CIVIL PROCEDURE
HAFETZ
FALL 2011
PRE-FILING INQUIRY
Rule 11
a) 11b: Certification upon presenting paper to court
i) Attorney/unrepresented party must sign every paper certifying that to the best of their knowledge, info and belief (after reasonable inquiry) that the information presented:
(1) Isn’t presented for improper purpose (11b1)
(2) The claims/defenses are warranted by existing law or by nonfrivolous argument for extending the law (11b2)
(3) Facts have support or will likely have support after discovery (b3)
(a) Tension with rule 8 plausibility standard à can’t push facts forward so much in complaint that its in danger of rule 11 sanction
(4) Denials have support or will likely have support after discovery (b4)
b) Doesn’t need verifying affidavit
c) If not signed court must reject, unless promptly corrected
d) 11c SANCTIONS:
i) If 11b violated, the court may impose an appropriate sanction on an attorney, law firm, or party that violated the rule or is responsible for the violation
ii) MAY IMPOSE SANCTIONS BY
(a) Motion for sanctions by opposing party
(i) Safe harbor provision
1. Opposing party must first serve the sanction to the party (describe specific conduct) without filing it with court. Must not be presented to court if corrected w/in 21 days
a. 1st tell other part of violation
b. Wait 21 days
c. File motion
2. Can include attorney fees incurred by motion
(b)Sua Sponte On the courts initiative sanctions (11c3)
(i) Court can order party/firm to show cause why 11b violated
(ii)No safe harbor provision
1. So court should only sanction for rule 11 violation in egregious circumstances
i. When no safe harbor, as with 11c3, must go w/ subjective
iii) Standards of review for determining on sanction:
(1) Objective unreasonableness: RPP should’ve known it was unreasonable to rely on client’s word (Patsy’s pizza sauce case)
(2) Subjective unreasonableness: lawyer was acting in bad faith
iv) What kinds of sanctions?
(1) Limited to what is sufficient to deter repetition of such conduct (11c4)
(2) Can be monetary or nonmonetary
(a) Limitations on monetary (11c5)
(i) Against represented party for violating 11b2
(ii) On its own, unless it issue show cause order under 11c3 before voluntary dismissal/settlement of claim
v) Court must explain why sanctions are warranted
vi) Courts imposed rule 11 sanction only reviewable on appeal for abuse of discretion
PERSONAL JURISDICTION
1) DEF: Ability of court to exercise power over a particular D or item of property
2) About where you bring suit
a) Due process clause of the 14th Amendment protects D from coming to any court
i) Pennoyer establishes (old view) “Presence test”: can’t sue citizen of another state even though D has significant connection to the state
(1) Exception: If D has property in the state (but can only sue against the property then) or personally in the state
3) 4 ways of acquiring PJ:
a) D is present in the forum state and is personally served w/ process
b) D is domiciled in forum state
c) D consents to jurisdiction
d) D has committed acts bringing him within the forum state’s long arm statutes
4) For PJ need:
a) Notice: given proper notice of a suit so have opportunity to be heard (SEE SERVICE OF PROCESS)
b) Power over D
5) PJ is raised by D in 12b2 motion à if not raised and no other motion to dismiss is brought, it is preserved until the answer. After this its waived
I. In order to have PJ you must show that
A. STATUTE GRANTS PJ: LONG ARM STATUTE
1) Domicile
a) If domiciled there, even if not physically within state when served, most states grant this (definition of domicile is below under subject matter jurisdiction)
2) Transient Jurisdiction: D served while in the state
a) Service by fraud or force is invalid
3) D consents to jurisdiction
a) Express consent to the jurisdiction of the local court
i) Advanced consent given in case a suit is brought against them
(1) By appointment of agent to accept service of process
(2) Appointment required by state
(a) When state heavily regulates a type of business, it can require a nonresident engaged in that business to appoint an agent for service of process in the state
b) Implied consent
i) If state has substantial reason to regulate the instate activity of a nonresident, state provides that by engaging in such activity the nonresident appoints a state official as his agent for service of process
(1) i.e: implied consent to subject a nonresident motorist to jurisdiction in any state in which he has an accident
4) Long Arm Statutes
a) Authorize state’s courts to exercise jurisdiction over nonresident Ds based on specific types of contact/act w/ the forum state
i) Unlimited
(1) California for example: gives court power over any person or property over which the state can constitutionally exercise jurisdiction
ii) Limited or specific
(1) Torts: some to manufacturer place, some to all states it would be distributed
(2) Contract: any act arising out of transaction of business
(3) Property actions: ownership of property within state
A. CONSTITUTIONAL limit of due process for IN PERSONAM (Power over D)
1) OLD WAY/TRADITIONAL Basis for in personam (PENNOYER) (give general jurisdiction)
i) D served with process in the forum (Presence)
ii) Service on D’s agent in the forum
iii) D is Domiciled in the Forum
iv) D consents to jurisdiction
(1)Under these its tough to get in personum. Only way is by serving process in the forum. This is problem. So court expanded the bases.
(2)Every state has statute that says if you drive into our state you’re consenting to in personum and appointing a state official as your agent for service (in case you get into accident, etc)
2) MODERN INTERNATIONAL SHOE +
3) D must have purposefully availing MINIMUM CONTACTS
a) Continuous and systematic contacts support general jurisdiction; the better contacts the less connection you need
b) Purposeful availment
i) D must have purposely availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law
(1) D made deliberate choice to relate to the state in some meaningful way
(a) Worldwide VW: NY Audi dealer didn’t purposely avail itself opportunity to conduct activities in OK although it could foresee buyers might take cars there. Did not seek any benefit from OK sufficient to submit to its jurisdiction
(2) However, one contact may be enough
c) Foreseeability (alone not enough)
i) It is foreseeable that D’s activities make her amendable to suit in the forum
ii) D must know or reasonably anticipate that her activities in forum render it foreseeable that she would be haled into court there
(1) Volkswagon: foreseeability that car would end up on OK not enough
(a) Mere awareness that a product will end up in the forum is insufficient without a “plus factor” (Asahi; O’Conner plurality)
(b) If you have regular constant sales its enough (Brennan concurrence)
(c) Volum
ing court can inquire whether rendering state had jurisdiction in the original action and refuse enforcement if it didn’t
(2) So if default judgment is granted, D may oppose enforcement of the judgment by asserting PJ when P tries to enforce it
(a) COLLATERAL ATTACH ON THE JUDGMENT b/c the D challenges original court’s jurisdiction in enforcement action rather than directly in original suit
(i) This is more convenient for D b/c no need to travel to other state
1. Still risky, D allowed to challenge PJ but not merits of case. So if F2 concludes there was PJ, it will automatically enforce F1s judgment
(ii) D may not challenge PJ in enforcement action if D already did so in original actio
NOTICE (Rule 4)
1) To be effective, service must pass:
a) CONSTITUTIONAL STANDARD
i) Mullane standard: notice must be reasonably calculated under all the circumstance to apprise the D of the proceeding (test for whether service type is constitutional)
(1) Doesn’t require that D actually get the service, only that it was a method that was reasonably calculated to get to the D
(a) HOWEVER, if you become aware that the D has not gotten it, you may have to try other steps.
b) PROCESS of service: notice must be provided in manner prescribed in court rule/statute
i) Summons & Copy of the complaint
(1) Summons is a symbol of the courts power (4a1)
(a) Must be signed by clerk, contents in 4a1
(2) 4c1: required P to serve both summons + copy of complaint
ii) Service can be made by any non-party who is at least age 18 (4c2)
iii) How do we serve an
(1) INDIVIDUAL? (4e)
(a) 4e2 gives you 3 choices
(i) Personal delivery to D
(ii) Substituted service: must be at the D’s dwelling or usual abode and you must serve someone of suitable age/discretion who resides there (baby sister does not work, butler does)
(iii)Delivering copy to an agent appointed by D to receive service on his behalf
(b) OR 4e1: following state law of where the federal court sits (for D outside of state where action pending) or where service is made
(i) Like service by mail- state law often allows service by mail
(2) BUSINESS (4h1)
(a) Must serve an officer or a managing or general agent
(i) Managing/general agent?: looking for someone with sufficient responsibility that you expect her to transmit important papers
(3) D’s in FOREIGN COUNTRIES
(a) By internationally agreed means
(b) If none then:
(i) Prescribed by foreign law for service OR as foreign authority directs
(ii) Unless prohibited by countries laws, by either Delivering personally or Using mail with signed receipt
(c) By any other means not prohibited by intl agreements, as court orders
(i) EX email in Rio v. Rio b/c couldn’t find D other way
