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Civil Procedure I
St. Johns University School of Law
Ruescher, Robert A.

Ruescher_Civil Procedure_Spring_2014


A. Substance v. Procedure

1. Substantive Rules: people that have an organized society have rules that govern their conduct in everyday lift

(a) Law that binds organized community and establishes the conduct of that community

(b) Conditional imperative: if certain condition occurs, then something must follow

(i) Ex: if condition A is met, then A can recover

2. Procedural Rules: created by courts and its decisions, gov proscribes how litigation is to be handled

(a) How to bring a dispute to court, how to gather evidence, how evidence should be admitted, mechanics on how to get the disputes resolved, how P has to notify Ds

(b) Provide the means of disclosing what dispute is about

(i) It is up to the parties to teel the court what the dispute is about

(c) These rules give us the “how to”

B. Federalism

1. The Constitution creates the US fed gov and cedes it to limited and enumerated powers

2. States are not independent: many of the rights which originally belonged to them are vested in government created by constitution

3. Litigants cannot file suit to a fed court simply because they would like to be there

(a) Case has to be one that C and congressional statute permit access to fed court

4. Even those vast amount of cases that are filed in fed may be filed in state court

5. Fed courts do not have the power to review actions of state courts

6. Cases in state courts can only appeal to state appellate courts

7. US SC can only review cases of federal law

C. Structure of a Court System

1. State

(a) Trial courts (Superior Court): where P initiates civil litigation

(i) Has original (as opposed to appellate) JD

(ii) NY has 4 district courts

(b) Intermediate Appellate Court: Court of Appeal

(i) Not all states have intermediate appellate courts

(c) Supreme Court: Court of last instance

2. Federal: all courts of limited JD set by Article III, Sec 2 of C

(a) District Courts

(b) US Court of Appeals: there is no federal C right to appeal a judgment in a civil case, but most provide one

(i) Has 13 districts

(ii) Existence of appellate courts does not guarantee a right of appeal in civil cases

(c) Supreme Courts: appellate courts of last resort

(i) Can look at all cases from 13 circuits and has JD to hear cases from high court of each state that deals with fed and statutory matters

(ii) US SC consists of nine justices

(iii) Highest court not required to hear all cases in which review is sought

(iv) In civil: SC review is almost always discretionary

3. Fed v. State Court

(a) Fed judges are appointed for life in Art III of C while state ones are elected

(b) Fed courts have smaller case loads so case will be brought to trial faster

(i) Ps would want case to end quicker so that P gets the $, while D wants to drag the case out because Ds do not want to pay the $

(ii) Quicker trial helps the fact that over the course of time, people forget what happened, more evidence is lost, leading to weaker case. P has the burden to prove the case; so, P wants the case brought quicker

(c) Fed courts have more diverse jury pool because it is drawn from larger geographical area

4. Appellate Practice and the Doctrine of Precedent

(a) In intermediate appellate it is common to have 3 judge panel

(b) SC usually has 7 or 9

(c) Doctrine of harmless error: appellate court can affirm judgment even if error was made and result would be the same without this error

(d) Appellate pronouncements are binding on all lower courts of the same JD through precedence

D. General Topics of Civil Procedure

1. Rules governing where suit can be brought – MUST HAVE ALL 3

(a) Subject Matter JD

(i) Removal

(b) Personal JD

(c) Venue

E. Notes on Jurisdiction

1. Federal court – cannot appeal until final judgment

(a) State uses interlocutory appeals

2. Why are federal courts restricted to exercising PJ over Ds who have some connection to the state where they are located?

(a) Rule 4(k)(1)(a)

(b) In 4(k)(1)(a): general JD means SM JD of most powerful trial court in the state


A. PJ: in what states can the P sue the D?

3. Answered the same whether it’s in state or federal court

B. For PJ, the court must have power over something: the D himself (in personam) or the D’s property (in rem or QIR)

C. 3 kinds of PJ:

1. In personam: power over the D himself

(a) Want to start with this; if you can’t get it, try the other two

(b) General or specific

2. In rem: power over D’s property

3. Quasi in rem (QIR): power over D’s property

D. Due Process tells courts how far they can go exercising any of those types

1. If the judgment is valid, it is entitled to Full Faith and Credit

2. Even if the cases falls within the Due Process circle, it doesn’t mean the court can hear the case

(a) The state must ALSO have a statute that allows PJ in this case

(b) States can give their court less than the Due Process circle

3. First step: Does the state’s statute grant JD?

(a) If yesà is it constitutional within DP circle?


– Look at Rule 4(k)(1)(a): tells you to use JD rule of state where you are located (PJ in federal court)

– Long Arm statute

– If none of the traditional bases apply, does the forum state’s long arm statute reach the D? (CPLR302)

o If person is residing/found with JD, long arm statute does not cover (rules of state do)

o If he is not domiciled or found within forum or does not fall within long arm statute, there is no PJ

– Was service proper?

o Over 18, nonparty; see corp rules 4(h)(1))

o Most likely proper

o If served within forum, there is general PJ

– Do Pennoyer traditional bases apply?

o Natural Persons

§ Served in the forum

§ Domiciled in the forum state

§ Did D consent to JD

o Corps

§ Is D incorporated in the forum state

§ D did consent to JD?

o If so, then flag Burnham split

· Are they good by themselves or must we go to the IS test?

– If it satisfies LAS, is it constitutional?

o Is there a relevant contract between the D and the forum? MUST have this

§ Purposeful availment – Did D reach out to forum?

§ Foreseeability – Did the D foresee that he would get sued there?

o If yes à relatedness

– Relatedness

o General JD?

§ If they are domiciled or found within state, can be sued on a claim that arises from anywhere in the world

· Ex: If CA has general PJ over you, CA has JD over a claim you did in NY

§ For corp – the state in which they are incorporated or the nerve center/headquarters

· Wherever they feel at home

· Does not have to have a real connection to the claim

o If no General, is there specific? (Hanson, McGee, Gray)

§ Specific: D is sued for claim that arises in forum

· Minimum contacts: continuous and systematic contacts, directed at forum, purposeful availment (usually sufficient to establish constitutionality) (WW VW)

o NO – no JD

o YES – Does cause of action arise out of a connection between D and the forum?

· Ps claim has to arise from or be related to that activity (relation)

o D acted in the forum

o D uses an agent in the forum

o If NO – no JD

o If Yes – is it reasonable?

– Is JD fair

ndemnation proceeding over the D’s property; Litigation is about who owns the property

(a) Based on eminent domain

(b) Does not worry about D, anyone with titles is brought into suit; action against whole property

(c) In rem: sometimes if you cannot get PJ over somebody you can take possession of that person’s property if it is in their state

(d) Court acquires control over person’s property and asserts JD

(e) Adjudicates law suit and then if P wins, sells property and gives money to P

(f) If you have PJ and win judgment, it is enforceable in any state under full faith and credit

(g) If only basis of JD is attachment from property, judgment is only good in state of suit

G. Quasi-in-rem: need to give notice to specific D; Litigation is clear that D owns property, dispute is about something else

1. Property must be attached at outset of case

2. Type 1: property related to subject matter; judgment is not good against whole world

3. Type 2: property unrelated to suit; pretext attachment jurisdiction

4. Analysis

(a) Attachment statute: says we can seize property the D owns or claims to own

(b) Shaffer v. Heitner – Seizing property is not enough, must meet IS

(i) Same test as in personam

H. A from NY, B from/lives in GA but owns no property there. B goes to FL, enters into contract with A. B breaches contract. A wants to sue B in FL, but he is always traveling. A starts suit in GA. Serves B in Tenn.

(a) Not valid under Pennoyer, but valid today

I. Hess v Pawlowski (34) [Consent à Implied Consent]

1. MA motorist act says that if you drive into state, you are implying consent to in personam JD and you are appointed a state official as your agent of service (implied consent)

2. Every state has one

(a) State’s power to use highway extends to their use by nonresidents

(b) Puts residents and nonresidents on equal footing

3. Fairness aspect: accident happened in MA with MA resident

4. Sovereignty: MA can make nonresident come to MA because it happened on MA highway with MA resident

5. Consistent with Pennoyer, just expanding the bases – consent becomes implied consent

6. Still good law today

J. International Shoe v. Washington (36) [Minimum Contacts – Modern Day Reasoning]

1. Due process requires only that in order to subject a D to judgment in personam, if he is not present within the state, he has to have certain minimum contact with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice

2. If D has established contacts in a state subject it to proceedings in the courts of the state to recover unpaid contributions to that state

3. New rule:

(a) Do not have to be present within territory

(b) If D is not present in territory, has to have certain minimum contracts such that it does not offend traditional notions of fair play and substantial justice

(i) Can serve outside the forum

4. Two parts to the test

(a) Contacts

(b) Fairnesss