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Civil Procedure I
Southern Illinois University School of Law
Adams, Jill E.

Civil Procedure I Outline Adams Spring 2013

I. Civil Procedure in General

A. Procedure governs the decisional forms whereby violation of substantive rights and duties may be redressed

B. Current process: 28 USC §331 creates the Judicial Conference to carry on continuous study of operation and effect of general rules of practice and procedure as prescribed by SCOTUS

1. Standing committees for rules of practice, procedure, and evidence, the goes to Conference

2. SCOTUS ultimately reviews and decides whether to promulgate the rule

3. Congress has ability to override SCOTUS by taking affirmative action, but rule must be transmitted no later than May 1 and rules don’t become effective until Dec. 1

a) Congress has never stepped in for procedure, although it almost happened; has used this for evidence

C. Lawsuits frequently won or lost on procedural issues

D. Goals (Policies) of procedural system:

1. Give participants a sense they have been dealt with fairly

2. Give participants a chance to present their side before a reasonably convenient tribunal

3. Provide a mechanism for enforcement of legal rights and obligations that is not too costly in time or money

4. Yield final and lasting adjudications so people may enjoy repose and security in their legal relations

E. Sources of Civil Procedure

1. Federal Sources

a) US Constitution

b) Federal legislation

c) US Supreme Court Rules (Fed Rules of Civil Procedure, Fed Rules of Appellate Procedure, etc.)

d) Local rules of lower federal courts

e) Case law

2. State Sources (in addition to federal sources)

a) State Constitution

b) State legislation (735 ILCS)

c) State Supreme Court Rules

d) Lower court local rules

e) Case law

II. Where can a lawsuit be brought (need all 3 most of the time)

A. Personal Jurisdiction (Power)

1. Does this court have power over DEFENDANT to order him to take some action?

a) Examples: pay P money, return an object, etc.

2. Sometimes can be waived

3. Pre-Pennoyer jurisdiction by power

a) In rem jurisdiction-power over the land of D

(1) Attachment on property before suit was begin

b) In personam jurisdiction-power over the person of the D

(1) Consent by appearance

(2) Service when he was in the state (presence)

(a) Some jurisdictions allow for “special appearance” to object to personal jurisdiction without giving basis for personal jurisdiction

c) In Pennoyer, property was not attached when suit began, so no jurisdiction

d) Constitution Article 4, §1

(1) Full faith & credit clause in each state to the judicial proceedings of every other state

(2) Full faith & credit not effective when personal jurisdiction not present in original state or if default judgment was entered in one state

(3) Sues in one state, then if successful, goes to other state and brings another suit to enforce that judgment, which court has to give full faith and credit to the original state judgment

(4) Can do a “collateral attack” as a separate enforcement lawsuit

e) Due Process under the 14th Amendment to the Constitution

(1) Validity of state judgments may be questioned and enforcement resisted due to lack of jurisdiction, which violates due process of law

(2) Challenge in the state that rendered the decision

4. Modern Constitutional formulation

a) 3 Filters for personal jurisdiction in forum

(1) Is it permissible under the US Constitution (due process)

(2) Is it permissible under the state constitution (state due process clause)-different from IL

(3) Has forum authorized the exercise of jurisdiction in these circumstances? (statutory or rule)

(4) 735 ILCS 5/2-209

(5) Fed. R. Civ. P. 4(k)-incorporates state civil procedure for personal jurisdiction into federal process

b) Other jurisdictional issues may arise (sufficiency of service or sufficiency of process)

c) Domicile (Milliken): personal jurisdiction exists in the forum of one’s domicile even if service is made outside of the forum

d) International Shoe: US Constitution

(1) Does D have sufficient minimum contacts with the forum state that it does not offend traditional notions of fair play and substantial justice for the forum to assert jurisdiction over D

(2) Factors (No single one is determinative)

(a) Are D’s actions in forum systematic and continuous?

(b) Did the cause of action arise from D’s activities in the forum?

(c) What are the nature and quality of D’s acts in the forum?

(d) Does the D exercise the privilege of conducting business in the state, thus invoking the benefit and protection of the state’s laws?

(i) Policy: reciprocity; if take advantage of benefits and protections of laws in forum, should be subject to their jurisdiction

(3) Not a bright line test; very elastic

(4) General vs. Specific Jurisdiction

(a) General Jurisdiction: activities in the forum so substantial that D can be held to jurisdiction regardless of whether cause of action has any connection to forum

(i) Exists for individuals in place of domicile

(ii) Exists for corporations in place of incorporation

(iii) D may be subject to general jurisdiction if its contacts with that forum are “continuous & systematic”.

(a) In IL, the issue is often framed as whether D is “doing business” in the state

(iv) General jurisdiction can also be established by in-hand/in-state service of process on D

(b) Specific: even though a D may not have sufficient contacts to be subject to general jurisdiction, if the cause of action arose in the forum, D may have sufficient contacts to be subject to personal jurisdiction

(i) Takes fewer contacts to establish than in general jurisdiction cases

(ii) Courts split on whether specific jurisdiction in one case allows for jurisdiction in other causes of action

e) McGee-specific jurisdiction in insurance contract/premiums by mail

(1) Look at state’s interest in providing effective means of redress for its residents in providing a forum

f) Hanson

(1) Has D purposefully availed itself of the privilege of conducting

ce: forum state doesn’t exceed its power if it asserts jurisdiction over a corporation that delivers products into the stream of commerce with the expectation they will be purchased by consumers in the forum state

(i) Last event rule: last event (usually injury) to occur to complete the tort should give rise to jurisdiction where it occurred

(2) Asahi-plurality opinions

(a) NOT majority (O’Connor) says that placing a product in the stream of commerce, without more (affirmative act within the forum such as designing the product for the forum, providing channels for advice to consumers, or marketing the product through a distributor in the forum), is not enough to establish personal jurisdiction where the product causes harm

(b) NOT majority (Brennan) says that placing a product in the stream of commerce with the intention of it being widely distributed is enough to create personal jurisdiction over the manufacturer UNLESS the substantial justice factors are sufficient to warrant denial of personal jurisdiction

(i) Stevens’ opinion looks to “volume, value, and hazardous character of the components” for “purposeful availment” in the stream of commerce is enough to meet the minimum contacts test, although no absolute rule on stream of commerce

(ii) Therefore, it can be argued that there are at least 5 justices would find jurisdiction under Steven’s view

(c) II-B: fair play and substantial justice (reasonableness) test is different from the minimum contacts test; if you don’t have both, then no personal jurisdiction

(3) Burger King

(a) Once minimum contacts have been established, those along with other factors determine fair play and substantial justice

(i) Presumption of Reasonableness – where D has purposely directed activities at forum resident, jurisdiction is presumptively reasonable

(a) Requires D to make “compelling case” that PJ is unreasonable.

(4) Nicastro

(a) General rule – personal jurisdiction not unlawful IF D does some act that “purposefully avails itself of the privilege of conducting activities w/in the forum, this invoking the benefits and protections of its laws (Hanson)

(i) Do D’s activities manifest an intention to submit to the power of the sovereign?

(a) Required “targeting the forum”

(b) Generally, it is not enough that D might have predicted that its goods will reach the forum

(b) Purposeful availment = consistent with traditional notions of fair play and substantial justice