I. Introductory Material
A. Outline of the Procedure in a Civil Action
1. Decision to file suit:
a. is issue one for which law will grant relief
b. probability of winning a lawsuit?
c. whether winning will be worth the time, effort, and expense it will costs compared to alternatives to suit (settlement, arbitration, self-help)
2. Selecting proper court
a. Jurisdiction over the subject matter
b. Jurisdiction over the person
3. Commencing the Action
a. P gives notice to ∆ by service of process
- summons, which directs ∆ to appear under penalty of
- default
- personal service generally used, sometimes
- substituted service (paper or mail) okay
4. Pleadings and Parties
a. Complaint: pleading served with the summons
b. Three objectives served by pleadings:
i. basis for identifying and separating the legal and factual contentions, so that legal issues may be disposed of early
ii. pleadings may be intended to establish in advance what a party proposes to prove at trial, so opponent will know what contentions he must prepare to meet
iii. pleadings may be intended to give each party only general notice of contentions, relying on subsequent stages to ID detailed contentions
5. The Response
a. Motion to Dismiss
i. lack of jurisdiction
ii. failure to state a claim
b. Motion to Dismiss will be granted when:
i. the injury is one for which the law furnishes no redress
ii. the P may have failed to include an allegation on a necessary part of the case
iii. complaint may be so general or confused that court find it does not give adequate notice of what P’s claim is
c. if Motion to Dismiss is denied or not made - ∆ must file an ANSWER
i. admit or deny allegations made
ii. plead any affirmative defenses
d. new matters raised in answer generally automatically taken as denied by P, unless a counterclaim is made
e. P has to respond to a ∆’s counterclaim
B. Opportunity to be Heard
- Due Process Clause imposes limitations on the use of provisional remedies like temporary restraining orders, preliminary injunctions, etc, b/c they do not provide an adequate opportunity to be heard
1. Fuentes v. Shevin (1972) U.S. Supreme Court
a. Issue: whether the Florida statute which permits goods to be seized by creditors in a case of non-payment, violates the consumer’s constitutional due process rights by failing to provide hearings “at a meaningful time” (before the goods are taken)
b. Holding: PA and FL laws allowing deprivation of property w/o prior opportunity for hearing denies individuals due process rights.
c. Rationale: (from class notes)
If you only hear one side of story (debtor has no chance to protect rights) less likely to get “right” answer – story. 2) protect against fraud, or ability to take when the taker doesn’t have right 3) protect against imbalance of power removing consumer’s voice permanently.
d. Dissent: giving her a hearing won’t change anything. She probably can’t afford a lawyer. AND this decision ignores creditor’s rights.
2. Mitchell v. W.T. Grant Co. (1974) U. S. Supreme Court
a. Issue: Whether the Louisiana law, authorizing seizure of property w/o a hearing, provided the creditor submits a detailed application to a judge, and the judge authorizes the repossession, and a bond is posted by the creditor in case of error – violates the due process rights of the debtor.
b. Holding: The Louisiana law (as described above) does not violate the debtor’s constitutional rights.
c. Rationale: In contrast to Fuentes, the detailed facts supporting the repossession have to be laid out for a judge, prior to authorization – allows judge to determine if it is appropriate
Judge authorizes, rather than clerk
d. NOTES: Note that two additional conservative judges joined the court between Fuentes and Mitchell – changing 4-3 decision to 5-4…
3. No. GA Finishing, Inc, v. Di-Chem, Inc. (1975) U.S. Supreme Court
a. Issue: whether GA law, which allows a petitioner to make an affidavit to a court clerk, as long as reason is given and bond is posted, and to then garnish a debtors property to pay for debt, is unconstitutional as a violation of the debtor’s due process rights
b. Holding: The court held that the procedure described above (the simple act of filing a petition, with reasoning and bond, to a court clerk, in order to garnish another’s property for debt – without hearing or other review) was unconstitutional.
c. Rationale:
· Affidavit can be filed by person with little factual knowledge of case, and containing little factual basis – to clerk, not judge
· The court does not distinguish between business property and personal property in due process cases.
II. Getting Defendant Into Court
A. Personal Jurisdiction
1. Definitions:
a. in personam: action directly against a person
b. in rem: action against a thing (property, status). If property in question is w/in court’s jurisdiction, court’s decision is binding against all interest holders of the property –even those living out of jurisdiction
c. quasi-in-rem: court renders judgment for or against a person, but recovery is limited to value of property that is w/in the jurisdiction. (In traditional int’l law – if ∆ is non-resident, but has property in P’s jurisdiction, this allows P to sue in it’s courts, and still obtain relief) p69
- Domicile in state is sufficient to bring an absent ∆ w/in the reach of the state’s jurisdiction for purposes of personal judgment - even using substituted service
1. Historical Development of Min. Contacts Test
Pennoyer v. Neff (1877) later overruled…
a. Issue: whether OR state court had jurisdiction over an action to regain payment for a debt, when debtor was not a resident of the state, and was not currently in the state, but held property within the state
b. Holding: The Supreme Court held that the OR court was acting outside its jurisdiction in ruling on a personal debt case, where the direct subject matter of the case was not the land within the state
c. Rationale:
· Because the action was in personam, rather than in rem (against a person, rather than against the property) it needs to be served to the person directly;
· Allowing judgments in personam, obtained ex parte against no-residents and absent parties, just upon publication (rather than personal service) would allow great opportunity for fraud
· Allowing state to exert power beyond its boundaries constitutes an illegitimate assumption of power
d. Notes: Though OR has no jurisdiction over the personal dispute, did have jurisdiction over Neff’s land – had he actually owned it. However, suit was brought before he actually obtained ownership of the land, and the judgment can not be made valid afterward.
Also Full Faith and Credit Clause: if judgment was entered against Neff while in OR, but then he moved to CA would be enforceable there too.
(SEE HYPOs in NOTES!)
Hess v. Pawloski (1927)
a. Issue: whether a state can serve a non-resident notice via registered mail, and through the implied appointment of a registrar within the state, for an incident occurring on that state’s highways when the non-resident was in the state
b. Holding: The state has power to regulate the use of its highways by residents and nonresidents, and the state may declare that use of highway by nonresident is the equivalent of the appointment of registrar as agent on whom process may be served.
c. Rationale:
The implied consent is limited to proceedings growing out of accidents on the highway
It is required that he actually receive and receipt for notice of the service
- There is no hostile discrimination against nonresidents
d. Notes: could state then say that merely entering its boundaries constituted consent to be sued? Court doesn’t stretch this far. The consent is not implied under all circumstances. Consent here is ok b/c it relates directly to action being taken by nonresident.
2. Notes on Applying jurisdiction to corporations (historically):
a. Consent Theory: foreign corporation could transact business in a state only with that state’s consent
o corporation would appoint agent to receive process within state as condition for doing business there.
o Also granted implied consent
b. Presence Theory: theory that foreign corporation is amenable to process, if it is doing business w/in the state in such a manner as to warrant the inference that it is present there
- court would lose its authority over a corporation once it stopped doing business in the state
International Shoe Co. v. Washington (1945) S. Ct. of U.S.
a. Issue: whether the activities of the salesmen employed by International Shoe, who solicited orders within the state of Washington, constituted “doing business” in that state, for the purpose of unemployment contributions; and whether the salesmen could also be seen as agents for the purpose of serving court papers
b. Holding: the sales activities were systematic and continuous, and the presence of the salesmen within the state constituted a “presence” by which the corporation could be found to be in the jurisdiction of the state of WA, per the legislation established there.
c. Rationale:
· Corporation was benefited by the laws of WA as it did business there, and therefore should also have the laws applied to it
· Activity in state was not irregular or casual – but continuous and systematic
d. NOTES: Criteria put forth by court used in later cases to help establish jurisdiction:
- fairness and reasonableness on the application of the law to the company evaluated on 4 considerations:
o quantity of activity
o relatedness of that activity to the underlying claim
o fair play (more intangible considerations than just counting the amount of activity…p78…2nd full paragraph
o benefits and protections enjoyed while in the state
3. Modern Elaborations of the Min. Contacts Test (long-arm statutes)
Long-arm statutes:
· provide personal jurisdiction over nonresidents who cannot be found
· predicated on ∆’s general activity in the state, or commission of any one of a series of enumerated acts w/in the jurisdiction…
· pushes state’s jurisdiction to limits set by Supreme Court’s due process decisions in International Shoe, etc.
Gray v. American Radiator & Std Sanitary Corp (1961) S. Ct IL
a. Issue: whether §16 of the Civil Practice Act can be interpreted to reach a company who committed a tortuous act outside the state border, but whose affect (injury) was caused within the state
b. Holding: the court held that the negligence in manufacturing the valve cannot be separated from the resulting injury, and that therefore, the tort was committed in IL, and under §16, the ∆ could therefore be served. In addition, the fact that this injury was the ∆’s only contact with the state does not preclude it from being served. If the nature of the transaction is sufficient, continuous activity within the state is not necessary.
c. Rationale
· Due Process justification: Cites International Shoe: modern doctrine on jurisdiction is 2 prong: 1) whether co. has certain minimum contacts with the state; 2) whether there has been reasonable method of notification
· Re: middleman – it is rare for mfg. to come into direct contact with consumer in other states…use of such defective product in ordinary course of commerce is therefore sufficient contact with state to justify rqmt. to defend within it – don’t need continuous contacts
· w/ modern transportation & communication, not as inconvenient for company to defend in home state of consumer
NOTES:
Feathers v. McLucas: NY court disagreed with IL, stating that where the effect of the tortuous act is committed is not the same as the “place of the commission” and therefore jurisdiction should be where the act was committed
P’s cause of action usually needs to be “related to” or “arising from” the business transacted within the state. If the company happens to do business in the state, but that has nothing to do with the P’s injury, may not get jurisdiction for suit. Jim Fox Enterprises inc v Air France. Texas limited its reach below permitted level.
World-Wide Volkswagen Corp v. Woodson (1980) U.S. Supreme Ct.
a. Issue: whether state may exercise in personam jurisdiction over a nonresident auto retailer and distributor (located in NY), when the only evidence of a physical connection with OK was an automobile sold by the retailer, that was in an accident in OK
b. Holding: Court held that the chance that an automobile sold in NY might pass through OK, where no other commercial activity is sought by the company in that state, does not meet the minimum contacts necessary for OK to claim in personum jurisdiction over that business entity.
c. Rationale:
· The two petitioners did not receive any benefits from the laws of OK (no sales business there, no potential customers there…)
· Foreseeability that automobile sold by them May pass through OK is not enough to establish personal jurisdiction…it has to be foreseeable to petitioner that he may be hauled into a specific state’s courts by his regular activity (would take out insurance there if it knew…)
d. Notes:
- Purposefulness emphasized in opinion. Issue is not foreseeability.