Civ Pro Outline Spring 2012
STEPS OF ANALYSIS
1. Certify the Class (if applicable)
2. Personal Jx
a. Consent
3. Notice
4. Subject Matter Jx
5. Venue
6. Supplemental jx
7. Removal/Remand
8. Choice of law – Erie doctrine
9. Claim/Issue Preclusion
– PRE-ANSWER MOTIONS –
As a preliminary matter, if the defendant brings any Rule 12 motions, they must be brought together or risk waiver of certain preliminary procedural defenses. They can be asserted either in a Rule 12 motion or in a responsive pleading without waiving the defenses. [12(b)]
-[12(b)] motions are governed by 12(g+h), 12(b)(2)-(5) must be brought up in an ‘omnibus’ original answer, if they fail to do so, they will be waived
-12(b)(1), (6) and (7) are not “use it or lose it” and may be brought up at any time
If Defendant opted to answer rather than avail itself of a motion under Rule 12, it will likely attempt to contest with a motion for judgment on the pleadings the 12b’s (FRCP12(c))
– PERSONAL JURISDICTION –
Personal Jx: refers to the ability of a court to exercise power over a particular ∆ or item of property. In objection to Personal jx, the ∆ may raise a 12(b)(2) motion.
“Personal jx over a foreign defendant must not exceed the limitations of either (1) the state’s Long Arm Statute and (2) Constitutional due process
1. Long Arm Statute – 4(k)(1)(A) Federal court sitting where the case is brought will apply state long arm statute, if none listed it is assumed that the courts of that state have been legislatively authorized to all assert Pjx consistent with due process.
a. States legislatures have the power to decide over whom their courts may exercise jx. LAS’s, authorize state courts to exercise jx over nonresidents who engaged in certain enumerated acts within the states as long as the statute does not exceed the Cx boundaries.
NOTE: Federal Courts use the long arm statute of the state they are in – Erie Doctrine
2. 14th Amendment due process clause of the Constitution
a. places two restrictions on exercise of personal jx: (a) minimum contacts and (b) sufficient notice/service in order to be heard
Burden of Proving Personal jx
Burden of proof for jurisdiction is on the plaintiff – they chose the forum, therefore they must explain why it’s reasonable
CONSENT/CITIZENSHIP/PRESENCE
Consent is the traditional bases for the exercise of adjudicatory power. Usually gives rise to General Personal Jx
1. A ∆ can voluntarily appear in court and submit to jx
NOTE: A defendant who appears but fails to assert a timely objection to personal jx waives that objection—a form of involuntary consent. FRCP 12(h)(1)
NOTE: Courts provide for special appearance whereby a ∆ can appear in court to object to the Court’s jx without availing himself of jx
2. ∆ can be served within the forum state or appoint an agent who can be served – Pennoyer/Burnham
3. Implied Consent/ Constructive Consent: when a State has a substantial reason to regulate the in state activity of a non-resident of the state it may provide that by engaging in such activity the non-resident consents to jx. Must treat residents and non residents equally [Hess – driving on state highways] – specific jx
4. ∆ can be a citizen of the forum state à resident/domicile
✪What is the definition of a ‘Citizen’?
Defined by place of Domicile – a persons “(1) true, fixed and permanent home and principle establishment, and (2) to which he has the intention of returning whenever he is absent therefrom.”
-Legal permanent residents are citizens of the state in which they reside
✪What is the definition
cts within the forum state to justify General Jx one must consider whether….
1. Continuous, Systematic and Substantial – When the forum activities of a ∆ are sufficiently continuous, systematic, and substantial, it may be sued there even on claims unrelated to those activities.
-this requires a relationship w/ the state that is tantamount to being present/a citizen within the state.
NOTE: Unilateral activity of another party or a 3rd party is not an appropriate consideration in determining a ∆’s contacts
2. Natural and Corporate citizens: A state has plenary jx over its natural and corporate citizens—they are subject to suit on any claim whether arising from events that occurred in the state or not. (definitions of citizens above)
3. Corporate locations: General jx exists over a corporation that is incorporated in the forum state or whose headquarters or principle place of business is located thereàsee tests above
4. Consent: see consent analysis above: appointed agent, service while in the state among others.
Specific Jx
Specific jx: Gives rise to jx only for claims related to the jurisdictional contact with the state – claim must arise out of the activity that give rise to the suit – consider all contacts related to and established before suit
In determining whether a court may assert jx over a non-resident pursuant to a long arm statute requires a two-step inquiry.
(1) Does the long arm statute apply to the particular case
