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

CIVIL PROCEDURE SPRING 2015 OUTLINE

PROFESSOR RUESCHER

I. PERSONAL JURISDICTION

II. SUBJECT MATTER JURISDICTION

III. REMOVAL

IV. VENUE/FORUM NON CONVENIENS

V. JURISDICTION CHALLENGES

VI. STATE LAW IN FEDERAL COURTS

VII. PLEADINGS

VIII. DISCOVERY

IX. SUMMARY JUDGMENT

X. PRECLUSION

XI. PLAINTIFF’S JOINDER OF CLAIMS

XII. DEFENDANT’S JOINDER OF CLAIMS

XIII. IMPLEADER, NECESSARY PARTIES, & INTERVENTION

I. PERSONAL JURISDICTION

Does the court have authority to exercise jurisdiction over this defendant?

rule 4

· Look to Rule 4(k)(1)

o (A) will tell you to look at the state’s long arm statute to determine whether jurisdiction falls within the statute

§ If yes à Constitutional Analysis

o (B) bulge rule: you can get jurisdiction OVER A THIRD PARTY DEFENDANT if the Δ is served within 100 miles of the district court.

o (C) except when authorized by a federal statue

· Ways that jurisdiction is accepted

o Appearance in court

o Found within the state

o A resident

o Attachment of property [only to the extent of the value of the property] –IN REM-

· Why should it be unconstitutional for courts not to exercise dominion over someone not connected to the state?

1. To limit state sovereignty. We don’t let states to exercise authority beyond their borders.

2. Fairness to the Δ – too burdensome to bring an out of state Δ

Specific Jurisdiction

When there’s not enough activity to be general jurisdiction, but there is enough activity and the π claim relates to the activity

· Corporations:

o If the corporation has activity & π claim is related = jurisdiction

o If corporation is doing only a little & π claim is unrelated = no jurisdiction

o If corporation is doing a ton of activity & π claim is unrelated = there may be jurisdiction

o If corporation is doing only a little & π claim is related = maybe jurisdiction

Does the defendant’s activities constitute “minimum” contacts such that jurisdiction is consistent with “traditional notions of fair play and substantial justice”?

Does this claim arise from defendant’s contact with the forum?

General Jurisdiction

When the defendant can be sued in that forum on a claim that arose anywhere.

Person – where domiciled

Corporation – where they are incorporated and their principle place of business.

Constitutional Limitations

Pennoyer [traditional basis]

· Defendant is served in the forum [GJ]

· Defendant is domiciled in the forum [GJ]

· Defendant’s agent is served in the forum

· Defendant consents

Hess

· Implied consent to specific jurisdiction under the Motorist act

· Complete fiction

International Shoe

· Jurisdiction is okay if Δ has such minimum contacts with the forum that jurisdiction does not offend traditional notions of fair play and substantial justice.”

Step 1: “Minimum contacts”

Establishing a relevant contact with the forum

1. General or Specific Jurisdiction?

a. Continuous and Systematic & Related [PJ is appropriate]

i. Keeton v. Hustler –

b. Continuous and Systematic & Unrelated [Possible GJ – is the corporate nerve center or headquarters here? Possible SJ: assess under Minimum contacts and Foreseeability claims]

i. Goodyear v. Dunlop – general jurisdiction is appropriate where a corporation is fairly regarded as at home—aka it’s domicile (place of incorporation and HQ).

1. You can try and argue that shipping stuff into the forum (muscle test) regularly is systematic and continuous, but if not it’s domicile then no GJ; try for PJ.

c. Single & Isolated but Unrelated [no PJ]

d. Single & Isolated but Related [SJ assess under minimum contacts and foreseeability]

e. WHAT DOES IT MEAN TO BE RELATED

Purposeful availment

1. McGee: Δ solicited business from the forum, only ONE contract, emphasizes forum’s interest in providing a courtroom for it’s citizens

2. Hanson: purposeful availment must arise from the Δ personal availment

3. McIntyre: stream of commerce

a. Kennedy Approach: there must be DIRECT contact with the state & intent to sell to state C,D, & E i.e. advertisement, consumer, marketing, etc. Actions not expectations empower a state’s court to subject them to jurisdiction

b. Breyer Approach: This one machine doesn’t show PJ, but let’s say you have a small guy in Africa sending pots into America and it injures someone, are we really going to bring him over? Gotta consider the case on a whole.

c. Ginsberg Approach: contact if put product in the stream of commerce & reasonably anticipated that it would end up in State C, D, & E.

4. Calder: intentional torts

a. [substitute for purposeful availment] intentional tort targeted at a person in the forum

i. Aimed at someone the Δ knew lived in California

ii. Sold in California

5. Burger King: contractual clause

a. Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties actual course of dealing that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

b. Minimum contacts must be established before fairness can be considered. Must be gravely inconvenient and at a severe disadvantage.

Foreseeability/Relatedness

1. Worldwide Volkswagen: Foreseeability is relevant BUT it’s not a matter of whether the produ

mons and complaint

· Summons contains:

o Names the court and the parties

o Directed at the defendant

o States the name and address of π atty or the π (if unrepresented)

o States the time within the Δ must appear and defend

o Notify the Δ that a failure to appear and defend will result in a default judgment against the Δ for the relief demanded in the complaint

· Can be served by any non-party who is at least 18 years old

· Service can be waived

o Certain π [individuals, corporation or association subject to service under Rule 4(e) [individual within the US], (f) [individual in a foreign country], (h) [corporation] can give notice to Δ and request a waiver [for efficiency purposes]

§ Request must be in writing, addressed to Δ, name the court, inform of consequences and give them reasonable time to respond after request is sent

· Serving a person in the US can be made by:

o Following the state law; or

o Delivering a copy of the summons and complaint to the individual personally;

o Leave a copy at the persons dwelling or usual place of abode [INDICIA OF OWNERSHIP] with someone of suitable age and discretion who resides there; or

o Delivering a copy to an agent authorized by appointment or by law to receive service of process

· Serving a corporation, partnership or association can be made by:

o Following state law; or

o Delivering summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or law to receive service of process AND by mailing a copy to the defendant; or

Serving an Individual Within a Judicial District of the United States: Rule 4(e)

· May be served by

o Follow the state laws

o Deliver the copy to the individual personally

o Leave a copy of each at the individual’s dwelling or usual place of abode with a person of suitable age and discretion (someone who is old enough/smart enough; doesn’t need to be 18)

· 4(e)(2)(C). Delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

o You might appoint an agent by contract or you might get one appointed to you by law (like the non resident motorist act)

o Just so long as this is in the agent’s scope of authority