Seton Hall Law
Civil Procedure
Eisinger
Fall 2008
Textbook: Aspen Civil Procedure
Civil Procedure Outline
The Idea and the Practice of Procedure
· Civil – everything non-criminal
o focused on remedy – damages; money, injunction – make someone stop doing something
· Procedure – not substantive law
Civil Procedure: The law, the principles, and the practices that govern the behavior of courts (judges or juries), lawyers, and parties dealing with non criminal disputes that turn into lawsuits
· Law – the Constitution, statutes that Congress has enacted, the rules of civil procedure, advisory committee notes to the rules, and cases
· Principles – policy, what we are trying to achieve in the legal system
Rule 1: Scope and Purpose, Fed. R. Civ. P. 1.
These Rules govern the procedure in all civil actions and proceedings in the US District courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
Policy: justice v. efficiency
· Justice – Fair hearing, notice of hearing, a truthful result – the right person found liable
· Efficiency – certainty, should be able to get the right result in reasonable amount of time, finality
· Encourage meritorious lawsuits, but do not want people afraid to bring a good lawsuit due to threat of having to pay attorney’s fees
Timeline of a Lawsuit:
Event, such as an accident, leads to a lawsuit:
o Prefiling investigation
Ø Rule 11 – make sure proper steps are followed
Ø Where to sue?
Ø Forum
§ Jurisdiction, Personal Jurisdiction, Legally Sufficient
o Pleadings
Ø Complaint
§ Rule 8 – short plain statements (Bell)
§ Rule 11 – if you had not exhausted admin remedies it would be ethical violation (Bridges)
Ø After motion, can file motion to dismiss under Rule 12(b)
§ 12(b) (1) Hawkins – wrong court
§ 12(b)(2) Personal jurisdiction
§ 12(b)(3) Venue
§ 12(b)(6) Bell – Legally insufficient claim, not entitled to relief
· Granted:
o With prejudice; Case is over, can appeal
o Without prejudice; Can make changes and re-file amended pleadings
· Denied -> answer -> discovery -> trial
Ø Motion for more definite statement Rule 12(E) – Bell
Ø Motion to amend
§ Granted -> answer
§ Denied -> answer
Ø Service of complaint
o Answer
Ø Admit, Deny, or lack knowledge or information sufficient to form a belief as to the truth of the allegation – essentially a denial
Ø Silence = Admission
Ø Affirmative defense
Ø Counterclaim
o Discovery
Ø Settle
Ø Voluntarily dismiss
Ø Involuntarily dismiss Rule 41
Ø Summary judgment – only if there are no disputes over facts
o Trial
Ø Plaintiff presents case, rests.
Ø D moves JMOL 50(a)
Ø Granted – plaintiff can appeal
Ø Denied -> D presents case, rests
Ø P or D move for JMOL 50(a)
§ Granted – can appeal
§ Deny – jury deliberates, returns a jury for the plaintiff
· Defendant can then make a renewed JMOL (JNOV) under 50(b)
· If verdict for defendant, plaintiff can make JNOV under 50(b)
You cannot make a motion for judgment notwithstanding the verdict unless you made an earlier motion, but you can make a motion for a new trial under Rule 59
Prefiling Investigation:
I. Jurisdiction
A. Personal jurisdiction – court must have some connection with the defendant over which they are exercising power
1. In personam—power over the defendant herself
a.General: defendant can be sued in that forum on a claim that arose anywhere in the world
1. If the defendant has continuous and systematic or substantial ties with the forum that is subject to general jurisdiction
a. Domicile in the forum, corporation is incorporated in the forum
b.Specific: the defendant is being sued on a claim that arises from activities in the forum
1. discreet and insular contact (car accident)—claim arises out of and related to the contact with the forum
c.Constitutional Test:
Pennoyer v. Neff
1. A state has exclusive jurisdiction over people and property within its borders.
2. No state can exercise jurisdiction over people or property in other states.
3. Judgments in personam without personal service of process shall not be upheld.
4. Judgments in rem with only constructive service may be upheld (if attached before judgment)
5. The “Full Faith and Credit” clause of the Constitution only applies “when the court rendering the judgment had jurisdiction of the parties and of the subject-matter”.
The 14th Amendment lets the court question “judgments rendered against non-residents without personal service of process” on a new and different basis: you can’t debate somebody’s rights and duties in a court that doesn’t have jurisdiction over them, because that violates due process of law.
1. Power
2. Consent
3. Notice – could be in the form of attachment of property
§ In order to have PJ over a defendant a forum state must have either power or the defendant’s consent
§ Personal service of process on defendant within the state simultaneously asserted power and gave notice
1. Traditional bases of in personam PJ:
Presence: If the defendant is served with process in the forum it gives the forum general in personam jurisdiction
Agent: Service of process on the defendant’s agent in the forum creates general jurisdiction
Domicile: if defendant is domiciled in the forum, gives general jurisdiction
Consent: defendant consents to specific jurisdiction
Actual – write it in an agreement (pre-litigation agreement as in Carnival)
Implied – show up to fight lawsuit; waives notice when defendant appears and fails to challenge PJ
Carnival Cruise Lines, Inc v. Shute (Consent as substitute for power)
The forum selection clause contained in the ticket is valid. Can waive your constitutional protections and that minimum contacts are not necessary when there is consent
Efficiency: Forum clause has benefits to cruise line which is passed to passengers in form of lower fares
Clauses are subject to judicial scrutiny for fairness – Carnival had principal location in Florida, no evidence of fraud or overreaching, and petitioners were given notice, so the clause here is fair
2. “Minimum Contacts” and “Traditional Notions of Fair Play” from International Shoe
A. Mor
e, agent, consent, domicile)—those may be enough by themselves under 4 justices in Burnham; but maybe we need some more per the other 4 justices
3. Minimum contacts?
a. Relevant contact between the defendant and the forum
i. purposeful availment
ii. relatedness—does this claim arise from the defendant’s contact with the forum?
b. Traditional notions of fair play and substantial justice
i. foreseeable that the defendant could get sued in that forum?
ii. Fairness—burden on the defendant to show that it is unconstitutionally unfair (severe disadvantage in the litigation)
iii. State’s interest (McGee)—does the forum have some interest in allowing the litigation?
iv. Plaintiff’s interest (not often discussed)
v. Legal system’s interest in efficiency
vi. Interstate interest in shared policies
B. In Rem Jurisdiction—power over defendant’s property (specific jurisdiction)
i. Statutory Inquiry—attachment statute requires attachment at the outset of the litigation
1. common law attachment standard from Pennoyer
ii. Constitutionality
Shaffer v. Heitner: Presence of property alone is not enough to establish personal jurisdiction. Abolished quasi in rem jurisdiction – abolished Pennoyer to that extent.
Test that now applies to all assertions of jurisdiction is the relationship between:
v the defendant,
v the forum,
v and the litigation.
International Shoe now applies to all assertions of state jurisdictions.
1. In many states it is statutorily mandated that being the director of a corporation registered in that state submits those directors to personal jurisdiction in the state
2. This holding made quasi in rem insufficient and incorporated pure in rem on the presumption that there’s always contact between the owner and the property and the property is within the forum state.
3. Property in a forum may still suffice to create general in personam jurisdiction under minimum contacts assessment.
Fuentes – says nothing about seizure for jurisdiction, talks about whether you can seize property – leaves seizure for jurisdiction issue open, that Shaffer now decides
§ Existence of shares in Delaware is a contact, but it is not a sufficient, purposeful act of the defendant on a lawsuit connected with the property such that it would be fair to bring suit in Delaware
§ Directors never set foot in Delaware, no business or soliciting conducted in Delaware
§ In rem jurisdiction still exists – attachment of property is constitutional if lawsuit is about the property
