Adam Katz
Civil Procedure
4/21/06
CIVIL PROCEDURE
GETTING THE D INTO COURT (Chp. 2,3,4)
I. PERSONAL JURISDICTION
(In what states can the P sue the D? A question of geography)
-First we decide what state, then we decide state v. fed ct
-In Personam
-Court has power of the D herself because of her connection with the forum
-In Rem/Quasi in Rem
-Court has power of some property of the D in the forum
- IN PERSONAM JURISDICTION
(Two Step Process)
1. Does a statute grant personal jurisdiction?
-Long Arm?
-If NO: no personal jurisdiction
2. If YES: is the exercise of jurisdiction on these facts constitutional?
The forum’s type of jurisdiction:
“General Jurisdiction”: You can be sued in that forum by a claim arising anywhere in the world
“Specific Jurisdiction”: You can only be sued by a claim that arose in that forum
PENNOYER v. NEFF
(State has power over people/things in its boundaries. Gave us the four bases of in personam jurisdiction)
- D was served w/ process in the forum “Presence” as a basis of jurisdiction
- Gives general jurisdiction over the D
- D’s agent was served while in the forum
- In place of the D, if job details receiving service of process
- D is domiciled in the forum General Jurisdiction
- D gives consent to jurisdiction
- If by K, willingly/inadvertently…etc.
- This right is waivable
If steps are not possible, only way to get In Personam jurisdiction is by serving the D in the forum
-Tough if D is never there!
HESS v. PALOWSKI
(Gets in car accident in MA and drives out of MA before being served. MA had non-resident motorist act Implied Consent to In Personam Jurisdiction by driving in the state)
-Sec’y of motor vehicles becomes agent for service
***INTERNATIONAL SHOE v. WASHINGTON
(!!!New doctrinal formula!!! Restated personal jurisdiction/made state lines less important. Makes it easier to get personal jurisdiction in another state.)
-The Quote: “The court has jurisdiction if the D has such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”
TWO PART TEST (See BK)
1. Minimum contacts
-(Continuous & Systematic)
2. Fair play/substantial justice
-Undefinable Garbage!!!
not rigid, expandable
-***DOES NOT OVERRULE PENNOYER v. NEFF
This is the test to get In Personam Jurisdiction if the D is not present in the forum
-Don’t have to worry about minimum contacts if D is present in the forum
CASES BASED ON INTERNATIONAL SHOE:
McGEE v. INTERNATIONAL LIFE
(TX insurance co. sued in CA, only sold one K there and breached it. Does CA have jurisdiction over this TX co.?)
-YES! Even though only one contact in CA
-D solicited/reached out to CA to get this k
-“Relatedness” the P’s claim arises from the D’s contact with CA
-The states interest!!!
-CA has an interest in protecting its people
Next:
HANSON v. DENKLA
(PA Woman made trust with bank in DE. Moves to FL, continues dealing with trustee in DE. Dies in FL…who gets the estate? Does FL have In Personam Jurisdiction over the bank?)
-Supreme Court says NO
-The bank had no relevant contact with FL
-***“Purposeful Availment”
-To be a contact D must reach out to the forum
-Bank did not do this,
Only because woman happened to move there
Next:
WORLDWIDE VW v. WOODSON
(Family move from NY to AZ. Buy an Audi in NY and move to AZ. Rear ended by uninsured drunk driver in OK by drunk driver, car explodes everyone is hurt bad. Sue in OK alleging that car is defective.)
-Jurisdiction over VW and importer VW of North America
-Issue: Was there jurisdiction over the regional distributor who only dealt with East Coast
-Retailer only did business in NY
NO jurisdiction over either of these because no relevant contacts with OK
-No Purposeful Availment
-Family drove the car, not the D’s
-P’s argument: It is foreseeable that the car would get to OK, but the issue is that it isNOT foreseeable that the D could get SUED in OK
Next:
BURGER KING v. RUDZEWICZ
(Franchisees dragged to Miami to be sued by BK where BK is HQed)
-***TWO PART TEST TO Shoe
1. Contact
-Must have this first before go to (2)
2. Fairness
-Sliding scale
-Stronger showing of fairness might allow jurisdiction based on smaller amount of contact
-The burden is on the D to show that the forum is unconstitutionally unfair
-Must show that defending the case is so gravely difficult and inconvenient that D is at severe disadvantage in litigation
-!!!Relative wealth of parties does not matter!!!
Next:
ASAHI METAL INDUSTRY v. SUPERIOR COURT
(Stream of commerce case. Product blows up in state C,D, or E, does company have relevant contact with those states? ***SPLIT of 4 to 4***)
-No law on what constitutes relative contact in stream of commerce fact patterns
Arguments:
1. There is a relevant contact if co. puts product into the stream of commerce and reasonably anticipate that the product will get to state C, D, or E after putting product in state B
Versus
2. Have to show co. had intent to serve state C, D, or E. Maybe by advertisements/customer service. Without this addition, no purposeful availment/relevant contacts, just a unilateral act of a third-party
!!!No law on stream of commerce!!!
Next kind of:
BURNHAM“Transient Jurisdiction”
(NJ person served in CA for a CA lawsuit. Suit is for a claim arising outside of CA. Does presence in the forum when served give General Jurisdiction?)
-Is presence still alive as its own basis of jurisdiction or do you have to go with minimum contacts test?
-***4 to 4 SPLIT***
1. Presence in the forum when served does give in personam J and general J
-Don’t have to go through minimum contacts test
-Due to historical pedigree presence has always been an ok basis for general jurisdiction
Versus
2. Historical pedigree doesn’t matter, you have to apply minimum contacts test in all cases of jurisdiction
-Burnam did meet this test by being in CA for 3 days soaking up its benefits
-Voluntarily availed himself of CA to such a degree that CA could hold for general jurisdiction
-Ex of benefits: use of police for aid
-???HOW MUCH TIME IS ENOUGH TO ESTABLISH BENEFITS???
If the D has a majortie with the forum, general jurisdiction is okay
Only truly discussed in:
-PERKINS
-HELICO
Problems: Where do we draw the line?
-When does the tie become continuous, systematic, or substantial
-BURNHAMwas only there for three days!
ANALYTICAL FRAMEWORK FOR IN PERSONAM JURISDICTION
1. Does one of the four traditional bases apply (under PENNOYER)?
- Presence
- Domicile
- Service on an agent
- Consent
If so, identify!
2. Minimum contacts analysis (SHOE)
1. Relevant contact between D and the forum (BK)
a. Purposeful availment (HANSON)
-Make money there, use the roads, etc…contact is the result of the D’s reaching out to that forum
b. Foreseeability
-Foreseeability that the D could get sued in that forum
2. Fairness (BK)
a. Relatedness (McGee)
-Does this claim arise from the D’s contact with the forum?
-Can make up for a small amount of contact with the forum
b. Inconvenience for the D and witnesses
-The burden is on the D to show that the forum is unconstitutionally inconvenient
-So gravely inconvenient at a severe disadvantage in litigation
-Relative economicdisparity betw the parties is NOT a factor
c. State’s interest
-State almost always will have an interest in providing a forum
d. P’s interest, legal system’s interest in efficiency, interstate interest in shared substantive policies
-Not a lot about these from the courts
STATUATORY BASES FOR IN PERSONAM JURISDICTION
-Every state has statutes that gives general jurisdiction over D’s
-D’s that are served w/ process in the forum
-D’s that are domiciled in the union
-Non-resident motorist acts (HESS)
-Implied consent to jurisdiction!
-Specific Jurisdiction here
-“Long Arm” Statutes
-Gets non-resident D’s
-CA type: statute reaches to the full extent of due process
-“Laundry List Long Arm”
-A non-resident D can be sued in the state on a claim that arises from the D doing something specific in the forum
-Statute makes a laundry list of bad acts
Ω HYPO
Product made in state A, defect in state B = injury, can you sue in state B?
-Long Arm over D’s who commit tortious acts in state B
-Split on how to go about this
a. NO tortious act in state B, D didn’t do anything there, it all happened in state A
b. YES because P was injured in state B (GRAY)
-Illinois interpreted this way
Ω HYPO
WA P drives to OR buys clock, takes clock to WA, clock is defective, injures P. Is there In Personam Jurisdiction in WA?
1. Is there a statutory basis for jurisdiction here?
-Yes, by long arm!
-Tortious act in WA
-Maybe yes, because injury occurred in WA
-Maybe no, because clock was made in OR
2. Is there a constitutional basis for jurisdiction?
-NOPENNOYER basis
-YES/MAYBE by minimum contacts between clockmaker in OR and WA
-Relevant contact?
-Purposeful availment
-Almost like VW, got to WA by third party
-If near border, and advertises there, has customers there, takes a check—looks more like McGEE
-Foreseeability
-Maybe Foreseeable that the D gets sued in WA?
-Fairness?
-Relatedness
-YES, maybe only clock that got into WA, but claim based on it being in WA
-Convenient
-YES, BK was much more stringent std. because MI guys dragged to Miami
-State’s interest/P’s interest/intersystem’s interest
B. IN REM JURISDICTION AND QUASI-IN-REM JURISDICTION
(When there is minimum contacts, but use when you can’t get In Personam Jurisdiction because i.e. long arm statute doesn’t apply)
-Jurisdiction is over D’s property
1. Definitions
a. In Rem
-Case is about ownership of property itself
b. Quasi-In-Rem
-Lawsuit has nothing to do with property, just uses property as a basis for jurisdiction (like in PENNOYER)
2. Attachment (statutory)
a. We can attach the property if it is property that a non-resident D owns or claims to own
b. Constitutional Requirement
-The property must be attached at the outset of the case
-Intangible property as well
-D must meet the minimum contacts test too
C. FULL FAITH AND CREDIT
-A valid judgment is entitled to full faith and credit in other states
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II. NOTICE
A. Service of ProcessRULE 4
1. Process
-Summons + Copy of the Complaint
2. Must be 18 to affect service
3. Process must be served within 120 after filing complaint
-If you don’t, court will dismiss case w/o prejudice (can come back and refile the case)
-Unless you can show good cause for the delay
4. Service of process on an individual
a. Personal Service
-Deliver papers directly to D
-Can be done anywhere in the forum state
b. Substituted Service
-Okay if you are at the D’s dwelling house or usual abode
-AND serve somebody of suitable age and discretion who resides there
c. Agent Service
d. The court may use any method of service that is allowed by state law
-State law of the state where the federal court sits
-State law of the state where the claim was affected
5. Service of process on a corporation
-Must serve an officer or managing or general agent of the corp.
-Somebody with enough responsibility that we can expect him to transmit important papers
-May use state law here too
6. Waiver of service
-Method for waiving formal service of process
-Send the process and waiver form to D with a self-addressed stamped envelope first-class mail
-If she returns itw/in 30 days, then she waives service of process
-If doesn’t waive, must have service affected formally
-Only penalty, D pays the service of process fee
7. In federal ct, can serve process throughout the state where the court sits
-Can serve process out of state only if a state court there could as well
-i.e. state Long-Arms, non-resident motorist act etc…
-EXCEPTIONS
-The Bulge Rule
-Can serve process from a fed ct w/o a state law as long as it is 100 miles from the fed ct house
-Does not apply on service of process to an original D
-Only on D’s joined later
-Federal statutes may allow for more service of process outside of the state
-Federal statutory interpleader
B. CONSTITUTIONAL STANDARD FOR NOTICE
MULLANE v. CENTRAL HANOVER BANK
-Notice must be reasonably calculated under all the circumstances to apprise the D of the suit
-Even if D didn’t receive notice from substituted service still constitutional
-Constructive notice
-In newspaper at end of pages usually
-May be okay as a last resort if nothing else will work
-If don’t know D’s location, identity
-ex. unidentified beneficiaries of a trust
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III. SUBJECT-MATTER JURISDICTION (Chp. 4)
(Do we go to state court or federal court?)
-Totally separate inquiries from personal jurisdiction
-But we need both
-Personal: over the parties
-Subject-Matter: over the case and claims in it
-Any claim that qualifies for fed ct can go to state ct
A. Diversity Jurisdiction§1332
-Case has to be betw citizens of different states AND amount in controversy must exceed $75,000
1. Citizens of different states
a. “Complete Diversity Rule”
-No diversity if any P is a citizen of the same state as any D
-Can’t have same state on both side of the P/D line!!!
-Co-parties can be from the same state
b. We test for diversity when the case is filed
-Subsequent change in citizenship is irrelevant
c. You are a citizen of the state in which you are domiciled
-Domicile is established by:
i. You must be present in the state
AND
ii. You must form the intent to make it your permanent home
-Only can have one domicile at a time
***d. Citizenship of corporations
-Do not use “domicile”
-Corp. citizenship is defined by statute
-Corp. is citizen of all states where incorporated
AND
-the ONE (only one) state where it has its principal place of business [PPB]
______
HOW DO WE FIGURE OUT CORP. CITIZENSHIP IN A FACT PATTERN?
-Given: state of incorporation
-Must determine state of PPB (only ONE PPB for a corp.)
-Different tests to use by different courts
1. Nerve Center of the Corp.
-Where the shots are called, often the HQ
2. The Muscle Center/Place of Activities of the Corp.
-Where the corp. does more “stuff” than anywhere else
-i.e. manufacturing the most stuff
3. Total Activities Test
-Most cts use this now
-PPB is the nerve center unless all of the corps. activity is done in one state
______
e. Citizenship of an unincorporated business
-i.e. partnership, labor union, etc…
-Look to the citizenship of ALL members
-Case law, no statute
-In a limited partnership, look to the citizen ship of all the partners general and limited
-A law firm with partners from 15 states is a law firm with citizen ship in the15 states
f. Agents representing decedents, minors, incompetents\
-Look to the citizenship of those being represented
-A legal representative has to represent them in order to sue
-***In class actions, look to citizenship of representative, not those being represented
2. Amount in controversy must EXCEED $75,000
a. Not counting interest on the claim or costs
-Must be at least $75,000.01
b. The P’s claim governs unless it is clear to a legal certainty that she cannot recover that much
-Must be a case where as a matter of law/statutory cap she cannot claim that much
c. The P’s ultimate recovery is irrelevant to subject matter jurisdiction
-Just look at the claim
-If wins only $10,000 it’s irrelevant
d. “Aggregation”
-When we add together two or more claims to get over $75,000
-Ex: one P sues one D for $40k on one claim and $50k on a separate claim
-We only aggregate if there’s one P v. one D
-Cannot aggregate if there are multiple parties on either side
-If we have joint claims we add those claims together
-Ex: P sues 3 joint tortfeasors for a total of $80k
B. Federal Question Jurisdiction§1331
-A claim that arises under federal law. Citizenship is irrelevant and amount in controversy doesn’t matter
-Under the federal constitution/federal statute
-Ex: OH P v. OH D for one penny can go to federal court if the claim arises under federal law
-To determine whether the claim arises under federal law:
1. Look only at the P’s complaint
-Do not look at anything else the D does
2. “Well-Pleaded Complaint Rule”
-Judge looks only at the claim, not anticipated defenses, window dressing, etc..
-Ask if the P is enforcing a federal right
-YES, Fed Q J
-NO, No fed Q J
LOUISVILLENASHVILLE R/R v. MOTTLEY
(Husband and wife couple injured by the R/R, took lifetime passes in settlement of the claim)
-Congress passed a statute later saying R/R’s cannot give away free passes
-Mottley’s are turned away
-Mottley’s sue, say the fed statute doesn’t apply to us
-Ct throws out case
-Is the ct enforcing a federal right??? NO!!!
-The Mottley’s instead are claiming that the statute does not apply
-Therefore their claim does not arise under the statute
-Instead they are giving an anticipatory defense
-This is merely a breach of K
Holmes’ Creation Test
a. A suit arises under that law that creates the cause of action. Because the suit arises under K law, determined by common and state law, it is not a federal question.
b. There is no SM J if a civil action is brought under a federal law which does not create a private cause of action
C. SUPPLEMENTAL JURISDICTION§1367
-The P must have one claim that invokes diversity or fed Q J to get into fed ct
-Every single claim asserted in fed ct must have federal subject matter jurisdiction
-But what if there is an additional claim that does not meet the fed ct reqs
-Supplemental J allows a ct to hear a claim that otherwise would not get into fed ct
-There must be an original claim that gets the case in however
UNITED MINE WORKERS OF AMERICA v. GIBBS
(Gibbs asserted 2 claims against the D, one claim under fed law, one under state. Both claims arose from the same transaction)
Claim 1Gibbs ------> D Gets into fed ct by FQ J
TN(fed stat) TN
Claim 2------> Gets into fed ct by Sup J
(state law)(Otherwise wouldn’t get in)
-The claim under state law arose under “COMMON NUCLEUS OF OPERATIVE FACT” with the jurisdiction invoking claim
-Arising under the same transaction or occurrence [t/o]
-§1367 handles this nowadays, not GIBBS
-Allows a fed ct to hear a claim (grants sup J) that could otherwise not getinto fed ct
-Does §1367(a) grant Sup J to this claim?
a. Does the claim meet GIBBS?
-Grants Sup J to all claims that share a common nucleus of operative fact with the claim that got the case into fed ct
-EXCEPTION: Cuts back on the grant of supplemental J §1367(b)
-Kills Sup J over:
-Diversity cases
-Claims by Rule 19 plaintiffs
-Claims asserted by people seeking to intervene as a P under rule 24
These are all claims by a P in a diversity case