Multiple Choice from 1999 Exam
Essay Question from 2004 CivPro Exam

Essay Question from the 2008 CivPro Exam

With updated answer:

Question 5 

D1 and D2 were both born in Nevada and had lived there all their lives, until they got married and decided to move to Florida. They were a bit apprehensive when accepting employment in Florida, because they accepted without actually seeing what Florida looks like. But soon after they accepted, D2 took a brief trip the Florida, and he assured D1 that the state was very nice. 

The day after he got back from Florida, D1 and D2 embarked an extravagant 6-month trip through Europe and South America. They had all their furniture and personal belongings shipped to a storage facility in Florida and set off from Nevada, intending to go directly to Florida after the trip

was over. One month into their trip, they decided that they needed a personal assistant to help them with their travels. So they put out an advertisement in various magazines with national circulation. P, who lives in Nevada, responded to their ad by calling them while they were London, England. They hired P sight unseen in that phone call and P flew off to meet them in London.

After only two weeks P returned to Nevada and immediately brought suit against D1 and D2 in the federal district court for the District of Nevada for various torts, including intentional infliction of emotional distress and battery. P alleged that these torts occurred while she was traveling with D1 and D2 through England. P had D1 and D2 served while they were at JFK Airport (in the Eastern District of New York), while they were en route from Europe to South America.

You represent D1 and D2 and are seeking to come up with the best arguments (preferably consistent with one another) that P’s actions against D1 and D2 should be dismissed for lack of personal jurisdiction, subject matter jurisdiction, and venue. What are the best arguments you can think of that P’s actions fail all three requirements? What, if any, are their vulnerabilities?



This was not a very difficult question, but the better answers took seriously the idea that the arguments for a lack of PJ, SMJ and venue should be consistent with one another. What follows is much much more than was necessary to do well on this question, but I wanted to cover all bases.


The suit is not under federal law, so diversity is the only hope for federal SMJ. To determine whether there is diversity, we must look to the states of domicile of the parties (not their states of residence, as too many of you said).


We know that P’s domicile is Nevada. Even if there was a doubt about whether her domicile was Nevada at the time of wrongs being litigated (since she had left Nevada and was traveling with the defendants), what matters is one’s domicile at the time of filing and at that point she was clearly back in Nevada and domiciled there.


What about the domiciles of D1 and D2? There were clearly domiciled in Nevada most of their lives, so the question is whether one or both established a new domicile (presumably in Florida). It is important to remember that one always has a domicile (some tried to argue that the defendants had no domicile) and that one retains one’s old domicile until a new one is established. So they are Nevada domiciliaries even while traveling, unless they established a new domicile.


Establishing a new domicile requires, roughly (see Baker v Keck for the details), that one establish a dwelling place in the state with the intent of making it one’s home indefinitely. One must be actually present at some point at the dwelling place with the requisite intent for domicile to be established. Without this presence, there is no change of domicile. (Remember the Robinsons in World Wide VW, who remained New York domiciliaries because they had not yet made it to their new home in Arizona?)


This suggests that there was no domicile established in Florida. D1 never actually set foot in Florida. And when D2 did set foot there, it did not look as if he had the requisite intent, since he did not actually intend Florida to be his home at that time. That means that we have no diversity, since the plaintiffs and defendants are domiciled in the same state. Furthermore, even if D2 did establish a Florida domicile (as some of you argued) there still is no diversity, since complete diversity is required. There must be no one on one side of the v that is domiciled in the same state as someone on the other side of the v. So there would be no SMJ even setting aside the question of whether the jurisdictional minimum was satisfied (about which we know too little to answer).


Some of you profitably spent time worrying about whether the presence of D2 (as the spouse of D1) might be sufficient to change D1’s domicile as well. Some courts have found that the presence of one spouse is sufficient to change the domicile of the other. See Lea v. Lea, 18 N.J. 1, 112 A.2d 540 (1955) (wife’s presence could change husband’s domicile). Others haven’t. See McIntosh v. Maruicopa Co., 73 Ariz. 366, 241 P.2d 801 (1952) (wife’s presence could not change husband’s domicile).


But if D1 (and probably D2) are domiciled in Nevada, there will apparently be problems consistently arguing that the case should also be dismissed for lack of PJ. Keep in mind that a federal court in Nevada will have PJ over a defendant only if a state court in Nevada would. See FRCP 4(k)(1)(A). Since we know nothing about Nevada’s long-arm statute or state constitution, the only limitation on a Nevada state court’s assertion of PJ that we can really address is the 14th Amendment. The problem is that domicile is a traditional source of general PJ over a defendant under the 14th A.


For this reason some of you tried to argue that D1 and D2 were domiciled abroad. Although the requisite intent is surely lacking (they don’t intend to make Europe their home), this was a nice strategy in other respects. If one argues that they are domiciled in Florida, that would remove domicile in Nevada as a source of PJ, but it would ruin the argument that there is no SMJ, since there would be diversity. But if the defendants were US citizens domiciled abroad, there would be no general PJ or SMJ. Why no SMJ? Well, first of all, the suit would not be between “citizens of different States” under 1332(a)(1). The defendants would not be citizens of a state, since they would not be domiciled in any US state. But it also would not be a suit between “citizens of a State and citizens or subjects of a foreign state” under 1332(a)(2) because the defendants would not be citizens or subjects of a foreign state (they would remain Americans). (The second occurrence of “citizens” in 1332(a)(2) has been taken to refer, not to domicile, but to nationality.) See, e.g., Twentieth Century-Fox Film Corp. v. [Elizabeth] Taylor, 239 F. Supp. 913 (S.D.N.Y. 1965); Hammerstein v. Lyne,  200 F. 165 (W.D. Mo. 1912).


But there is another possibility of making a consistent argument for a lack of general PJ. There is no reason to assume, without argument, that “domicile” as it is used for diversity is sufficient for general PJ. After all, there is domicile here only in a very unusual sense – the defendants have cut off all ties to Nevada and are considered Nevada domiciliaries only by virtue of the fact that they have not established a new domicile. One might accept that the defendants are domiciled in Nevada for the purpose of diversity, but argue that this is not enough for general PJ. This is true even if domicile in this attenuated sense might have been sufficient for PJ under the Pennoyer v Neff regime. The question, one might argue, is whether Int’l Shoe requirements are satisfied. You were rewarded for exploring such arguments.


But what about specific PJ? Did the defendants reach out to the state of Nevada in a way that was connected to the causes of action? This is very unlikely. The most one can point to is the fact that the defendants put out a national ad for a personal assistant. (P apparently responded to the ad after reading it in Nevada by calling the defendants while they were in England.) The ad would very likely be insufficient for PJ over the defendants in Nevada even if P’s action had been for breach of the contract that they entered into in the phone call. After all, P really took the initiative in entering into the contract. Cf. Conti v. Pneumatic Prods. Corp., 977 F.2d 978 (6th Cir. 1992) (no PJ in plaintiff’s home state for suit for fraud in connection with recruitment of plaintiff, when defendant’s contact with home state was limited to hiring national recruiting service). But in fact P is not suing for breach of contract, but for torts that occurred in England. This further attenuates the connection between the ad and the causes of action.


Finally, what about venue in the D. Nev.? It does not appear that “substantial part of the events or omissions giving rise to the claim” occurred in the D. Nev. See 28 USC 1391(b)(2). It is true that when one speaks of transactional venue (unlike PJ) one can look not merely to what the defendants did in the district, but also to what the plaintiff did. So we could include not merely the defendants’ ad but also the plaintiff’s phone call from Nevada to the defendants. But the fact remains that the claims are not about the contract that was entered into in this call, but the torts that occurred in England. Transactional venue in the D. Nev. is unlikely.


Is there venue in the D. Nev. on the grounds that all the defendants “reside” in that district and state? See 28 USC 1391(b)(1). You should have known that the Clarification Act has now settled that “residence” for individuals in the venue statute means domicile. So, once again, we have the problem that an argument against SMJ (on the grounds that the defendants are domiciled in Nevada) would generate venue (since it would mean that the defendants all “reside” in the D. Nev.). One might argue, however, that only D2 is domiciled in Florida. As we have seen, the continuing domicile of D1 in Nevada would be sufficient to knock out SMJ. Furthermore if D1 is domiciled in Nevada and D2 in Florida, they would not “reside” in the same state – making venue in the D. Nev. under 1391(b)(1) impossible. (There would still be the problem of general PJ over D1 in Nevada however.)


Another alternative is to argue that the Clarification Act did not envision our situation, where the defendants, after having cut off all ties with a state, are considered domiciled there solely because they have not yet established a new domicile. After all, venue is about convenience, and there is no longer a good argument that litigating in Nevada would be convenient for the defendants. You were rewarded for exploring such arguments.


There was one final problem, however. If there is no other district that would have venue under 1391(b)(1) or (b)(2), then the fallback provision of 1391(b)(3) might generate venue in the D. Nev. This is a genuine worry because it does not seem that a “substantial part of the events or omissions giving rise to the claim” occurred in any district (it all occurred abroad). If the defendants are domiciled in different states then there would be no venue in any district under 1391(b)(1) or (b)(2), generating venue in “a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced” under 1391(b)(3). This might create venue in D. Nev., assuming that one of the defendants is subject to PJ in Nevada, a matter that we already discussed above.




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