Civil Procedure Outline
Choosing a Proper Court
I. Personal Jurisdiction- the ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property
a. Three types of Personal Jurisdiction
i. In personam jurisdiction- the forum has the power over the person of a particular defendant
1. ct may enter money judgment against the d or may order the d to perform acts or refrain from acting
2. other states observe ct rulings through full, faith, and credit
ii. In rem jurisdiction- when the ct has the power to adjudicate the rights of all persons in the world with respect to a particular item of property
1. property must be located within the physical borders fo the state where it is necessary for the state to be able to bind all person regarding ownership and use
2. usually in cases of condemnation, forfeiture of property, and settlement of decedents estates
iii. Quasi in rem jurisdiction- when the ct has the power to determine whether particular individuals own specific property within the courts control
b. Consent- d can consent to pj
i. Express Consent- a party’s express consent to the jurisdiction, whether given before or after the suits commenced
1. by contract
2. by appointment of agent to accept service of process
ii. Implied consent- when a state has substantial reason to regulate activity of a non resident of the state, it may appoint an agent for that person
iii. Voluntary appearance- contesting the case w/o challenging PJ
iv. most states allow “special appearances” where one can come and challenge PJ, but must make it known to the court FIRST before you challenge the merits
II. Constitutional Limitations on in personam jurisdiction
a. Sufficient contacts with the forum: contact and fairness
i. Traditional rule: physical power
ii. Modern Due Process Standard: Contact and Fairness
1. Contact
a. Purposeful Availment- d contact with the forum must result from her purposeful availment with that forum, cannot be accidental “receiving benefits and protection of its laws”
i. Stream of commerce clause- putting your product out there to be distributed but not directly selling it to P
b. Foreseeablity- foreseeable that d activities make her amenable to suit in that forum, must know or reasonably anticipate
2. Fairness- assessing whether PJ would be fair
a. Relatedness of claim to contact- see if the claim asserted in anyway arises in some way from the d contact with forum
i. Claim arising from activity in state
ii. Systematic and continuous activity in that state
b. Convenience- forum is acceptable unless it is so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent
c. Forum States Interest
b. Notice- reasonable method used to notify the d of a pending lawsuit
i. Traditional methods of personal service satisfy due process notice requirements
ii. Rule 4: You cannot lure someone into state simply to serve them, and then claim personal jurisdiction. (The completion of jurisdiction is handing someone a summons)
iii. Requirement that agent notify defendant
iv. Requirements for cases involving multiple parties or unknown parties
1. best practical means available
2. mail, newspaper, ect…
III. Statutory Limitations on PJ- cannot exceed, but can limit constitutional PJ
a. Physically present at the time of service
b. State law exceptions to traditional rule – states can limit their own pj
i. service by fraud or force invalid
ii. Immunity of parties and witnesses
c. Domicile- the place where a person maintains his permanent home, US citizen, even when abroad, is subject to PJ in US
d. Long Arm Statutes- a state can grant PJ over nonresidents who perform certain acts in their state, d can be served in or outside the forum, but limited to action in that state
i. Unlimited long arm statutes- power over anything which the state can constitutionally exercise jurisdiction
ii. Limited or specific LAS
1. Limitations in tort cases- act happened in the state
2. Limitations in contract cases- act of transactional business in the state
3. Limitations on Property Actions- property in that state
4. Limitations in Marital dissolution cases
IV. In Rem Jurisdiction
a. Statutory Limitations- Actions of condemnation, title registration, confiscation of property, and a grant of divorce when only the complaining spouse is present and subject to pj (property is the marital status)
b. Constitutional Limitations
i. Nexus- presence of property in state is sufficient for the exercise of jurisdiction over property
1. No jurisdiction if property not located in state
2. No jurisdiction if property brought in by fraud or force
ii. Notice- must be notified by mail (if known)
V. Quasi In Rem Jurisdiction- permits ct w/o personam right to determine certain disputes b/w p and d regarding property located in forum state
a. Disputes b/w parties over their rights in property w/in the state
b. Disputes unrelated to the in-state property and has been severely limited by the SC
Waiving PJ
1. Showing up in court in the forum state
2. Consenting to jurisdiction
3. Forum selection clause
Challenges to PJ
I. “Direct Attack- appear in the original action at the beg of the suit and object to the cts exercise of jurisdiction over her (file a “special appearance”)
a. Fed Rules- D may appear before he answers on the merits, and objects to PJ first and can bring up the merits
b. Common Law- “special appearance”- allowed to appear in front of the court only to challenge jurisdiction (cannot talk about the merits)
II. “Collateral Attack”- ignore the suit entirely
a. If you do not appear in ct, the p will get a default judgment, however, if you are positive they do not have pj, then when they try to collect, your state ct will not enforce it
b. Risk- If you get a default judgment, you will not be able to fight on the merits, you can only fight on jurisdiction
Subject Matter Jurisdiction: Federal Question and Diversity w/ amount over 75k (you cannot waive SMJ)
Federal Question Jurisdiction-cases under the federal law or federal constitution
I. State Courts have a broad juris to hear most types of case (as long as it is under state law)
II. Fed question must appear in the complaint
a. Must appear in P cause of action
b. D answer is irrelevant
III. Implied fed right of action
a. Not essential that that the fed statute expressly provide for a civil cause of action for an alleged violation (can be a constitutional question)
IV. Fed corporations- US must own more than one-half of the corporations capital stock
V. Supplemental jurisdiction over state claims
a. Claims asserted by p can invoke supp juris in any case that has smj
b. Pendent claims- both fed and
d not meet jur amount, ct already has supplemental jur
ii. Permissive cc must meet jur amount- if it is unrelated to cause of action, must meet jur amount
iii. No removal to fed ct based on cc
Removal- the d as well as the p should be able to choose fed ct for cases w/in the fed juris
I. D can only remove an action that could have originally been brought by the p in fed ct
a. When- removal is tested the day it is removed (in terms of smj and pj)
b. Fed defense insufficient
c. state ct need not have had jurisdiction- fed can hear claim even if state can’t
II. Only D may remove; ALL must seek removal
III. Limitations on Removal in diversity of citizenship cases (not fed ques)
a. If d is sued in his home state, he can’t remove
b. One year Rule- A case cannot be removed based on div jur more than one year after it was commenced in state ct (however, a d must remove a case no later than 30 days after the D discovers through service of process an amended pleading, order, ect. that the case has become removable- hence, cases become removable at different times, so any time during that one year, once you know it you have 30 days)
c. If a state ct satisfies requirements, you cannot remove to a state ct in another state
IV. Dismissal of Nondiverse parties allow for removal- if no fed question is involved and diversity does not exist b/c a party is co-citizen of an opposing party, if complete diversity comes about b/c the co-citizen is dismissed, the other party can ask for removal
V. D may remove separate and independent fed question claim- when there are several claims w/ several causes of actions, d may remove if contains a separate and independent claim or cause of action within the fed question
VI. PROCEDURE FOR REMOVAL
a. Notice of Removal- file a notice stating why there should be a removal and send it to the fed dis ct, the state ct, and all other parties involved, once this is done the state ct can no longer deal w/ this case
b. Time- must file w/ in 30 days of after receiving service of the complaint
c. Procedure after removal- case proceeds according to the fed rules of procedure,
d. Right to jury-
i. Demand for a jury trial- may be waived unless a timely demand for a jury trial is filed
ii. Demand not required- if the party, prior to removal, wanted a jury trial no need to demand again
e. Remand- a p can file a motion to have the case remanded (sent back) to state ct.
i. If based on any other than smj must be brought within 30 days of removal
ii. SMJ generally considered first
f. Specific Types of Actions-
i. Removable- federal officers, federal employees, international banking, civil rights
ii. Nonremovable- under FELA (employment act) and Jones Act, nor Fair Labor SA
1. all writs act not a basis for removal
