Chapter 4: Motions Attacking

Motions attacking the pleadings — Rule 12(b) attacks on service, process, jurisdiction, venue, and the post-Twiqbal plausibility standard for failure to state a claim — are the early procedural battlefield where counsel can shift forum, narrow issues, or buy strategic time.

Chapter 4

and Jurisdiction

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Yossarian was moved very deeply by the absolute simplicity of Catch-22 and let out a respectful whistle.

“That’s some catch, that Catch-22. It’s the best there is.”

Joseph Heller Catch-22

§ 4.1 Motions Attacking the Pleadings

§ 4.1.1 Introduction

This Chapter explores and examines the tools available to attack pleadings prepared by adversaries. The rules and procedures referred to in these sections are primarily the federal rules and practice. State court rules and procedures are often similar, if not identical. The considerations applicable to drafting pleadings are discussed in Chapter Three.

“Notice” pleading and the prevailing policy of liberal construction of pleadings limited the value of attacking pleadings. Although motions were, of course, frequently made, the conventional wisdom was that unless a Rule 12(b)(6) motion to dismiss was really compelling, it was unlikely to succeed. As discussed later in this Chapter, the U.S. Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal changed things by requiring that the judge find a claim sufficiently “plausible” to withstand dismissal and permit further discovery.

“Twiqbal” (a common shorthand reference for the two cases and their revision of motion-to-dismiss doctrine) changed things for Rule 12(b)(6) motions and arguably for motions attacking jurisdiction and venue as well (in that assertions of jurisdiction and venue should also be plausible in light of the alleged facts of the claim). But attacks on the form of a pleading (as opposed to its substance) are still relatively unlikely to be granted or are granted with leave to amend so that counsel can correct technical flaws. Even in the post-Twiqbal era, these motions still often only buy time, which can still serve a tactical purpose (e.g., winning a race to the courthouse or highlighting the failings (and perhaps diminished credibility) of opposing counsel). But such motions are not “dispositive” motions making a decision on the merits. Amendment of the pleadings in the interests of justice is still liberally allowed. Unless a proposed amendment is made willfully late and without any reasonable basis, the court will probably grant it.

§ 4.1.2 Attacks on Service of Process

A successful motion to dismiss for insufficiency of process (Federal Rule 12(b)(4)) or insufficiency of service of process (Federal Rule 12(b)(5)) will not prevent a case from going forward in either the same action after the service defect has been cured or in a second action. Dismissal on these bases is almost always without prejudice and not a judgment on the merits.

A meritorious motion challenging the process or service is, however, a legitimate delaying tactic. But counsel must have a meritorious reason for seeking delay, such as to commence a new action as plaintiff in the same or another forum or to gather critical information during the pendency of the motion attacking service. These motions can also be of some value in highlighting the opposition’s failure to strictly follow the rules. But this use may be a two-edged sword in that it may appear petty and cast the movant in a nitpicking light, even if the respondent has erred in some technical manner.

Sometimes the motion attacking service can be appropriate. For example, the parties may be racing to the courthouse and the opponent may win but with defective service or process. A successful motion attacking this can result in dismissal that, though without prejudice, destroys the first-in-time priority of the opponent’s action. Thus, the motion can affect forum, case posture, and other practical issues. In some cases, a successful dismissal because of defective service/process can result in a reinstituted action commenced after the statute of limitations has run. Usually, however, the respondent can avoid dismissal by asking the court to grant leave to perfect the defective service without dismissing the action.

The two types of attacks on service of process should be distinguished. First, pursuant to Rule 12(b)(4), the defendant may make a motion to dismiss the complaint for insufficiency of process. This motion challenges the adequacy of the content of the summons, the requirements of which are set forth in Fed. R. Civ. P. 4(b) and in most state rules or statutes. For example, the motion may attack the failure of the summons to state that an answer is required within the requisite days and that default will be entered if no answer is served. This motion is rarely brought because proper summons forms are readily available and typically used.

Second, the defendant may move to dismiss pursuant to Rule 12(b)(5) for insufficiency of service of process. This motion challenges not the contents of the summons, but the manner of delivery. If for example, the plaintiff intended to commence the action by personal service of the complaint, but the process server fails to correctly complete service, the proper motion would be made pursuant to Rule 12(b)(5). This motion may be brought for occasional non-compliance with the service delivery rules.

§ 4.1.3 Service Law

Federal [Rule 4](https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) governs service of process in federal court actions. The rule sets forth the procedure for obtaining a summons from the clerk of court upon filing the action, the form of the summons, and the persons who can serve the summons. [Rules 4(e) through 4(j)](https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) describe the proper means of effecting personal service upon individuals; infants and incompetents; corporations; and governments and government officials. Service may be made in any manner set forth by federal statute or the law of the forum state. This enables federal court plaintiffs to use the long-arm statutes of the forum state, which may permit additional forms of service.

§ 4.1.4 Waiver of Service

[Rule 4(d)](https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) provides a means for the plaintiff to attempt to obtain a written waiver of service from the defendant rather than going through the formal methods of service. Plaintiff tenders a waiver form to the defendant, who has a “reasonable time” of at least 30 days to sign and return the waiver. The waiver form must include a copy of the complaint, and must inform the defendant of the consequences of failing to respond to the complaint and of the consequences of failing to respond to the request for waiver. The consequences are that the court may impose on the defendant plaintiff’s costs of formal service unless the defendant can demonstrate “good cause” for refusing to waive service.

§ 4.1.5 Challenging Process/Service

As previously noted, the proper means of attacking process or service is through either Rule 12(b)(4) or (5). If this attack is not raised in the party’s first motion in lieu of an answer or in the answer itself as an affirmative defense, Rules 12(g) and 12(h)(1) provide that the right to attack on these bases is deemed waived. If the defendant first raises the issue in its answer, it should follow with a specific Rule 12 motion as promptly as feasible. Although raising the process or service deficiency in the answer technically preserves it, no court will dismiss a case on either basis after proceedings are well underway.

Once the motion is made, plaintiff bears the burden of proving proper service of process by a preponderance of the evidence. An affidavit of service is prima facie evidence of service, but the parties may contest this affidavit by separate affidavits or other evidence. Courts may, but will not always, place substance over form concerning service and will accept service by means not expressly authorized by the applicable rules if the defendant actually received the summons and complaint.^[1]^ Generally, however, it is better practice to seek approval of any alternate means of service in advance rather than after the fact.

Courts usually hold hearings on motions attacking service. The court may in its discretion permit some limited discovery concerning questions of receipt and notice. Dismissal without prejudice is usually the most the movant can expect. Dismissal under Rule 12(b)(4) or (5) is never an adjudication on the merits, but would constitute a final, appealable order. Denial of such a motion does not create an appealable order.

§ 4.2 Attack on the Form and Specificity of the Pleadings

As discussed in Chapter 3, Rule 8 provides that the claimant must present a short and plain statement of the facts establishing jurisdiction, the facts showing entitlement to relief, and a demand for judgment. Of these, only the statement of facts showing entitlement to relief is crucial. Nevertheless, when sufficiently deficient pleadings appear, the following motions are the usual modes of attack:

Motion for a more definite statement (Rule 12(e)), where the pleading is so vague or ambiguous that defendant cannot reasonably be expected to draft a response.
Motion to strike (Rule 12(f)), where the pleading contains prejudicial or scandalous matter, is redundant, or asserts a clearly legally insufficient defense.
Motion to dismiss a complaint or strike a claim under Rules 12(b)(6) & 12(f) for failure to properly plead special matters (where the pleading fails to comport with Rules 8 and 9).
Motion for numbering of paragraphs and separation of claims under Rules 10(b) & 12(e).

Motions for a more definite statement are not available to challenge pleadings that do not require a response. Occasionally, a complaint is both confusing and unnumbered. Rule 10(b) requires separate claims and defenses be in separately numbered paragraphs. A separate motion under Rule 10(b) or to strike under Rule 12(e) can seek conformity with the rule.

Only where the pleading contains matter that could defame or otherwise injure if widely disseminated is a motion to strike wise. The motion for a more definite statement is sometimes used to force a more specific pleading that would be more vulnerable to a motion to dismiss for failure to state a claim. This motion is meritorious if legitimately brought in an effort to augment allegations, but it is improper and unethical if used for illegitimate purposes.

Despite our general disenchantment with formal attacks, they are occasionally necessary or useful. Motions for a more definite statement may be useful where the complaint fails to identify a statute or ordinance allegedly violated, consists of mere legal conclusions, or fails properly to match claims with parties in multi-party and claim cases. The U.S. Supreme Court suggested that Rule 12(e) motions for a more definite statement may be particularly apt in pro se (i.e., where the party has no lawyer) complaints, which may be hard to evaluate because the complaint is poorly presented or may be frivolous.^[2]^ Further, motions to strike may be granted not only for the presence of scandalous matter, but to remove unnecessary evidentiary detail that prejudices the defending party. Large, potentially prejudicial, specific allegations of damages (the oft-reported billion-dollar lawsuit) may also be stricken.

The procedure for bringing a motion to strike, for a more definite statement, or to challenge a legal defense mirrors that of other pretrial motions. Where the pleading attacked requires a response, the motion should be made prior to response or within 21 days if no response is required (Fed. R. Civ. P. 12(a) & 12(f)). Once made, the motion tolls the time for response during its pendency. The right to make a Rule 12(e) motion is waived if not made prior to the required responsive pleading or within the 21-day period. If the motion is granted, the claimant has 14 days to correct the defective pleading (e.g., make it more definite or less scandalous). If the claimant fails to do so, the court may make further orders as are just, including dismissal of the pleading. If the motion is denied, the movant must respond promptly to the original pleading.

The denial of a motion challenging pleading form and specificity is not a final, appealable order. After a grant of such a motion, submission of a revised, more specific or less scandalous pleading also generally precludes immediate appeal, but the issue may be preserved for review after final judgement, although by then it is unlikely that an adverse ruling would be considered anything other than harmless error by the reviewing court.

§ 4.3 Failure to Plead Special Matters

§ 4.3.1 Introduction

Historically, like challenges to form of service, attacks on pleadings because they fail to properly plead special matters were ordinarily not cost-effective. But due to the greater de facto scrutiny given federal pleadings pursuant to the Supreme Court’s Twombly and Iqbal cases, discussed in § 3.2 and below, [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motions attacking a complaint for failure to state a claim now have more chance of success even though attacks based on Rule 9 remain usually ineffective.

Occasionally, the classic Rule 9(b) challenge on specificity is useful. For example, if litigants are racing to the courthouse in the same or differing jurisdictions, being the first in time or the plaintiff may be useful. In these cases, a dismissal without prejudice may not keep the opponent out of court, but will set the litigation back chronologically. Similarly, the motion to dismiss a vague or ambiguous complaint or claim is a legitimate delaying tactic that can give the client time to forge its litigation position, close the deal, make the public offering, or arrange a settlement.

The motion, even if technically proper, is usually not successful or cost-effective. However, where the substantive law requires specific pleading that is lacking in the complaint, a successful dismissal motion may end the case if the plaintiff is unable to re-plead with requisite specificity.

§ 4.3.2 Available Challenges on

Pleading Specificity

Federal Rule 9 addresses specificity and provides that certain matters must be pleaded with varying degrees of detail. Actually, Rule 9, which needs to be read in conjunction with the general pleading standards of Rule 8, reads more as a list of things that no longer need to be specifically pleaded than it does a roster of what requires detail. For example, Rule 9 (c) states that capacity to sue or be sued, conditions precedent, and the existence of a foreign or domestic judgment need only be pleaded, not that they be pleaded in detail.

Rule 9(b) provides that malice, intent, knowledge, and other mental states need only be averred generally. Rule 9(f) states that averments of time and place are material and must be “considered like all other averments of material matter.” This does not mean that time and place be specifically stated. These allegations are binding admissions on the pleader. This can become important if a statute of limitations defense is made. “On or about” averments are permissible so long as they give the respondent some idea of the relevant time.

Special damages, which are usually liquidated or capable of expression as a sum certain, must be “specifically stated.” General damages are often defined as injury proximately resulting from defendant’s conduct which the law presumes to exist from the statement of the claim. Special damages are necessary consequences of the wrong that have flowed from the particular circumstances of the case.

Rule 9(b) does require that claims of fraud or mistake “shall be stated with particularity.” This admonition is perhaps the only seriously adjudicated specificity requirement of the rule. Compliance may protect reputations and prevent a frivolous or undeveloped fraud claim from being used to make arguably relevant a discovery fishing expedition.

Statutes and common law may also impose pleading mandates. For example, when suing the United States, an exception to sovereign immunity must be specifically pleaded. The Private Securities Litigation Reform Act of 1995 requires that claims of fraud in the sale or offering of stock be pleaded with particularity akin to that required for fraud claims under Rule 9(b). In historically disfavored actions such as libel, slander, and malicious prosecution, particularized pleading is often required. Fed. R. Civ. P. 23.1 requires specific pleading of pre-litigation attempts to gain relief from the corporation in shareholders’ suits. Claims that fraudulent conduct has “tolled” or suspended the running of the statute of limitations must be pleaded with particularity. These are exceptions, and not general pleading rules.

All else being equal, defendants have the greater specificity burden. Rule 8(c) sets forth 18—that’s right, 18—specific affirmative defenses that must be set forth in defendant’s answer or first responsive pleading or they will be considered waived. These affirmative defenses are (1) accord and satisfaction; (2) arbitration and award; (3) assumption of risk; (4) contributory negligence; (5) duress; (6) estoppel; (7) failure of consideration; (8) fraud; (9) illegality; (10) injury by fellow servant; (11) laches; (12) license; (13) payment; (14) release; (15) res judicata; (16) statute of frauds; (17) statute of limitations; and (18) waiver. Discharge in bankruptcy is no longer included. Rule 8(c) also requires that any other matter constituting an avoidance or affirmative defense be pleaded in the answer. Failure to plead an affirmative defense when answering generally will be held to be a waiver of the right to present the affirmative defense at trial, unless the defense is tried by consent.^[3]^

§ 4.3.3 Strategy, Tactics, Procedure

The proper means for challenging a failure to plead special matters are: (1) a motion to dismiss the claim due to the failure to state a claim ([Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)), (2) a motion for a more definite statement ([Rule 12(e)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)), or (3) a motion to strike the claim involved ([Rule 12(f)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)). The overall purpose of Federal Rule 12 and its subparts is to promote judicial fairness and economy and to prevent repetitive and piecemeal 12 motions.^[4]^ These motions must be timely brought, if not asserted in the answer, or otherwise may be waived. *See *§ 4.4.3.

Most states follow the federal theory of pleadings, and many state civil procedure rules resemble the federal rules. However, state practice on pleading specificity can be one area with significant differences. The state practice may be embodied in case law or an obscure statute. Some states will require specific pleading of some matters, usually state of mind, official acts, judgments, or conditions precedent. And some states may require detailed pleading of certain conditions such as malice, willfulness, or specific intent. In addition, where states require pleading with particularity, the level of detail required is often greater than that which would satisfy a federal court.

If a party wishes to attack a pleading for failure to properly plead a special matter, the motion should be made before a responsive pleading is due. If no response is required, the motion should be made as soon as feasible. If the opponent has failed to plead an affirmative defense, the best response is no motion at all. Claimant should press forward toward trial. If the affirmative defense is later pleaded or argued, counsel should move to have it dismissed on grounds of waiver.

The grant or denial of any of the above motions concerning failure to plead special matters is not a final order and will seldom fit an exception entitling the aggrieved party to an immediate appeal. Appellate review of these orders almost always must await resolution of the case on the merits.

§ 4.4 Challenge on Substance or

Legal Adequacy of Pleadings

§ 4.4.1 Dismissal for Failure to State a Claim

A defendant may be successful obtaining dismissal of the complaint on its face. [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) specifically authorizes this motion as the modern replacement for the code pleading demurrer. A successful 12(b)(6) motion directed at plaintiff’s essential case is an adjudication on the merits, although a Rule 12(b)(6) dismissal granted because of deficiencies in the complaint will not legally foreclose a second lawsuit by the plaintiff.

All claims made by the plaintiff will be taken as true for purposes of deciding a [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion. Prior to Twiqbal, it was often said, per the historic Supreme Court case of Conley v. Gibson, that a complaint will be dismissed only where it appears that, beyond doubt, plaintiff has stated no set of facts that would support relief. Since Twiqbal, courts are now permitted to evaluate the “plausibility” of a claim although it is still the case that in deciding a [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion, the court should accept everything alleged by the claimant and then, based on these factual allegations (not counting conclusory assertions or legal pronouncements),^[5]^ determine whether those facts would entitle plaintiff to any legal relief. If the answer is no, the complaint should be dismissed. States that have not followed the federal evolution continue the more liberal approach.

The Federal 12(b)(6) motion works best where the weakness in the claim is legal and doctrinal rather than factual. For example, the motion may be very effective to attack a pleading on grounds that:

Statute of limitations has run (where a factual equitable tolling issue is not present).
Seeking recovery from a defendant cloaked in immunity.
Plaintiff lacks standing.
The dispute is moot.
The dispute is not an actual case or controversy or is unripe.
There exists no private right of action for the violation claimed.
The plaintiff’s legal theory of recovery is one repeatedly rejected by courts of the applicable substantive jurisdiction (e.g., wrongful life claims).

The 12(b)(6) motion is a successful tool for terminating questionable, unreasonably novel, or frivolous litigation at the earliest possible stage and reducing the costs of discovery, more involved motions, and full litigation.^[6]^ Further, courts are noticeably more receptive to this motion in actions claiming libel, slander, malicious prosecution, abuse of process, or other disfavored actions.

The motion is much less useful in cases involving recognized common causes of action or recurring cases involving factual disputes and not suspect or problematic legal claims. Since the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly^[7]^ and Ashcroft v. Iqbal,^[8]^ also discussed in § 3.2, it is also possible to obtain [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) dismissal because the legal contentions are not sufficiently “plausible” in light of the facts alleged.^[9]^ The Twiqbal standard does have a certain “I know it when I read it” characteristic that permits trial judges to end litigation where the court is skeptical of the bona fides of the claim—so skeptical that the court is unwilling to permit discovery on the matter.

Procedurally, the court in deciding the motion can only consider the allegations of the complaint taken as true. It cannot consider any matters outside the complaint, like affidavits or discovery information. If any matters other than the complaint are considered, the motion to dismiss is converted to a summary judgment motion and the court should give notice of the conversion to all parties. Additionally, the court should permit additional submissions on the issue since a grant of summary judgment would be an adjudication on the merits.

§ 4.4.2 Judgment on the Pleadings

Rule 12(c) authorizes judgment on the pleadings upon a motion made after the close of the pleadings. The pleadings, as set forth in Rule 7(a), are the complaint, other pleadings making claims (counterclaims, cross-claims, and third-party complaints), and the permitted responsive pleadings. When the claims have been made or the time for making them has passed, the pleadings are closed and a motion for judgment on the pleadings is appropriate.

Like a Rule 12(b)(6) motion, a Rule 12(c) motion is converted to one for summary judgment if matters outside the pleadings are presented and not excluded. Notice of the conversion and opportunity to be heard must be given to all other parties. As with the motion to dismiss, the court deciding on the pleadings accepts as true the allegations of the non-movant, including contravention of what the movant has alleged. Parties may bring Rule 12(b) defenses that they neglected to raise in an answer or 12(b) motion through the Rule 12(c) motion, except that venue, lack of personal jurisdiction, process, and service of process are waived if not made in the earlier 12(b) motion and are not permitted under the guise of a motion for judgment on the pleadings.

§ 4.4.3 Procedure

The motion to dismiss for failure to state a claim, like all Rule 12 motions, should ideally be filed in lieu of the answer. However, the Rule 12(b)(6) motion, like Rule 12 motions to dismiss for lack of subject-matter jurisdiction and to dismiss for failure to join an indispensable party, are not waived if made after an answer has been filed. When the 12(b)(6) motion is made in lieu of the answer, it tolls the time within which an answer is required should the motion be denied.

Both Rule 12(b)(6) and Rule 12(c) motions must be made in writing. A motion should be promptly scheduled with notice to all parties and accompanied by a memorandum of law. Affidavits are not proper unless the movant intends to convert either motion into a summary judgment motion as set forth in the last sentence of Rule 12(b). If the movant plans on introducing affidavits or any other exhibits, the Rule 12 motion will be treated as a Rule 56 motion and the better procedure is to label it a summary judgment motion from the start.

The grant of a Rule 12(b)(6) motion is a final, appealable order. The denial of the motion is interlocutory and not appealable absent some exception to the general policy permitting appeals only of final orders. Only rarely will denial of this Rule 12 motion meet the criteria for being considered an appealable interlocutory order.

§ 4.5 Motions Challenging Jurisdiction

§ 4.5.1 Motions to Dismiss for Lack of

Subject-Matter Jurisdiction

A judgment rendered in a court lacking jurisdiction is void, and the prosecution of an action in a court without jurisdiction is a vast waste of time and resources. The availability of a motion to dismiss for lack of subject matter jurisdiction resolves this problem. The parties cannot confer valid subject-matter jurisdiction by stipulation. Courts obtain their power to decide cases from statutes, constitutional provisions, and common law. Parties cannot empower a court to resolve a dispute.

This type of motion to dismiss is most often encountered in federal court practice. A federal court is a court of limited jurisdiction, and can act only when a party correctly invokes its jurisdiction. There is no federal court of “general” jurisdiction. By contrast, most state trial courts are courts of general jurisdiction. Rarely will a motion attacking subject-matter jurisdiction succeed in a state court.

The plaintiff contesting the motion cannot rest upon pleadings alleging subject-matter jurisdiction but must affirmatively prove the existence of jurisdiction by a preponderance of the evidence.^[10]^ Thus, although the defendant is the moving party, the burden of proof is on the plaintiff. When a permissive counterclaim is pleaded by a defendant, the plaintiff may move for dismissal of the counterclaim for lack of subject-matter jurisdiction. If the defense counterclaim is compulsory (arising out of the same transaction or occurrence that is the subject-matter of plaintiff’s complaint) and the court had subject-matter jurisdiction over the complaint, the court will have ancillary subject-matter jurisdiction over the compulsory counterclaim.

The motion to dismiss for lack of subject-matter jurisdiction is also favored in that it will ordinarily be the first motion considered by the court. If it is granted, no other motion will be considered.^[11]^ However, a court presented with multiple grounds for dismissing the complaint need not decide a subject-matter attack prior to ruling on a motion to dismiss for lack of personal jurisdiction.^[12]^

Because subject-matter jurisdiction often turns on issues of fact, the court should permit each side sufficient discovery to prove its version of jurisdictional reality and to inform the court so that a correct ruling can be made. Courts usually hold hearings to determine jurisdictional facts. A court may weigh the probative value of factual submissions, competing affidavits, and discovery responses in deciding this dismissal motion.

Because a judgment obtained in a court lacking subject-matter jurisdiction is void, a defense of lack of subject-matter jurisdiction may be raised at any time. An appellate court can even dismiss a case for lack of subject-matter jurisdiction on appeal. [Rule 12(h)(3)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) specifically provides that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."^[13]^ If a defendant overlooks a jurisdictional problem or facts emerging at a later date suggest the absence of jurisdiction, a Rule 12(b)(1) motion should be made immediately. If the party discovering probable lack of jurisdiction stands silent hoping to win on the merits but holding the motion in reserve, counsel has acted unethically.

The grant of a Rule 12(b)(1) motion is without prejudice, and is not an adjudication on the merits of the claims and has no res judicata effect. Dismissal is a final order, immediately appealable. On appeal, the reviewing court will grant deference to the trial court’s fact findings, applying the “clearly erroneous” standard of review. Appellate review of the court’s legal conclusions is plenary and without deference to the trial court.

§ 4.5.2 Motions Challenging

Personal Jurisdiction

A defendant sued in a distant or inconvenient forum may seek dismissal for lack of personal jurisdiction. If the defendant loses the motion due to barely sufficient contacts with the forum state, the party may bring a motion to dismiss for improper venue or to transfer venue. Unlike the motion to dismiss for lack of subject-matter jurisdiction, the personal jurisdiction dismissal motion must be made prior to a responsive pleading or it is deemed waived. A party may also waive its right to contest personal jurisdiction through an appearance, an admission in a pleading or discovery response, or by stipulation.

A motion to dismiss for lack of personal jurisdiction contends that the defendant does not have sufficient contact with the forum to make the exercise of personal jurisdiction proper by that court. The basis for personal jurisdiction is either specific or general jurisdiction. The contacts of the defendant with the forum must be sufficient under one or the other basis—it is not sufficient to mix some “general” contacts with some “specific” contacts, and come up with a hybrid basis for jurisdiction.^[14]^

In essence, a Rule 12(b)(2) motion becomes, once the technical requirements of federal or state process have been met, a constitutional question that asks: Does the defendant have sufficient contact with the forum state that the exercise of personal jurisdiction over it by the court will not offend traditional notions of due process, fair play, and substantial justice?^[15]^ The overarching question may sound lofty and has given the Supreme Court occasion for shifting theoretical doctrine.^[16]^ In practice, however, the questions to ask are more mundane:

What contacts does the defendant have with the state?

Has the defendant consented to jurisdiction?

Does defendant do business in the state?

Has defendant or its agents visited the state?

How often? For what purpose? How recently?

Has defendant advertised in the state?

How often? How much? How directly?

What type of contacts? Emails? Letters? Texts? Brochures?

What communication methods? Social media? Websites? Blogs?

Has defendant transported anything into the state?

Has it caused any harm in the state? Was the harm foreseeable? Was its occurrence in the state foreseeable?

What other connections or contacts are there with the state?^[17]^

The extent and type of contacts generally determine whether jurisdiction exists. Where a defendant has nontrivial continuous and systematic affiliations with the forum state, a court may exercise “general” personal jurisdiction over the defendant because it is essentially “at home” in the forum state even if not a formal resident or citizen of the state. Where such affiliation is lacking, a court may still assert “specific” personal jurisdiction over the defendant when it has sufficient connections with the forum state that is related to the lawsuit. For example, if a nonresident defendant ships a widget to plaintiff and the widget explodes upon first use, plaintiff may sue in the plaintiff’s home state and the defendant is subject to the forum state’s judicial power.

A hotly litigated contemporary issue is the degree to which cyberspace activity supports a court’s exercise of personal jurisdiction. Courts have divided on the issue, more because of the facts of individual cases than because of distinct approaches to the minimum contacts test.^[18]^ Each case turns on its own facts, but general rules have emerged for particular causes of action, defendants, and state “long-arm” statutes.^[19]^

Where a motion attacking personal jurisdiction is made, plaintiff bears the burden to prove jurisdiction by a preponderance of the evidence and may not rest upon the mere allegations of its pleadings unless they are uncontroverted by the movant. Plaintiff and defendant will both be permitted reasonable discovery directed toward only the jurisdictional issue pending the court’s ruling.

The motion to dismiss for lack of personal jurisdiction should comport with general motion format, should be timely made, and should precede any responsive pleading on the merits or any appearance in the action by the defendant or counsel. The Rule 12(b)(2) motion should be joined with any other Rule 12 motions that defendant wishes to make although, as previously noted, the court should decide subject-matter and personal jurisdiction issues before addressing other bases for dismissal.

The grant of a Rule 12(b)(2) motion is a final, appealable order but is not a judgment on the merits and has no res judicata effect. The denial of the motion is not a final order and may only be reviewed after disposition on the merits in the absence of a proper trial court certification for interlocutory review or the basis of another exception for immediate review. On appeal, the trial court’s fact findings will be reviewed under the “clearly erroneous” standard while legal analysis is reviewed de novo.

Where the plaintiff is faced with a likely dismissal on a Rule 12(b)(2) motion (or any Rule 12 motion for that matter), counsel should note the applicable statute of limitations. If the statute has run in the interim between filing of the complaint and decision on the dismissal motion, plaintiff should request that the action be transferred to a forum that will have jurisdiction over the action and the defendant. Courts are authorized by statute to do this in venue matters and have transferred rather than dismissed actions where the issue is personal jurisdiction. However, without subject-matter jurisdiction, the court has no power to transfer an action.

§ 4.5.3 Motions Seeking Non-Exercise

of Jurisdiction

Some claims are within the permissible scope of federal jurisdiction, but nevertheless are subject to dismissal in the court’s discretion. This motion to dismiss or abstain is based upon the federal courts’ prudential authority to refuse to exercise available jurisdiction. The motion seeking non-exercise of jurisdiction is seldom, if ever, appropriate in state court. Because state courts have general judicial power while federal courts possess limited judicial power, the considerations of federalism and federal-state comity will rarely prompt the state court not to exercise jurisdiction. The only significant instances of a state court “abstention” occur when the state court case involves the same subject matter as a state or federal administrative proceeding or where the parties have agreed to arbitrate the dispute.

The possibility of the non-exercise of available jurisdiction is a consequence of history, the American system of constitutional government, the limited jurisdiction of the federal courts, and the tradition of federalism. The most common grounds for seeking non-exercise of jurisdiction are:

The presence of “pendent” (supplemental) state claims subject to dismissal.
The availability of federal judicial abstention pursuant to the Younger, Pullman, Burford, Colorado River or Wilton/‌Brillhart doctrines.
The improper presence of an ancillary (supplemental) claim.
Failure to exhaust state remedies.
The presence of other means of dispute resolution that must precede federal adjudication.

§ 4.5.4 Motions Seeking to Dismiss State Claims

Federal courts have jurisdiction to decide the entire case or controversy before then. Where a properly pleaded federal claim invokes federal jurisdiction, the court may hear and decide state law claims also arising out of the dispute between the parties whenever the state and federal claims “derive from a common nucleus of operative fact,” and where the claims are sufficiently related that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding."^[20]^

This federal court power to hear related state court claims was long deemed “pendent” jurisdiction but is now part of a court’s “supplemental” jurisdiction established in 28 U.S.C. § 1367. This statute codified much of the common law of pendent jurisdiction and also expanded the scope of supplemental jurisdiction somewhat. Once supplemental jurisdiction is properly invoked, the court may even decide the state claims first in order to promote the policy of avoiding decisions on federal issues, particularly constitutional questions, whenever possible.^[21]^

When a state or the functional equivalent of the state is a defendant, the constitutional power to exercise supplemental jurisdiction conflicts with the Eleventh Amendment, and may only be exercised when the state defendants have acted so far outside their authority as to shed the cloak of sovereign immunity.^[22]^ However, a state defendant may join with individual co-defendants in removing a case to federal court, with the federal court adjudicating the claims against the individuals but withholding action on the claims barred by the Amendment should the state raise the immunity defense.^[23]^

Although supplemental jurisdiction over pendent state claims is permitted, its exercise is not required. The court may dismiss the state claims if “considerations of judicial economy, convenience and fairness to [the] litigants” weigh in favor of their dismissal, and may also dismiss pendent claims to avoid unnecessary decisions of state law.^[24]^ Where the federal claims are dismissed prior to trial, the case for dismissing related state claims grows stronger. Where a federal claim is eliminated by the plaintiff’s own amendment removing it from the complaint and leaving only state law claims, the Supreme Court has required remand,^[25]^ a view that logically supports dismissal as well.

The court has discretion, however, either to dismiss or decide the remaining state claims, depending upon the stage of the litigation and whether the state claims are closely tied to a question of federal policy.^[26]^ Supplemental jurisdiction over related claims of this sort usually applies only where the state and federal claims involve the same parties. Normally, there must be a federal law basis for the presence of each party in the case.

§ 4.5.5 Motions to Dismiss “Ancillary” Claims

The federal statute on supplemental jurisdiction, 28 U.S.C. § 1367, applies both to what were termed “pendent” and “ancillary” claims prior to the enactment of this statute and the institution of the “supplemental” nomenclature. As traditionally understood, “pendent” jurisdiction refers only to the court’s review of both state and federal claims arising from the same facts. Where federal jurisdiction rests on diversity and a court with proper jurisdiction over the main action decides claims or joins parties outside this main action, it does so on the basis of what was traditionally termed “ancillary” jurisdiction. Ancillary jurisdiction is a doctrine that allows a federal court to exercise jurisdiction over all matters related to the central matter properly before the court even though it does not have separate subject-matter jurisdiction over the related matters. Concerns of fairness to litigants, judicial economy and avoiding multiple litigation also buttress the concept of ancillary supplemental jurisdiction.

Ancillary supplemental jurisdiction cannot be exercised in some situations where its use would clearly contradict the normally strict judicial views of federal subject-matter jurisdiction. The major procedural examples of this limit on jurisdiction are:

Joinder of parties under Rule 20.
Permissive intervention under Rule 24(b).
Permissive counterclaims under Rule 13(b).
Joinder of claims under Rule 18 unless the state and federal claims are so closely related that they are merely different grounds supporting the same causes of action.

Of these limits on ancillary supplemental jurisdiction, the most difficult concern the joinder of parties. The prevailing modern view is that “pendent party” jurisdiction is now more widely available in federal-question cases but remains limited in diversity cases by the statutory language providing that such jurisdiction cannot be exercised over a non-diverse party when exercising supplemental jurisdiction would be inconsistent with the jurisdictional requirements of Section 1332. The law of statutory supplemental jurisdiction provides that “when jurisdiction is based on diversity of citizenship, no supplemental jurisdiction exists for a nonfederal claim against a nondiverse third-party defendant. But supplemental jurisdiction does exist over otherwise jurisdictionally insufficient parties whether the federal-question jurisdiction is concurrent or exclusive."^[27]^

Ancillary supplemental jurisdiction has been held applicable to:

Compulsory counterclaims under Rule 13(a).
Joinder of parties to respond to a compulsory counterclaim under Rule 13(h).
Cross-claims under Rule 13(g).
Third-party claims under Rule 14.^[28]^
Joinder of interwoven claims under Rule 18.
Interpleader under Rule 22.
Intervention as of right under Rule 24(a).

§ 4.5.6 The Abstention Doctrines

Federal courts are courts of limited jurisdiction and state courts have been viewed as the front line of the nation’s judiciary. This tradition has spawned several abstention doctrines encouraging, and occasionally mandating, federal courts to refrain from adjudicating cases that are thought to be more properly within state court jurisdiction. Each abstention doctrine is slightly different, some more commanding than others.

Younger Abstention. This doctrine is named after the case clearly articulating its requirements, Younger v. Harris.^[29]^ Where an action seeks an injunction of state criminal prosecution begun prior to the federal action, the court should abstain unless a federal injunction is necessary to prevent immediate, irreparable injury, or where there is some evidence of bad faith or harassment in the state proceedings, or where the state statute upon which prosecution is based is “patently invalid” under federal law.^[30]^ The rationale for Younger abstention is that the state court criminal defendant can raise any federal arguments against conviction in the state proceeding.

The Younger doctrine has been held applicable to state civil proceedings antecedent to a criminal prosecution seeking closure of obscene movie theaters and to civil actions to collect state taxes. It is probably safe to state that Younger abstention applies whenever the federal suit seeks to restrain state court civil proceedings commenced by the state. Federal judges may be appropriately reluctant to enjoin state court judges.

Pullman Abstention. This federal abstention doctrine was established in Railroad Commission of Texas v. Pullman Co.^[31]^ The doctrine applies to federal actions challenging state action as contrary to the United States Constitution. If the case involved also presents unsettled state law questions that may be dispositive of the controversy, the federal court may refrain from hearing the case pending the parties’ resort to the state courts.

Pullman abstention is less draconian than Younger abstention. Under Pullman abstention, the federal court usually retains jurisdiction and refrains from action for a “reasonable” time, rather than dismissing the case as in Younger. Federal courts also have greater discretion to determine the applicability of Pullman abstention, whereas the criteria for Younger abstention are comparatively obvious and inflexible. Under the Pullman doctrine, only where the state law question is both difficult and unclear is the federal court more or less obligated to abstain. Where the applicable state laws are clearly unconstitutional, Pullman abstention is inappropriate.^[32]^

In recent years, Pullman abstention appears to have waned in use in response to the growth of the practice of federal courts “certifying” a question of state law to the highest state court in question. In this process, the federal court formally asks the state court to decide a question of state law so that the federal court armed with the definitive answer regarding applicable state law, may apply the law to the facts and adjudicate the case in question. Many federal and state judges like this procedure because it permits state courts to have more control over undecided questions of state law and removes federal courts from either “guessing” or predicting state law or standing idle in the face of a pending case. However, a state court is not bound to accept the certification and may refuse to answer the federal court’s question.

Burford Abstention. This abstention doctrine is set forth in Burford v. Sun Oil Co.,^[33]^ and states that federal courts should abstain from the exercise of jurisdiction where exercising jurisdiction would create needless conflict with the state’s administration of its own regulatory scheme, thereby affecting issues of substantial local importance that transcend the federal court case. Burford abstention is particularly appropriate where the state law questions are difficult or where the state courts or state administrative agencies have special expertise in interpreting the state law or controversy involved. In Burford abstention, as in Younger abstention, the federal action will normally be dismissed, not merely stayed.

Federal courts have long been reluctant to adjudicate controversies which essentially involve state property disputes, even where some federal basis for jurisdiction has been asserted.^[34]^ This policy stems from the doctrine of comity, the notion that controversies over real property are peculiarly local regardless of the legal issues involved, and the practical belief that state courts have particular expertise in adjudicating certain types of real property disputes such as boundary disputes. Consequently, federal courts have dismissed cases involving real property disputes where the action does not present a federal-question issue that outweighs the real property character of the action.

Colorado River Abstention. Although the federal courts have been reluctant to label it abstention, they have long recognized another abstention category. We will call it Colorado River abstention because it was most comprehensively discussed by the United States Supreme Court in Colorado River Water Conservation District v. United States.^[35]^ Under this doctrine, an action is dismissed or placed in suspense because of the existence of concurrent state court proceedings involving the same parties and controversy.

A number of Supreme Court cases have applied Colorado River abstention, even decades prior to the Colorado River decision.^[36]^ Although the doctrine is limited and largely within the court’s discretion, the usual course of action in exercising this type of abstention—dismissal—is as powerful as that of Younger or Pullman abstention. This form of abstention is particularly appropriate where the federal action is a declaratory judgment action.^[37]^ A variant of Colorado River abstention occurs when two parallel federal court proceedings exist. In these cases, the same considerations will be applied by the courts, but there is a lower standard for dismissal since a federal court will retain jurisdiction in any event.^[38]^

Wilton/Brillhart Abstention. Pursuant to this doctrine, federal trial courts have substantial discretion to stay or even dismiss claims in federal court seeking declaratory relief notwithstanding that federal jurisdiction exists if the court believes abstention is preferred in order to avoid interfering with a pending state court proceeding.^[39]^ This type of abstention is obviously much like Colorado River abstention but the Wilton/Brillhart terminology is often used where the federal matter seeks a declaratory judgment rather than other forms of relief. By contrast, Colorado River abstention may apply regardless of the nature of the federal action.

In one leading case, a federal appeals court listed the following considerations to be used by federal trial court in determining whether to exercise Wilton/Brillhart abstention, including whether:

The declaratory suit “presents a question distinct from the issues raised in the state court proceeding.”
The parties to the different actions are identical.
Going forward with the federal declaratory action will “serve a useful purpose in clarifying the legal obligations and relationships among the parties or will merely amount to duplicative and piecemeal litigation.”
Similar relief is available in the state action to the plaintiff seeking a declaratory relief in the federal action.^[40]^

The availability of this type of abstention of course does not guaranty its successful invocation. A court may decline to abstain.

§ 4.5.7 Miscellaneous “Abstention” or

Quasi-Abstention Provisions

Although they are not generally denominated as “abstention” cases, there exist a number of other small categories of cases in which a federal court will decline to exercise jurisdiction.

Most common among this category are causes of action that require the federal court plaintiff to exhaust specified administrative or legislative remedies or to satisfy conditions precedent to invoking federal subject-matter jurisdiction. Exhaustion of state judicial remedies is, however, not normally required. Examples of these situations include applications for habeas corpus relief from state court confinement,^[41]^ actions to overturn the administrative denial of social security benefits,^[42]^ and actions to overturn various administrative agency rulings.^[43]^ The existence of an arbitration agreement in a contract pertaining to the subject matter of the lawsuit provides another basis for seeking quasi-abstention.^[44]^30

A judge-made exception to the duty to exercise federal subject-matter jurisdiction is the domestic relations abstention. Even though the diversity statute provides for jurisdiction without regard to the subject matter of the action, federal courts have long refused to hear diversity cases involving divorce, child support, and related domestic relations matters.^[45]^ A similar exception, also judge-made, causes federal courts to decline to probate a will or administer a decedent’s estate.^[46]^

Considerations of federalism also militate against federal court interference in state court actions. This doctrine has been codified into law. The Anti-Injunction Act, 28 U.S.C.A. § 2283, provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

The language of the Act is strictly construed, and the Act may not be avoided through clever redefinition or sophistry. For example, the Act cannot be avoided by directing the injunction at a party rather than the state court, or by seeking a declaratory judgment with the effect of an injunction.

§ 4.5.8 Removal and Remand

Defendants who are sued in state court should consider whether the controversy may be removed to federal court and whether they are likely to benefit from the federal forum. Conversely, plaintiffs who have chosen the state court will want to seek the remand of cases improperly removed to federal court.

The federal judicial code provides a comprehensive set of standards and procedures for removal and remand.^[47]^ Perhaps the most difficult aspect of removal is deciding whether to remove. This decision can be largely subjective, and must be decided after considering and balancing many factors, such as the:

Relative quality of state and federal judges.
Judicial experience with substantive law of this case.
Differences in state and federal procedure, including discovery.
Comparative conditions of each court’s docket.
Differences in methods of assigning matters to individual judges.
Relative differences in state and federal jury panels.

To be removable, a case commenced in state court must usually be one that could have been commenced in federal court. Some statutes specify that certain actions may not be removed, including: an action brought pursuant to the Federal Employers Liability Act (FELA), state workers’ compensation laws, or suits against a common carrier for some shipment losses.^[48]^ Some statutes in addition to the general removal statute provide for removal of certain actions by federal government agencies that are sued.^[49]^ The Foreign Sovereign Immunities Act adds a section to the removal statute (28 U.S.C.A. § 1441(d)) to permit a foreign state sued in state court to remove and obtain a bench trial in order to avoid possible prejudice of an American jury.

To be removable on the basis of federal-question jurisdiction, federal law must create the plaintiff’s cause of action or must be an *essential *ingredient of the plaintiff’s claim. An action is not removable if a defense to the action invokes federal law or requires an interpretation of federal law, even if the defense is clearly foreseeable.^[50]^ A cross-claim or counterclaim invoking federal law similarly will not provide the basis for removal. The removal statute (28 U.S.C.A. § 1441(c)) also permits a case to be removed even if it contains a “separate and independent” claim arising under federal law (i.e., not based on diversity) that would, if sued upon alone, confer valid federal jurisdiction. Thus, a case with one federal claim in a multiple count complaint may be removed to federal court.

However, the trial court has discretion to remand to state court those claims in the case for which state law predominates. Similarly, if the single federal claim is dismissed prior to trial, the court has discretion to continue to hear and decide the remaining state law claims, although continuing to hold onto the case under these circumstances might constitute an abuse of discretion. Appellate review of trial court decisions remanding state law claims under these circumstances proceeds according to an abuse of discretion standard—at least when review is available.

Where the federal claim or claims are removed due to amendment by the plaintiff and only state law claims remain, the Supreme Court has ruled that dismissal is mandatory.^[51]^ The Court reasoned that the amended complaint controls whether federal jurisdiction exists to permit removal and found none, a different situation than when federal jurisdiction clearly exists for at least one claim subject to adjudication and the federal claim is eliminated by judicial decision. Consequently, remand was required after the federal claim was eliminated entirely prior to any substantive rulings on the claims in the case.

Remand determinations are generally not reviewable,^[52]^ both as a matter of law and practicality. [28 U.S.C. § 1447(d)](https://www.westlaw.com/Document/ND6F78B30149711E1A7F78D1F2D4D2473/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND6F78B30149711E1A7F78D1F2D4D2473/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) expressly provides that a reman order is “not reviewable on appeal or otherwise” except for cases removed on the basis of a federal officer defendant or asserting a civil rights violation by a government defendant. And once remanded, the remand issues usually become moot due to settlement or adjudication in state court.

Where there is complete diversity between plaintiff and defendants, the defendants may remove the action if all the defendants are not citizens of the forum state and join in the removal petition within the required time. Complete diversity must usually exist both at the time the action is commenced and at the time the removal petition is filed. A corporation is a citizen both of its state of incorporation and its principal place of business, with the principal place of business being the nerve center of the company or locus of organizational decision making, which is usually the corporate headquarters.^[53]^ A partnership is a citizen of each state where its members or partners reside.^[54]^

An action may be removed even if the state proceeding is procedurally defective or the state court lacks personal jurisdiction over a defendant. After removal, these procedural defects may be cured or the action may be dismissed based upon the procedural defects or lack of personal jurisdiction.^[55]^

Normally, an action cannot be removed if any of the defendants “joined and served” is a citizen of the forum state. [28 U.S.C. § 1441(b)(2)](https://www.westlaw.com/Document/NEF0D06E03C8911E1BEC7F99C87F6DA53/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NEF0D06E03C8911E1BEC7F99C87F6DA53/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(emphasis added). Defendants with sufficient resources to monitor dockets, who receive courtesy copies of complaints prior to formal service, or in states where there is as delay between filing and service while waiting for the court clerk to issue required process have sometimes seized on this language to make a “snap removal” prior to service even though one of the defendants is a forum state citizen. Case law at the trial level is divided but snap-removing defendants have largely prevailed on appeal in the Second, Third, and Fifth Circuits,^[56]^ a result that at least one of us finds troublesome.^[57]^

§ 4.5.9 Removal/Remand Procedures

The removal statute sets forth specific procedural requirements for removing an action to federal court. This statute will normally be strictly construed.^[58]^ The defendant seeking removal must file a petition for removal with the local federal district court within 30 days after receipt (by service or otherwise) of the summons and complaint. The Supreme Court has ruled that the 30-day time period begins to run at the time of service.^[59]^

The removal petition must be filed prior to entry of judgment in the state court action. The petition must be verified (i.e., signed by the party making the petition), and contain a short and plain statement of the facts that make the action removable. The statute requires that copies of all process, pleadings, and orders served on the removing party in the state court action accompany the petition.^[60]^ All defendants must join in the petition for removal, and all defendants must be entitled to demand removal for themselves if they were sued separately.^[61]^ The petition for removal should be addressed to the judges of the applicable federal district court.

A removal petition must be filed within 30 days or it is of no effect. Because removal is a matter of the court’s subject-matter jurisdiction, the 30-day limit cannot be extended. If the petition is not timely filed, the federal court is without jurisdiction to hear the matter, and it must remand the case to state court. Where there are multiple defendants, the 30-day clock begins running with service upon the last defendant. Regardless of when a diversity action becomes subject to federal jurisdiction (e.g. through deletion of a nondiverse party), there can be no removal after one year has passed from commencement of the action.

After the removal petition is filed, the removing party must “promptly” give notice of the filing to the clerk of the state court and to the other parties to the action. The state court proceeding comes to a complete halt and the file is transferred to the federal court. The case remains in the federal court unless and until it is remanded, and all further papers must be filed in the federal court.

If the state court action as originally commenced was not removable, but is later amended so as to become removable, receipt of the amended pleading initiates the running of a 30-day period for filing a removal petition. To avoid default, a removing defendant is still required to answer the complaint within 21 days of receipt of the summons and complaint, or 7 days after filing the removal petition, whichever is longer.^[62]^

The federal court is authorized to remand the case to state court, upon the motion of a party or sua sponte, if at any time before final judgment “it appears that the case was removed improvidently and without jurisdiction.” An improperly removed action may subject the removing party to an order requiring payment of costs and actual expenses, including attorneys’ fees, to the party obtaining remand. The clerk for the federal court must deliver the remand order to the state court clerk whereupon the action may continue to proceed in state court.

Motions for remand to state court are frequently brought on the following grounds:

Petition not filed within 30-day period.
Absence of a federal cause of action in the plaintiff’s claim.
Demand made by resident defendant on diversity grounds.^[63]^
Lack of complete diversity.
Failure to have all defendants to join in petition.
Absence of subject-matter jurisdiction in state court action.

Orders for remand are not usually reviewable on appeal or otherwise. However, where remand is not based on a finding of the absence of federal jurisdiction or a defect in the removal process, review of remand orders has been permitted.^[64]^ The Supreme Court has concluded that remand orders basing the remand on something other than a jurisdictional defect are reviewable.^[65]^65

§ 4.6 Prior Pending Actions and Stays

A recurring problem for the courts is the action commenced by a party in one court after that party has been sued in another action or court. This situation presents unique problems, and the attorney facing such a situation has a number of potential remedies available. Among the potential solutions are the following:

Dismissal of one of the actions, presumably the one later filed.
Issuance of an order enjoining the party commencing the second action from prosecuting it.
Transfer of one action to the court in which the other action is pending, and consolidation.
Staying the later-filed action pending outcome of the first action.

Courts prefer to require that one action, rather than two, decide a single dispute, and will usually take one of these paths to resolve the problem of separate cases dealing with the same parties or issues.

In federal cases, the judge may prefer to retain the case or transfer it to another federal judge or otherwise dispose of the case. Federal judges do not have the power to transfer a case to a state court. In state cases, the court has no power to transfer a case to the courts of another state. A state court judge who prefers not to retain a case may be able to transfer it to another judge in that state depending on the applicable rules and statutes. And state court judges cannot issue an order enjoining a judge of another state from doing something or nothing.

Judges who become involved in litigated cases filed in different states or federal districts have varying attitudes regarding what they prefer to do. Some are quite willing to defer to other judges, whether their case was filed first or not. Others want to retain jurisdiction and expect the parties to proceed with the case assigned to them. Some judges may make it difficult or easy for parties to proceed with a case before them, and that may practically determine what case proceeds when.

A stay is a temporary cessation of the instant case pending the occurrence of some future event, usually the completion of some other proceeding. A court may also stay one aspect or procedure in the case (e.g., prejudgment attachment or garnishment) until the case is adjudicated. Many courts will also reinforce their stay orders with injunctive relief. State and federal statutes may also specifically provide for stays of judicial proceedings in certain contexts.

Although the party moving for a stay of proceedings need not ordinarily prove irreparable harm, it does need to show that the ongoing court action is unnecessary, at least at the time of the motion. Realistically, when discussing stays, we speak of stays of civil court actions. A frequent ground for a stay motion is the presence of a prior or ongoing pending action concerning the same controversy or facts or issues in the action in which the stay is sought. The prior action need not be judicial. Court cases can in some circumstances be stayed because of ongoing administrative proceedings or arbitrations.

A grant or denial of a stay motion is not a final order subject to appeal. In exceptional circumstances, an appeal may be obtainable. On appeal, the standard of review is whether the trial court abused its discretion in granting or denying the stay.

§ 4.7 Motions to Transfer Venue

Venue refers to the place where an action should be tried, and therefore, where an action should be filed. The Supreme Court has observed that venue is “primarily a matter of convenience of litigants and witnesses."^[66]^ Statutes define venue, i.e., which districts are proper for the commencement of actions. Statutes and common law give additional direction to the courts. The federal rules offer little guidance on matters of venue: Rule 12(b)(3) permits a defense of improper venue to be raised by motion, Rule 12(h) requires the defense to be raised in the first pleading or motion, and Rule 41(b) provides that a dismissal for improper venue is normally made without prejudice. [Rule 81](https://www.westlaw.com/Document/ND18301E0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND18301E0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) clarifies that the rules neither expand nor contract the scope of statutory venue provisions.

The distinction between venue and jurisdiction is clear and important—venue can be agreed to or waived by the litigants, but the parties cannot confer subject-matter jurisdiction, which encompasses judicial authority, on a court.^[67]^ Personal jurisdiction, like venue, can be waived.

If venue is improperly laid initially, the court can dismiss the action or, in certain instances, may transfer the action to a proper venue. The court must decide venue at the threshold. If venue is proper under the applicable statutes, the court cannot dismiss the action, but may transfer it in appropriate cases.

Proper venue depends on the nature of the action. Local actions may be brought only where the property involved in the action is located and generally involve those thought of as in rem actions and other actions that are closely related to an individual court. All other actions are transitory actions, although the distinction is not always clear. There is no general federal law that determines the venue of local actions. The question of proper venue in local actions is a matter of common law.

Venue in transitory actions is determined completely by statute. Three general venue statutes govern venue of all transitory actions in the federal courts for which no special venue statute applies. In addition, hundreds of special venue statutes apply to individual types of actions. If a special statute applies to an action, it will control over the general venue statute.^[68]^

In federal court diversity actions, venue is proper in any district in which all defendants reside, are subject to personal jurisdiction, or in which “a substantial part of the events or omissions giving rise to the claim occurred” or where significant disputed property is located. In cases in which jurisdiction is based, in part, upon federal-question jurisdiction, venue is also proper in any district in which all defendants reside, or in which something substantially related to the claim occurred. If defendants reside in different districts within one state, venue is proper in any district in the state. In addition, if there is no district that satisfies the claim or defendant residence criteria for venue, venue in a case founded on federal-question jurisdiction may be proper in “a judicial district” in which any defendant may be found. The question of where a substantial part of the claim arose is a matter of federal law.^[69]^

Because dismissal may be an unduly harsh measure for remedying an inconvenient forum, 28 U.S.C.A. § 1404(a) permits a federal court to transfer an action to another district where it may have been brought. Transfer is applicable to any civil action, including cases removed from the state courts. Because of the limited jurisdiction of the state courts, the power to transfer actions to a different jurisdiction may not be present in state court proceedings. Some state courts may, however, be authorized to direct the plaintiff to commence an action in a new forum, and have the plaintiff do so by threatening dismissal under the state venue provision.

Venue may also be challenged under the federal common-law doctrine of forum non conveniens, a doctrine that permits the dismissal of an otherwise proper action solely for the reason that the action was brought in a district which is inconvenient for trial. The doctrine only applies to actions in which subject-matter and personal jurisdiction are proper and in which venue lies.

Dismissal under forum non conveniens is not proper unless an alternative forum exists which could exercise jurisdiction over all the parties and which could enter all requested relief.^[70]^ Because dismissal is invariably a drastic remedy, forum non conveniens dismissal will be ordered only in extreme circumstances. The movant must make a strong showing that the alternative forum is significantly more convenient. The doctrine may be the only remedy for an action brought in an inconvenient forum where the alternative forum is a state court or a foreign country’s courts.

Where a party has consented to a specific jurisdiction and venue (e.g., through a forum selection clause in a contract), the agreement will usually be enforced by courts. If a party to such an agreement pursues litigation in a different jurisdiction or venue, the court may (and probably will) transfer the case to the agreed venue as it is considered a proper venue by virtue of the agreement. In exceptional cases where there are strong public policy factors disfavoring enforcement of the forum selection clause, a party may be able to avoid application of the forum selection clause.^[71]^

§ 4.8 Multi-District Case Transfers

In addition to the venue provisions governing all federal court actions, a special statute, 28 U.S.C.A. § 1407 permits change of venue in “multidistrict” cases. It provides for the temporary transfer of federal cases from one district to another for the purpose of conducting consolidated and coordinated pretrial proceedings. Transfer under this statute is officially made only for pretrial proceedings. Once transfer is ordered under the statute, the transferor court relinquishes all jurisdiction and power over the proceedings. Any motions which are then pending are transferred, with the rest of the file, for further handling by the transferee court.^[72]^

The statute permits transfer either upon the motion of a party or on initiation of the Judicial Panel on Multidistrict Litigation. The Judicial Panel has promulgated its own rules of procedure that supplement the federal rules of civil procedure. Transfer under 28 U.S.C.A. § 1407, generally the first step in consolidating numerous actions for pretrial proceedings, supersedes the general venue statute and special venue statutes. Its importance is hard to overstate, as around one-half of all federal court civil cases are involved in MDL dockets.

Cases involving the same defendant or defendants may be filed by different plaintiffs in many different federal court districts. These actions may involve hundreds, thousands, or tens of thousands of lawsuits venued nationwide. There are three statutory criteria for the transfer of all these cases to one federal judge in one district. All three criteria must be met for proper transfer:

The actions must share common issues of fact,
Transfer must be for the convenience of parties and witnesses, and
Transfer must advance the just and efficient conduct of the actions.

The mere existence of common issues of fact does not mandate transfer, as the other criteria must be met as well. The presence of common issues of law is neither a necessary nor sufficient condition for transfer.

The Panel’s only function is to determine if transfer is appropriate under the statute. In practice, the Judicial Panel applies standards more detailed than those of the statute to determine the transfer issue. In addition to the positions of the parties towards transfer, the Panel has set forth a number of other factors it will consider in determining whether transfer and consolidation are appropriate including:

Convenience of counsel and witnesses.
Minimizing of duplicative discovery.
Progress of discovery at the time of proposed transfer.
Possibility of conflicting rulings.
Pendency of at least one action in the proposed transferee district.
Familiarity of transferee judge with issues raised.
Docket conditions and availability of judicial resources.
Number of actions pending in district and in other courts.
Size of litigation.

The most common motion involving multidistrict litigation is a motion for transfer. That motion must be filed with the Panel, and served upon all parties or their attorneys in all pending actions. Upon filing, all parties must designate a single attorney as counsel of record before the Panel within 14 days. Response to the motion for transfer is due within 14 days. The Panel Rules contain additional provisions and requirements that must be carefully followed.

In addition to motions for initial transfer, a party may seek to add a later-filed action to the multidistrict cases or may learn of another previously pending case that should be part of the multidistrict group. Such cases are known as “tag-along” actions, and a case may be given “tag-along” status by the filing of a motion. Whenever a case comes to the attention of the clerk of the Panel (this usually occurs by motion of a party), the clerk is authorized to enter a conditional transfer order transferring the action to a court where previously transferred cases are pending. The conditional order is served on all parties, but transfer does not occur for fifteen days in order to give the parties an opportunity to object to transfer. The Panel Rules provide for motions for extension of the various time limits, and reasonable requests are typically granted.

[Section 1407](https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) clearly contemplates that multidistrict actions will be handled in the transferee court for pretrial proceedings, and then remanded to the courts in which they were initially filed for trial. In practice, remand seldom occurs. A common reason for not remanding is settlement or resolution of the case by motion in the transferee court.

§ 4.8.1 Current Venue Law Provisions

The Federal Courts Jurisdiction and Venue Clarification Act of 2011 governs many aspects of federal venue law and impacts some removal and multi-district practice.^[73]^74 Some of the more common provisions include:

§ 1332(a) provides that federal trial courts lack original diversity jurisdiction in any civil action between state citizens and foreign state residents domiciled in the same state.
§ 1332(c) treats a corporation or an insurer as a citizen of any foreign or American state by which it has been incorporated or where it has its principal place of business.
§ 1391(b) establishes a single and unitary approach to venue regardless of whether the basis for federal jurisdiction is diversity or federal question jurisdiction.
[§ 1404(a)](https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) is amended to authorized the courts to transfer an action to any Article III district to which all parties have consented.
§ 1441(c) provides that where an action with both removable and nonremovable claims is removed, the district court must sever all nonremovable claims and remand them to the state court from which the action was removed. Further, only the defendants facing a removable claim need join in the removal petition.
§ 1146(b) states that in a multi-defendant case, each defendant has 30 days from the defendant’s own date of receipt of the complaint to seek removal. Defendants served earlier may join in or consent to removal by a later-served defendant.
Other provisions treat local and transitory actions similarly and designate what venue provisions apply to specialized federal court cases.

§ 4.9 Joinder of Parties

§ 4.9.1 Joinder Generally

Joinder may be accomplished in a pleading (see § 3.3.4) or through the use of motions and often can be done as a matter of right at the outset of litigation pursuant to Rules 14, 18, and 20. A wide variety of motions are available that may be used to effect the joinder of additional parties to an action, or which may be necessitated by another party’s joinder of parties, or that resolve improper joinder.

Parties are commonly added by amending a pleading to name additional parties as adverse parties. This process is governed by Rule 15. Similarly, parties may be added to an action by third-party pleadings, which are discussed in § 3.8.4. These motions are used where a party voluntarily seeks to add parties. Occasionally, a party may seek to compel some other party to add a party to the action.

Fed. R. Civ. P. 19, which establishes the criteria for joinder, technically does not authorize the court to order parties joined in the action, although the courts routinely exercise this power by indicating that the action will be dismissed if certain parties are not joined. In fact, because dismissal is viewed as exceptionally harsh, courts are quite likely to explore compelling joinder rather than dismissing the action. If the court can prevail upon the party to join a party, even on pain of a threatened dismissal, there will not be any appealable, or even ultimately reviewable, decision. This procedure appeals to the pragmatic side of trial judges.

A party may also seek to compel joinder of a proper party who is not initially named. If an action is commenced by a party not a real party in interest as defined in Rule 17, a defendant may compel the joinder of the proper party plaintiff. The court’s interest in compelling joinder in these circumstances is to ensure that the defendant will be given res judicata protection if it prevails in the action.

§ 4.9.2 Class Actions

Class actions present a prolific source of motions. The bulk of these motions result from the inherently complex nature of class suits, and not intrinsically from their status as class actions under Fed. R. Civ. P. 23. The most frequent motions in class actions are motions for certification or decertification of classes and motions to approve settlement. The law of class actions is extensive and complex. The discussion here is limited to the more common motions and is not a primer on handling class actions.

Before a case can proceed as a class action it must be certified as an appropriate class action, and the class must be defined. Certification calls for a two-step analysis. First, the court must determine if the four requirements of Fed. R. Civ. P. 23(a) are met. These requirements, known informally as the numerosity, commonality, typicality, and adequacy of representation (both named plaintiff and counsel) requirements, must each be met. These four requirements amount to threshold requirements—only if they are met does the court reach the question of whether the action may be maintained as a class action. Fed. R. Civ. P. 23(b) establishes the types of actions that may be maintained as class suits.

The different categories of class actions are frequently referred to by the subdivision of [Rule 23](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) under which they are maintained. Class (b)(1)(A) prevents against risks of varying outcomes that would establish incompatible standards for class members. Class (b)(1)(B) supports a class of individuals whose same interests would be protected and not impaired by a class. Class (b)(2) seeks injunctive and declaratory relief for class members. And Class (b)(3) allows a class action, usually one seeking damages, to proceed because it is superior to any other method and common questions of law and fact predominate among the class members.

The Federal Class Action Fairness Act governs some federal class actions. The Act provides federal courts with jurisdiction over actions where the amount in controversy exceeds $5 million and where the class consists of at least 100 members and also modifies diversity jurisdiction to permit non-diverse members to be part of the class. Many states have rules and judicial decisions that favor class actions, and other states have more stringent requirements and less favorable opportunities for class actions.

Class actions are permitted in order to achieve judicial efficiency in handling claims, particularly claims that are too small individually to be the subject of an action. The class action device is also intended to prevent a multitude of similar civil actions. In any motion relating to class action certification, the parties should direct the argument to these intended benefits.

§ 4.9.3 Class Certification

A motion for class certification is required by Fed. R. Civ. P. 23(c)(1). That rule requires that the motion be brought “as soon as practicable after commencement of an action.” Courts expect the motion to be brought at the earliest time consistent with there being no prejudice to any of the parties. The motion for certification is usually brought by the attorneys for the class representatives, but any party may move to have the certification question decided. Many courts have rules that supplement Fed. R. Civ. P. 23, and require a motion for certification to be brought within a fixed period, frequently 90 days, after the action is commenced. The court may also enter a certification order on its own motion.

A motion for certification should ask for certification under a particular subdivision of [Rule 23(b)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), and should be supported by affidavits or other evidence establishing that the four requirements of [Rule 23(a)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and the requirements of a subdivision of [Rule 23(b)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) have been met. Orders granting or denying certification are not appealable.

A certification order can be made expressly conditional upon the happening of future events. For example, the court can conditionally certify a class pending refinement of the definition of the class or the change of representative parties. If certification is denied, certification may nonetheless be sought at a later date.

Another significant change in a certification order will be the entry of an order decertifying the class. If decertification is ordered, the action will be allowed to proceed with only the class representatives. Decertification may occur where the facts or law have changed following the initial certification order. Modification of the certification order may also be sought by the class representatives. For example, the class representatives may seek to expand the scope of the class.

§ 4.9.4 Class Management Orders

[Rule 23(d)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) gives the trial court authority to enter a wide variety of orders to control and manage class actions. The rule allows orders to:

Determine the course of the proceedings.
Require notice be given in such manner as the court may direct to some or all of the members in the action.
Impose conditions on the representative parties or on intervenors.
Require that the pleadings be amended to add or eliminate issues.
Deal with various procedural matters.

Motions for orders under the rule may be brought by any party to the action, and may be brought at any time during the pendency of an action. Many of the managerial powers contained in [Rule 23(d)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) are also found in the Manual for Complex Litigation.

Class actions are the only civil actions which cannot be settled by the parties without court approval. Fed. R. Civ. P. 23(e) directs that class actions may only be dismissed or compromised with the approval of the court. The rule also requires notice of any proposed settlement be given to all members of the class in a manner determined by the court. The rule applies to all actions commenced as class actions, regardless of whether a class has been certified. One of the purposes of this rule is to prevent the class representatives from obtaining settlement on favorable terms as to their own claims in return for unjustified abandonment or compromise of the claims on the non-representative class members.

Notice of the proposed settlement as required by the rule serves two important purposes. First, it gives the affected parties an opportunity to object to the settlement, or “opt-out” of the class. This will allow the parties to protect their own rights, and will also provide the court a useful gauge of the fairness of the settlement. Courts are very interested in learning how the class members react to the notice of proposed settlement, and have frequently based their decisions to approve a settlement on the low rate of objections. Second, notice of compromise is necessary to ensure that class members do not continue to rely erroneously on the presumption that an action is proceeding on their behalf. This may be significant because the statute of limitations would be tolled on class claims during the pendency of an action, but the tolling would cease when class status is denied or the action abandoned.^[74]^

Motions may also be brought regarding a fairness hearing. The judge conducts a hearing to determine whether a settlement is fair. These matters include notice provisions, opt out procedures, settlement terms, attorney fees, and objections to a settlement.

§ 4.9.5 Intervention

Intervention is the process by which a non-party may become a party to an action. Motions to intervene are governed by Fed. R. Civ. P. 24, which creates a two-tier classification of motions to intervene: intervention as of right and permissive intervention. As the name makes clear, if the rule authorizes intervention of right the court is virtually required to grant the motion. The court has considerably more discretion in considering motions for permissive intervention. In addition to the standard for granting the motion, however, the distinction in the rule may have important ramifications on related questions of jurisdiction and appealability.

A party may intervene of right in two circumstances under Fed. R. Civ. P. 24(a): (1) if a federal statute grants an unconditional right to intervene, or (2) if the party claims an interest in the subject matter of the litigation and is so situated that the disposition of the action will adversely affect that interest and that interest is not adequately represented by the existing parties. There are relatively few statutes granting parties other than the federal government an absolute right to intervene. The party seeking to intervene under the second section of Fed. R. Civ. P. 24(a) must establish three things:

The party claims an interest relating to the property or transaction that is the subject matter of the action.
The party is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest.
The interest is not adequately protected by the present parties to the action.

If the first and second factors are established, the burden will be on the party opposing intervention to show adequate representation. The potential intervenor’s “interest” must be “a significantly protectable interest.” Interests that justify intervention of right include property interests and any interest which would be barred by res judicata or collateral estoppel if judgment were rendered. Less onerous dangers and harms are sufficient to meet the second part of the three-part test.

The standards applied to determine if the would-be intervener’s interest is adequately represented are an amalgam of practical and legal considerations. If the interests are not represented at all, or are truly adverse (such as would support a cross-claim or counterclaim), representation is clearly not adequate. The danger of collusion is also considered by the court. The court also reviews the energy or diligence of the existing representative.

Courts have wide latitude to determine if permissive intervention is appropriate. Under Fed. R. Civ. P. 24(b) all that is necessary for permissive intervention is a statute giving a conditional right to intervene (any federal statute that mentions intervention but does not grant an absolute right to intervene so as to allow intervention of right fits in this category) or the existence of a single common issue of law or fact. The most important thing considered by the court will be the effect intervention will have on the parties to the action and the prompt resolution of the dispute.

A motion to intervene must be served on all parties to the action and should not be granted ex parte. The motion must be accompanied by a proposed pleading that states a claim or defense. An important procedural requirement for a motion to intervene is the requirement of Fed. R. Civ. P. 24(a) & (b) that the motion be “timely.” The court in exercising its discretion to allow an intervention motion is likely to apply a test for timeliness that considers the would-be intervener’s conduct in not seeking intervention earlier (a la laches) and the prejudice which will occur to the existing parties.

Until intervention is granted, the entity or person seeking intervention is not a “party” to the action. Consequently, it may not participate unless the motion is granted and may not prevent settlement or dismissal of the action if this is done by the original parties prior to a ruling on a pending motion to intervene.^[75]^

§ 4.9.6 Substitution of Parties

A related motion to intervention involves the substitution of parties in a case. Fed. R. Civ. P. 25 creates the standards for substitution. Although often formally a matter for motion practice, most motions for substitution are either approved upon stipulation of the parties or are summarily granted by the court. Substitution of parties may occur because of death, incompetency, or transfer of interest in the litigation. A change in public officials holding office involved in the litigation may also prompt substitution. In addition, substitution may be appropriate where an action is commenced by a person who is not the real party in interest under Rule 17(a). Similarly, substantive law may permit or require substitution in cases not governed directly by the rules.

Courts have permitted substitution to take place in other situations not specifically addressed by [Rule 25](https://www.westlaw.com/Document/NAE520A70B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NAE520A70B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). For example, courts routinely permit the substitution of a party by name for a party named as a “John Doe” or “Jane Roe” in the initial pleading. Although this may be done by amendment under [Rule 15, Rule 25](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) procedure also allows for the substitution to take place. Similarly, Rule 17 allows substitution to take place if an action is not commenced by the real party in interest.

The motion and notice of hearing must be served upon all the parties to the action and upon any non-parties affected by the motion. Any party or the affected third person may object to the substitution.

§ 4.10 LLMs: Motion Drafting Assistance

GenAI can assist in the motion-drafting process in various ways. For example, LLMs can help generate well-structured arguments, anticipate counterarguments, and propose alternative legal theories. If connected to a legal database, the technology can help retrieve relevant case law, interpret statutes, and analyze regulations. It can also help by summarizing key facts, as well as detecting factual and logical inconsistencies. Beyond research and drafting, GenAI can also enhance persuasive writing by bolstering weak arguments, as well as adapting motions to judicial preferences. Some of these capabilities are provided below.

Legal Research. If connected to a legal database, LLM-backed tools can conduct comprehensive legal research to support motion drafting. The best tools can use your facts to help retrieve the most-applicable case law, extract key holdings, and synthesize judicial reasoning. They can also analyze statutes in context, incorporating legislative history and judicial interpretations to clarify ambiguous provisions. When parties span jurisdictions, LLMs can assist in choice-of-law analysis, applying jurisdiction-specific conflict-of-law principles, then apply your facts to each claim’s elements to determine which law most favors your client.

**Drafting Motion Components. **GenAI can streamline the process of structuring a motion by generating well-organized motion components. For example, LLMs can craft introductions with punch, factual backgrounds that persuade, and summarize procedural history concisely. LLMs backed by legal databases can pull from the law to outline applicable legal standards, clarifying burdens of proof and governing frameworks. GenAI can enhance clarity and persuasiveness, drafting precise conclusions that clearly articulate requested relief.

**Factual Analyses. **GenAI can analyze case facts by summarizing key details from interviews, declarations, affidavits, medical records, depositions, and pleadings. LLMs can compare and analogize your case’s facts with legal precedents, highlighting similarities and proposing extensions. Additionally, LLMs can help detect inconsistencies in opposing arguments or prior filings, helping attorneys identify contradictions that may weaken the adversary’s position. They may also find their opponents’ contradictions.

**Drafting Arguments. **GenAI can then help draft primary arguments by generating well-structured legal reasoning, tailored to your facts as applied to applicable law. Specifically, LLMs are adept at applying your facts to relevant case law, statutory text, regulations, and procedural rules, constructing persuasive arguments that align with legal precedent. LLMs can also anticipate and refute opposing points by synthesizing counterarguments based on prior rulings, common litigation strategies, and jurisdiction-specific principles.

This technology allows you to shadowbox with yourself, playing out potential theories, as well as discerning how opposing counsel may counter those theories. GenAI’s near-infinite patience allows you to ask it to propose alternative legal theories, allowing attorneys to explore novel arguments that they might never have otherwise considered.

Weakness Analysis. Preemptively identifying a motion’s weaknesses, and GenAI can help refine your arguments, spotting vulnerabilities that opposing counsel might exploit. It can suggest stronger legal authorities, or stronger (but ethical) characterizations of weaker claims, reinforcing otherwise-shaky arguments. Additionally, LLM-backed tools can help you mitigate unfavorable case law by distinguishing negative precedents—enumerating factual or legal distinctions.

**Stylistic Improvements. **Persuasive writing requires clarity, conciseness, and rhetorical effectiveness; for that, LLMs can help. GenAI-backed tools can eliminate redundant language, improving readability and impact. It can also detect where tone could be improved, as well as suggesting adjusted tone shifts: neutral, assertive, or aggressive. Additionally, GenAI can flag where phrasing might be refined to strengthen rhetorical impact, making arguments more compelling.

**Audience Customization. **Speaking and writing’s primary mantra is “know your audience.” LLMs can help tailor your arguments to your audience, customizing motions for your judge. If you provide LLMs with your judge’s background, traits, and personality, as well as that judge’s prior rulings on similar cases, GenAI-backed tools can suggest ways that you can adapt the brief’s tone and emphasis.

**Citations and Formatting. **Beyond the courts’ rules on formatting, ensuring proper citing and formatting is good advocacy. Because judicial clerks were often on Law Review (at least in their minds), Bluebook failures are akin to gross misdemeanors. “If they’re getting the Bluebook wrong, what else are they getting wrong?” GenAI can help flag Bluebook errors, and if you provide jurisdiction-specific citation rules, LLMs can help with those, too.

**Conclusion. **AI won’t write your winning motions—but it can improve them. LLMs can sharpen your arguments, expose weaknesses before opposing counsel does, and streamline the tedious work of research, drafting, and citation-checking. It’s a tireless mentor with instant access to vast legal knowledge, preternatural ability to play devil’s advocate, and no complaints about all-nighters. Used wisely, GenAI can help you craft more precise, persuasive, and strategically sound motions—leaving more time to focus on factors that win cases: judgment, strategy, and advocacy.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

Prepare to discuss in class or online the law governing attacks on the service of process and how such attacks may be successful.
Prepare to discuss in class or online the law governing attacks on the form and specificity of pleadings and how such attacks may be successful.
Prepare to discuss in class or online the law governing attacks on the substance or legal adequacy of pleadings and how such attacks may be successful.
Prepare to discuss in class or online the law governing attacks on subject-matter jurisdiction and how such attacks may be successful.
Prepare to discuss in class or online the law governing attacks on personal jurisdiction and how such attacks may be successful
Prepare to discuss in class or online Federal Rule 12 and the various Rule 12 grounds available to attack a complaint.
Research the differences and similarities between Federal Rule 12 and the comparable state court rule regarding similar motions applicable in the state of your law school. Prepare to discuss in class or online these differences and similarities.
Prepare to discuss in class or online pendent, ancillary, and supplemental claims and parties and how they may be successfully handled or dismissed.
Prepare to discuss in class or online the abstention doctrines and when courts may decline to adjudicate a case.
Prepare to discuss in class or online the removal and remand of a case from state court to federal court.
Prepare to discuss in class or online multiple related actions in different federal courts and alternative ways to responding to these events.
Prepare to discuss in class or online motions to transfer venue and when cases may be transferred to another court.
Prepare to discuss in class or online joinder of parties and when and why parties may be joined in a lawsuit.
Prepare to discuss in class or online “class actions” and their certification and management orders.
Prepare to discuss in class or online intervention and motions to intervene.
Review FJE Enterprises v. Arbor Vineyards (Case L). There are a number of potential insurance coverage claims that could be brought by the parties against their insurance carriers.

(a) You represent FJE Enterprises and Farah and Jamal Ehran. Advise them what causes of action they may have against their insurance company and what defense motions the company may have in response.

(b) You represent Arbor Vineyards: (1) Advise Arbor regarding what defense motions it may have against claims brought by the plaintiffs. (2) Advise Arbor what possible causes of action Arbor may have against its insurance company if the carrier denies coverage, including claims for the cost of defense and/or for bad faith.

(c) You represent the insurance company for FJE Enterprises and Farah and Jamal Ehran that compensated them for their losses. Is there a subrogation claim you would recommend bringing against Arbor Vineyards? Why or why not?

(d) Complete the assignment your professor has given you regarding this case and its legal and procedural issues.

Review Tymons v. Allgoods and Razzle (Case M). There are a number of novel claims that the Tymons might have against the defendants. Prepare a list of potential claims.

(a) You represent the Tymons. Advise them on their chances of success with those claims and how the defendants may defend with motions.

(b) You represent Allgoods. If the Tymons assert some of the claims against the company, advise Allgoods what defenses it may have, how you would plan to assert motions in defense, and your prediction regarding how successful those defenses and motions would be.

(c) You represent Razzle. If the Tymons assert some of the claims against the company, advise Razzle what defenses it may have, how you would plan to assert motions in defense, and your prediction regarding how successful those defenses and motions would be.

(d) You represent Jerzy. He has not yet reported to his malpractice insurance carrier his breach of his client’s confidentiality and privacy. Advise him on what his options are and your recommendation for what he could or should do.

(e) Complete the assignment your professor has given you regarding this case and its legal and procedural issues.

You represent Tri-Chem. Hot Dog Enterprises has sued Tri-Chem (Case A). The complaint includes claims based on violation of federal and state deceptive trade practices acts, negligence, and products liability. The complaint seeks recovery for the following damages:

(1) Costs to replace the existing bricks and remodel the exteriors, (2) damages for lost business income because customers failed to frequent restaurants due to the defective exteriors, and (3) punitive damages.

Your legal research reveals the applicable state substantive law has not recognized the recovery of lost business income or punitive damages based on the causes of action alleged.

(a) Plan a motion to dismiss these claims for relief.

(b) Draft such a motion and any supporting documents.

(d) How would you, as the judge, decide the motion to dismiss?

You represent HDE in Vasquez v. Hot Dog Enterprises (Case F). Juanita Vasquez has included a cause of action based upon an employment covenant of good faith and fair dealing. Your legal research indicates that the state supreme court in the applicable jurisdiction has not recognized such a cause of action.

(a) Plan a motion to dismiss this cause of action.

(b) Draft such a motion and supporting documents.

(d) How would you, as the judge, decide the motion to dismiss?

You represent a plaintiff injured by bricks falling from an HDE restaurant in Kansas (Case A). You plan to serve and file a lawsuit against HDE on behalf of your client.

(a) What courts have subject-matter jurisdiction and why?

(b) What jurisdictions have personal jurisdiction over HDE and why?

(d) Presume you plan to sue in Kansas state court. Plan how you would serve process on HDE.

(e) Presume you plan to sue in federal district court in Kansas. Plan how you would serve process on HDE.

(f) Presume you plan to sue HDE in Delaware, in either state or federal court. Plan how you would serve process on HDE.

(g) Presume you plan to sue HDE in Illinois, in either state or federal court. Plan how you would serve process on HDE.

You represent HDE in its potential lawsuit against Tri-Chem (Case A) for breach of contract and fraud.

(a) What courts have subject-matter jurisdiction over the action? Why?

(b) What courts have personal jurisdiction over Tri-Chem? Why?

(d) Select a federal court in which to sue Tri-Chem. Plan how you would serve process on Tri-Chem.

(e) Select a state jurisdiction in which to sue Tri-Chem. Plan how you would serve process on Tri-Chem.

You represent the Defendant Whirling Dervish Lathes in Rheinwald v. Whirling Dervish Lathes (Case I). The plaintiff has sued WDL in Forestland state court based on tort claims for damages in excess of $75,000.

(a) Plan a petition for removal to federal court.

(b) Draft a petition for removal to federal court, including supporting papers.

You represent Tri-Chem in Case A. HDE has properly sued Tri-Chem in state court in Illinois based on violations of federal statutes.

(a) Plan a petition for removal to federal court.

(b) Draft a petition for removal to federal court.

You represent Rheinwald in Rheinwald v. Whirling Dervish Lathes (Case I). Forestland, Gothamland, Peakland, and Gulfland are different states. In what states can Rheinwald sue which defendants? Why?
You represent HDE, and the plaintiff injured from falling bricks at HDE’s restaurant in Kansas brings a lawsuit in federal district court in Delaware (Case A).

(a) Plan a motion to transfer venue.

(b) Draft such a motion and supporting papers.

You represent HDE, and the plaintiff in Problem 25 instead brings a lawsuit in state court in Delaware.

(a) Plan a motion to dismiss based on forum non conveniens.

(b) Draft such a motion.

You represent Tri-Chem. HDE brings a lawsuit in federal district court in Minnesota for damages to its Kansas restaurant (Case A).

(a) Plan a motion to transfer.

(b) Draft such a motion.

You represent Tri-Chem in Case A. HDE has brought a lawsuit in state court in Minnesota for damages to its Kansas restaurant.

(a) Plan a motion to dismiss based on forum non conveniens.

(b) Draft such a motion.

You represent HDE in Case A. You decide to sue Tri-Chem in federal court based on the violation of a federal statute that provides a private cause of action for fraudulent and deceptive practices occurring in interstate commerce. You also want to bring claims for relief based upon negligence and products liability based on applicable state law.

(a) Plan a federal court complaint including federal and state claims.

(b) Draft such a complaint.

(d) Select a state jurisdiction to sue the defendant. Where is venue appropriate within this jurisdiction?

(e) You represent Tri-Chem. Plan a motion to dismiss the state claims from the federal court complaint. How will the motion be decided?

You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F). Your legal research indicates that Ms. Vasquez has causes of action based upon violations of federal civil rights and employment statutes, state employment statutes, and breach of contract.

(a) What factors influence your decision whether to bring this lawsuit in federal court or state court?

(b) Plan a federal court complaint including the state claims.

(d) Select a state jurisdiction to sue the defendant. Where is venue appropriate within this jurisdiction?

(e) You represent HDE. Plan a motion to dismiss the state claims from the federal court action. How will the motion be decided?

You represent Tri-Chem in Case A. Hot Dog Enterprises properly sues Tri-Chem in federal district court for claims based on federal and state statutory violations, negligence, and products liability.

(a) Tri-Chem has a breach of contract claim against HDE for failure to pay $35,000 for Bond-Mor supplies. Can Tri-Chem assert this claim against HDE in this federal lawsuit? Explain.

(b) Tri-Chem has proper third-party claims against the contractor who worked with Tri-Chem and constructed the HDE restaurant building in Kansas that are the subject matter of the federal court litigation. Can Tri-Chem bring this third-party complaint against the general contractor in the federal lawsuit? Explain.

(c) Presume HDE sues both Tri-Chem and the architect in the same federal district court lawsuit. The architect has a claim against Tri-Chem for $28,000 in consulting fees for work done for Tri-Chem on the building in Kansas. Can the architect assert this claim against Tri-Chem in this federal court lawsuit? Explain.

You represent HDE in Case A. A sole proprietor from Missouri who supplied and delivered hot dog buns to HDE at its restaurant in Kansas sues HDE for personal injuries and property damage to her delivery truck caused by falling bricks in excess of $75,000 in federal court that has jurisdiction.

(a) HDE has a claim against the sole proprietor based on the fact that the sole proprietor, when backing up the delivery truck, slammed into the restaurant building, causing damages of $61,000. Can HDE assert this claim against the sole proprietor in the federal court action? Explain.

(b) HDE has a proper third-party action against Tri-Chem for defective construction causing the bricks to fall at its Kansas restaurant. Can HDE assert this claim against Tri-Chem in the federal court action? Explain.

(c) Presume the sole proprietor sues HDE and the general contractor. The general contractor has a claim against HDE for failure to pay $92,000 as part of the construction contract amount due. Can the general contractor assert its claim against HDE in the federal lawsuit? Explain.

Buckley, a resident of Connecticut, brought this action in the Superior Court of Fairfield County in that state, against New York Post Corporation, a Delaware corporation having its principal place of business in New York City, to recover damages for libel. He claimed that two editorials appearing in April 1965 had been published maliciously and with reckless disregard of the truth. The Post, having removed the action to the United States District Court, sought dismissal on the ground that it was not subject to service of process in Connecticut.

Buckley asserted that two sections of Connecticut’s “long-arm” statute . . ., G.S. §§ 33–411(c)(3) and (4), gave the court jurisdiction. The sections subject a foreign corporation to suit in the state “on any cause of action arising” as follows:

(3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed . . . ; or

(4) out of tortious conduct in this state, whether arising out of repeated activity or single acts. . . .

Answers to interrogatories disclosed that for a two-year period ending May 1, 1965, an average of 1,707 copies of the daily and 2,100 copies of the weekend edition of the Post were distributed to persons in Connecticut . . . ; that the Post received news dispatches relating to Connecticut from the Associated Press in New York City and from five Connecticut contributors; that it carried advertisements for not more than 15 Connecticut resorts once or twice weekly during the spring and summer, for four Connecticut restaurants once a week, and for three New York stores that indicated a Connecticut branch in some of their advertising. The figures as to papers distributed to persons and corporations in Connecticut did not include copies sold in New York City with the expectation they would be taken into Connecticut by residents returning home from work; the number of these was stated to be “indeterminable.”

(a) As counsel for the defendant New York Post, how would you proceed?

(b) As counsel for the Post, draft a motion to dismiss for lack of personal jurisdiction. What other supporting documents should accompany the motion?

(d) As Buckley’s counsel, outline your memorandum in opposition.

(e) As judge, decide the motion and then learn from somewhat ancient history: Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir. 1967)

James Gooch set out from Arkadelphia, Arkansas, to attend a political party dinner and rally in Little Rock, Arkansas. Traveling with him, as passengers in his car, were three friends; among them, Jim Modlin. On Interstate Highway 30, near Little Rock, the automobile operated by Mr. Gooch collided with the rear of an automobile operated by James Wilder, as both vehicles were proceeding in an easterly direction in the left-hand (north) traffic lane. Highway 30, at this point, has two lanes for eastbound traffic and, on the other side of a median, two lanes for westbound traffic.

After the collision, the two vehicles stopped in the traffic lane in which the accident had occurred. The occupants of both vehicles alighted, but remained in the vicinity of the cars. Shortly thereafter, a vehicle operated by Clarence Troutman, also traveling in an easterly direction in the left-hand lane, approached the scene of the accident. Jim Modlin, apparently seeking a position of safety, ran from the highway onto the median. Clarence Troutman, instead of turning his vehicle into the right-hand eastbound lane to avoid the accident, swerved to the left and onto the median. His vehicle struck Mr. Modlin, who later died of the injuries he sustained.

Mrs. Modlin, as administratrix of her husband’s estate, brought suit against Troutman in the Circuit Court of Clark County, Arkansas, praying for a judgment in excess of $75,000. Because of the existence of diversity of citizenship between plaintiff and defendant, the action was removed to the United States District Court for the Western District of Arkansas.

(a) As counsel for Troutman plan a third-party complaint against Gooch, seeking contribution as provided by Ark.Stat.Ann. §§ 34–1001–34–1009.

(b) Draft such a complaint.

(c) As Troutman’s counsel, plan the removal petition. Can Modlin’s estate seek remand after service of the third-party complaint?

(d) Draft such a petition and necessary supporting papers.

(e) As Gooch’s counsel, either plan an answer to the third-party complaint or a motion to dismiss it. Upon what grounds would you move?

(f) Draft such an answer or motion. And again revisit history: Troutman v. Modlin, 353 F.2d 382 (8th Cir. 1965).

Ronny Rodman and Vin Missich are shopping in Haddod’s Department Store (located in Mitchell) when they are stopped, frisked, roughed up and detained by a store security guard, Lillian Garcia. When policeman Arnold Schwartz arrives, he detains the boys for another tongue lashing, saying they were lucky to get away with it this time. All the while, there has been no evidence of shoplifting by the boys, who later bring an action for damages for false imprisonment, slander, and assault and battery. Plaintiffs, minors, charged that the security employee of defendant had searched them and falsely accused them of shoplifting.

(a) As counsel for Plaintiffs plan a complaint against Haddod’s, the employee, the policeman, and the city.

(b) Draft such a complaint.

(d) Draft such a motion.

(e) As plaintiffs’ counsel, outline the memorandum in opposition.

(f) If plaintiffs brought the suit in state court but alleged a deprivation of federal rights, would the city want to remove the action to federal court? Why?

(g) Draft the removal petition and any necessary supporting papers.

(h) Presume Mitchell Tribune, a local newspaper, reported the incident in a story that stated Haddod’s said the boys were guilty of shoplifting. Plaintiffs wish to assert a defamation claim against Tribune. Plan an amended complaint and move for leave to file it.

(i) Draft such an amended complaint and motion.

(j) The Tribune wishes to remove the amended complaint to federal court. Plan a petition to remove and any necessary supporting papers.

(k) Draft such a petition.

(l) As plaintiffs’ counsel, plan a motion to remand the action to state court and outline the supporting memorandum. Do you really want to remand? Why?

(m) Draft such a motion.

You are counsel to the Mitchell Enquirer, a local newspaper, which is served with the following complaint.

Leo DeCapricorn	)
v.	)	Civil Action No.
Mitchell Enquirer	)

Plaintiff has been unfairly damaged by an article and is forced to sue evil incarnate.
Defendant Mitchell Enquirer is an instrument of the devil, a scandal sheet concocted to further the nefarious intentions of leftist humanists and sympathizers throughout the U.S. and Canada.
Throughout its sordid history, the Enquirer has defamed and derogated Leo DeCapricorn, in the most wanton and willful way, displaying its true pink colors and entitling plaintiff to punitive damages in an amount of $10 million as well as an apology from the spineless worms who own the Enquirer.

Wherefore, plaintiff demands a judgment of at least $10,000,000.

Kate Willsue

123 Open Calendar Lane

Lost Wages, Nirvana 89001

(702) 911–0411

Willsueforyou@net.com

Atty No. 10010

(a) How do you respond to this complaint? (Remember, civil commitment is not available.)

(b) Draft a motion attacking both the specificity of the complaint and moving to strike or dismiss for any other reasons you can think of.

Originally, Martha Giacone in Giacone v. City of Mitchell (Case D) sued the water company only for breach of contract. Now, she has retained you as her attorney.

(a) Plan an amended complaint and a motion to amend the complaint to assert any additional cause of action available to your client.

(b) Draft such an amended complaint and motion.

(d) Outline a memorandum in opposition to the amended complaint.

You represent Phoenix Airlines headquartered in Mitchell. Walter Clark is an airplane broker once engaged by Phoenix to sell a large used airplane from the Phoenix fleet. After six months, Clark had not succeeded and Phoenix sells the plane through another broker. Clark, who thought he had an exclusive contract, is furious and sues for breach in federal court in Mitchell. Discovery ensues. Clark, a resident of Switzerland, refuses to disclose certain business data, claiming the secrecy protections of the Swiss Code. The federal court rejects his claim and orders him to disclose the data. Fed up with American justice, Clark takes a new tack. He obtains a writ of attachment initiated in an action in Honduras and uses the Honduras writ as the basis for obtaining a similar writ in Costa Rica. When the next Phoenix flight hits Costa Rica, Clark hits it with his writ and ten armed guards, three of whom are pilots. They fly the craft to Cuba. Fortunately for Phoenix, the Cuban government wants no part of an operator like Clark and arranges for the plane’s return and Clark’s quick trip to Switzerland.

(a) As counsel for Phoenix, plan a counterclaim against Clark in the still pending federal action in Mitchell.

(b) Draft such a counterclaim.

(d) Draft such a motion.

(e) Clark, no quitter, now sues Phoenix in Switzerland. Plan a motion to dismiss or to stay the Swiss suit on the basis of the U.S. action.

(f) Draft such a motion.

The appellee, Jean Blanchette Blalock, invoking federal jurisdiction on the ground of diversity of citizenship, brought an action against J.M. Blythe Motor Lines Corporation and Richard B. Kingery claiming damages for personal injuries resulting from a highway collision between an automobile in which she was a passenger and a truck of the defendant corporation negligently operated by its employee Kingery. The complaint fixed the place of the collision on Pelham Parkway in the City and State of New York, and fixed the time of the collision as December 4, 1956. The complaint was filed on November 29, 1960.

The Corporation and Kingery answered, denying negligence and asserting that the collision was caused by the negligence of the driver of the car in which she was a passenger. The answer also asserted:

“That as and for a further additional and affirmative defense, the Defendants state the above cause is regulated by the Statute of Limitations as set out in Section 49 of the New York Practices Act, which statute limits actions to three (3) years for personal injuries arising out of negligence and that it affirmatively appears from the pleadings herein that the within accident occurred more than three (3) years before the filing of the instant suit.”

(a) As defense counsel, plan a motion for judgment on the pleadings and outline the arguments for the supporting memorandum.

(b) Draft such a motion.

(c) As plaintiff’s counsel, how do you get out of this dilemma? Plan the appropriate motion, necessary supporting papers, and memorandum outline to do it. Remember, actions that would support suspension or disbarment are not responsive to the question.

(d) Draft such a motion.

(e) As judge, decide the motions. And review what happened in the distant past: J.M. Blythe Motor Lines Corp. v. Blalock, 310 F.2d 77 (5th Cir. 1962).

Presume that this is the complaint filed by plaintiffs in Mitchell Computer Club v. Rainbow Computer (Case E).

Mitchell Computer Club	)
v.	)	Civil File No. 194570
Rainbow Computer Company	)

The Rainbow Computer Company lied to the Mitchell Computer Club in not providing new software programs to the Club.
Rainbow is clearly trying to defraud the Club, entitling the Club members to cancel their deal with Rainbow and get their money spent to date back plus costs.

Wherefore, Plaintiff seeks a judgment in excess of $50,000.

Kate Willsue

123 Open Calendar Lane

Lost Wages, Nirvana 89001

(702) 911–0411

Willsueforyou@net.com

Atty No. 10010

(a) Plan a motion on behalf of defendant Rainbow Computer Company to dismiss the complaint for failure to plead fraud with particularity. Should you win or lose on this issue?

(b) Draft such a motion.

(c) What else is wrong with the above complaint? List the possible (and at least arguably) legitimate motions you can make attacking the complaint.

(d) Draft one of the motions, a form order accompanying the motion, and outline the arguments for a memorandum of law in support of the motion.

The Mitchell Computer Club retains you as their lawyer, and you decide to bring a class action on their behalf against Rainbow Computer in a court that has a rule identical to [Federal Rule of Civil Procedure 23](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

(a) Plan to discuss in class or online how the four requirements of [Rule 23(a)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) have been met and what type(s) of class action exists under [Rule 23(b)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

(b) Draft a class action complaint on your client’s behalf.

(c) Plan to discuss in class or online the certification requirements and process under [Rule 23](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

(d) What type of notice would you recommend be provided class members?

(e) Presume you represent the defendant Rainbow Computer Company. How would you defend against the class action and certification of a class?

(f) Consider whether you suggest that a special master be appointed, and when and why.

(g) You are the judge. Decide whether you would certify a class. Why or why not?

In Luger v. Shade (Case H), Gotbucks commences an action in Gotham, Gothamland, the city and state of his residence, seeking a declaratory judgment that he is the true and correct owner of the Pine Island, Beachland condo. The defendants are Develco, Shade, and the Lugers.

(a) As counsel for the Lugers, what do you want to do in response? List all potential (but not too flaky) responses before reaching a decision.

(b) As Lugers’ counsel, draft a motion to dismiss the Gotham action for a lack of personal jurisdiction and outline the memorandum in support.

(c) As counsel for Shade and Develco, do you like or loathe Gotbucks’ Gotham action? What can you do in response? What should you do in response?

(d) As Lugers’ counsel, plan a counterclaim against Gotbucks. What potential counterclaims do you legitimately have? Does it depend on what facts Gotbucks knew and when? If so, can you properly plead a counterclaim against Gotbucks at this time? Which one?

In Giacone v. City of Mitchell (Case D), there is now another twist. After the suit is filed in Summit federal district court, the water department agrees to come out and reconnect the water during the pendency of the litigation if Giacone agrees not to seek interim equitable relief. The main water valve is located on the exterior cinder block basement wall. While attempting to turn on the valve the service person negligently breaks the water pipe resulting in major structural damage to the wall and causing water to flood Giacone’s basement. The damage to her personal property in the basement amounted to $10,000 and the damage to her house amounted to $35,000.

(a) As counsel for Giacone, plan an amended, supplemental complaint.

(b) Draft such a complaint.

(c) As counsel for Plaintiff Giacone, draft a motion for leave to file the new complaint and outline the supporting arguments.

(d) Presume the service person was temporarily hired by the water department from Benito’s Temporaries. As counsel for the City, plan a third-party complaint against Benito’s.

(e) Draft such a complaint.

(f) As counsel for the city, draft a motion for leave to file the third-party complaint and outline the arguments in support.

In Luger v. Shade (Case H), The Lugers sue Develco, Shade, and Gotbucks. You represent Gotbucks.

(a) Plan a cross-claim against the co-defendants.

(b) Presume that the eve of trial is near. Plan a motion to amend the Gotbucks answer to assert the cross-claim and outline the supporting memorandum.

(d) As counsel for Develco, plan a motion to dismiss the Gotbucks cross-claim and outline the supporting memorandum.

Structural Products Institute (SPI) is a national trade association for masonry and other construction companies. SPI sought to revive a declining industry by promoting research to develop the compound allowing for the construction of prefabricated brick panels in walls without reinforcement. Subsequently, Tri-Chem developed Bond-Mor.

Tri-Chem participated in the affairs of SPI in an attempt to promote its product through this national trade association. Tri-Chem entered into a contract with SPI to establish intensive field development projects regarding the use of Bond-Mor. In cooperation with architects, engineers, and contractors, Tri-Chem paid SPI $250,000 to defer SPI’s expenses.

Tri-Chem further participated in the affairs of SPI, and SPI promoted Tri-Chem products through articles and technical notes published in construction industry trade journals. Employees of SPI suggested to architects, engineers, and contractors that Bond-Mor be used in their construction projects.

Hot Dog Enterprises sues Tri-Chem for violation of federal and state laws, negligence, and product liability. You represent Structural Products Institute (Case A). SPI has an interest in intervening in the lawsuit to represent its interests and the interests of other members in the trade association.

(a) Plan a motion to intervene on behalf of SPI. Is it seeking intervention of right or permissive intervention?

(b) Outline the memorandum in support.

(d) Draft a proposed order.

(e) Should the motion be granted? Why or why not?

In Luger v. Shade (Case H), the Lugers only sue Shade and Develco to an effort to acquire the condo, and do not sue Gary Gotbucks as a named defendant. Gotbucks retains you and wants to intervene in this lawsuit.

(a) Plan a motion to intervene. What is the basis for and theory of Gotbucks’ intervention?

(b) Draft the motion and proposed order.

(d) As his lawyer, will you advise him to go through with the action? What other means of protecting his interest might there be?

Presume the court permits Gotbucks to intervene as a defendant in Luger v. Shade (Case J) in which the Lugers sued Shade and Develco.

(a) Plan his responsive pleading. What claims does he have to assert? Presume Luger seeks specific performance of the townhouse sale.

(b) Draft an appropriate responsive pleading.

Policyholder Mike Mullarkey (Case N) sues Denial Mutual in Nevada state court for failing to pay his property damage claims. Denial is organized as a mutual insurer in Arizona, has corporate headquarters in Las Vegas, with the majority of its policyholders in California.

You are counsel to Denial Mutual. Consider whether you can make s successful motion pursuant to [Federal Rules 12(b)(1)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(lack of subject matter jurisdiction), 12(b)(2)(lack of personal jurisdiction), 12(b)(3)(improper venue)(and possible transfer pursuant to [28 U.S.C. 1404](https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)) or remove the action to federal court.

Assume Mullarkey amends his complaint to assert an additional claim pursuant to a newly enacted federal statute, the “Don’t Stonewall Your Policyholders Act.” Does this change your answer to any of the above questions?
Also consider whether Denial Mutual should consider Rule 14 Impleader or a motion to dismiss pursuant to Rule 19.
Assume that the Mullarkey v. Denial Mutual case eventually reaches federal court and that after 18 months of litigation, Mullarkey’s Policyholder Act claim is dismissed. How should the court proceed?
You are counsel to ProTectCo in Case O. Gravitas Grinch has sued for benefits under the life insurance policy he purchased for the now-deceased Dara Domestic. Are there potential parties that the insurer should add to the litigation pursuant to Rule 14? Can the insurer make a successful Rule 19 motion to dismiss? What if any counterclaims should the insurer consider?
You are counsel to TechTrust Wealth Management in Case P. You just received the Igor Investor complaint, which seeks class action status. What are your response options? Which one would you pursue?
*See, e.g., *Stonewall Ins. Co. v. Horak, 325 N.W.2d 134 (Minn. 1982) (recognizing service by receipt of certified mail). However, where a certified letter of other communication is not actually received by a defendant, due process will generally require additional efforts to provide notification. *See *Jones v. Flowers, 547 U.S. 220 (2006) (“unclaimed” certified letter to delinquent taxpayer insufficient service; state required to pursue other reasonable means of notification; Court suggests that first class mail or posting of notice on property may satisfy constitutional due process requirements). ↑
*See *Crawford-El v. Britton, 523 U.S. 574 (1998). The Court also suggested that pursuant to Rule 7(a), a trial court may also order the pro se prisoner plaintiff to reply to a defendant’s answer in order to better frame the issues at the outset of the case. ↑
[Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,](https://www.westlaw.com/Document/I22146ad39bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I22146ad39bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 402 U.S. 313 (1971)](https://www.westlaw.com/Document/I22146ad39bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I22146ad39bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Garza v. City of Salem,](https://www.westlaw.com/Document/I74ae4ef0493c11eeb336d6875dfb31d7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I74ae4ef0493c11eeb336d6875dfb31d7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 2023 WL 5665331 (D. Or.)](https://www.westlaw.com/Document/I74ae4ef0493c11eeb336d6875dfb31d7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I74ae4ef0493c11eeb336d6875dfb31d7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
See **[Nat’l Rifle Ass’n of Am. v. Vullo](https://www.westlaw.com/Document/Icb9740511e6211efb99ae78447336e35/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Icb9740511e6211efb99ae78447336e35/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 602 U.S. 175 (2024)](https://www.westlaw.com/Document/Icb9740511e6211efb99ae78447336e35/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Icb9740511e6211efb99ae78447336e35/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
*Id. *at 194-95. ↑
[550 U.S. 544 (2007)](https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[556 U.S. 662 (2009)](https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
See., e.g., Santa Clarita Valley Water Agency v. Whittaker Corp., 99 F.4th (9th Cir. 2024) (to avoid dismissal, a complaint must contain enough facts to make each element of each claim plausible but need not expressly explain legal theories of the claim) (citing Iqbal). ↑
*McNutt v. General Motors Acceptance Corp., *298 U.S. 178 (1936). ↑
[Bell v. Hood,](https://www.westlaw.com/Document/I617c36f79c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I617c36f79c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 327 U.S. 678 (1946)](https://www.westlaw.com/Document/I617c36f79c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I617c36f79c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). But where a ruling on subject matter jurisdiction is intertwined with the merits of the case, ruling on jurisdiction can be deferred. ↑
- See **[Ruhrgas AG v. Marathon Oil Co.](https://www.westlaw.com/Document/Ibddeab7a9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ibddeab7a9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[, 526 U.S. 574 (1999)](https://www.westlaw.com/Document/Ibddeab7a9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ibddeab7a9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
*See *Royal Canin USA, Inc. v. Wullschleger, 604 U.S. 22 (2025)(subject matter jurisdiction must exist throughout course of case; where subject matter jurisdiction lost through complaint amendment withdrawing federal law claim leaving only state law claims, trial court was required to remand removed case back to state court where initially filed). See also [Frazier v. The Beauti Spot L.L.C](https://www.westlaw.com/Document/Ic9713430e38c11eebd45e5ef1ea5b810/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic9713430e38c11eebd45e5ef1ea5b810/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[., 2024 WL 1135664 (C.D. Cal. 2024)](https://www.westlaw.com/Document/Ic9713430e38c11eebd45e5ef1ea5b810/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic9713430e38c11eebd45e5ef1ea5b810/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(court declines to exercise supplemental jurisdiction pursuant to [28 U.S.C. § 1367](https://www.westlaw.com/Document/NCCC85ED0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCCC85ED0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) over state law claims even when federal claim was present because state law claims substantially predominated). ↑
See [Bristol-Myers Squibb Co. v. Superior Court](https://www.westlaw.com/Document/I455a1ab354f611e79822eed485bc7ca1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I455a1ab354f611e79822eed485bc7ca1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 582 U.S. 255 (2017)](https://www.westlaw.com/Document/I455a1ab354f611e79822eed485bc7ca1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I455a1ab354f611e79822eed485bc7ca1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See *Rush v. Savchuk, *444 U.S. 320 (1980), on remand* [290 N.W.2d 633 (Minn. 1980)](https://www.westlaw.com/Document/Id421bca0fea511d9bf60c1d57ebc853e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id421bca0fea511d9bf60c1d57ebc853e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). ↑
- See *Goodyear Dunlop Tires Operations, S.S. v. Brown, 564 U.S. 915 (2011)(plaintiff could not obtain jurisdiction over foreign corporation upon a theory of “general” personal jurisdiction because defendant lacked sufficiently continuous and systematic contact with forum state); Daimler AG v. Bauman, 571 U.S. 117 (2014) (reiterating this restrictive view of general personal jurisdiction); J. McIntrye Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011)(no personal jurisdiction over foreign manufacturing corporation in product liability action where defendant company marketed its products in the U.S. through an intermediary but did not target specific state where plaintiff’s injury took place and where defendant lacked sufficient case-specific contacts with forum state); Walden v. Fiore, 571 U.S. 277 (2014) (mere knowledge that conduct will have impact in state insufficient to support personal jurisdiction). ↑
As examples, see, e.g., [Hawkeye Gold, LLC v. China Nat’l Materials Indus. Imp. & Exp. Corp](https://www.westlaw.com/Document/I383e6c909ead11ee996f8f95168d10d3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I383e6c909ead11ee996f8f95168d10d3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[., 89 F.4th 1023 (8th Cir. 2023)](https://www.westlaw.com/Document/I383e6c909ead11ee996f8f95168d10d3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I383e6c909ead11ee996f8f95168d10d3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)* *(defendant parent company not subject to personal jurisdiction in Iowa based on subsidiary’s contacts with Iowa); [Snaprays v. Lighting Def. Grp](https://www.westlaw.com/Document/I632c5740089e11ef811cc40bf1804db9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I632c5740089e11ef811cc40bf1804db9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[., 100 F.4th 1371 (Fed. Cir. 2024)](https://www.westlaw.com/Document/I632c5740089e11ef811cc40bf1804db9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I632c5740089e11ef811cc40bf1804db9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(defendant's activity purposefully directed toward Utah that led to dispute supports finding of personal jurisdiction over defendant in Utah even though defendant company was incorporated in Delaware with its principal place of business and contacts in Arizona). ↑
- Compare *Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010) (defendants’ allegedly defamatory and harassing emails to forum state and postings intended to be read in forum state sufficient to satisfy minimum contacts test in case related to subject matter of the cyber communications); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (website in Florida insufficient to support personal jurisdiction in Arizona); Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997) (Missouri company’s maintenance of website does not subject it to New York’s jurisdiction in trademark infringement action brought by New York company); *with *Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) (California-based online gossip columnist subject to jurisdiction in District of Columbia when sued for defamation by former White House aide); Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996) (defendant use on Internet of allegedly infringing trade name permits exercise of personal jurisdiction where website was generally available, approximately 10,000 computers in state had capacity to connect to Internet, and defendant purposely sought to conduct business with state through website); Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 7 N.Y.3d 65, 818 N.Y.S.2d 164, 850 N.E.2d 1140 (2006) (cyber communications sufficient to support personal jurisdiction). See generally A. Benjamin Spencer, Jurisdiction and the Internet: Returning to Traditional Principles to Analyze Network-Mediated Contacts, 2006 Ill. L. Rev. 71. ↑
See [Briskin v. Shopify, Inc](https://www.westlaw.com/Document/I583af1e08e2b11eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I583af1e08e2b11eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[., 87 F.4th 404 (9th Cir. 2023)](https://www.westlaw.com/Document/I583af1e08e2b11eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I583af1e08e2b11eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(personal jurisdiction based on website activity depends on the nature and use of the website, in particular whether it specifically targets or engages with forum state and its residence). ↑
United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966). Gibbs is now essentially codified by 28 U.S.C.A. § 1367. ↑
*Ashwander v. Tennessee Valley Authority, *297 U.S. 288 (1936). ↑
Pennhurst State School & Hospital v. Halderman, 463 U.S. 1251 (1983). ↑
- See **[Wisconsin Dep’t of Corrections v. Schacht,](https://www.westlaw.com/Document/I6b1e967d9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b1e967d9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[ 524 U.S. 381 (1998)](https://www.westlaw.com/Document/I6b1e967d9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b1e967d9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
*United Mine Workers of Am. v. Gibbs, *383 U.S. 715 (1966). ↑
[Royal Canin U.S.A., Inc. v. Wullschleger](https://www.westlaw.com/Document/Id7719e51d30811ef92b7b86edc823be7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id7719e51d30811ef92b7b86edc823be7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 604 U.S. 22 (2025)](https://www.westlaw.com/Document/Id7719e51d30811ef92b7b86edc823be7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id7719e51d30811ef92b7b86edc823be7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Rosado v. Wyman,](https://www.westlaw.com/Document/I23616e4f9c1e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I23616e4f9c1e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 397 U.S. 397 (1970)](https://www.westlaw.com/Document/I23616e4f9c1e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I23616e4f9c1e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), on remand [322 F. Supp. 1173 (E.D.N.Y. 1970)](https://www.westlaw.com/Document/Ie6fdc7e3550111d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie6fdc7e3550111d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), judgment affirmed [402 U.S. 991 (1971)](https://www.westlaw.com/Link/Document/FullText?cite=402US991&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=402US991&VR=3.0&RS=da3.0). See also Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S. Ct. 1862, 173 L.Ed.2d 843 (2009)(after sole federal claim is dismissed, trial court exercises its discretion to remand state claims to state court). See § 4.5.8 regarding removal and remand. ↑
Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 2.15 (5th ed. 2015).* *In other words, current statutes codify the holding of *Owen Equipment & Erection Co. v. Kroger, *437 U.S. 365 (1978), which barred the pre-statute assertion on ancillary jurisdiction over a third-party defendant that remained in the case after the initial, diversity-creating defendant was dismissed. ↑
Rule 14 authorizes a third-party complaint that asserts a claim that the third-party defendant is liable for some or all of the liability asserted against the defendant/third-party plaintiff—essentially contribution liability. Rule 14 does not authorize a direct claim against a third-party defendant—a claim for the third-party plaintiff’s own damages, independent from the liability asserted by the original plaintiff. However, if the third-party plaintiff asserts one proper Rule 14 derivative claim, it may assert claims for its own damages under Rule 18. See [Davis Pickering & Co. v. Worley Field Servs., Inc.](https://www.westlaw.com/Document/Ia5df3480b36911edb0cec6d6b8536593/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia5df3480b36911edb0cec6d6b8536593/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2023 WL 2163886 (E.D.Pa., Feb. 22, 2023)](https://www.westlaw.com/Document/Ia5df3480b36911edb0cec6d6b8536593/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia5df3480b36911edb0cec6d6b8536593/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[401 U.S. 37 (1971)](https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0). ↑
[Younger v. Harris,](https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0)[ 401 U.S. 37 (1971)](https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=401US37&VR=3.0&RS=da3.0). ↑
[312 U.S. 496 (1941)](https://www.westlaw.com/Document/Icdfcb72e9cc211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Icdfcb72e9cc211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Harman v. Forssenius,](https://www.westlaw.com/Document/Id8eeb4489c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id8eeb4489c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 380 U.S. 528 (1965)](https://www.westlaw.com/Document/Id8eeb4489c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id8eeb4489c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[319 U.S. 315 (1943)](https://www.westlaw.com/Document/Icdfcb7229cc211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Icdfcb7229cc211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
John D. Echeverria, Note, Land Use Regulation, The Federal Courts, and the Abstention Doctrine, 89 Yale L.J. 1134 (1980). ↑
[424 U.S. 800 (1976)](https://www.westlaw.com/Document/I1d1c02b59c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d1c02b59c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Brillhart v. Excess Ins. Co. of Am.,](https://www.westlaw.com/Document/I5c20b66e9cbd11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5c20b66e9cbd11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 316 U.S. 491 (1942)](https://www.westlaw.com/Document/I5c20b66e9cbd11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5c20b66e9cbd11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Pacific Live Stock Co. v. Lewis, 241 U.S. 440 (1916). But as also discussed, the Brillhart case is viewed by courts as its own category of abstention applicable to declaratory judgment actions. ↑
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942). *See also *Will v. Calvert Fire Ins. Co., 437 U.S. 655, 663–665 (1978), on remand [586 F.2d 12 (7th Cir. 1978)](https://www.westlaw.com/Document/I3cf62a26917f11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3cf62a26917f11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180 (1952). ↑
*See *Wilton v. Seven Falls Co., 515 U.S. 277 (1995). ↑
[Nationwide Ins. v. Zavalis](https://www.westlaw.com/Document/I8101602c918111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8101602c918111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 52 F.3d 689 (7th Cir. 1995)](https://www.westlaw.com/Document/I8101602c918111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8101602c918111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[28 U.S.C.A. § 2254](https://www.westlaw.com/Document/NCB06D8B0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB06D8B0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[42 U.S.C.A. § 405](https://www.westlaw.com/Document/N7468BD30B04411EEBA4A8C9569A15992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N7468BD30B04411EEBA4A8C9569A15992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See, e.g.,* 28 U.S.C.A. § 1341 (state tax collection challenges) & 1342 (utility rate orders). ↑
30 See Federal Arbitration Act, 9 U.S.C.A. § 2. ↑
However, a contract or state court divorce decree providing for specific maintenance payments may give rise to a breach of contract claim within the court’s diversity jurisdiction. ↑
[In re Broderick’s Will,](https://www.westlaw.com/Document/I1dbf9331b65511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1dbf9331b65511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 88 U.S. (21 Wall.) 503 (1874)](https://www.westlaw.com/Document/I1dbf9331b65511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1dbf9331b65511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
See 28 U.S.C.A. §§ 1441–1451. ↑
[28 U.S.C.A. § 1445](https://www.westlaw.com/Document/NCB21DAC0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB21DAC0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See, e.g.,* 12 U.S.C.A. § 1819(4) (FDIC may remove state actions to which it is a party). ↑
- See *Rivet v. Regions Bank of La., 522 U.S. 470 (1998); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Gully v. First Nat’l Bank in Meridian, 299 U.S. 109 (1936). ↑
Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025). ↑
- See* Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009). ↑
- See* [Hertz Corp. v. Friend](https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 559 U.S. 77 (2010)](https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[GrupoDataflux v. Atlas Global Group, L.P.](https://www.westlaw.com/Document/Ia0a53ae99c9a11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia0a53ae99c9a11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 541 U.S. 567 (2004)](https://www.westlaw.com/Document/Ia0a53ae99c9a11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia0a53ae99c9a11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Carden v. Arkoma Assoc., 494 U.S. 185 (1990). ↑
- See* 28 U.S.C.A. § 1448. ↑
But see Casola v. Dexcom, Inc., 98 F.4th 947 (9th Cir. 2024) (rejecting “super snap removal” that precedes not only service on forum state defendant but also filing of the complaint itself). ↑
Jeffrey W. Stempel, et al., Snap Removal: Concept; Cause; Cacophony; and Cure 72 Baylor L. Rev. 423 (2020). ↑
- See *Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). ↑
- See *Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). ↑
[28 U.S.C.A. § 1446(a)](https://www.westlaw.com/Document/ND388F5A03C8911E186F7CBE1A5E78163/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND388F5A03C8911E186F7CBE1A5E78163/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
28 U.S.C.A. § 1441(c) permits an entire state court case to be removed if it has a separate and independent claim that is removable on its own. This provision has been restrictively interpreted and is rarely used. *See *American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951). ↑
[Fed. R. Civ. P. 81(c)](https://www.westlaw.com/Document/ND18301E0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND18301E0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See* Lincoln Property Co. v. Roche, 546 U.S. 81 (2005) (for removal to be proper in diversity jurisdiction case, no defendant may be resident of forum state). ↑
- See *Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976) (remand of otherwise valid removal on sole basis of crowded federal docket reversed). Accord Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) (remand based on trial court’s invocation of abstention doctrine reviewable). ↑
65 [Carlsbad Technology v. HIF Bio, Inc., 556 U.S. 635 (2009)](https://www.westlaw.com/Document/Ic93d7c1438a611deb23ec12d34598277/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic93d7c1438a611deb23ec12d34598277/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Denver & Rio Grande Western R.R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556 (1967)](https://www.westlaw.com/Document/I61668c129c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I61668c129c1f11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). See also [Atlantic Marine Construction, Inc. v. District Court](https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 571 U.S. 49 (2013)](https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (venue transfer statute permits transfer to location specified in contract forum-selection clause). ↑
[Leroy v. Great Western United Corp.,](https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 443 U.S. 173 (1979)](https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Fourco v. Transmirra,](https://www.westlaw.com/Document/Id8defce29c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id8defce29c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 353 U.S. 222 (1957)](https://www.westlaw.com/Document/Id8defce29c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id8defce29c1c11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*, superseded by statute, *current 28 U.S.C. § 1400(b). ↑
[Leroy v. Great Western United Corp.,](https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 443 U.S. 173 (1967)](https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d1b3f609c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
*See, e.g., *Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); [Piper Aircraft Co. v. Reyno](https://www.westlaw.com/Document/I6b4690de9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b4690de9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 454 U.S. 235 (1981)](https://www.westlaw.com/Document/I6b4690de9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b4690de9c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (where the alternative forum was Scotland). ↑
[Atlantic Marine Const., Inc. v. District Court](https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 571 U.S. 49 (2013)](https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia870dd0559ad11e38912df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Castle Co-Packers, LLC v. Busch Mach., Inc., 687 F. Supp. 3d 659 (W.D. Pa. 2023). ↑
For a more comprehensive discussion of transfer under this statute, see David F. Herr, Multidistrict Litigation Manual: Practice before the Judicial Panel on Multidistrict Litigation (Thomson Reuters 2020 ed.). ↑
74 Act, Publ. L. No. 112–63, 125 Stat. 758 (2011). ↑
- See, e.g., *American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). ↑
[Moses v. City of Perry, Michigan](https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 90 F.4th 501 (5th Cir. 2024)](https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑