Civil Procedure I Outline

Civil Procedure I

Professor Dunham – Fall 2011

I. PROCEDURAL DUE PROCESS

A. 5th Amendment Due Process (over fed gov’t)

B. 14th Amendment Due Process (over state gov’t)

C. FFC – Article IV, Section 1 – Constitution

D. Personal jd has to be present for 14th Amendment to be enforced through Full Faith and Credit.

1. Orders and judgments are no good if gov’t does not have PJ

E. SOP à PJ à PDP à FFC

II. PERSONAL JURISDICTION (Which forum?)

A. Types of Jurisdiction

1. In Rem

· About the property; using property to obtain personal jd

1. True in Rem

i. Very rare; about a piece of property, establishes ownership against “all the world” (e.g. an abandoned ship)

2. Quasi in Rem 1

i. Exploring whose property; property is predicate, judgment only binding on people who are involved in suit (e.g. foreclosure)

3. Quasi in Rem 2 (no longer applicable)

i. Property used as predicate for jd but lawsuit has nothing to do with the property; closed box, can only get what was attached, run a risk

è Harris v. Balk – established that intangible property of debt is subject to QIR2; forced NC to enforce MD judgment

è Shaffer v. Heitner (1977) – Greyhound bus shareholder derivative case; death of QIR2 jd

2. In Personam

· About the person; open box, keep adding until box is full (until judgment satisfied), creates a portable debt to follow anywhere

· No constitutional 14th Amendment due process without personal jd

B. Traditional Bases

è Pennoyer v. Neff (1877) – Neff took property in OR to satisfy judgment against Pennoyer; Pennoyer had no notice and was in CA; no personal jd or valid in rem jd b/c property not attached at outset of case; rules of territoriality and sovereignty and bases of personal jd; primer for jd thought

· Territoriality Rule – every state possesses that control over persons and property in the states

· Sovereignty Rule – no state can exercise direct jd and authority over persons or property outside its territory

· Rule – every state yields some of its power to fed gov’t in exchange for privileges of being part of the US; constitutional concepts of due process and FFC limit a state’s power to exercise personal jd.; constitutional propriety of personal jd is judged by due process

1. Consent – appears in court either willingly or by mistake; Δ can waive right to challenge personal jd through this consent

2. Domicile – can have more than one residence but only one domicile, where you intend to remain indefinitely (key=intent)

è Milliken v. Meyer (1940) – separated domicile and presence; person does not have to live in domicile to be present in forum for PJ purposes

3. Presence – person found within the state; served within borders of the state

è Burnham v. Superior Court (1990) – personal jd still effective for presence; tag service case; if travel through state, voluntarily there

4. Agency – combination of presence and consent, state jd over persons who enter into business in state and can assert jd through appointed agent

5. 4 bases do not apply to status cases (divorce, name changes, paternity actions, certain will actions; these are not in personam cases)

è International Harvester v. Kentucky (1914) – validated statutes that corporations can be required to consent; idea that presence can be satisfied when a corporation is doing business with certain requirements – doing business

è Hess v. Pawloski (1927) – authorized non-resident motorist statutes as a basis for personal jd over drivers when in the state; consent by driving and appointing state official as your agent for service

C. Minimum Contacts Test

è International Shoe Co. v. State of Washington (1945) – question of were the workers in Washington doing business and could state have personal jd over them; due process requires that for in personam jd, if Δ is not present within territory, he have certain “minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”

1. LAS

· Specified or Tailored Act State Statutes

i. Make sure jd meets these state conditions

· Due Process (14th Amendment) Based Statutes

2. Contacts Analysis

· Purposeful Availment: Δ must have “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Hanson v. Denckla) “such that he should reasonably anticipate being haled into court there” (Burger King v. Rudzewicz)

è Hanson v. Denckla (1958) – established trust in Delaware, and then moved to Florida; Florida judgment could not be enforced because trust company had insufficient minimum contacts with Florida; no foreseeability that the trust holder would move to Florida

è Burger King Corp. v. Rudzewicz (1985) – franchise contract in Michigan with headquarters in Florida; could get personal jd in Florida b/c contract made it foreseeable that he would be brought into court there

· Contacts

1. Regular Contacts; “quality and nature” will matter (Int’l Shoe v. State of Washington)

2. Internet Contacts – Zippo scale

i. Passive – simply posted information on Internet accessible to users in foreign jds, not gr