Civ Pro Outline
The Process Due (What is fair process?)
A Determine if it was a gov’t act + taking away of life, liberty property
B Matthews Test
o Was there reasonable notice? (Greene v. Lindsey)
§ Must be reasonable calculated under all the circumstances (Mullane)
o Was there a meaningful opportunity to be heard?
o Was there a requirement for counsel? (Lassiter)
II Notice: Due process requires notice and a chance to be heard
A Notice = Service of process
o FRCP 4:
§ Process consists of (1) a summons, and (2) a copy of the complaint
ú 4(a)(1): summons = symbol of court’s power
§ 4(c)(2): Service can be made by any non-party who is at least age 18 (liberal rule)
§ How do we serve an individual?
ú 4(e)(2): Three alternatives (π can pick any of these)
· 1) Personal Service: Where someone walks up to ∆ and hands them copies of process [can be anywhere] · 2) Substituted Service: Serving a substitute, not the ∆ himself à MUST be done at the ∆’s dwelling (usual abode)
o Must serve someone of suitable age and discretion who resides there (no “magic age”) (babysitter would not work)
· 3) Serve the ∆’s Agent: Could be someone appointed by ∆ or by law (e.g. under Nonresident Motorist Act – by driving a motor vehicle in a state, one is appointing a state official as his agent for service of process)
ú 4(e)(1): Can use a method that is permitted by STATE law [where court sits OR where process is served] § How do we serve a business/corporation?
ú 4(h)(1): Serve an officer or a managing/general agent
· Managing Agent = somebody who has sufficient responsibility that we would expect him to transmit important papers
ú 4(e)(1) applies here, too.
§ Waiver of Service (Done by Mail)
ú 4(d): Mail process and waiver of process form to ∆, providing ∆ with some way to send it back (stamped, addressed envelope); ∆ can sign waiver form, mail it back to π in envelope, and π files that in ct.
· ∆ has waived formal service (not any defenses)
· If the ∆ FAILS to return that waiver form within 30 days, formal service of process will be done, but ∆ may have to pay the cost of the service
B Constitutional Standard (ensure the giving of notice is const’l)
o Mullane v. Central Hannover Bank (1950)
§ Notice must be reasonably calculated under all the circumstances to give the party notice of the proceeding to apprise them of what’s going on
§ Even if ∆ never gets, e.g., substituted process, it would still be constitutional because it was reasonably calculated
o Jones v. Flowers (2006)
§ If π is aware that ∆ did not receive the service, then you may have to take extra steps to effect actual notice.
ú e.g. π keeps sending ∆ letters, that keep getting returned à π knows that ∆ was not getting the letters
III Personal Jurisdiction
· Jurisdiction = “authority to speak”
· If a court were to enter judgment against ∆ without following fair procedure, the judgment would be void as violative of Due Process.
· Due Process includes limitations on the places where a ∆ can be required to defend a law suit
Question 1: Does Long-Arm Statute grant jurisdiction?
o No à no jurisdiction
o Yes à then have to asses whether jurisdiction would be OK constitutionally
A In Personam (Court has power over ∆ herself)
o General or Specific?
§ General: ∆ can be sued in that forum on a claim that arose anywhere in the world.
ú Perkins and Helicopteros
ú There is general jurisdiction if ∆ has “continuous, systematic” ties with the forum
· Makes Brennan’s theory in Burnham pretty strange
§ Specific: ∆ is sued on a claim that arises from her activities in that forum
ú Claim must relate to something ∆ did in forum
o Constitutional Limits on In Personam Jurisdiction
§ Pennoyer v. Neff (1878)
ú All about State’s power over people and things that are physically in the State
ú Traditional Bases of In Personam jurisdiction:
· Presence: ∆ was served with process in the forum
o Gives General Jurisdiction
· ∆’s agent was served with process in the State
· Residence/Domicile: ∆ is domiciled in the State
o Gives general jurisdiction
· ∆ consents to jurisdiction
§ Hess v. Pawloski
ú Expands consent necessary for In Personam jurisdiction to implied consent à legal fiction that served to bridge period of transition in development of the law
· Allows specific jurisdiction
§ International Shoe Co. v. Washington (1945) (p. 110)
ú New doctrinal formula: MINIMUM CONTACTS
· Jurisdiction exists if ∆ has such minimum contacts with the forum that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
o Rationale: A corporation that chooses to conduct activities within as state implicitly accepts a reciprocal duty to answer for its in-state activities in the local courts.
· Analysis must consider relationship between contacts that give rise to the suit and the state where the suit is brought.
ú Established a flexible doctrine (led to further expansion)
ú Clear after case that ∆ can be served with process outside the forum (as long as ∆ has minimum contacts)
ú Doesn’t overrule Pennoyer
· Implies that traditional bases
Superior Court (p. 132)
ú Stream of Commerce and Purposeful Availment
ú (Stevens in the middle)
ú Brennan theory:
· There is a contact if I put my product into the stream of commerce and reasonably anticipate that it will get to state(s)
ú O’Connor Theory:
· Need intent to serve the states at the end of the stream (A sold to B with intent to serve states C, D, and E)
o Advertising? Consumer Service in that state?
§ Burnham v. Superior Court (p. 165)
ú NJ π suing CA ∆ on claim arising in NJ; ∆ served with process in CA
ú (Stevens in the middle)
ú Scalia Approach:
· Presence when served is good on its own (don’t have to assess minimum contacts à traditional bases exist alongside International Shoe)
o Makes sense, International Shoe said that minimum contacts test was for where the ∆ is not present in the forum state.
ú Brennan Approach:
· Must apply International Shoe every time (traditional bases are GONE)
o Brennan still found minimum contacts where ∆ was in CA for only 3 days!
o Brennan said 3 days was enough for ∆ to “soak up the benefits” of CA
o Exam Approach (2 Part Analysis)
§ 1. Does the Long-Arm Statute apply?
§ 2. Ask: Does a traditional basis (Pennoyer) apply?
ú If yes, mention it and talk about Scalia vs. Brennan in Burnham
§ 3. International Shoe analysis
ú Step 1: Is there a relevant contact between ∆ and forum?
· Factor 1: Contact must result from purposeful availment (∆ must reach out to forum in some way)
· Factor 2: It must be foreseeable to ∆ could get sued in the forum
ú Step 2: Is jurisdiction fair?
· 1. Relatedness: Does π’s claim arise from ∆’s contact with forum?
o Here, we asses specific vs. general jurisdiction
· 2. Five Fairness Factors (Burger King)
o Inconvenience for ∆ (burden is on ∆ to show grave inconvenience)
o State’s interest in having case there (McGee – State interest in having out-of-state insurance companies brought to justice in CA)
o π’s interests (e.g. in litigating at home)
o Interest in efficiency (general interest)
o Interstate interest in shared substantive policies (Kulko)