Civil Procedure
MADISON COMPROMISE argument to keep the federal system separate from the state system
Locating Procedure:
Ø Overview of the Civil Procedure subject. Most poor and middle class cannot afford an attorney to properly interface w/ the legal system. Most attorneys service the rich, very rich and businesses. Most don’t even know if they can sue or if they should sue. Different ppl approach the process differently.
Ø Procedure, Lawyers & Clients: Lawyers act as the client in the court representing the client as an agent of the real client.
Where do you bring the lawsuit?
Ø There are two systems of law always lurking over any one individual. FEDS on top and States on bottom.
Ø The State is required to enforce the law of the US. So when does the FED system kick in and when does the State system kick in.
Ø The question is answered in “subject matter jurisdiction”. If you pick one and your wrong, the other side can trump your case.
Lawyer’s Responsibility:
Ø Only two rules expected to know by name and number by end of semester.
· Rule 11 – Whenever you as a lawyer sign or otherwise rely upon a piece of paper file in a federal court, you are warranting certain things about that paper. You are certifying that you are telling the truth and making a sound legal argument.
· Rule 12(b)(6) – motion to dismiss for failure to state a claim on which relief can be granted.
Ø The four word top tip for how to do legal research. “Ask someone who knows”. Prof called P’s attorney in the Hawkins case and asked why the case was filed in Federal court. Attorney’s response was that they the people of Kansas would have been sympathetic to the farmer and not his client. Federal court would not have been so bias.
THE CONSTITUTIONAL FRAMEWORK FOR U.S. LITIGATION
1. Approaching Civil Procedure
2. Constitutional Limits in Litigation
3. The Idea of Jurisdiction
4. Jurisdiction and the Constitution
5. The Constitution and Choice of Law
JURISDICTION – OVERVIEW:
7 Issues to look for: – SPiNS V. RoW
Ø [Personal Jx] Does the court have it?
· The power of the court over the Defendant not dispute.
· Is there due process power over the Defendant?
Ø [Subject matter Jx] Does the court have it?
Ø [Notice] Has the Defendant been given notice and opportunity to be heard?
· Also due process b/c basic violation of fairness.
Ø [Process] Has the Defendant been served with process properly?
· It’s not a big question, it’s not a constitutional question—more a question of whether or not the service of process [Rule] has been complied with.
Ø [Venue] Does the court have venue?
· Simply the system of [Rule]s by which a court system allocates its business among the units within the system.
Ø [Removal] The action is in a state court, can it be removed into a federal court?
Ø [Waiver] Have any of the preceding six issues been waived?
· This is a very tricky question.
TYPES OF JURISDICTION
Ø In Personam:
· A state courts power over the person in the state – connection with the forum state – physical presence of the person within the state. In personam jurisdiction cannot be conferred on a non-resident by publication. Publication is only effective in rem proceedings (through property)— 14th Amendment: determining someone’s rights in a c
tate the K chooses. Burger King was a choice of law clause. It is consent to be sued in a forum verses the law of the forum to be applied
· Constructive or Implied Consent (fictional)
− Hess v. Paloski – if you travel in the roads of our state then you have impliedly consented to litigation within the state.
Ø Status: single or married:
Ø Residence/domicile:
IN-PERSONAOM (Personal) JURISDICTION:
Traditional Basis (Pennoyer):
Ø Territoriality – can be transitory (voluntary)
Ø Domicile
Ø Agency
Ø Express consent – Contracts w/ forum selection clause
Ø Implied consent – constructive and fictional – impliedly consenting to states driving rules.
Ø Waiver
Ø Producing consent
Ø Doing business and presence – if a corporation is doing business in a state then it has presense.
If No Traditional Basis à Long-Arm Statute:
Ø Enumerated Acts (Specific):
Lets citizens know precisely what conduct will subject them to jurisdiction
Ø Limits of Due Process (General):
Flexibility when the definition or view of due process shifts, more congruent with federal system and unified state court approaches
SPECIFIC JURISDICTION
Ø When there is a relationship b/t the defendant, the forum and the litigation
Cause of Action (i.e. minimum contacts) of D must be related to the Forum State
