CIVIL PROCEDURE II
RUSSELL
SPRING 2012
SERVICE OF PROCESS
Notice
Method P uses to give D notice of action
* May be served by any person 18+ years old & not a party to the action — FRCP 4(c)
* Constructive service through publication upon a non-resident is ineffective
State courts ~ refer to state statutes
Federal courts — FRCP 4
1) Personally deliver summons/complaint to D — FRCP 4(e)(2)
2) Leave copies of summons/complaint at dwelling or usual place of abode — FRCP 4(e)(2)
– Must be w/person of suitable age & discretion
3) Deliver papers to D’s agent that receives service of process on D’s behalf — FRCP 4(e)(2)
4) Serve D under that state’s rules — FRCP 4(e)(1)
5) Serve D under D’s state rules if served there — FRCP 4(e)(1)
PERSONAL JURISDICTION
Relationship to forum state
Traditional methods
* Domicile
* Consent
* Presence, in personam — Pennoyer v. Neff, Burnham v. Superior
* Property, in rem or quasi in rem
OR long-arm statute + minimum contacts
Dismissal for lack of personal jurisdiction
Other party’s motion — FRCP 12(b)(2)
Presence ~ in personam action
Physical presence of D in state, “power theory”
* It doesn’t matter if D was only present briefly, “transient”
* Counts if D used state resources — Hess v. Pawlowski
Makes defendant personally liable
* D is liable to pay $ to P (damages)
* D must begin/cease certain activity (injunction)
Property ~ in rem action
Physical presence of D’s property in state
* Dispute arises out of or involves that property
* Not a proceeding against property, but against person’s interest in it
Quasi in rem action
* Property in that state, but dispute is not about that property
– Must be attached before litigation begins
– Possibly attached at entry of state — Harris v. Balk
LONG-ARM STATUTES
State court
1) State statute allows court to assert jurisdiction over D
* Enumerated ~ some states are more specific w/enumerated, long-arm statutes
– Provisions convey jurisdiction in specific types of contact w/the state
– Authorizes courts to hear cases arising out of such contacts
– Leeway to reject jurisdiction in cases having little connection to state
– May sometimes exceed constitutional grasp — “all cases brought by IA residents”
+ But statute may still apply in other cases w/in due process limits
– May not cover all jurisdiction authorized by due process clause
+ Liberally interpret specific categories enumerated in statute
+ But does not fill in gaps that provisions fail to cover
– Uniform Interstate & Int’l Procedure Act ~ model for 20+ states
* Non-enumerated ~ other states grant full scope permissible under due process clause — CA
– Broadly grants jurisdiction “not inconsistent with the Constitution of this state or US”
2) Constitutionality under due process in these circumstances — 14th A
* MC test limits ≠ long-arm statute limits
Federal court
1) Service of process allows court to assert jurisdiction over D
* Courts of that state could assert jurisdiction — FRCP 4(k)(1)(A)
* Another federal statute says service is sufficient in that particular case — FRCP 4(k)(1)(B)
* Limited situations
– Implead parties served w/in 100 miles of courthouse — FRCP 4(k)(1)(B)
– Parties subject to impleader jurisdiction — FRCP 4(k)(1)(C)
* Foreign parties w/sufficient contacts in US as a whole but not a particular state
2) Constitutionality under due process in these circumstances — 14th A
MINIMUM CONTACTS
Shoe spectrum
No jurisdiction
* No contacts
* Causal or isolated
Specific jurisdiction
* Only over claims that arise from those contacts — Int’l Shoe v. Washington
* Single act — McGee v. Int’l Life Ins.
– Quality & nature of single act in state
* Continuous but limited — Burger King v. Rudzewicz
– Ongoing business relationship in forum state
General jurisdiction
* Includes claims unrelated to in-state activities
* Continuous & systematic, substantial or pervasive — Helicopteros Nacionales de Colombia v. Hall
– State activities are so substantial & continuous, expect to be sued there
+ Applies to individual as well as corporate D
+ However, individuals’ contacts w/states other than domicile are rarely so extensive
Effects test
D may have sufficient contacts w/state even though not acting w/in state — Calder v. Jones
1) D committed an intentional tort
2) P felt the brunt of the harm caused by the tort in that state
3) D expressly aimed his tortious conduct at that state — Pavlovich v. Superior
Factors
Foreseeable ~ purposeful availment — Hanson v. Denckla
* Deliberate choice to relate to state in some meaningful way
* Conducted activities to invoke state benefits — World-Wide Volkswagen v. Woodson
– Sending goods into stream of commerce may count — Asahi Metal v. Superior
– Profiting directly or indirectly from state is a benefit
* Satisfies fair warning requirement — Shaffer v. Heitner
* Applies to time D acted, not time of lawsuit
– Even if D no longer has contacts in that state
– D accepted risk that prior activities may give rise to suits & would need to return
Reasonable ~ fairness of assertion
* Traditional notions of fair play & substantial justice — Int’l Shoe v. Washington
* D’s burden of inconvenience to defend away from home
– If MC established, rebuttable presumption that it’s fair to require him there
– Burden shifts to D to show unreasonableness & unfair prejudice
– Balance w/remaining factors — Burger King v. Rudzewicz
* Forum state’s interest to provide redress to its citizens
* Forum state’s interest to enforce their substantive law or policy
* P’s interest to obtain relief in a convenient forum
VENUE
Venue
Provisions in every court system further limiting jurisdiction
* State courts require the cases be brought in the county where:
– One of the parties resides or does business
– The claim arose, OR
– Property in dispute is located
* Federal courts use statute — 28 USC § 1391
Apart from & in addition to personal & subject matter jurisdiction
* All 3 “rings” must be satisfied in o
+ True, fixed, & permanent residence w/intent to remain there — new ID in state
+ Citizenship as established by federal law, not state law
+ Burden of pleading & proof is upon party invoking federal jurisdiction
(b) Citizens of a State & citizens of foreign states
2) Amount in controversy is more than $75,000 for every claim
– Determined by P’s claim in good faith, not amount awarded — Mas v. Perry
– Excludes inconsequential cases from federal courts
Aggregation of claims
Single P
* 1+ claim > $75k ~ may add other claims against same D, even if less than amount — supp jx.
* No claim > $75k ~ may add together all claims against same D to add up to amount
* Additional D ~ if already aggregated against original D, may not add other D for < $75k
Multiple P
* 1+ P’s claim > $75k ~ low amount P may be able to join — supp jx.
* No single claim > $75k ~ aggregation not allowed
– Exception: 2+ P unite to enforce a single title + an undivided interest
SUPPLEMENTAL JURISDICTION
Statute — 28 U.S.C. § 1367
Federal claim + related state claim — United Mine Workers v. Gibbs
* Art. III grants jurisdiction over entire “cases” not just particular claims
* Court has power to hear other claims from “common nucleus of operative facts”
* Related claims by D or other parties after the initial complaint — Owen Equipment v. Kroger
* Must bear a “logical relationship” to the main claim — FRCP 14(a)(1)
– Includes compulsory counterclaims by D
– Extended to cross-claims & intervention as of right — FRCP 13(g), 24(a)
– Did not extend to permissive counterclaims — FRCP 13(b)
Analysis for court to determine whether it has supplemental jurisdiction:
1) Constitutional power under Art. III, §2 to hear the original claim
– Original claim is proper within the jurisdiction of the federal court
– Related claim arises from the same nucleus of operative facts
2) Statutory grant of jurisdiction over the related claim
– Jurisdiction over all related claims part of same “case” — 28 USC § 1367(a)
– Excludes certain diversity case claims — 28 USC § 1367(b), Owen Equipment v. Kroger
+ Cannot use joiner if it ruins diversity of citizenship
+ Claims by P against parties made under FRCP 14, 19, 20, 24
3) Court has discretion to take the claim or not — 28 USC § 1367(c), Exxon Mobil, Allapattah
– May decline if state claim is majority of case — 28 USC § 1367(c)(2)
– May decline if original federal claim was dismissed — 28 USC § 1367(c)(3)
