Civil Procedure Commons^™

Open And Shut: Non-Removal Statutesand Door-Closing Penalties, Isaac Zwerling

Pepperdine Law Review

There is a longstanding tension in the Court’s treatment of non-removal statutes and door-closing penalties. On the one hand, the Court has held non-removal statutes—business registration statutes that condition a foreign corporation’s license on that corporation’s right to remove cases brought against it to federal court—pose an unconstitutional limit on federal court access. On the other, the Court has extended door-closing penalties statutes prohibiting unregistered foreign corporations from initiating an action in the forum state—to federal courts sitting in diversity. This Article surveys how the Court arrived at this puzzling result. It does so by analyzing each line of cases …

الدفع بعدم الإختصاص في قانون الإجراءات المدنية الإماراتي, أحمد حجال

Proche-Orient, Études juridiques

This study addresses the procedural regime of the objection to jurisdiction, which is one of the procedural defenses that raise in the UAE law the issue of the applicable procedural rules. Before which courts and at what stage of the litigation this defense can be raised, and who is the party entitled to raise it? May or should the court raise it proprio motu? Did the Emirati law adopt the traditional categorization of objections to jurisdiction, that is founded on the jurisdiction rules as such? The rules of absolute jurisdiction are the ones whose violation results in a lack …

Leeds V. Norfolk Southern Railway Company—In Undoing Late Removal, District Court Gives Guidance On Evaluating Whether Defendants Were Joined In “Bad Faith”, Geoffrey D. Kearney

SLU Law Journal Online

Pursuant to 28 U.S.C. § 1446, defendants typically have one year to remove to federal court a case filed in state court. The landscape for removal changed somewhat with a 2011 amendment to this statute, which extends that one-year deadline upon a showing “that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

But the question of what sort of conduct satisfies this provision persists. Since its passage, courts—primarily district courts—have grappled with just what it means for a plaintiff to act in bad faith to thwart removal. Leeds v. Norfolk Southern …

Section 302(A)'S "Arising From" Nexus Element: Need For A Tune-Up In The Aftermath Of Ford Motor?, Michael J. Hutter

Pace Law Review

This article traces the historical development of the “arising out of” and “relate to” nexus requirements, examines the evolution of state long- arm statutes following International Shoe Co., and analyzes the origins and judicial interpretation of C.P.L.R. § 302(a). It argues that New York’s statutory scheme no longer fully reflects the constitutional scope of specific jurisdiction as articulated by the Supreme Court. The article concludes by proposing a legislative amendment to C.P.L.R. 302(a) to add the phrase “relate to,” thereby aligning New York’s long-arm statute with Due Process and better effectuating the statute’s underlying purpose of affording New York residents …

How To Apply Hertz Corp. V. Friend In The Age Of Remote Work, John Andrikos

Catholic University Journal of Law and Technology

The widespread adoption of remote work in the United States has strained the workability of the nerve center test of Hertz Corp. v. Friend. This comment analyzes how federal courts have applied the nerve center test to fact patterns involving partially or fully remote corporations. Further, it proposes a novel solution to this jurisdictional problem: the Key Person Test.

27th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act (Powerpoint Slides) 08-01-2025, Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Vagueness And The Vermont Long-Arm Statute, Maine Law Review

Maine Law Review

The authority of state courts to assert jurisdiction over the person of nonresidents has expanded markedly since the days of Pennoyer v. Neff. Different theories for asserting jurisdiction over individuals, as opposed to corporations, have been discarded. For jurisdictional purposes, the common law classifications of in personam, in rem and quasi in rem have been abandoned. "Minimum contacts" has become the all-embracing rationale for reviewing any assertion of jurisdiction over a nonresident defendant by a state court. But if "minimum contacts" has replaced these former concepts and served to simplify and unify the requirements of due process, it has also …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Remote Work's Complication Of Companies' Personal Jurisdiction Standings: Morphing The Historical Analysis To Fit Modern Remote Work Characteristics, Lindarose Piccolo

American University Business Law Review

Personal jurisdiction ensures that the proper forum adjudicates civil disputes to prevent burdening a defendant with litigating in inconvenient forums. International Shoe Co. v. Washington established that defendants must have minimum contacts with the forum state such that exercise of jurisdiction comports with fair play and substantial justice. Following International Shoe, many cases have provided examples of the minimum contacts that would establish personal jurisdiction.

However, the ability for employees to work remotely from their homes using technological devices and software has exponentially increased over the past five years. Because of the increased ability to work remotely from anywhere in …

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Tying Parallel Proceedings To Judgment Recognition: Harmonizing Cross-Border Dispute Resolution, Louise Ellen Teitz

Law Faculty Scholarship

No abstract provided.

25th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act, Peter F. Neronha, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Maintaining Due Process By Extending Bristol-Myers Squibb Co. To Federal Class Actions, Felicia D. Sych

American University Law Review

In 2017, the U.S. Supreme Court issued its seminal decision in Bristol Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question …

Changemakers: Master Of Studies In Law: "Exactly What I Needed...": John Marion, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A Jurisprudential Quilt Of Tribal Civil Jurisdiction: An Analysis Of Tribal Court Approaches To Determining Civil Adjudicatory Jurisdiction, Jacob Maiman-Stadtmauer

American Indian Law Journal

There are hundreds of Native American Tribes with their own judicial systems and courts. Under the test first established in Montana v. United States, the Supreme Court of the United States has provided a single, nebulous standard for determining the limits of tribal courts’ jurisdiction over non-Indians. Scholars and federal jurists have long assumed that the Supreme Court's framework limiting tribal civil jurisdiction is essential to how tribal courts determine jurisdiction. This paper challenges that assumption. Through a first of its kind survey of tribal court decisions on civil jurisdiction, spanning 26 tribes and covering 71 decisions, this paper …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

Jurisdiction At Work: Specific Personal Jurisdiction In Flsa Collective Actions After Bristol-Myers Squibb, Anaid Reyes Kipp

Georgia State University Law Review

In Bristol-Myers Squibb Co. v. Superior Court (BMS), eighty-six California residents and five hundred ninety-two nonresidents from thirty-three different states, who had originally filed eight separate complaints, used ordinary party joinder rules to file a mass tort action in California state court, alleging that Bristol-Myers Squibb’s blood-thinning drug made them sick. The Supreme Court held in 2017 that the California state court did not have specific personal jurisdiction over the national pharmaceutical company because its contacts with California were insufficient in relation to the claims by nonresident plaintiffs. Although BMS was a mass action filed in state court, its …

Omar Effendi Vs. Union Fenosa: Corruption As A Transnational Public Policy Consideration, Ahmed Badr Eldin

Theses and Dissertations

At the beginning of 2011, Egypt witnessed radical political developments that led to the emergence of a pressing tendency to adjudicate the collapsed regime’s policies and practices. Shortly thereafter, the Egyptian State Council issued a number of judicial decisions that confirmed that the sale of the privatized governmental enterprises had been tainted by corruption. Crucially, the Court maintained that flagrant breach of law, regulations, and administrative orders that encompassed these transactions created serious suspicions about corruption committed by public officials and investors. It concluded that the existence of corruption, as a transnational public policy consideration, had deprived foreign investors of …

Extraordinary Writ Or Ordinary Remedy? Mandamus At The Federal Circuit, Jonas Anderson, Paul R. Gugliuzza, Jason Rantanen

Utah Law Faculty Scholarship

Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus’s origin as one of the common law’s “extraordinary” writs. Federal courts of appeals typically issue mandamus once or twice per year at most. 

In patent cases, however, mandamus is a remarkably ordinary form of …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

Bell V. Goggles, 19-Ap-02 (Blkfet. Tr. Ct. App., July 19, 2021), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed a case for lack of jurisdiction over the parties. The case concerned child support obligations arising from the State of Wyoming, Wind River Indian Reservation. Neither the petitioner nor respondent are Blackfeet, nor the children concerned. While the Blackfeet Nation Honors full faith and credit, the respondent does not reside on the Blackfeet Reservation, therefore relief in this matter does not apply to the decision of the Blackfeet Tribal Court.

Enforcing Outbound Forum Selection Clauses In State Court, John Coyle, Katherine Richardson

Indiana Law Journal

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap. …

The Essentially-At-Home Requirement For General Jurisdiction: Some Embarrassing Cases, David Crump

Catholic University Law Review

In Daimler AG v. Baumann, the Supreme Court held that general jurisdiction does not exist unless the defendant is “essentially at home” in the forum. It offered two examples of places fitting this description but gave little further guidance or justification. A metaphor, such as essentially at home, is a bad way to express a legal standards, because the essence of a metaphor is that it substitutes one reality for another, creating a deliberate confusion. The Court also equated general jurisdiction with what it called all-purpose jurisdiction, which is wrong because it is easy to pose cases in which general …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Scholarship

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …