Michael Silver

Fall 2001

Civil Procedure Outline

Professor Jack Friedenthal

1. PERSONAL JURISDICTION

  • Three types of Personal Jurisdiction
  1. In Personam: forum has power over person of particular D. Judgment vs. D creates personal obligation on D, and is entitled to full faith and credit in all other states. C/l based on consent, presence, domicile
  2. In Rem: jurisdiction over a thing. Power > property when property subject of lawsuit
  3. Quasi-in-rem jurisdiction over a person to the extent person owns particular piece of property. Pennoyer v. Neff.
  4. BUT SEE Schaffer v. Heitner (no more quasi-in-rem jurisdiction). Must look at minimum contacts and fair play and substantial justice. However, ownership of property is evidence of minimum contacts.
  • Is there specific jurisdiction over the defendant?
  • Does the basis for getting jurisdiction over the D arise out of the claim?
  • Specific jurisdiction requires a connection between the cause of action and the forum state.
  • Is there a relevant long-arm statute, allowing the courts to assert jurisdiction over D not physically present within state at time of service? Hess v. Pawloski (state may declare that nonresident residents implicitly consent to MA jurisdiction f/ actions arising out of highway usage)
  • Are there minimum contacts arising out of the claim? Int’l Shoe
  • In determining minimum contacts, court looks at:
  • Quantity and nature of D’s contacts w/ forum
  • Interest of forum in protecting citizens
  • Burden on D defending in forum
  • Does cause arise f/ activities in the state?
  • Minimum contacts even when D does not conduct business in state, if act giving rise to claim has connection. Gray (out-of-state act w/ tortious consequences in-state)
  • Jurisdiction allowed when D’s contacts consist of a SINGLE act, provided the act gave rise to the claim, and deliberately was directed at the state. McGee
  • Did D purposely avail himself of benefits of state?
  • Contacts cannot be accidental
  • Kulko. No jurisdiction; D’s only contact w/ CA was sending daughter on a trip to see divorced wife.
  • Did D place a product in the stream of commerce?
  • Gray v. American Standard
  • ButSeeWorld Wide Volkswagon
  • Is it reasonably foreseeable because of that purposeful availment that they would be hailed into court in the state?
  • Mere foreseeability that a product could cause injury in a distant state not sufficient minimum contact: D must deliberately seek contact with state. Here, D’s connection w/OK attenuated (World Wide Volkswagen)
  • No jurisdiction if D’s contacts negligible and non-deliberate, and claim does not arise from those contacts. Hanson v. Denckla (DE trustee not indispensable party f/ FL juris.)
  • Keeton v. Hustler. 10-15K monthly magazine sales in NH justify P (time-barred in all other jurisdictions) suing in NH.

One publication rule: can sue in one court f/ all damages occurring in print, TV, etc.

  • Is there general jurisdiction over D?
  • Jurisdiction over D where D’s cause of action doesn’t arise f/ forum state
  • Does D have continuous and systematic contacts with the state?
  • Higher standard than contacts f/ specific jurisdiction.

Helicopteros. Wrongful death claim in TX vs. Colombian organization, only contacts w/ TX were 1 trip by the corp’s chief executive, purchases of equipment f/ TX manufacturer, and training trips. Court held no personal jurisdiction.

  • Does not require any connection w/ forum state.

Perkins v. Benguet Mining (D could be liable to nonresident b/c company’s continuous and systematic activity in OH)

  • Kinds of continuous contacts:
  • Domicile: current dwelling combined w/ intention to remain indefinitely. U.S. citizen domiciled abroad can be subject to personal jurisdiction
  • Presence. Burnham (even transient presence ok)
  • Consent
  • Ownership of Property
  • Interrelated businesses
  • Corporate Activity (can be sued where it is incorporated)
  • Does D corporation extensively advertise and broadcast its services within the forum state? (Cresswell v. Walt Disney)
  • If yes, may satisfy minimum contact requirement.
  • Does D expressly consent to personal jurisdiction?
  • In advance by contract
  • Expressly agreeing to be sued in a state: appearing to argue merits of a case
  • Foreign corporation registering to do business regarded as consenting to suit in courts of that state
  • Appointing an agent for service of process in a state
  • Internet issues: (Bellino v. Simon) (baseball memorabilia)

If out-of-state business passively posts info on Web, probably no minimum contacts

If out-of-state D actively solicits business on Web f/ in-state residents, probably minimum contacts and maybe even systematic and continous

  • Does exercise of personal juris. offend notions of fair play and substantial justice?
  • Factors to assess:
  1. Burden on D to litigate in the forum state (Controlling)
  2. P’s interest in a convenient and efficient forum
  3. Interest of forum state
  4. Social policy implications
  5. Burger King Corp. v. Rudzewicz. Contractual obligation, payment stream into state f/ franchisee establishes minimum contacts. Not unfair to sue in FL when franchisee saw language in contract to that effect.
  6. Asahi. Sup. Ct. divided on whether minimum contacts exist, but agree that indemnification claim by Taiwanese corp. vs. Japanese corp. would place undue burden on parties, and CA has no compelling interest
  • Can a federal court get personal jurisdiction over the D?
  • Federal Rule 4(k): Federal courts follow rules of state in which they reside
  • Rule 4(k)(1)
  • (a) Personal jurisdiction over Ds subject to jurisdiction of a state court in the state district court is located within
  • (b) A party joined by Rule 14 (liability) or Rule 19 (indispensable party) and is served process within a judicial district of the US and not more than 100 miles from where the action is to be tried
  • Rule 4(k)(2): Nationwide Service of Process
  • Jurisdiction can be given to a federal court when D cannot be sued in any state court, but jurisdiction still permitted by the Constitution. Usually D is foreign and has minimum contacts not w/ any individual state, but U.S. as whole
  • Federal courts may also take jurisdiction over citizens living abroad. Citizenship and adequate notice required.
  • How can D challenge the assertion of personal jurisdiction?
  • Direct attack on personal jurisdiction
  • Special appearance (c/l). Appearing in court only to challenge jurisdiction. Some state cts. still require this for Ds who want to challenge personal jurisdiction. D that argues on merits of case is making a general appearance, and as such is assumed to have consented to court’s jurisdiction
  • Majority (+ fed. courts): have adopted federal rules
  • Rule 12(b)(2): Motion to dismiss for lack of personal jurisdiction

D can bring motion at beginning of case

Can be included in answer in federal courts.

In some states, asserting an answer w/o a previous 12(b)(2) motion means waiver of personal jurisdiction

However, if D makes any Rule 12(b) motion, D must, under rule 12(g), move against personal jurisdiction or waive right to contest personal jurisdiction

If D fails to contest personal jurisdiction in either the answer or by 12(b)(2), D no longer can contest issue during or after trial

  • Collateral attack – D can default on the merits and wait to challenge jurisdiction wherever P sues to enforce, if that is a different state. But D can only challenge jurisdiction and has waived the right to argue a case on the merits
  • If D loses collateral attack, judgment of the other state upheld under the Full Faith and Credit Clause

2. SUBJECT MATTER JURISDICTION

Generally, state and federal courts have subject matter jurisdiction concurrently UNLESS the federal court has exclusive jurisdiction as designated by statue/constitution

  • Is there diversity of citizenship? (28 USC § 1332)
  • Codifies Article II, Section 3 of the Constitution
  • §1332(a): Federal courts have jurisdiction over all matters where the dispute involves over $75,000 where:

Suit involves citizens of different states.

Suit involves a citizen of a state and an alien

Citizens of different states in which citizens of a foreign state are additional parties

A foreign state as P and citizens of a state or different states

  • Two resident aliens cannot sue in Federal Court
  • No subject matter jurisdiction for a citizen domiciled abroad
  • Is there complete diversity? Strawbridge v. Curtiss (John Marshall opinion)
  • Is any one P from the same as state any one D?
  • Determining Citizenship of a person
  • Based on status of the parties when the suit is initiated, not when the cause of action arose
  • Determined by Domicile

Residency does not establish domicile. Need intent to stay in a state. Mas v. Perry (students residing in state for school not domiciled there)

  • Permanent residence, where you do not intend to leave
  • Must have intent to stay
  • Need proof (voter registration, drivers license)
  • Alien: where a person has a visa. Domicile is the state where they live
  • Alien vs. Alien: no diversity of jurisdiction.
  • Citizenship of a Corporation: §1332 (c)(1)
  • Corporation is deemed a citizen of (1) “every” state of incorporation; and (2) principal place of business.
  • Determining principle place of business:
  • Nerve center test: Location of executive and administration function of the corporation.
  • Muscle test: where corporation’s manufacturing or service activities are centered.
  • Total activities test: combo of above tests.
  • Unincorporated Associations: Treated as group of individuals. Citizenship of each member ascertained. Diversity is thus rare.
  • Party asserting existence of diversity has burden of proof
  • Executor/administrator: treated as same domicile as deceased/infant/ incompetent.
  • §1359: Phony Jurisdiction. Parties cannot collude f/ purposes of creating diversity jurisdiction
  • If a court finds collusion, diversity is destroyed
  • Also, though there is no statute prohibiting it, courts will:
  • Dismiss nominal parties (e.g. Pete Rose case)
  • Disallow fictitious parties. Ex. John Doe cases. Way of getting around SOL (name fictitious parties, conduct discovery THEN substitute real people for John Does)
  • What about indispensable parties?
  • If a party is indispensable and cannot be joined b/c it would destroy diversity, court has to dismiss
  • Amount in Controversy for diversity jurisdiction (§1332(c))
  • Amount alleged for recovery must be $75,000
  • Must be good faith allegation. If challenged, must be shown to a legal certainty that amount claimed could not be recovered. A.F.A. Tours
  • Aggregation for purposes of amount in controversy
  • One P vs. one D: P can join as many claims as he has against the D in order to establish $75,000 minimum
  • Multiple Ps vs. one D: no aggregation, except where single indivisible harm.

Zahn: Sup. Ct. ruled that members of class action vs. polluter of Lake Champlain must each meet amount in controversy f/ diversity case. Some say overruled by Fed. Rule § 1367 (ongoing debate).

  • One P, multiple Ds: no aggregation unless joint and several liability.
  • Is there Federal Question Jurisdiction? (28 USC § 1331) Does the case arise under the Constitution, laws or treaties of the United States?
  • No artful pleading (P conceals true nature of suit)
  • If federal question arises as major ingredient in case, it’s constitutional for Congress to provide f/ jurisdiction. Osborn
  • Federal question must be integral part of P’s case. Not enough for P to anticipate that D’s defense raises issue of federal law (Mottley)
  • Does the state law create the cause of action, but raise a federal question, or does the federal law create the cause of action but raise a state question (breach of contract, negligence)?

Smith v. Kansas City Title: claim created by state law ‘arises under’ U.S. constitution. P said D couldn’t buy federal bonds because issued unconstitutionally. Guts @ federal question

Moore: D asserts contributory neg. defense, P says federal statute eliminates as defense. NO federal question.

Merrell Dow: No SJ when state-created claim alleges violation of federal law, but no federal remedy provided in statute. Sup. Ct. majority = Moore. Congress wants to limit private actions. Dissent = Smith

Real controversy rule: Courts can look at a real controversy behind a case and assert federal jurisdiction (Eliscu)

If federal law creates cause of action but allows matter to be determined by state law, it is not a federal question

  • Can the defendant challenge subject matter jurisdiction?
  • Direct attack - May be raised at any time (never waived)
  • Fed. Rule 12(h)(3) – if appears at any time at the parties’ suggestion that subject matter jurisdiction does not exist, court may dismiss case
  • Courts have obligation to raise lack of subject matter jurisdiction at any time (sua sponte)
  • Courts have jurisdiction over subject matter questions and may hold a factual hearing to determine this
  • Sanctions issued while court determines subject matter jurisdiction are binding, even if later rules no SMJ
  • Court does not have to rule on SMJ before personal J (Ruhrgas)
  • Rule 12(b)(1): motion to dismiss f/ lack of subject matter jurisdiction
  • Collateral Attack
  • Generally Not allowed. Once court makes factual determination re: subject matter jurisdiction, and appeals exhausted, decision cannot be attacked collaterally. Treated as any other factual determination.
  • Exceptions only if the original decision intrudes substantially on the powers of another court. Ex. court w/exclusive juris. f/bankruptcy law. Also U.S. Catholic Conference (Sup. Ct. allowed collateral attack of SMJ after Church hit w/ $50K/day noncompliance fine in lawsuit)

3. NOTICE

  • Was notice procedurally correct?
  • Rule 4(c)(1): Has D been given notice that an action has been brought against him by service of process that includes both the complaint and the summons?
  • Rule 4(c)(2): Was service effected by any non-party that is 18?
  • Rule 4(a): Did summons include the court, parties and time within which D must appear? (otherwise, default judgment rendered)
  • Rule 4(e)(2): Did the P use one of three ways to serve?:
  • Personal service- serve anywhere in the forum state?
  • Substituted service- can leave a copy of the summons and the complaint at the individual’s dwelling house or abode, with some person of suitable age and discretion then residing therein.
  • Person served must reside there: cannot not leave it with the babysitter, or even a relative that is just visiting
  • Courts somewhat divided on this point (Rovinski v. Rowe)

iii. Serve D’s agent: summons and complaint delivered by agent authorized by appointment or law to receive summons. Ex. long-arm statutes f/ non resident motorists; Szukhent (who the hell is Florence Weinberg?); butseeToback (VP cannot be agent f/ service re: claims vs. the company)

  • Was there a cognovit note? Debtor waives objection to jurisdiction and service by signing cognovit note. Constitutional but must see if equal bargaining power between creditor/debtor. Not in most states.
  • Is the P serving a corporation?
  • Rule 4(h): Did P deliver a copy of the summons and complaint to an officer, a managing or general agent?

Courts lenient w/ these cases. E.g. secretary can be served if pragmatically fits scenario.

Corporation outside of the U.S.:Rule 4 (f), except personal delivery.

  • Are there any alternative methods to serve? (Yes)
  • Rule 4(e)(i): May use the rules of the state where service is effected. This is an alternative to methods under 4(e)(2)
  • This means the state where the D is actually being served.
  • Can D waive service? (Yes)
  • Waiver of Service: Rule 4(d) Allows P to mail notification of the action to the D and request D’s waiver of formal service
  • Two incentives for D:

D has 30 days to waive formal service

if waived, D has 60 days to answer instead of usual 30

if not waived, D must bear cost of normal service

  • Rule 4(d)(1): D who waives service does not waive the right to contest jurisdiction, or anything else.
  • 4(d)(2) – D has duty to avoid unnecessary costs of personal service. The notice and request:

(2)(a): Must be in writing and addressed directly to the defendant

(2)(b): Must use 1st class mail or some other equivalent means

(2)(c): Must include a copy of the complaint

(2)(d): Shall inform D of the consequences of not waiving service

(2)(e): Shall state the date on which the request is sent

(2)(f): Must allow at least 30 days to respond

(2)(g): Must attach an extra copy, and prepaid means to respond.

  • Waiver by Corporations: Rule 4(d)(2)(a). Waiver must be sent directly the person f/ whom waiver sought within company, a specific agent of company
  • Are there any time/territorial limits to service? (yes)
  • Rule 4(m): Timing of Service

After filing complaint, P has 120 days to serve

D has 20 days to answer

  • Rule 4(k): Territorial Limits of Effective Service:

4(k)(1)(a): Service of process is good throughout state where court sits (reach of personal jurisdiction in federal court is same as the reach of PJ in courts of the state in which it sits.)

4 (k)(1)(b): One hundred mile bulge rule:

May serve someone outside of the state if within 100 miles of the courthouse where you want to sue them

ONLY applies to people joined under Rule 14 (Third Parties) and Rule 19 (Joinder) NOT to original defendant.

  • Rule 4(f): treaties usually guide how to serve process abroad

oDid notice meet necessary constitutional requirements?

  • Constitutional constraints on a federal court’sexercise of jurisdiction are found in the 5th Amendment due process clause and not the 14th
  • 5th Amendment ----> usually requires D have minimum contacts w/ U.S. as a whole to support jurisdiction, not w/ any particular state.
  • Different states have different requirements. E.g. CA requires forms to be in several languages
  • Did notice meet the reasonableness standard?
  • Was notice reasonable under all circumstances to apprise the D of the suit? Mullane v. Hanover Bank (beneficiaries of trust fund)

Individuals w/ known addresses: MUST mail or serve personally

Unknown addresses: publication in newspaper adequate if attempts by registered/certified mail are ineffective

Attachment of real estate together with the publication may provide adequate notice

Sufficient to serve person at former residence via responsible adult

Summons posted on door of residence insufficient when “cannot be considered reliable means” of notifying D. Greene v. Lindsey

  • Does a long-arm statute f/ non-resident motorists expressly provide that agent of the state will notify D? Wuchter v. Pizzutti (Friedenthal thinks bad law)
  • Was D given an opportunity to be heard?
  • D must have adequate opportunity to defend himself prior to seizure or attachment of property. E.g writ of replevin (creditor seizes goods before hearing), garnishment. Protected by 14th Amendment. Bond requirement doesn’t negate need for opportunity to be heard (Doehr).
  • Did the service of process meet the statute of limitations?
  • States have different interpretations of when suit is commenced:

Action commenced when P files complaint (CA approach)

Service of process triggers statute of limitations. (NY approach)

  • Federal courts (Rule 3)

When cause of action based on federal law, SOL begins when suit filed in federal court