Civ Pro Outline

ISSUE—PERSONAL JURISDICTION

General—Personal Jurisdiction is the courts power over a person, corporation, or other entity. (protects Δ from burdensome litigation). There is a Constitutional Limitation on personal jurisdiction found in the 14th Amendment’s Due Process Clause (§ 5). The Due Process Clause gives a textual limit on a sovereign’s power, which has been interpreted by the courts as being that fair and adequate notice of the action must be given and that there must be minimum contacts between a defendant, or property, and the forum state so execution of jurisdiction is fair and reasonable. A court can have specific jurisdiction, which arises out of a specific incident that takes place in the jurisdiction, or general jurisdiction, which allows the court to take jurisdiction over a Δ even if the lawsuit did not arise out of a specific incident in the jurisdiction. A court can take general jurisdiction only when the contacts with the forum state are substantial, systematic and continuous. There are three traditional bases for PJ…

Traditional Bases for Juris.
Property+service, Physical Presence+Service—Pennoyer v. Neff
Note: since Shaffer and Burnham property+service is an unknown—could be PJ, could not be…address m/c and TNFPSJ now
Domicile—Milliken v. Meyer (Wyo. Resident case)
Consent
Hess v. Pawloski—entering a state gives state PJ for any lawsuit arising from contacts while in the state (model T accident case)—implied consent[performance of certain acts constitute a waiver of objections, also not filing 12(b)(2) before filing answer]
Carnival Cruise Lines v. Shute—forum selection clauses—express consent

If the 3 traditional bases for PJ are not met, evaluate the state LAS and the m/c test set forth by Int’l Shoe

Specific Juris. And State LAS

***LAS can be enumerated or to the limits of the Constitution

***Address m/c first, then the nature/quality of them

International Shoe—Minimum contacts test so that it does not offend TNFPSJ
Minimum contacts must have nature/quality (# not necessarily important)—purposeful availment of state’s laws and protections is one way to check n/q, connection w/ the cause of action
Gray v. American Radiator—Only Illinois precedent b/c decided in Ill. Sup. Ct.—Tort committed in the district satisfies TNFPSJ (stream of commerce is sufficient)
Address other m/c b/c it is a state s.ct. decision
Hess v. Pawloski—Entering a state gives state PJ for any lawsuit arising from contacts while in the state (specific jurisdiction)…service can be to a registered agent (model T car accident case)—TNFPSJ satisfied when operating a dangerous instrumentality b/c nature & quality of contact from tort/crime is tremendous (also: implied consent)
McGee v. International Life Ins. Co.—purposeful availment of a business w/ a jurisdiction can constitute minimum contacts even if it is only one contact
Hanson v. Denckla—Unilateral activity of those who claim some relationship w/ a nonresident Δ cannot satisfy the requirement of minimum contact w/ the forum state (trust fund case of Del. vs. Fla. cts)
World-Wide Volkswagen v. Woodson—Minimum contacts + expectation of being hailed into court there (foreseeability).
5 rules of TNFPSJ:
Burden on Δ(mobility of Δ, willingness to travel, distance, etc.),
Forum state’s interest in adjudicating (does state want to right a wrong committed in its borders?),
Π’s interest in obtaining convenient and effective relief
Interstate judicial system’s interest in obtaining the most efficient resolution of the controversies (cost of going to court…wages for jurors, judges, clerks, travel expenses for witnesses, etc.),
Shared interest of the several states in furthering fundamental substantive social policies(Does not offend federalism)
Burger King v. Rudzewicz—Purposeful availment is determined by contacts that are not random, fortuitous, or attenuated—Δ has burden to show undue burden (choice of law ≠choice of forum…this case also puts all cases together up to this point)
Asahi Metal v. Superior Court—plurality decision—min/contacts can be brought about by designing product for market in forum state, advertising in forum state, establishing channels to provide regular advice to customers in the forum state, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum state…stream of commerce not enough (m/c +)—O’Connor
Brennan view is that stream of commerce is enough

General Juris.
Perkins v. Benguet Consolidated Mining Co—a Δ can be held liable for a cause of action unrelated to min/contacts Δ has in forum state (Philippine Oil case during WWII where Δ was sued in OH)
Helicopteros v. Hall—set up test for min/contacts requirements for general juris…substantial, systematic, and continuous mere purchases, even if occurring at regular intervals are not enough to assert general jurisdiction

Technological Contacts and Juris.
Zippo

Juris. clarifying cases
Shaffer v. Heitner—puts question on whether property + presence = PJ…suggests that real property is still ok, personal property is maybe not ok—any assertion of PJ in state courts must be done w/ Int’l Shoe test (and its progeny) unless a traditional basis for jurisdiction exists (clarified in Burnham to mean this---this is the Delaware stock case)
Burnham v. Superior Court—reiterates Pennoyer (presence + service) as still valid under due process clause of 14th amend. (Divorce/Cal. Case)—cite w/Pennoyer for service + presence!!!
Fraud, duress are only exceptions to presence + service (kidnapping, trickery in order to serve=no PJ)
Farmingdale Steer-Inn v. Steer-Inn Realty Corp—if Δ holds that it is authorized to do business in a forum even when it’s not, it has consented to be sued there
M/S Bremen v. Zapata—forum clause in K=consent to PJ as long as it is not shown to the unreasonable under the circumstances by the resisting party
Carnival Cruise Lines v. Shute—forum-selection clauses contained in form passage K’s are subject to judicial scrutiny for fundamental fairness

Challenging PJ
Special appearance (12b2)
Collateral Attack (must default by not showing up)
Baldwin v. Iowa State Traveling Men’s Ass’n—Δ who makes no appearance whatsoever remains free to challenge a default judgment for want of PJ
Basis is in 14th Amendment due process clause…don’t get to argue merits of case, only whether PJ exists. If you win on PJ then case is dismissed.
Limited appearance
Quasi-in-rem proceedings…through attachment the court gets you to come in and defend up to value of the property…this leads to Shaffer problems

Juris. Reach of Federal District Courts
FCRP Rule 4(k) contains federal LAS that is used when using a state LAS won’t allow jurisdiction.

ISSUE—NOTICE AND SERVICE

Rule 4—try to waive first...there is a strong preference for waiving. Advantages…still file 12b motions, saves $, more time to prepare answer (60 vs. 20 days). When waiving, must have return postage.

If not, then personally serve or certified mail as long as it’s accepted by Δ or agent is OK. 120 day to serve once claim is filed. Summons must be sealed and a copy of the complaint must be given to Δ.

ISSUE—OPPORTUNITY TO BE HEARD

General—founded in Due Process Clause of 14th Amendment—protects all ownership interests in property, not just undisputed title. “any significant property interest” is protected.

Fuentes v. Shevin—Notice + opportunity to be heard in a meaningful time & meaningful manner prevents wrongful or arbitrary deprivation of property—this right is absolute…exceptions

needed to secure important gov’t or general public interests (ie. To prevent bank failure, get juris.)
special need for prompt action (if one knows Δ will destroy property in question)
state force is necessary and justified (ie. Contaminated foods, misbranded drugs)

Connecticut v. Doehr3 part test…

1. private interest that will be affected by the official action

2. risk of an erroneous deprivation of such interest through the procedures used , and the probable value, if any, of additional or substitute safeguards

3. the gov’t’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

ISSUE—SUBJECT MATTER JURISDICTION

General—Federal subject matter jurisdiction is codified in 28 USC §§ 1331, 1332. SMJ is the court’s power over federal controversies. Article III of the Constitution and Congress limits the SMJ of federal courts. The court must evaluate whether it has SMJ for each case and can review it sua sponte. SMJ can never be waived and should be addressed at every level of appeal. However, as a practice, file a 12(b)(1) instead of relying on the courts to take the initiative to review it. Ruhrgas held that although it is traditional to look for SMJ first, it is not necessary.

28 U.S.C. § 1332 (diversity jurisdiction)
Amount in controversy must exceed $75,000…person claiming the SMJ exists bears the burden of proof of jurisdictional amount and diversity which is proved at time of pleading. Amount of controversy is valid as stated by Π unless you can show to a legal certainty that it is not enough.
Single Π can aggregate all claims against a single Δ
Π v. Δ1, Δ2 only aggregate amount in controversy if jointly liable
Cannot aggregate 2 Π’s claims against a Δ...each Π must meet the amount in controversy alone
Strawbridge—there must be complete diversity…no Π can be a citizen of the same state as any Δ
Determining domicile
Residence in fact + intent to return and remain indefinitely
Future intent does not create domicile
Mas v Perry—students, military, and prisoners have a transient nature that leads the question of domicile to the last place of domicile (ie. Parents’ when you are a student)
Indicators…place registered to vote, car registration, church, bank accounts, purchasing home, mail, civil organizations, where vacation, where work
Corporations
place of incorporation
principal place of business
nerve center of operations
corporate activities (operating assets) test
total activity
Partnerships (limited and general)
domicile of each individual partner

28 U.S.C. § 1331 (Federal Question Jurisdiction)
Federal jurisdiction is allowed where there is a controversy “arising under the Constitution and laws of the US.”
Presumably permits s.ct. to confine itself to the solving of new problems rather than the policing of old solutions, w/o the loss that might otherwise be entailed in the effectuation of national rights
Osborn v Bank of US—a congressional act authorizing an entity to sue and be sued in any circuit court of the US gives that entity the right to federal jurisdiction
Louisville & Nashville Rwy. Co v Mottley—well-pleaded complaint rule—a suit arises under the const. and laws of the US only when Π’s statement of his own cause of action shows that it is based upon those lows or that const. Anticipated/asserted defense NEVER provides a basis for SMJ.
Avco Corp v Aero Lodge—artful pleading doctrine—claim pled under state law is deemed to arise under fed law when state law Π relies on is preempted by fed law & only possible relief is fed (cannot cover up fed question in state law language)
TB Hars Co v Eliscu—Holmes “creation” test—a suit arises under the law that creates the cause of action
Smith v KC Title & Trust—If a claim is created by state law, it can still arise under US law by virtue of requiring a determination of the meaning or application of a federal law (to make removal proof…cite only state cases)
Cort v Ash—When statute does not specify a private remedy, use the 4 part test to see if a private right of action should be implied from federal statute
Is Π in class of those that the statute was designed to benefit?
Legislative intent evident to create or deny a remedy?
Is it consistent w/underlying purposes of legislative scheme to imply a remedy for Π or punish Δ?
Is the cause of action one traditionally relegate to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?
Areas of exclusive federal jurisdiction
Bankruptcy (28 USC § 1334), patents/© (28 USC § 1338), actions against foreign consuls/vice consuls, actions to recover fine/penalty/forfeiture under fed. law, actions involving certain seizures

Supplemental Jurisdiction(28 USC 1367)

Complete diversity is only necessary b/t original parties under § 1331 claims…under § 1332 claims, Π cannot do with supplemental jurisdiction what Π could not do under § 1332 originally (however, Δ can do what Π cannot originally and still retain diversity by using impleader...this is to make sure Δ’s do not use supplemental jurisdiction to crush diversity)

Pendent jurisdiction
Π brings in pendent party/claim (adds a claim or person) lacking an independent basis for SMJ to one that has SMJ (ie. Brings Δ2 into fed court b/c Δ1 has SMJ)
United Mine Workers v Gibbs—“common nucleus of operative fact” test—court may exercise discretion
judicial economy
convenience
fairness to litigants
jury confusion
claim must be closely tied to fed question
Owen Equip & Erect Co v Kroger—pendent juris test
Gibbs common nucleus of operative fact?
Congress expressly, impliedly forbid pendent?
Exec Softwar N.A. Inc. v. US Dist. Ct. for the C.D. of Cal., 9th Cir—court is required to identify how the circumstances that it confronts, and in which it believes the balance of the Gibbs values provides “compelling reasons” for declining supplemental juris are “exceptional”
Ancillary jurisdiction
All others add a claim/person lacking an independent basis for SMJ by using counterclaim, cross-claim, or 3d party complaint

Removal (28 USC §§ 1441, 1446)
Only Δ can remove, only has 30 days from time case becomes removable to file (with maximum of 1 year…so if case becomes removable 367 days after service and complaint, Δ is s.o.l.)
Murphy Brothers v Michetti—11th circuit case—30 days starts when service and copy of complaint given to Δ
Removal cannot be transferred from state to state or city to city…only from state to fed court in the same location.
Δ who is resident of state in which a suit is filed cannot remove to fed court under § 1332 (can do it under § 1331)
We don’t know what will happen if we lose our federal anchor in a case where supplemental jurisdiction was granted and then the original Δ is dismissed

Challenging SMJ
Direct attack—can be done at any point before final judgment (however, all 12(b) motions must be filed together)—this would be a 12(b)(1)
Collateral attack—very rare—test if court in original action said that it had SMJ
lack of SMJ was clear
determination as to SMJ depended upon a question of law rather than fact
court was one of limited and not general juris
question of juris was not actually litigated
policy against the court’s acting beyond its juris is strong

ISSUE—VENUE

General—Venue is from the perspective of the Δ and takes into account where the Δ resides, where the cause of action occurred, and the convenience of Δ or witnesses. Venue is codified in 28 USC § 1391. (See handout on venue provisions & study guide.)

28 USC § 1391
(a) deals with diversity jurisdiction venue
(a)(1)—where anyΔ resides if all Δ’s reside in same state
(a)(2)—where substantial acts/omissions occurred or where the property involved is located (local vs. transitory action—local means it is a purely local concern and will keep it where it happened…ie land title dispute; transitory can happen anywhere so can be brought anywhere…ie car accident)
(a)(3)—district where any Δ is subject to PJ at time action commenced—only used if 1 or 2 cannot establish proper venue

(b) deals with federal question venue
(b)(1)—where any Δ resides if all reside in same state
(b)(2)—where substantial acts/omissions occurred or where the property involved is located
(b)(3)—district where any Δ is subject to PJ at time action commenced—same restriction as above

(c) deals with corporation venue
corporation can be sued anywhere PJ can be established—use same test for venue as you would for PJ whether it be specific or general jurisdiction

Challenging venue (judges can sua sponte transfer a case)
12(b)(3)—dismiss for improper venue
28 USC § 1404—motion to transfer venue
(a)—inconvenient for parties/witnesses
(b)—all parties consent to transfer
28 USC § 1406—motion to transfer for improper venue
Hoffman v Blaski—Δ cannot transfer to a court that Π could not originally bring the action in (would undermine Π being master of her complaint)

Forum Non Conveniens
Used to transfer/dismiss a case because the proper venue is not in the US (Int’l Π w/ no connection to US=most successful for FNC)
Piper v Reyno—test
jury couldn’t be expected to understand the laws of 2 jurisdictions
avoid inconsistent verdicts by putting all claims together
In order to grant FNC
should be alternate forum
needs to be adequate forum where a remedy is available
Factors to consider
private
ease of access to sources of proof
availability of compulsory process of witnesses
reduced cost of obtaining willing witnesses (do not need to provide a list of witnesses you will call)
possibility of viewing premises if appropriate
practical considerations to make less expensive & more efficient
enforceability of judgment if one is obtained
public
administrative difficulties from crowded courts
imposition of jury duty on people who have no connection to the cause of action
local interest in local controversies being decided at home
avoidance of unnecessary problems of conflicts of law
appropriateness of having a forum familiar with governing law

ISSUE—ERIE DOCTRINE

General—Erie declares that in federal courts deciding questions of state law in diversity cases, the court will use state substantive law and federal procedural law. Erie comes in where it is uncertain whether the substantive law can be separated from the procedural law. 28 USC §§ 1652, 2072 have codified this idea (Rules of Decision Act, Rules Enabling Act)

Erie—Federal courts must apply state substantive law and federal procedural law and in doing so must use both state statutes and state precedents.
Twin Aims of Erie
Avoid Forum Shopping
Encourage vertical uniformity (get substantively same result whether state or fed court tries the case)

York—state statutes of limitations are applied in federal court
Outcome determinative test
if outcome of litigation in fed court would be different so far as the legal rules determine the outcome, then the state rule should be used

Ragan v Merchants Transfer—state law determines when statute of limitations was tolled

Woods v Interstate Realty Co—cannot bring a case if federal court in the state if cannot bring in state court in the state

Byrd—when not sure if something is substantive or procedural, use this balancing test
York outcome determinative test vs. countervailing federal interest

Hanna—use only when FRCP & state procedural rules are in direct conflict
Hanna 1 Test
York outcome vs.