a judicial district of the United States not more than 100 miles from
where the summons was issued. (1) In order for jurisdiction to be proper under this rule,
the defendant must have the type of minimum contact with the "bulge" hat would
support personal jurisdiction for a court in the "bulge."
Jurisdiction and Venue
3. Personal Jurisdiction - answerA. Personal Jurisdiction
Rule: a court's authority over a defendant. PJ must be established separately for each
defendant. There are three types of personal jurisdiction: (1) in personam -jurisdiction
over the parties; (2) in rem - jurisdiction over the parties that is the subject of the action;
and (3) quasi in rem - jurisdiction over property that is attached to satisfy the judgment
attached
B. In personam jurisdiction.
Rule: The defendant typically is physically present in the forum state, or has some
significant contacts with the state. To determine whether a federal court has personal
jurisdiction over a particular party, the personal jurisdiction law of the state in which the
federal court sits must be satisfied and the exercise of personal jurisdiction must comply
with the U.S. Const.
Rule/Long Arm Statute: For a federal court to have personal jurisdiction over the
defendant, the state court in which the federal court sits must be able to exercise
personal jurisdiction over the defendant. If the state court cannot exercise PJ over the
defendant, then the federal court may not assert personal jurisdiction either.
Rule/Long Arm Statute: A state court may exercise personal jurisdiction over an out-of-
state defendant if authorized by the state's long-arm statute. Long-arm statues place
limitations on the state's ability to establish personal jurisdiction b setting out the types
of contacts that will support jurisdiction. Typically, the types of contact that establish PJ
include the following: (1) the defendant transacts business within the state; (2) the
defendant contracts to supply goods and services anywhere within the state; (3) the
defendant owns, uses, or proposes any real property within the state.
Rule/Long Arm Statute/Constitutional Considerations: Just because a state law permits
personal jurisdiction
, Jurisdiction and Venue
4. Service of Process and Notice - answerRule/Service of Process: (a) The plaintiff is
charged with service of process; (b) summons must be served with a copy of the
complaint. Unless both the complaint and summons are served on the defendant at the
same time, process has not been completed - (i) the plaintiff is responsible for any
insufficiency of either the service of process or the process itself; (c) service of process
must occur within 90 days of filing of the complaint - (i) if the plaintiff does not timely
serve the defendant with process, the court must dismiss the suit without prejudice
unless the plaintiff can show good cause why service was not timely; (d) service may
effected by an person who is: (i) 18 years of age; and (ii) not a party to the suit.
Rule/How Process is Served: (1) Process can be served on the defendant (whether a
mutual person or corporation, partnership, or association) by following the manner
prescribed by the state court in the state where the federal suit has been filed or the
state court in the state where the defendant will be served; (2) if the defendant is a
natural person, process can also be served by doing any of the following: (a) personally
delivery the process to the defendant himself wherever he may be; (b) leaving process
at the defendant's usual place of abode with a person of suitable age and discretion
who resides there; or (c) serving the defendant's registered agent. (3) If the defendant is
a corporation, partnership, or association, process can also be served by delivering a
copy of the summons and the complaint to: (a) an officer; (b) a managing agent or
general agent; or (c) any other agent authorized by appointment or by law to receive
service of process. Note: that if the agent is one authorized by law and the law requires
service by mail, process must be served by personal delivery to the agent and by
Jurisdiction and Venue
5. Venue, Transfer, and Forum Non Conveniens - answerRule/Venue/Dictating Region:
(a) While subject matter jurisdiction dictates whether a suit can be brought in the federal
court system, and personal jurisdiction informs the plaintiff what state the suit can be
brought in, "venue" dictates the region within a particular state (known as the judicial
district) where a suit can occur. (b) The venue of an action is the federal court in which
the action is filed. (c) In any action venue is proper in: (1) the district in which any
defendant resides, if all of the defendants reside in the same state [e.g., Plaintiff a
resident of MN, brings a diversity action against Defendant A, a resident of Madison, WI
(located in the Western district of WI), and Defendant B, a resident of Milwaukee
(located in the Eastern district of WI). Venue is appropriate in either the Eastern or
Western district]. (2) the district in which a substantial part of the events or omissions
giving rise to the claim occurred on the district in which a substantial party of the
property that is the subject of the action is located; or (3) the district in which any
defendant would be subject to personal jurisdiction, if there is no other district in which
the action could be brought.
