Civil Procedure I Outline

Civil Procedure I Outline

Table of Rules

US Constitution Article IV, § 1 – Giving Full Faith and Credit to judicial proceedings of other states
US Constitution Amendment XIV, § 1 – Due Process Clause (to states)
FRCP 4(k) – Establishes PJ over defendant who is served in state (with summons or waiver)
FRCP 4 –Summons – How to Serve Process on Defendant
FRCP 5 – Service and Filing of Pleadings
FRCP 6 – Time for Motion Papers
US Constitution Article III, § 2 – Constitutional grant for Diversity (between citizens of different states) and Federal Question (arising under)
28 U.S.C. § 1332 – Statutory grant for Diversity Jurisdiction
28 U.S.C. § 1359 – Parties collusively joined to defeat diversity
28 U.S.C. § 1331 – Statutory grant for Federal Question Jurisdiction
28 U.S.C. § 1441 – Actions Generally Removable
28 U.S.C. § 1446(a)(b)(d) –Procedure for Removal
28 U.S.C. § 1447 – Procedure after Removal (Remand)
28 U.S.C. § 1448 – Process after Removal
FRCP 81 – (c) has rules for Removed Actions
28 U.S.C. § 1391 – Venue Generally
28 U.S.C. § 1404 – Change of Venue(when original venue for court is proper)
28 U.S.C. § 1406 – Cure or Waiver of Defects (Change for improper venue)
Forum Non Conveniens – Judicially created to dismiss when case is better handled in another judicial system
FRCP 12 – Defenses and Objections, Motions, Pleadings
FRCP 7 – Pleadings Allowed
FRCP 8 – General Rules of Pleadings
FRCP 9(b) – Pleading Fraud or Mistake
FRCP 10 – Form of Pleadings

20. FRCP 15 – Amended and Supplemental Pleadings

FRCP 41 – Dismissal of Actions
FRCP 11 – Signing Pleadings and Motions – Ethical implications
FRCP 18 – Joinder of Claims
FRCP 20 – Permissive Joinder of Parties
FRCP 21 – Misjoinder/Non-joinder of Parties
FRCP 13 – Counterclaim and Crossclaim
FRCP 42(b) – Separate Trials
28 U.S.C. § 1367 – Supplemental Jurisdiction

Introduction – Buffalo Creek

Goals of Civil Procedure are to provide accuracy, consistency, fairness, efficiency, and finality

Substantive vs. Procedural Law (Erie doctrine) – Statute of Limitations is substantive law
NOT a Common Law subject – founded in Constitution, Statutes, FRCP
File and Serve a Summons/Complaint to a defendant. Summons is a court document, Complaint tells the court what is alleged, what happened, and what is being sought
Three forms of relief – Compensatory, Punitive, Injunctive
After complaint, defendant can file motions and/or answer by admitting/denying, raising affirmative defenses
Summary Judgment – no genuine issue as to any material fact and therefore as a matter of law, the moving party must “win” on this issue OR the case should not go to trial (if this is denied, issue goes to a jury to determine it)

Personal Jurisdiction – Where to Sue
In what state(s) can P sue D? Federal/State doesn’t matter, court has to have POWER over defendant or over his property
Three kinds – In Personam, In Rem, Quasi-in-rem (QIR)
In Personam – Power over defendant because of connection with forum
In Rem/QIR – Power over defendant’s property
Ultimate limit of having “power” is Due Process (Constitutional Requirement), there must also be a statute giving jurisdiction (i.e., long-arm statute)
First assess whether a statute allows for PJ, if yes, then do Due Process analysis
Two kinds of In Personam Jurisdiction – General or Specific
General – Defendant can be sued in forum on a claim that arose ANYWHERE
Specific – Defendant is sued for a claim that arose in the forum

Constitutional Limits

Personal Jurisdiction is a fundamental issue of Due Process and changes historically due to changes in communication/technology

Pennoyer v. Neff(1878) – Court has power over everything/everybody in the state

A second court is supposed to give “full faith and credit” to the judgment of the first court. The Federal court in the second case need not give full faith and credit to the state court in the 1st case because the 1st court lacked personal jurisdiction
Neff wasn’t aware of the first case because he had no notice. Mitchell did not ATTACH the property as required by the Oregon Code.
If Mitchell had attached the property, Neff still might not have had actual notice but it would be legally sufficient
Every defendant must have notice against them and an opportunity to be heard
The other requirement is that of power. No one is subject to jurisdiction of a state unless they (1) appear in court (giving consent); (2) served within the state or agent is served within state (presence = general jurisdiction); (3) resident of state (domiciled in forum = General PJ); (4) have property in state that is attached
Service or attachment is demonstration of state’s power
Serving Neff in CA would not help power and would only overstep OR’s bounds. His property must be attached. If state code provided for service in other states, this would violate 14th amendment
Case 2 is finding who has title to property, in rem (using property as a means of securing PJ and case involves property); first case was over money – in personam

Milliken v. Meyer – upheld PJ over a citizen not in the state – the authority of a state over one of its citizens is not terminated by his absence from the state

For in rem, you’re only worried about the property and you’re limited to only the extent of that property; in personam is over the person

Hess v. Pawloski (1927) – Given growth of automobile and transportation, states make statutes providing that the DMV is out of staters’ agent of process, saying out of staters give implicit consent to be sued in a state while using their roads

Consistent with Pennoyer because it’s service of process in state on D’s agent
Expands consent to implied consent

International Shoe v. Washington (1945)

Washington statute says notice must be served personally on employer if employer is in state or by registered mail to last known address – state serves on employee in the state and mails to HQs in Missouri
Court has jurisdiction if defendant has such minimum contacts with a forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice
A. Minimum Contacts Test: Two factors – (1) are contacts continuous and systematic OR single and isolated? (2) Does the contact give rise to the claim OR is it unrelated?
Benefits defendant gets are tied to level of connection with state. Benefits beget obligations to the state

Gives Rise Related Unrelated
Continuous/Systematic / Yes / Maybe?
Single/Isolated / Maybe? / No

B. Compare Minimum Contacts with Notions of Fair Play and Substantial Justice – Benefits/obligations is a fairness principle
If contacts are continuous/systematic – court has GENERAL PJ
If contacts just give rise – court has SPECIFIC PJ
Justice Black concurring – worried Fair Play and Substantial Justice could be stretched too far and is vague
Nothing in the Constitution about “fair play” and “reasonableness”
Wrong interpretation of due process clause that was unnecessary because this was an easy case since the contact (International Shoe’s business in Washington) was continuous and the cause of action was related to that contact
Nowhere does this overrule Pennoyer. This is the test ONLY if defendant is not present – it implies the 4 bases for power in Pennoyer are correct

Modern Era

Grey (Ill. Supreme Ct.) If a corporations sells its product for ultimate use in another state, it’s not unjust to hold them accountable there for any damages caused by defects. May be single/isolated but definitely gives rise to the claim

McGee v. Int’l Life Ins. (1957) – PJ over a TX company in CA when a CA citizen paid premiums to them and mailed her a reinsurance certificate. They made contacts with the state

D solicited that contact in CA
Claim arose from D’s contact with the forum – for breach of very contract that brought defendant to the forum
State’s interest – California had an interest in providing a court for it’s citizens

Hanson v. Denckla (1958) – No PJ for a DE bank in FL since a PA citizens set up the trust in DE then moved to FL – DE bank never established contacts with FL

Court finally says no!
Purposeful availment – To have a contact under International Shoe, contact must result from purposeful availment. The DE bank never reached out to Florida; the only reason they were there is because their client unilaterally moved ther.
Unlike McGee where the TX company sought business in CA

World-Wide Volkswagen (1980) (Justice White)

Regional Distributor and dealer in NY challenge that they meet the OK Long Arm Statute and believe statute is unconstitutional
Statute was written after International Shoe believing that defendant would still benefit from the state since the car was used there
Fair Play and Substantial Justice analysis – (1) Burden on defendant, (2) state’s interest, (3) plaintiff’s interest, (4) interstate efficiency, (5) shared state policy – REASONABLENESS FACTORS
Burden not so severe here, so no PJ because of lack of minimum contacts
Defendants must seek out the benefits that give rise to the obligations – purposeful availment. Degree of predictability that allows defendants to structure their primary conduct with some minimum assurance as to when that conduct will/will not render them liable to suit
It needs to be foreseeable that defendants could get sued in that forum
Here, plaintiff drove car to OK, not defendants
Contrary to Grey, Ohio company put product together for marketing in Illinois (they knew it was sold there)
No jurisdiction because defendant did not purposefully avail themselves of OK
Brennan Dissent – Car is intended to be moved around, there’s not much burden on defendant
Pay attention between use of rules Hanson (unilateral activity of one party can’t attribute contact to defendant) over Grey (Stream of Commerce Test) and
Minimum Contacts Analysis: (1) Continuous/Systematic vs. Single/Isolated; (2) Gives Rise/Unrelated; (3) Purposeful Availment

Keeton and Calder (1984)

PJ upheld since defendants were targeting harm in CA (effects test)
You can have minimum contacts by making an effect in the forum. You don’t need physical presence

Burger King v. Rudzewicz (1985) (Justice Brennan)

First case in Federal Court!
Federal Court looks to FL Long Arm Statute via FRCP 4(k)(1)(A), going to Federal Court doesn’t change the PJ analysis
5th Amendment protects due process by Federal Government, 14th extends it to states – Federal courts in a given state have the same reach as state courts under the federal rules
This case is about evaluating PJ under a breach of contract. Merely having a contract with a FL citizen doesn’t make you liable to be sued in FL
You must have a relevant contact before fairness is even asserted. Here, the contact was easy because they made contract (availed themselves of FL law) in Florida
With a contract, focus is more on contract’s relationship with forum state than with defendant’s action – CONTRACT TEST
On Fairness – burden on D to show that forum is unconstitutional – so gravely inconvenient that you’re at a severe disadvantage in the litigation. Wealth of parties is irrelevant
Choice of law analysis is separate from PJ analysis – Choice of law is around claim’s relation to state (broad), PJ is defendant’s relation to state (narrow)
Contract was a 20 year deal, through negotiations and course of dealing, defendant purposefully availed himself
Determined to not be unreasonable
Stevens and White Dissent, saying this offends notions of fairness

Asahi (1987) (Justice O’Connor)

Stream of Commerce question – if you make something and sell it to State B, company in state B uses your part in their product and sells it to states C, D, E. Can you be sued in C, D, E?
All judges except Scalia agree on Reasonableness – unreasonable to litigate against Asahi in CA (too heavy a burden of asking a foreign defendant to litigate in US and plaintiff is Taiwanese – not a CA citizen)
Even Brennan finds this unreasonable since ALL of the factors are against CA litigating this suit
Stream of Commerce/Minimum Contacts analysis:
Brennan says all you need is awareness for stream of commerce. He believes O’Connor’s analysis is a departure from Worldwide Volkswagen where the court distinguished between stream of commerce (yes PJ) and someone else bringing it to state (no PJ) since putting something in stream of commerce gets you economic benefits
O’Connor - Awareness that it might go to forum doesn’t mean purposeful availment, defendant must have purposefully directed act to the forum state (an intent to serve forum state);
NO ONE’SSTREAM OF COMMERCE ANALYSIS YIELDS A MAJORITY OF JUDGES SO COURTS USE BOTH TESTS (purposefully directed vs. awareness)

Transient Presence

Burnham v. Superior Court of California (1990) (Justice Scalia)

Ex-husband is served by his ex-wife in CA when he’s visiting. Only way this works is if CA has General jurisdiction
Is presence and being in the state grounds to assert PJ? YES
Question becomes do the Pennoyer traditional bases of power live or were they replaced by International Shoe factors? Another split!
Scalia – Presence when served is ok on it’s own – no need for Int’l Shoe minimum contacts analysis because of Pennoyer’s historical pedigree
Shoe itself implied this would be ok on it’s own because of presence in the state
Believes Shaffer (below) said that where the defendant is not present, International Shoe should apply – here, D is present
Brennan – Historical pedigree doesn’t matter, you must assess under Shoe always
He said Burnham’s contacts were sufficient to give general jurisdiction though, so all justices agree
According to Brennan, anyone who has ever set foot in California for 3 days is subject to general jurisdiction there (received benefit of CA’s roads, fire, etc.)

General PJ and Consent

General PJ is Continuous/Systematic when it’s unrelated to the claim
Perkins is clearly General PJ since Perkins had offices in Ohio and president of company was there – it was a temporary HQs
Purchases from a forum do not rise to general PJ level, sales might because there may be an opportunity to find that a seller avails itself of forum because getting revenue (Rosenberg v. Curtis)

Helicopteros v. Hall (Blackmun)

Continuum between unrelated and giving rise, the more related it is, the less contacts you need (and vice versa—more contacts = less related)
General Jurisdiction deals with continuous & systematic axis versus gives rise/unrelated
General PJ is Continuous/Systematic when it’s unrealatead to the claim
Court says no General PJ for Helicopteros in Texas because then anyone could sue Helicopteros for anything in TX which is unfair

Constitutional Analysis –

-Does one of the Pennoyer traditional bases apply? If yes, go to the Burnham split. Maybe presence is good on its own or maybe you need to do Shoe minimum contacts analysis.

-If you do need to go to minimum contacts analysis:

(1) relevant contact between defendant and forum – (a) contact from purposeful availment and (b) forseeability – must be foreseeable that defendant could get sued there;
(2) fairness – (a) relatedness – Does plaintiff’s claim arise from defendant’s contact with forum? This is assessing general or specific jurisdiction, then (b) five fairness factors (burden on defendant) –
(i) inconvenience for defendant/witnesses; (ii) state’s interest; (iii) plaintiff’s interest; (iv) interest in efficiency; (v) interstate interest in shared substantive policy (little opinion on (iv) and (v); Kulko – No jurisdiction because of interest in family harmony)

Statutory Analysis –

Always start with the statute!
Every state has statute based on the Pennoyer traditional bases as well as statutes that let you go after nonresidents (specific jurisdiction statutes, i.e., Hess motorist statutes, long-arm statutes)
Statutes vary from state to state – some have laundry list, some just say jurisdiction over defendant who “commits a tort in our state”
Look for a fact pattern where you sell something in B and it blows up there. Did you commit a tort there? Some say yes because injury is there, others say no because your negligence was in state A and the statute doesn’t apply to you
If you meet long-arm statute, you’ll usually have relatedness of claim
Long-Arm statutes – Courts need it to authorize suits against out of state defendants. Could be specific or have no limitation at all (consistent with state/US constitution)
If you’re NOT worried about efficiency, you’d want one without limitations because you don’t care about stepping on others’ toes

In Rem and Quasi In Rem Jurisdiction

Difference between in-rem and QIR is that with in rem, the suit itself is about who owns the property. With QIR, dispute has nothing to do with who owns it
Example – Pennoyer arose from an action after Mitchell v. Neff which was about breach of contract. It’s a QIR suit that would have worked if property was attached
Property is attached to get jurisdiction over defendant – the property isn’t really in question though
For In Rem and QIR, court must seize property at the outset of the case
First step – Statutory analysis – there’s an attachment statute in every state that allows seizure as basis of jurisdiction for property which defendant owns. Next, Constitutional Test:

Shaffer v. Heitner(1977) (Justice Thurgood Marshall)

Can DE have jurisdiction over corporate officers because of their position in the DE company?
Quasi-in-rem –Jurisdiction over the property and the property is unrelated to the claim (like in Pennoyer’s first case)
Court says this is in personam in disguise since claim has nothing to do with the property attached
Issue is should we apply International Shoe to a quasi in rem case?
YES – there is no purposeful availment in this case and jurisdiction would be unreasonable so defendant wins
After this case, DE passed a statute giving jurisdiction to state over officers of a DE corporation
In addition to seizing property at outset, you still need to show that defendant meets International Shoe
The Constitutional test for in personam, in rem, and QIR is the same!

Internet & Long-Arm Statutes

Revell v. Lidov (5th Cir. 2002)

Combination case of “effects” test and Internet Approach (Zippo test)
Zippo test – “sliding scale” to measure a website’s connection to the forum state – Purposeful Availment Component
Lidov’s article was posted on an internet site (not a newspaper) owned by Columbia
Regarding Columbia having General PJ, they’re doing business with TX but not in TX – not substantial contacts and falls short of the Perkins standard
Effects Test – Harm not directed at Revell in TX because the defendants didn’t even know he was in TX. Even if they did, harm still would not have been felt there

-Before we had Stream of Commerce Test (Asahi),Effects Test (Calder), and Contract test (Burger King), this gives us Zippo test to determine interactivity of a website