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Civil Procedure I
St. Johns University School of Law
Hennigan, John



FALL 2012

I. Lawsuit Overview

1. Lawsuits: Only 1% are tried; Civil not Criminal

2. Sources of Law:

a. Federal Statutes (Enacted by Congress, mostly in Title 28 of the US. U.S.C., sometimes called the judicial code)

b. Federal Rules of Civil Procedure:

i. Promulgated by the Supreme Court pursuant to the Rules Enabling Act 28 U.S.C. 2072

1. Rules Enabling Act was construed in Sibbach v. Wilson

2. Allow the Supreme Court to “prescribe, by general rules…the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law

a. Substantive Law→ matters of substance/conditions one sues over

b. Procedural Law→ procedures going about the lawsuit

II. Personal Jurisdiction

1. In what state can P sue D? (main/only ques)

a. In any case federal/state the court must have the power over something

b. Two things court can have power over:


Court must have power over 1 of them

D herself

ii. D’s property

2. Three kinds of PJ

a. In Personam→ court has power over the D herself

b. In Rem→ court has power over D’s property

c. Quasi in Rem→ court has power over D’s property

i. Courts always prefer In Personam

3. Due Process Clauses tell courts how far they can go to establish Jurisdiction (case must fall within due process circle)

a. If falls within due process circle, judgment is valid

b. Just b/c case falls within due process circle, courts still may not have PJ

i. A court must have statute granting PJ in the state

1. 1st ques on test, ask if statute allows PJ for this case

2. If answer is no→ no PJ

3. If answer is yes→ than look if case falls under due process circle

4. In Personam Jurisdiction

a. Either is general or specific

i. General→ D can be sued in forum on claim that arose anywhere in the world. (sued in NY & claim arose in CA)

ii. Specific→ being sued for claim that arose in this forum

1. Claim arose from D’s relatedness to forum

b. Constitutional Limit

i. Pennoyer- (this case gave the traditional basis for in personam jurisdiction)

1. D was served w/process in the forum (present at time of service)

a. This always gave (general jurisdiction)

2. D’s agent was served in the forum

3. D is domiciled in forum (this always gave general jurisdiction)

4. Consent (to jurisdiction)

ii. From Pennoyer it was difficult to serve process. As country became mobile courts expanded (e.g. Hess v Pawloski)

iii. Hess v Pawloski-

1. Background: Hess from PA hurts someone while driving in Mass. Hess was sued in Mass. even though he already returned to PA b/c Mass. had a statute that said if you drive in the state you have appointed a state official as your agent for service of process

2. Holding: The Supreme Court upheld the statute, thus expanding consent to include implied consent allowing specific jurisdiction.

3. Note: Every state now has this statute (non-resident motor statute).

iv. International Shoe

1. Court gave new formula→ state has jurisdiction if person has “minimum contacts” w/state so that jurisdiction that exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice”

a. By the time this case was decided, it was already clear service could be served out of forum

b. Minimum contacts seemed to have two parts 1) contacts and 2) justice/fairness

c. Int’l Shoe doesn’t overrule Pennoyer, it’s used if the D is not present to be served & gives an alternative test if D is present to be served (doesn’t replace, supplements)

2. See Stone’s Schema from power-point.

v. Flexner v. Farson

1. Rule: It is unconstitutional for states to exclude citizens of another state from doing business in that state. Implied consent does not actually exist on individuals doing business, as opposed to corporations.

2. Note: This is mostly overruled by Doherty v. Goodman which allowed jurisdiction where an agent of the D conducted business in the state.

vi. McGee

1. Background: Texas insurance company with one insurance policy in CA. The insurance company was sued in CA for breaching this contract.

2. Holding: There were sufficient minimum contacts to warrant jurisdiction.

a. The D solicited the contract to client in CA.

b. [The P’s claim arose from the D’s contact with forum. This is relatedness]

c. The state has an interest in providing justice in this matter.

vii. Cook Associates v Lexington United Corp

1. Rule: The transacted business in the state must be related to the claim.

viii. Nelson v. Miller

1. Issue: Do you have to prove all of the elements of the claim to gain jurisdiction?

am and reasonably anticipated that it will get to states C and E. (X had purposeful availment)

b. O’Conner Theory: You need the above theory plus intent to serve states C and E. (advertising suffices, w/o addition, no jurisdiction)

i. Great area to test b/c no clear law, discuss both

xvi. Burnum

1. Background: NJ D sued in CA for a claim that arose in NJ. The D was served with process in CA.

2. Issue: Do the traditional basis, like service in the forum survive? (does Pennoyer survive Shoe? In this case Pennoyer was fulfilled-served in state, but Shoe wasn’t b/c no contact)

3. Holding: There is no answer from the Supreme Court though all 9 agree that there is personal jurisdiction.

a. Scalia Theory: Presence when served is good on its own (only need Pennoyer not Shoe).

b. Brennan Theory: We must apply International Shoe every time, eliminating the traditional basis. (In this case Brennan argued that by being in CA for three days there is enough contact for general jurisdiction.)

i. Great area to test b/c no clear law, discuss both

xvii. General In Personam Jurisdiction (can be sued in forum if claim arose anywhere)

1. Helicopters & Perkins→ we have general In Personam if D had continuous & systematic ties to the forum

a. This could still be the rule but we have modern case of Goodyear

2. Goodyear (2011)- Court discussed general jurisdiction and held that D needs more than continuous & systematic ties to forum isn’t enough, also must show D is essentially at home in the forum. What does that mean? Court explained that for:

a. Human- where domiciled (can be sued in your domicile for claim arising anywhere in the world)

b. Business- Where incorporated & where PPB (can be sued in your domicile for claim arising anywhere in the world)

i. Difficult to determine what essential at home. Court said purchasing and selling isn’t enough. Till Goodyear Pepsi could be sued anywhere, now not so clear.