Civil Procedure Outline
Basic Steps to a Civil Siut
1. Hire a lawyer/ Pro se (represent self)
2. Where to file? State or Fed. Who to sue?
Jurisdiction
– subject matter
– personal
Venue
Figure out law
3. Complaint- written statement that contains Π’s claims against Δ
4. D has to respond by answer or motion to dismiss
5. Figure out all parties involved
PERSONAL JURISDICTION
The ability of the court to exercise power over a particular defendant or item of property.
Due Process tells courts how far they can go in exercising jurisdiction. Constitutional ability to exercise jurisdiction is not enough, the state must also have a statue that gives personal jurisdiction in this case.
– Some states want to reach to the farthest limits of due process and some don’t.
First look at the statutory basis, then look and see if it falls within the due process requirements.
Does the state have a statute that applies for personal jurisdiction? (tortious act is where the injury happens, etc.)
Does this case fall within the due process circle?
Is there a traditional basis for jurisdiction?
Are there minimum contacts? What is that standard? Give the whole schpeal.
i. Is there a relevant contact
ii. Is the exercise of jurisdiction fair?
Federal Court has to follow rules of state in which court is located
*court has to have jurisdiction over Δ or judgment= void
Default judgment- judgement against Δ who fails to show up in court
STATUTORY LIMITS
In personam: traditionally, state statutes say that jurisdiction over the individual can be attained by:
Presence
Physical presence within the state’s borders when served can confer personal jurisdiction. Even brief presence unrelated to the cause of action is enough.
· Most states rule that a defendant cannot be brought into the state by fraud or force.
· Most states also grant immunity from personal jurisdiction to nonresidents who are present in the state solely to take part in a judicial proceeding or who are passing through to go to one elsewhere – “special appearance.”
Defendant is served with process in the forum. This gives general jurisdiction. Personal service of process on an appointed agent in the state also satisfies presence.
Consent
Virtually every state provides for personal jurisdiction through consent.
· Express Consent: can be given by contract in advance of the suit or by appointment of an agent to accept service of process. When a type of business is highly regulated to protect citizens, a nonresident can be required to appoint an agent for service of process in the state.
· Implied Consent: when a state has substantial reason to regulate in-state activity, it may provide that by engaging in such activity the nonresident appoints a designated state official as his agent of service of process.
EX: Hess v. Pawloski: Massachusetts long-arm statute provided that motorist agreed to appointment of registrar for service. USSC held consistent with DP.
EX: Shaffer ∏ brought shareholder suit based on director’s stock located in Delaware did not have state that treated acceptance of directorship as consent to PJ.
· Voluntary Appearance: consent by contesting the case without challenging personal jurisdiction. Most states allow “special appearances” so that a Δ can object to jurisdiction.
Domicile
Most states grant their courts personal jurisdiction over people who are domiciled in the state even when they are not physically in the state when served with process. This gives general jurisdiction.
– Domicile: the last place you lived permanently. Domicile is where a person has his current dwelling-place, if he also has a subjective intention to remain in that place for an indefinite period. Also referred to as citizenship. Can only have one domicile at a time.
o A person’s desire to return to a previous domicile at some indefinite point in the future does not prevent the present residence from being the domicile.
o A person must intend to make that place his home for the time at least.
§ To determine intention, the court looks at whether he has registered to vote, left property behind, where he works, if family has moved with him, etc.
§ A hotel room can be a domicile as long as there is intention to remain.
o Prior residence that was a domicile may be treated as such until the party resides in and intends to remain indefinitely in some new place.
– In some cases, domicile in the forum state may not always be enough. In Shaffer, the S.Ct. said it was unfair to subject a defendant to jurisdiction over his property if he does not have “minimum contacts” with that state.
Mas v. Perry: Wife grew up in Mississippi and husband is a French citizen. They got married in Miss, but live in Louisiana because they are graduate assistants there. They go to Illinois for a short time, but intend to return to Louisiana. Ms. Mas’ domicile is in Mississippi because since she left she has not had the intention to live indefinitely in any place and she hasn’t set up a new one yet. Domicile is the key to citizenship; you keep a domicile until you change it by going to a place with the intention to remain there.
Property in forum state is attached before judgment – Min Contacts
Estoppel – Bau
Long arm statutes
Every state has a statute for personal jurisdiction. Personal jurisdiction is allowed in most states over nonresidents who perform or cause to be performed certain acts within the state. This is limited to causes of action arising from the acts performed within the state. Authorizes PJ over non-residents who cannot be found and served in forum state.
1. Enumerated Acts (specificity)
– lists out acts that will subject non-residents to PJ (analyze language of statute)
2. Constitutional Max
– states claim that statute goes as far as due process does
– Flexibility- as Due process evolves, so does statute
Unlimited Long Arm Statutes: Some states, like California, give their courts power over any person or property they can constitutionally exerc
ction for those bases.
Modern Rule
Jurisdiction lies where there is a minimum of contact if it stays within the traditional notions of justice and fair play. Must look at the nature of the contacts.
General jurisdiction
Systematic and continuous activity within the state – can be sued there on any cause. Δ can be sued in the forum on a claim that arose anywhere in the world. Presence, consent, domicile are all general jurisdiction.
-suit based on anything/unrelated to certain situation
Specific jurisdiction
If a single act occurred in the state, can be sued if it gave rise to the cause, if there is a specific contact between the state and the cause. Δ can be sued in the forum only for a claim that arose in the forum.
-limited to certain matter of certain situation
New doctrine for jurisdiction: very flexible test. Expands availability of jurisdiction.
International Shoe Co. v. Washington: Int’l Shoe hired sales people to work in Washington State, but their corporation was based in Missouri and Delaware. They had no building in Washington. Some salespeople would rent hotel rooms, etc to display shoes. Salesmen did not complete the sale, they would write it up on an order form and send it to the manufacturer in Missouri to accept. The contract was made in Missouri. Jurisdiction lies where there is a minimum of contact if it stays within the traditional notions of fair play and substantial justice. Must look at the nature of the contacts. Can now get in personam jurisdiction without service of process in the forum. This does not overrule Pennoyer. Minimum contacts is the test when the defendant is not present in the forum.
Minimum Contacts
“if he not be present” (Shoe)
“fair play and substantial justice”
This test is used for liability for a single act that causes a loss in the state: specific jurisdiction. Must look at:
1. Quantity and nature of the contact
2. Connection with the cause of action
3. Interest in the forum in protecting its citizens.
If 2 or 3 are strong, it lowers the quantity of contacts necessary. But contacts will justify jurisdiction even if 2 or 3 are weak.
The contacts cannot be accidental: the court must find that the defendant purposefully availed himself of “the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”
Minimum Contacts Test
STEP 1
1) Are the contacts…
Continuous and systematic?
Isolated and Casual?
Somewhere in between?
