Table of Contents Civil Procedure Outline

Table of Contents – Civil Procedure Outline

Public Policies to Consider

Personal Jurisdiction

Service & Process

Subject Matter Jurisdiction

Removal and Remand

Venue & FNC

Raising/Challenging JXN Challenges

Erie Question- What Law Applies

Pleading (Complaint and Answer)

Discovery

Right to a Jury Trial

Jury Selection

Dispositions of a Case

Appeals

FRCP 60-Extraordinary Relief from Judgment

Preclusion

Joinder and Supplemental Jurisdiction

Class Actions—FRCP 23

Civil Procedure Outline

DEP—Tarkington (Winter 2009)

Public Policies to Consider

Federalism- Allocation of powers between the federal government and state governments
Where federal law exists and conflicts with state law, the federal law controls so long as it concern an issue properly within the purview of the federal government
Separation of Powers
Cost of litigation and court’s resources
Lawyers love having an option on where they can sue—thus we still have diversity cases
Protect against in-state biases

Personal Jurisdiction

General Information:
Pennoyer v. Neff- Need to bring the person into the jurisdiction of the court at the outset of the suit
Two Principles:
Every state possess exclusive jurisdiction over person and property within its territory
No state can exercise direct jxn and authority over persons and property w/o its territory
PJ requires two things:
Constitutional authorization (minimum contacts)
Statutory authorization (long arm statutes)
Automatic Personal Jurisdiction:
Domiciliary of the state: Current dwelling and intent to stay
Must physically move there
Personally served within the state (Burnham)
Being in the state is considered sufficient minimum contact
Scalia- Tradition dictates that all you need to have is to be personally served in the state
Brennan/White- D’s presence in the state dictates that it is sufficient b/c they meet the minimum contact test (D, while in CA, was “partaking of the fruit of the economy”)
Bottom line: Judges all agree that service in state is sufficient for PJ—(just differ on reasoning)
Exception: Doesn’t work if the person was tricked into coming into the state OR if you solely appear to be part of a case pending in that state (e.g. witness or special appearance)
Consent
Appoint an agent for service of process
Contract with a forum selection clause
Even when not freely negotiated and there is disparity in bargaining power
May be able to fight it if you can prove:
Forum selection clause deprives you of a meaningful day in court, OR
Prove lack of notice of the forum-selection clause
Consent to abide by the cts determination regarding PJ once you show up and contest jurisdiction
Erroneous appearance
Appeared in the state erroneously, not under special service, and was served
Come in for a different purpose like a traffic ticket and appear before the court
If yes to any of these question, you have PJ, if not look to the following items:
Step 1: Long Arm Statutes (Statutory Authorization) (Call D’s back into the state to defend against a lawsuit)
Due process doesn’t actually confer any jurisdiction on state courts; it only defines the outer bounds of permissible jurisdictional power—it is up to the leg. of each state to actually grant their courts PJ
State long arm statutes-authorization to the cts of power to have jurisdiction over anyone. Three types:
Authorize jurisdiction to the maximum extent allowed by due process (CA)- Min. cont test
Enumerated list (Authorizes jxn over D’s based on specific types of contact w/forum state)
If this type, check statute first, then min. contacts
This is a literal construction interpretation (must fall within the list)
Tortuous acts: (Two interpretations)
Felt in the state = jurisdiction (Ill Rule)
Must be committed in the state = jurisdiction (NY Rule)
Enumerated, but interpreted to be the extent of due process—Min contact test
Where PJ would be constitutional, but the long arm statute does not authorize it, some courts allow P’s to use quasi-in rem jurisdiction as an alternative statutory basis
Federal long arm statutes (Rule 4k)
4(k)(1)(a)- Directs you to the state long arm statute
If state statute authorizes it, move on to minimum contacts
Really a three part test:
Meet 4(k)(1)(a)
Meet the states long arm statute
Must be constitutional—have min. contacts
4(k)(1)(b)- 3rd party and 100 mile rule
If served within 100 miles for a judicial courthouse, jurisdiction counts and Rule 14 & 19
Must still have minimum contacts with US to get this
4(k)(1)(c)- When authorized by federal statute
Special courts: bankruptcy, antitrust, interpleader, securities
Min. contacts not with US, not specific state
4(k)(2)- Underlying case based on fed law, no state has jurisdiction, min contacts met
Claim has to be from federal law and D must be foreign
Not subject to PJ in ANY state court with general subject matter jurisdiction
Can also use in rem as statutory authorization
In rem still requires minimum contact
Step 2: Purposeful Availment- Minimum Contact Test Directed at the State (Constitutional Authorization)

MINIMUM CONTACT RULE (According to Intl Shoe)
*Related or give rise to liabilities / *Unrelated to lawsuit
+Continuous and systematic contact / Yes, personal jurisdiction / Some cases say NO, but if it is soooooooo continuous or substantial then YES (this means you may general jurisdiction)
+Single or Isolated Contact / (Hess Case), Yes it CAN BE if signf. related
-The key is to see how related it is to the suit / No, personal jurisdiction

Two Parts

Part 1: Minimum Contacts (Moved away from “presence” and “consent”)States no longer need an implied “consent” statute like in Hess

NOTE: P does NOT have to meet in min. contact requirement—it is only for D

Part 2: Reasonableness/Fairness—Traditional notions of fair play and substantial justice (Memorize all)

Five Factors

(1) Continuous or systematic (all of the contacts—regardless if related to the suit)
Specific Jurisdiction: Found when contacts are not necessarily continuous and systematic, but are related to the action
General Jurisdiction: Found when the contacts are so systematic and so continuous that a forum has PJ over them on any action brought
If it is the co’s HQ, it will probably have general jurisdiction in that state
You have general jurisdiction in your domicile, you may have it if you are a resident
TEST NOTE: Always mention that you are going to go for specific, if that is what you want; otherwise, if you start making a lot of arguments about a lot of unrelated contacts, it looks like you are arguing for general jurisdiction
(2) Relatedness (contacts just related to the suit)
Is it specifically related to the suit
(3) Foreseeability
Unilateral Act (WWVW)- If unilateral act of P—no jurisdiction
If D has a contact w/a 3rd party and the 3rd party unilaterally, w/o D’s control gets contact w/the state, then D is NOT subject to suit based on the 3rd party’s contact
Corp. must reach out to make sales—if corp. puts product into the stream of commerce expecting to sell into that state, than the state has PJ, but if consumer brings the item there by a unilateral act—NO PJ
(4) Purposeful availment
Contracts(BK v. Rudzewicks)
Prior negotiations
Contemplated future actions
Terms of the contract
Actual course of dealings
Goods: Stream of Commerce(Asahi v. Superior Court)
O’Connor- Stream of Commerce “Plus” (4 Votes)
Awareness of stream of commerce is NOT enough for purposeful availment of minimal contacts
Need some additional activity aimed at the specific state for it to be enough
Things that give you the “plus” part to indicate an “Intent or purpose to serve a foreign state”
Designing product for the market in the forum state
Advertising in forum state
Establishing channels
Providing advice to customers
Marketing the product through someone who has agreed to be their distributor in that state
Brennan- Stream of Commerce (4 Votes)
Anything within the chain of distribution is within the stream of commerce and therefore constitutes minimum contacts
Maj. in VW in dicta said that what is in the chain of distribution is sufficient for minimum contacts
This is the broadest interpretation
Stevens (3 Votes)
Consider the following about the units sent in the stream: (Two Prong Test)
Volume (must have 100,000), OR
Hazardous character of the component
NOTE: If there is stream of commerce plus additional contacts stated by O’Conner, than you have 8 judges (law); if only stream of commerce, but no additional contacts you have 4 judges—then look to see if you have over 100,000 units, if so you have 5 judges (law), if not you have 4 judges (not law)
Property
Property is now only a contact—must be evaluated according to minimum contact test
Recovery limited to amount of property attached
Only true and quasi 1 really will give you PJ
True In Rem: Jurisdiction over property (“Against the property”)
Will have “minimum contacts” b/c all contacts related to the property in the state, subject to specific jurisdiction
Gives specific jurisdiction
Shaffer- Got rid of the “attach” req. and all you have to do is look at the min. contacts to meet the constitutional requirement
Quasi In Rem 1- Dispute about the property
Determines rights and property against specific claimants
Adverse possession, mortgage v. mortgagee
Gives specific jurisdiction
Quasi In Rem 2- Dispute is unrelated to the property OR property that is related, but not about ownership
Must attach the property at the outset to assert the court’s jurisdiction over the property
This is a gap fillerif the stateslong arm statute is crappy-P can attach the property and use in rem to get PJ even when the states long arm statute wouldn’t allow it
Calder Test
What state is targeted in the article/website?
What state feels the “effects” of the article/website
Activities in article took place in forum
Internet- Zippo Test
How interactive is the website?
Passive site = No PJ
Interactive = Use Calder test to see if directed at people in the forum
How related is the internet contact to the related suit?
Corporations
May be sued in states where they have purposeful contacts, though the state of incorporation has significance (only for general jxn)
(5) Fairness/Reasonableness (traditional notions of fair play and substantial justice) (Memorize all 5)

(1) Burden on the defendant

(2) Interest of the plaintiff in obtaining relief

(3) State interest in adjudicating the dispute

(4) Efficiency of the interstate judicial system

Where are the witnesses from, etc…

(5)Shared interest of several states in their substantive social policies

NOTE: These reasonableness tests come into play when min. cont. are really weak, IF min. cont. are very strong, then the reasonableness test will ONLY matter if it creates a high level of unreasonableness creating a constitutionally concern or it denies a person their day in court
Must be unconstitutionally unreasonable for it to really affect the situation

Service & Process

Two part process: Constitutional and Statutory tests
Notice: Constitutional Requirement
DP of 5th and 14th amendment require: 1) Reasonable notice AND 2) Opportunity to be heard
DP requires notice that must “under all the circumstances, (1) be reasonably calculated to apprise interested parties of the pendency of the action and (2) afford them an opportunity to present their objections” (Mullane- merely published it in the newspaper)
If you have actual notice that they don’t know, you must provide them more information
Classification is irrelevant (rem, personum, etc) in determining whether notice is adequate
Ordinarily, notice by publication is NOT sufficient
Must at least mail it to them when practical and you know their address
Best means of service NOT required
Does NOT create a subjective test—it is an objective test of reasonably practicability
Service (FRCP 4): Statutory Requirement
Service requires two things 4(c)(1): 1) Summons and 2) Copy of the complaint
Time limit for service— Have 120 days to serve after filing the complaint – 4(m)
Fed Question: State of limitations (SOL) tolls when you file the suit
Diversity JXN: SOL will start tolling by whatever the state statute says (two possibilities)
File the suit
By service of suit
Who can serve process
4c1- Plaintiff is responsible for service of summons and complaint within Rule 4(m)—120 days
4c2- Service may be performed by anyone (1) NOT a party to the suit and (2) at least 18 yr old
4c3- At request of P, the court may direct that service be effected by a USMarshall
Typically canNOT use the attorney to send the lawyer to serve process
How to serve process on an individual within US judicial district—FRCP 4e
Service upon a person from whom a waiver has not been obtained and filed (other than an infant or incompetent person may be effected in any US judicial district)
4e1- pursuant to the law of the state in which the DC is located, OR
4e1- pursuant to the law of the state in which service is effected, OR
4e2- delivering a copy of the summons and complaint to the individual personally, OR
4e2- by leaving copies at the individuals dwelling or place of abodewith some person of suitable age and discretion then residing thereon, OR
Suitable age and discretion is usually over 18 yrs old
General Rule: You must choose their main home to serve them (even if you spend hundreds of millions building/creating a second home)
Kashagi Exception:
Serve them while they are living in that particular residence
Must have sufficient indicia of permanence
4e2- by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process
How to serve process on infants and incompetents—FRCP 4g
How to serve process on Corporations and associations—FRCP 4h
According to provisions in 4e1 (in accordance to state law where court sits), OR
By delivering summons and complaint to an officer, manager, or general agent, OR
Secretary at front desk is usually NOT good enough—unless she has been appointed agent by the company
By delivering the summons and complaint to an agent authorized by appointment to receive such process and if by statute, by also mailing it to defendants
How to serve process on the US and its agencies, corporations, or offices—FRCP 4i (Must serve to at least two people and maybe even three)
Deliver a copy to one of three people: (NOTE: You cannot mail it!
Attorney of the district where the suit is brought,
Assistant US attorney, OR
Clerical employee of the US
Mail a copy to the attorney general of the US in Washington
Send a copy to the agency or the officer
NOTE: This rule requires duplicate service (usually 2-3 people)
In rem service—FRCP(n)(2)
You may use in rem to serve someone IF you prove that the other methods didn’t work
You MUST first show the other methods didn’t work
Sewer Service- Dishonest process servers who certify that process was served when in it wasn’t

Subject Matter Jurisdiction

General Principles:
SMJ canNOT be CONSENTED to or WAIVED by either party
You can assert at any time that there is no SMJ, if correct, the case will be thrown out (even after verdict)
SMJ canNOT be waived by the courts (courts cant usurp this authority)
“A court that doesn’t have SMJ cannot assume it, however worthy the cause”
Types:
State Courts- Have general jurisdiction (may be broken up into smaller courts that can hear exclusive issues)
The aggregate of state courts can hear pretty much anything (there are five exceptions)
States are free to divide SMJ among whatever courts they decide
Some divide by specialty some by monetary amount
Federal Courts- Have limited jurisdiction
Limited to what is contained in Article III—if not in Art. III, then there is no SMJ
Generally have two types:
Diversity jurisdiction
Federal question jurisdiction
Federal Question Jurisdiction
Purposes of the rule are to procure the following in the interpretation of the law (USE):
Uniformity (Don’t want states making different laws concerning fundamental rights)
Sympathy (Fed judges more sympathetic to policies underlying federal legislation)
Expertise
§1331- DCs have “original jurisdiction of all actions arising under the constitution, laws, or treaties of the US”—what does arising under mean
Does NOT impose an amount in controversy requirement!
Holmes test: What law creates the question or cause of action
Well Pleaded complaint rule(Mottley):(§1331- “arising under” interpretation=well pleaded complaint)
Federal issue must be in the complaint!—cannot be anticipated by the answer or by the reply, but must be in the original claim—Federal defense insufficient for federal question jurisdiction
Even if P knows that D is going to answer with federal law, it is NOT enough for P to get into federal court
Purposes of the rule:
Predictability: P know where to file and will down on number of cases that can be heard in federal court—almost any state claim will have a federal defense claim
Jxn must be established at the outset:(Pennoyer)- Jxn must begin when action starts
Well-pleaded rule is NOT part of the constitution—congress could define what “arises under” but they haven’t done that thus far
Embedded federal question-State claim that turns on a federal cause of action (Grable Test): 4 Parts
(1) Does the state law claim “necessarily raise a stated federal question”?
Not as a defense, but as part of claim for relief
(2) Is it “actually disputed”?
Has to be some question concerning the validity,construction, or effect of the fed law
Ex: Did they discriminate on the basis of race under title VII?
(3) Is it “substantial”?
This is really small—not really a test cause it’s easy to meet
Just be sure to bring it up on the exam
(4) Does asserting jxndisturb any congressional approved balance of fed/state judicial responsibilities?
Is there a federal private cause of action for the federal issue?
If there is, even if P doesn’t assert it, but relies solely on the state for relief, then that indicates that asserting jurisdiction over the state law claim with the imbedded federal issue would not disturb the approved bal. of fed/state resp.
It not, would this cause a shift in the allocation of cases between fed/state courts?
Tested by volume
Grable quiet title—“microscopic” shift, then federal question JXN
Merrel Dow—“hoard” or removals, then NO federal question JXN b/c it disrupts congressional allocation
Diversity Jurisdiction
Purposes:
Protect an out-of-state litigant from in-state court prejudice
Don’t want to waste federal courts resources deciding a state law question
Applies to both Ps and Ds-draw a line btwn Ps and Ds and none of the parties may be from the same state
Constitution doesn’t require complete diversity—that is only required by §1332(a)
General: Fed cts have jurisdiction when the matter exceeds $75,000 and is between…
Citizens of different states
Citizens of states and citizens of a foreign state
A foreign state as P and citizens of a state or of different states
Two requirements: (SC has defined diversity more narrowly than Constitution requires)
Jurisdictional amount OVER $75,000
Legal Certainty Test/Requirement:
To remand on this amount, it must appear to a legal certainty that P canNOT get the amount claimed in the complaint (this typically will only occur if damages are fixed by statute or claiming punitive for a contract claim)
Aggregation Rules:
If one P vs. one D, then P in such a case may aggregate all of her claims to meet the jurisdictional requirement, even if the claims are unrelated legally or transitionally (add only P’s up—not D’s claim)
If multiple parties on either side, then:
Cannot aggregate, unless D’s were joint and severably liable (joint tortfeasors)
Meaning, either D could be completely liable for the full amount
Cannot aggregate multiple P’s claim even if arise out of STO, unlessa “common, undivided interest” in a single action exists
Ex: Plot of land and joint tenancy
Personal injuries suffered by different people are separate claims and cannot be aggregated
Counter claims CANNOT be aggregated to meet the threshold
Some courts hold that in removal if Ps counterclaim is over $75,000 then can remove to federal court (this is a minority rule)
Injunctive/Equitable Relief:
Amount is either (courts typically allow either)
Cost of the harm to P, OR
Amount it would cost D to remedy the situation
Complete Diversity- No jurisdiction if there is any overlap of citizenship between Ps and Ds
If P is from state A and 99 Ds are from state B, but 1 D is from state A, then it will have to be in state court
Citizenship of an individual: (Mas v. Perry)– Citizenship does NOT equal residency!
Citizenship of individual is theirdomicile
Only way to change domicile is:
Change residence (must physically move there), AND
Intention to remain their permanently
You may only have ONE domicile at a time
Marrying an alien does NOT make you lose your US citizenship
Citizenship of an estate representative
Where the decedent was a citizen
Legal Representation for insane or infant
Where the insane or infant is a citizen
Citizenship of a corporation
Corporations may have two citizenships: (§1332)
Citizen of every state of its incorporation (may be more than one), AND
Citizen of one state in which it has its “principal place of business” (ONLY one test now)
Nerve Center test (Brain- e.g. Intangible production co’s, Microsoft):
When corps activities are far flung, the sole nerve center of that corp is more significant in determining place of bus b/c that is where all decisions are made
If corporation is incorporated in a foreign country, it is an alien for diversity purposes
However, if its principal place of business in U.S., it is also a citizen in that state
Citizenship of a partnership
That of each partner
Citizenship for non-incorporated businesses
The business is considered a citizen of all states of which its members are citizens
If a labor union is big, it could have members in all states and thus no diversity jurisdiction
Citizenship of a class action
Citizenship of the representative
Also, for jurisdictional amount, everyone in the class must meet the jurisdictional amount in a class action lawsuit (If not, they can use supplement JXN to get over the amount)
Supplemental Jurisdiction (See Analysis on last page of outline)
If P files a federal question and a state law claim, through supplemental, and if comes out of the “common nucleus of operative facts”, then supplemental jurisdiction allows the plaintiff to bring the state law claim in federal court even though there is no diversity jurisdiction
As long as federal question is a bona fide claim at the outset, if later the federal question is thrown out, state claim is still adjudicated by the federal court

Removal and Remand