1: Statutory analysis: is the state statute written to allow the prejudgment remedy?
2: Statutory analysis: was the statute applied correctly?
3. Constitutional analysis: does the statute violate 5th or 14th amendments?
I. Prejudgment (or provisional) Remedies
usually challenged b/c of lack of due process b/c of no notice of a hearing
A. 5th amendment: Rights of Persons
1. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
B. 14th amendment: Due Process and Equal Protection
1. Sec 1: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. {Written when slavery was abolished, with the 15th amendment.}
C. Gold standard for prejudgment remedies (Mitchell 1974 p80)
1. Reasonable notice of a pre-attachment hearing and a hearing
a) Hearing can be ex parte only if factual exigent circumstances exist
(1) Otherwise ex parte seizure violates due process (Fuentes)
b) Hearing must be based on more than conclusory allegations made by P
c) Judicial review of a sworn affidavit, where the judge is looking for probable cause
2. Quick resolution for defendant to get property back if Plaintiff is in error.
3. A bond is helpful when the claim has no objective proof like a document or contract to back it up, but not required.
a) (Fuentes 1972, p65) due process not satisfied when state issued writ of replevin as result of an ex parte pre-attachment hearing where plaintiff only had to fill in the blanks on a form with no affidavit, form was reviewed by a clerk, Defendant given no prior notice and has to post a bond to get property back before a hearing
D. Mathews test
1) consideration of the defendants interests that will be affected by the official action
2) what are the consequences of attachment?
3) What burden is on the Defendant to recover property, such as filing a suit for a hearing or paying $$ to get it back.
4) Consequences of attachment are significant
(Doehr 1991)
5) Consideration of the plaintiff’s interests that will be effected.
a. ownership interest?
b. Creditor interest?
6) risk of erroneous deprivation and the probable value of additional safeguards. Factors contributing to erroneous deprivation:
a. Showing: what is the Plaintiff required to do to file the seizure? Just a simple form/document, a signed affidavit, probable cause?
b. Bond (is the Plaintiff required to post a bond to file the claim?) it is a protective device against abusing replevin. Usually 2x the property value.
c. Hearing: is there any opportunity, whether pre or post-deprivation for the Defendant to be heard? To challenge the replevin before it happens?
d. Repossession (what barriers exist for the Defendant to recover his property and/or opportunity to recover damages if the plaintiff was in error?)
e. Notice (is there any requirement for the Defendant to be notified before the seizure)
f. Exigent circumstances (are special circumstances necessary, like the Defendant has a plane ticket to Mexico or the Defendant has ruined property in the past—for the Plaintiff to get ex parte judgment)
g. Who issued the order? ( is it just a clerk or is there judicial oversight?
h. Judicial oversight (Is the judge looking for probable cause or is the Plaintiff simply claiming he believes he has probable cause?)
i. (Mitchell 1974 p80 due process not violated when statute provided judicial oversight.)
j. Consequences of the seizure to the Defendant (how can they get their stuff back? Is there an automatic hearing afterward, or do they have to file a suit, what is done with the property in the meantime?)
k. Simplicity of the case (can it be easily proved the Plaintiff is entitled to the property such as through a contract, document of some sort)
7) Interest of the government in maintaining its procedures , including the function involved and the fiscal/administrative burdens that additional procedural requirement would entail. A subsidiary concern of the others.
II. Plenary Remedies (post judgment)
A. Compensatory damages
1. Does not allow for recovery of attorney’s fees
2. Interest accrues from the day of judgment
3. In tort cases
a) The most efficient form of relief
b) Intended to make a party whole for harm suffered
c) One lump sum for past and future losses
d) Includes pain and suffering
4. in Breach of K cases
a) benefit of the bargain
b) liquidated damages clause where parties agreed at the time of K what their recovery would be in the event of a breach. That is the amount of recovery, unless the actual amount is much less.
B. Punitive damages
1. When D does something worse than negligent, really bad, malicious, reckless
2. designed to be a “private” fine
3. Usually can not have these unless there are also compensatory damages
4. Sup Ct test for punitive damages that are not “grossly excessive” on p41
C. Injunctions
1. Given at the judge’s discretion, no jury.
2. Since this specific relief limit’s someone’s freedom, it is given only in extraordinary circumstances.
3. D who fails to adhere to an injunction will be held in contempt
D. Declaratory judgments
1. Usually used when someone thinks he is going to be sued, wants a declaration he is not liable.
III. Costs of Litigation p.106
A. The American Rule
1. Winner can recovery attorneys fees only in civil rights cases because damages sought are all changes in policy. There is no money to recover to pay the attorneys.
2. No automatic/constitutional right to counsel for poor people in civil case
3. Except in Alaska. There they use the English rule.
B. In other countries, costs of litigation are lower
1. less discovery
2. less need/use of expert witnesses
C. Attorney’s fees in other countries
1. statutory tariffs on lawyers fees
2. English Rule: Winner recovers his attorneys fees in the award (also used in Germany, Austria, Mexico)
3. Trade unions cover the cost
4. government sponsored legal aid (England, New Zealand, Ontario)
5. mandatory pro bono work (Austria/Italy)
6. legal expense insurance (Austria, Switzerland, Germany)
Personal/Territorial Jx
Step 1: Statutory analysis: is the state long arm statute written to allow Jx? (Constitutional allowances do not automatically apply.)
Step 2: Statutory analysis: was the statute applied correctly? (does the statute allow Jx where it should not?)
Step 3: Constitutional analysis: does the statute violate 5th or 14th amendments?
IV. General Rules
A. Comity Clause
1. forbids states to favor their own citizens by discriminating against citizens in other states.
B. Full Faith and Credit Clause
1. requires states to uphold decisions made by other states, except for Jx decisions.
2. States must respect the rulings of other states.
a) If a Defendant is sued and not liable, he can not be sued again in another state.
b) We can’t have states sitting in judgment over other states.
3. Federal courts must respect the rulings of the states on state issues.
a) The exception is a ruling on Jx because that is a constitutional issue (thanks to Pennoyer.)
C. Supremacy Clause
1. Where a federal court rules on a federal question, the state courts are bound to follow the ruling.
a) such as the Constitutionality of a state law
2. Where a federal court rules on a state statute using state law, the state law is not bound to follow that ruling.
D. Pre-emption
1. Where Congress has the authority to Legislate, and it does, its legislation pre-empts any state legislation on the same issue.
E. Jx required in the beginning
1. A Court can not establish Jx once the case has begun. It must have Jx in the beginning or the whole trial is null.
2. In state court: D must fight Jx in the very beginning via a special appearance, or he is considered consented.
3. In federal court: D can fight it while simultaneously fighting it on other grounds.
a) Grounds for defense lie in FRCP 12(b)(2)
V. Bases for State Courts to claim Jx:
A. Restatement Second on Conflict of Laws
1. p225- grounds for asserting territorial Jx are:
a) presence
b) doing business in the state
c) an act done in the state
d) causing an effect in the state by an act done elsewhere
B. Residence
1. If someone is domiciled in the state, he can be sued there under in personam Jx.
2. If someone resides in the state, he can be sued there.
3. Defendant can be personally served in a different state for Jx in the state where he lives.
4. Suit can arise out of something that happened in another state. (Milliken 1940 p280)
5. Residence = where you currently live
a) not the same as “domicile” which implies some degree of permanency.
b) A person can have more than one residence if they truly have two houses and split their time 50/50
6. US citizens living abroad are subject to US Jx.
C. Consent
1. By contracts with choice of forum clauses unless it was written to give the writer unfair advantage or limits liability or has nothing to do with remedies.(Carnival 1991 p304)
2. If Defendant fails to make a “special appearance” to defend against Jx and begins defending on the merits of the suit, he is consenting to Jx. He needs to raise the objection to Jx FIRST.
3. Baldwin rule (1931 p326) says plaintiff can only appeal Jx within the court system that is asserting its Jx.
D. Service of process (tag Jx)
1. Defendant who is fraudulently induced into coming into the forum state is not subject to tag Jx.
(a) (Wyman v. Newhouse 1937 p281 where girlfriend said she was leaving US forever to go see her dying mother. D came and she served him. Service was improper.)
2. Defendant who is traveling through the forum state to some other judicial proceedings not subject to service.
3. Personal service is acceptable way to establish general Jx. But rationale is still undecided. Use either Scalia rationale or Brennan rationale.
(a) (Burnham 1990 p.266, soon-to-be ex hubby served while visiting kids)
b) Scalia bifurcates Defendants: those who are “present” in a state where Pennoyer controls vs. those who are not/were never present in the state where Shoe controls. He rejects the idea that Shaffer meant to apply to ALL Jx.
c) Brennan says Shaffer meant to apply to ALL questions of Jx. Therefore, Shoe test must be applied in all cases. He thinks even temporarily voluntarily traveling into the state automatically satisfies TNFPSJ.
4. No tag Jx over corporations.
a) By statutory authority, if a company sends an agent into the state the company can be served via that agent. BUT, personal service does not necessarily mean personal jurisdiction exists in the forum state where the service took place.
E. Long arm state statutes- REQUIRED!!!
1. Must exist to open up Jx to what is constitutionally valid.
2. Sometimes, statutes do not preserve “tag Jx.”
3. A state court could throw out a case brought before it that was totally outside the reach of it’s long arm statute.
4. Could allow Jx for any accident/tort that occurs in the forum state. So, if the only contact P and D had with the forum state is the fact that the car accident they were involved in happened in the forum state., that might be enough for that state to have Jx.
(a) Bensusan Restaurant v. King p228 1997, NY fed court did not have personal Jx over King b/c the NY long arm statute reached out of state defendants who committed tortious acts in the state. King was not in NY so no personal Jx. Statute also allowed Jx over defendant regularly doing business in NY. Having a website was not enough to constitute doing business in NY. Case dismissed.
F. Physical Presence (minimum contacts and TNFPSJ)
1. Defendants who are present in the state are subject to general Jx (except in cases of pecuniary interest where a corporation /association/charity is formed by the states’ laws then the state has an interest in governing issues related to the corporation/association/charity.)
(a) (Pennoyer 1877 p147, Jx in WA established with in rem attachment designed to compel Defendant to appear. Defendant never knew about suit. Jx in WA not upheld.)
b) Ownership of real property in the forum state is in itself is not sufficient to establish general Jx. Although it may lead to other contacts that make it sufficient (example of the landlord who hires property manager, gardener, security, etc.)
2. Choice of Forum clauses in contracts can supersede state laws and common law on Jurisdiction.