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Civil Procedure I
Temple University School of Law
Ramji-Nogales, Jaya

Civ Pro Outline
Prof. Ramji-Nogales
Spring 2011


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?
C      Counsel
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
Minimum Contacts
§  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.
Note:
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)