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Civil Procedure I
St. Johns University School of Law
Biblowit, Charles E.

Introduction to Civil Procedure

v Overview of a Civil Procedure Problem
1. Personal Jurisdiction
2. Notice- RULE 4
3. Venue
§ Transfer & Forum non-conveniens
4. Subject Matter Jurisdiction
§ Diversity Jurisdiction
§ Federal Question
§ Supplemental Jurisdiction
§ Removal
5. Erie Doctrine- Applicable Law
6. Pleadings
7. Discovery
8. Adjudication Without Trial
9. Trial Procedure
§ Rule 49 Special Verdicts
§ Rule 50 Judgment as a Matter of Law
§ Rule 59 Motion for a new trial
§ Rule 52 Findings by the Court
§ Rule 60 Motion for Relief Judgment
10. Former Adjudication
§ Claim Preclusion
§ Full Faith and Credit Doctrine
§ Issue Preclusion
§ Non-Mutual Issue Preclusion
11. Multi-Party and Multi-Claim Litigation
§ Counterclaims Rule 13
§ Cross-claims
§ Joinder
§ Rule 20 Permissive
§ Rule 19 Compulsory
§ Impleader Rule 14(a)
§ Interpleader
§ Intervention Rule 24
§ Class Actions

v General
Ø The Goals of Civil Procedure:
§ Minimize Costs
§ Limit parties to relevant presentation
§ Terminate controversies
§ Eliminate some unfair advantages one party may have over the other
Ø Federal Rules of Civil Procedure, Rule 1:
§ “[These rules] shall be construed and administered to secure the just, speedy, and inexpensive determinations of every case” – there is an inherent conflict between “just” and “speedy and inexpensive”

Ø Characteristics of Modern Procedure:
§ System is built on several sources: constitution, statutes and common law
§ Procedure is the field for lawyer’s strategy
§ Divided judicial power (between courts and between judge and jury)
§ Ethical obligations and constraints
§ System of pleadings
§ Broad, but not unlimited, joinder of parties
§ Broad discovery process
§ Full trial/truncated procedure struggle
§ Limited appellate review

Ø Adversary System places the responsibilities on the parties for bringing the suit, defining the issues and deciding on what evidence to use

Ø Disputes may be resolved by
§ Self-help
§ Negotiations or Litigation
§ Alternative Dispute Resolution – arbitration or mediation
§ Administrative Agencies proceedings (subject to court review)

v 1. Personal Jurisdiction

Ø For the decision to be enforceable the court must have “personal jurisdiction” or “jurisdiction over parties”
§ D must have minimum contacts with the forum state (federal or state court)
– and –
§ D received notice and opportunity to be heard to satisfy the constitutional due process requirement

Ø Analytic scheme
§ In order to exercise the jurisdiction over a defendant a forum state must have either
· Power – flowing from the kind of relationships between the defendant and the forum state (minimum contacts analysis)
– or –
· Defendant’s consent (prelitigation agreement or by waiver)
– and –
· D must receive some form of notice

Ø Pennoyer v. Neff, (1877)
§ Established the principle that plaintiffs may not simply bring the suit wherever they choose
§ States have power over everything and everyone under its boundaries
§ Constitutional requirement – judgment without jurisdiction will violate 14th Amendment due process: fair procedure includes limits on the place of the suit
§ Pennoyer approach is rather formal and simple – “must be there”
· In Personam – jurisdiction over persons
¨ One must personally serve D with process within the borders of the forum state
¨ In personam jurisdiction is applicable to all D’s assets – suit on the judgment can be brought in other state
· In Rem – jurisdiction over property
¨ In rem jurisdiction gives the court power to a claim made about a piece of property
Ø True in-rem proceedings are rare
Ø Title which is valid against any claimant
Ø A gov’t proceeding against contraband is a true in-rem proceeding
Ø Ex US v. 700 lbs of marijuana
· Quasi in remjurisdiction – the attachment of the property (the seizure before the suit of the property owned by D’s within the state) is used as pretext to the court power to adjudicate the claim without having jurisdiction over the D’s person
¨ The judgment of the court is limited to the value of attached property – suit on the judgment cannot be brought in other state
¨ Harris v. Balk: attachments of intangibles a basis for jurisdiction
Ø S.C. said a debt is located where ever the debtor is located
Ø You can attach a debt wherever the debtor is located by serving the proper papers

Ø Long-Arm Statutes – most states have a statute that permits the court to obtain jurisdiction over persons not physically present within the state at the time of service
§ There are different criteria for establishing the personal jurisdiction:
§ In Pennoyer there was no such thing
§ After International Shoe each state started passing more statutes to exercise greater jurisdiction

Individual Defendant
· Presence within the forum state – if the service was personally made within the state, jurisdiction is established – no matter how brief was the visit to the forum state and if there are no other contacts with the state, Burnham v. Superior Court
· Domicile – at the time the action commenced D has current dwelling place within the jurisdiction and has the intention to remain in that place for indefinite period, Gordon v. Steel
· Residence – in some states mere maintaining the place of residence within the state (even if it not the place of D’s domicile) is enough to obtain jurisdiction
· Consent – even if D has no contacts with the forum state he may consent to the jurisdiction (e.g. P brings the suit in the state he has no contacts with, P will be deemed to consent to that state court jurisdiction over the counterclaims, even if the original P’s suit is dismissed)
· Tortuous act – D’s tortuous act within the forum state is sufficient basis for personal jurisdiction; some long statutes also include the acts done outside the state which produce tortuous consequence within the state
· Ownership of property – many states exercise jurisdiction over the owner of the property if the case arises from that property
· Conducting business – state may obtain the personal jurisdiction over the non-resident who conducts business within the state in cases relating to that doing of business
· Driving a car – jurisdiction may be obtained over non-state motorists who have been involved in accidents in the state
Corporate Defendant
· Incorporation in forum state
· Consent
· Appointment of agent
· Doing business
· Ownership of property

Note: Regardless of the criteria used by the state or its long-arm statute for establishing the jurisdiction over the defendant, the constitutional due process requires that the defendant had minimum contacts with the forum state (Exam tip: First a

btaining the most efficient resolution of controversies
¨ (5) Shared interest of several states in furthering fundamental substantive social policies

Ø Asahi Metal Industry Co. v. Superior Court
§ Stream of Commerce Issue – D’s goods reach the forum state through stream of commerce; this is a situation where out-of-state manufacturer is sued in the state where finished product was sold either by other manufacturer that used the product as an component of some other product or by a wholesaler
Court is split:
§ The court suggested (Brennan’s opinion) that in some (rare) cases the minimum contacts requirement may be satisfied, but the concept of fair play and substantial justice will defeat the jurisdiction – in other words, the defendant did purposely avail himself to the benefits of the forum state, but it is still unreasonable to hold him to judgment
§ O’Connor (plurality opinion) – mere awareness that the stream of commerce may bring the goods into the state does not satisfy “purposeful availment” – D had to know where his goods were headed
· Concurrence – sending goods, at least in substantial qualities, into the stream of commerce is “purposeful availment”, whether D knew or not that the goods will end up in the forum state
Ø Ex: I manufacture valves in state A, I sell these valves to state B, state B then makes something with them and send s them to C,D, E
§ Do I now have jurisdiction in other states?
§ Brennan 4
· IT IS A CONTACT If I put the product into the stream and reasonably anticipate that it will get to C, D, and E
· This is not the law
§ O’Connor 4
· You need what Brennan said PLUS the intent or purpose to serve states C, D or E
· So that when I sold to state B and then B sent it elsewhere I have to show that I advertised in those other states etc.
· Not law either

Ø Burger King Corp. v. Rudzewickz, (1985)
· Defendants are 2 regular guys who ran a Burger King in Michigan
· Burger King main headquarters sue
· The court makes it absolutely clear that International Shoe def. has 2 parts
§ Contact part (purposeful availment)
§ Fairness part
· You must have a relevant contact before fairness becomes relevant
· To establish if a contact is relevant you have to look at 4 things
§ The nature of prior negotiations between the parties
§ The “contemplated future consequences” of entering into the contract
§ The terms of the contract
§ The course of dealing between the parties
· If you don’t have the contact we don’t even look at fairness
· On contact it was easy
§ The 2 guys reached out to Fl.
§ Clearly purposeful availment
§ No question about contact
· What about Fairness?
§ Defendants say we can’t afford to go to Fl.