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Civil Procedure I
St. Johns University School of Law
Alexander, Vincent C.

Plaintiffs Need: [personal jurisdiction + proper notice and service + subject matter jurisdiction] + proper venue
 
Personal Jurisdiction
 
In personam
 **always need a long-arm statute OR traditional doctrine conferring upon courts authority over these defendants
1)       In personam
a)       Traditional Kinds
i)         Presence (courts have always recognized presence as a sufficient basis for personal jurisdiction)
(1)     Transient Presence
(2)     Corporate Presence
(a)     Standard “doing business” and “continuous, regular and systematic” [boots on the ground] business activities = General Jurisdiction
ii)       Domicile
iii)      Consent
(1)     Express (incorporation)
(2)     Implied (Powloski
(3)     Agent
b)       In-State Tortious Acts
2)       Quasi-in-Rem I
3)       Quasi-in-Rem II
 
Analysis for Personal Jurisdiction over Absent Defendants:
1)       Apply Long-Arm statute
2)       Ask if it is Constitutional
a)       International Shoe Test: minimum contacts + comports with traditional notions of fair play and substantial justice.
b)       Spectrum of contacts from minimal to general: specific to general
c)       Minimum Contacts: (contacts matter at the time of the lawsuit)
i)         For specific jurisdiction:
(1)     Action has to “arise out of” contacts OR be “related to”
ii)       “purposeful availment”
iii)      Expectation that D would be haled into court in that forum
d)       Comports with traditional notions of fair play and substantial justice
i)         State interest:
ii)       Convenience of the litigants – size, distance, whether it’s another country
iii)      Consideration of allocation between the states
 
Where the long-arm does not permit personal jurisdiction:
Quasi-in-Rem II: Jurisdiction (Harris v Balk)
 
1)       P must attach D’s property at the outset (to establish court’s jurisdiction)
2)       Policy: D would receive notice of litigation by checking on property or through caretaker
 
Analysis:
1)       Apply minimum contacts + comports with traditional notions of fair play and substantial justice”
2)       Action does not have to arise out of the property attached
3)       Standard: Mere Presence of Property is not sufficient to support jurisdiction
4)       Dissent in Shaffner v Heitner: property like real estate that has situs within a State presumptively supplies minimum contacts
 
Quasi-in-Rem I: Jurisdiction
1)       Where P asserts interest in local real property
2)       Presumptively satisfies due process because landowner has purposeful contacts with that forum
3)       Examples: ejectment action, mortgage, foreclosure
 
Section II: Notice and Service of Process:
 
Analysis:
1)       Is it permitted by state statutes OR [in federal cases] state statutes + FRCP
2)       Is method of service Constitutional?
 
Analysis Expanded:
1)       FRCP Rule 4 Requirements
a)       Form
b)       Issuance
c)       Service with Complain:
i)         Must serve within 120 days of filing complaint
ii)       BY: non-party 18 yrs (court may direct US Marshal to serve)
d)       Waiver:
i)         D who is notified of waiver has duty to minimize costs; waive service *must waive within 30 days or 60 if outside judicial district
(1)     Carrot: gets extra time to answer (60 days or 90 if outside judicial district)
(2)     Stick: D bears coast of service if he doesn’t waive, unless he has good reason
e)       Where/How: **actual notice is not proper notice
i)         Personal service is ok, plus the laws of state where court is and where service is effected
ii)       At house or usual place of abode with someone of suitable age residing therein OR
iii)      Delivering to an agent who is authorized by appointment to receive service of process
(1)     (usual place of abode needs indicia of permanent residence)
(2)     (“residing therein” = sleeping there)
iv)     Rule 4(k): Territorial Limits of Service
(1)     In state: anywhere in state where district courts state
(2)     Out-of-state: only if permitted by that state where the district court sits
(3)     100-mile bulge: even where state rules don’t permit service can be made out-of-state, within 100mi radius of district court where additional parties are brought into existing litigation Rule 19 or Rule 14.
(4)     Nationwide service of process, where statutes allow.
(5)     For Federal Question jurisdiction, if there is no state where P could sue D
f)        Service in foreign places:
i)         In a manner allowed by foreign and international law or as directed by the court (in a manner reasonable under the circumstances)
g)       Service on incompetent persons
h)       Service of process on corporations:
i)         To a managing or general agent OR an agent authorized by law to receive process (plus you have to mail one). OR state laws, per 4(e)(1)
(1)     Managing or general agent = someone high enough that he’d pass it up the chain of command
 
2)       Constitutional Test:
a)       Standard: “Reasonably calculated to reach the parties”
b)       Personal Service always OK
c)       Posting and publication can be adequate, depending on the circumstances
i)         Availability of other options, readership, etc.
d)       Mullane case – Where trust had last known addresses of beneficiaries, it had to mail them notice, not use a publication
 
Section III: Subject Matter Jurisdiction
***P must allege in his complaint what the federal subject matter is (not personal jurisdict

can be challenged by any party, plus the court (sua sponte) at any time during the trial through the appeal process.
 
Removal Jurisdiction: 28 USC 1441, 1446
 
1)       Requirements:
a)       D can remove only if the action could have originated in federal court (either on diversity or federal question) at the time the action was filed.
2)       Procedure:
a)       D files notice of removal and at that moment, state court loses jurisdiction over the action. 
i)         If Removal was improper, Federal Court will remand action back to the State
ii)       **Federal Court can remand actions to state court when the state law is the predominant claim in the action
 
b)       D has 30 days to remove an action
i)         Exceptions:
(1)     If all Ds don’t agree, and the non-agreeing party is voluntarily (ie settlement) dismissed, the remaining D has 30 days to remove, up to one year.
 
(2)     If action is brought in a forum where one defendant is domiciled (making removal improper) and that defendant is voluntarily dismissed, the remaining defendants can remove within 30 days after D1 is dismissed, up to one year.
 
(3)     Federal Question:  D has 30 days to remove from the date of service on a complaint amended to include a federal question claim.
 
c)       All Defendants must agree to remove (exception: certain class actions)
i)         If D1 does not remove within 30 days, he vetoes removal for all Defendants added later.
 
d)       1447(c): 30 days to object to removal: P has 30 days to file a motion in federal court objecting to removal; if case is remanded, court can require payment of costs and attorney’s fees
e)       Change in domicile cannot lead to removal – citizenship (and amount in controversy) is calculated when action is commenced
 
f)        D cannot remove based on diversity if he is from the same state where P brought a state court action.
i)         Exception: when court thinks there is a sham non-diverse defendant, brought in to defeat diversity (Pete Rose v MLB)
 
g)       BUT: D can remove federal question claims, regardless where state court action is filed. (Removal is biased toward federal question claims)
 
Section IV: Venue