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

Civil Procedure I Spring 2013 Ramji-Nogales
·         What is fair process
·         Basics of litigation
·         Where can you sue
o    In which state
o    In federal or state court
o    In which federal court within that state
·         Which law applies, federal or state
·         Can you sue again


I.        Procedural Due Process
a.       FRCP 1 – Purpose Clause

i.         These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
b.       Only violated when State Action deprives of Life, Liberty, or Property
c.        Need to balance State v. Private Interests
i.         Mathew’s Test – 1) establish violation of rights with no due process 2) balance government and private interest by looking at both sides 3) risk of erroneous deprivation, and 4) probable value of additional safeguards v. burden on the government with additional process
ii.        Hamdi v. Rumsfeld: American citizen accused of being enemy-combatant; court balanced interest of government in war time v. his right to liberty (inc. hearing before detention, and writ of habeas corpus); Court settles with Mathews Test (right to liberty, executive in charge of wartime decisions, high risk of erroneous deprivation) holding that Hamdi’s decision requires notice of factual basis for EC classification (but gov’t could use hearsay and has rebuttable presumption favoring evidence), and a fair opportunity to rebut before a neutral decision maker with counsel
d.       Honor Code Violation Hypo (p 1)
i.         Types of Harms
1.       Substantive – Embarrassment, Money damages
2.       Procedural – How the process itself might harm; think about what you would want if you were wrongly
accused to come up with ways a person can be deprived
a.       Notice, hearing, confrontation with accuser, counsel, judicial review (Pros)
ii.        Cons: expensive, time consuming, more procedure=more complicated

II.      Notice and a Hearing
a.        FRCP 4 – Summons/Serving

i.         Notes: 4(a)(1) Contents of Summons – to include copy of complaint; 4(c) Service – served by 18+; 4(d) Waivers; 4(e) Method – in US gen. following state law or at minimum personal service OR delivery at dwelling to someone of age who resides there OR to specifically authorized agent; 4(g) Minor/Incompetent – get special service; 4(l) Proof of service – must be given to court unless waived; 4(m) Time Limit – 120 days after complaint filed, or dismissed, court can extend
b.       Timing of Notice – Doctrinal Line
i.         Gen: Notice must come BEFORE deprivation of rights; But otherwise we want to see: Judicial Discretion in giving 
orders, positing of bond for damages, quick hearing
ii.        Sniadach: Woman’s wages (property) garnished for bill for eyeglasses that went unpaid; P was not informed of wage 
garnishment being done for lawsuit and no chance to contest; though company took the money, state court enabled garnishing of money so that is the state action; court said “right to be heard has little…worth unless one is informed that the matter is pending…” Pre-judgment seizure violated due process; (govt only needed int. for writ)
iii.      Fuentes: woman bought stove and stereo and was behind on payments; sheriff took items before trial; court said due process violated for lack of notice and opportunity to be heard before seizure; slightly different from Sniadach, real property here, sheriff took not court
iv.      Mitchell: stove, stereo, fridge repossessed for due bill before hearing; court upheld since in this case there were provisions in place allowing judicial discretion/review before seizure by a judicial officer, posting of bond so P had to give something up for repossession which makes it more likely that it is legitimate claim, and quick post-seizure hearing; court determined creditor’s remedies didn’t violate due process
v.       Di-Che: decided differently from Mitchell; differences: no bond or hearing and no judicial officer make this statute unconstitutional
c.        Form of Notice
i.         Gen: Notice must be reliable and likely to give notice; doesn’t always need to be mail or personal service; very fact/situation based
ii.        Green v. Lindsey: tenant in housing project gets served by notice on door, claims not to have seen it; did KY statute violate her due process? Court Cites Mullane; determines that this service not enough in given factual situation; Determination of method/form of service is contextual and related on all the facts.  In some cases posting on door is ok, not here
iii.      Mullane: bank sent notice by email and publishing in paper; court found that when whereabouts were known, newspaper was not sufficient to give notice; (inference that actual notice itself not required, just method of notice should be reasonably certain to inform party)
1.       Requirement of due process that d’s receive “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them opportunity to present their objections.”
iv.      Jones v. Flowers: D didn’t live at address anymore, when they sent letter, it was returned unclaimed several times, court determined when it is obvious that they didn’t get the notice, you have not satisfied it under due process
d.       Elusive Defendant Hypo (p 25)

III.   Remedies
a.       FRCP 65 – Injunctions and Restraining Orders

i.         Notes: (a) Prelim Injunction; (b) Temp. Rest. Order (TRO): (1) can be issued w/o notice on specific facts of immediate and irreparable injury, with certification of efforts to give notice, cannot exceed 14 days, if issued w/o notice must have a hearing ASAP, on two days’ notice adverse party can dissolve the order with a motion; (c) PI or TRO requires “security deposit” for damages to party in the event they are improperly restrained; (d) Every TI/TRO must contain reason for issuance, specific terms of order, reasonable detail about acts restrained/required, the order binds all parties, their affiliates, or those otherwise acting in concert;
b.       Types of Remedies
i.         Perm. Remedies: Money damages, Injunction, Declaratory judgment, Consent Decrees
ii.        Temporary Remedies: Preliminary Injunction, garnishment of wages*, seizure or sequestration*, attachment/lean* (*Ensure resources are there so that the plaintiff can get relief if they prevail)
iii.      How are inunctions different from other temporary remedies? They actually maintain status quo while parties wait for judicial relief.
iv.      How do TI and TRO differ? TI requires notice, TRO does not; TRO can be dissolved
v.       But to review—we need to have notice, hearing/quick hearing after, bond, and judicial involvement before we even 
get to have a TI/TRO (Mitchell Rules)
c.        Judges have peak authority for situations requiring Injunctions or orders of contempt
i.         These orders are dispositive without [usually] being appealable

d.       Walker v. City of Birmingham: 129 individuals part of civil rights movement were enjoined from marching without proper permit from city (city refused to grant permit). When they protested anyway, they were held in contempt for violating a court order.
i.         Court upholds (even though it insulates a discriminatory ordinance) because they didn’t raise the constitutionality objection in the outset, so they waived their right to that defense. Collateral bar rule applies. Also, they wanted to uphold the rule of law and make it clear that injunctions are not going to be disobeyed without punishment
1.       Howat v. Kansas: as long as the court itself has the authority to grant the injunction, it doesn’t really matter the content of the injunction—that content could only be corrected by ordinary appeals process, not in any
contempt case brought on by the disobedience of the order entirely.  Even if the exercise of court power to issue injunctions was erroneous, the injunction was not void, Ds precluded from attacking it, and could only appeal it
2.       Collateral Bar Rule – Challenge must be raised in appropriate forum or you waive your right to bring it up. In
this case, the unconstitutionality should have been raised at the injunction proceeding not the contempt proceeding. It is this collateral bar rule that makes the inunction so powerful since in many cases the person being enjoined against can’t raise the objection in the outset (this case injunction happened at 10PM.), so they are subject to [possibly] erroneous/overstepping injunctions.
ii.        Walker is example of how strategic procedure can trump substantive law.

IV.    Access to Lawyers
a.       Gen: Appointment of counsel can be helpful but it not always necessary given the factual circumstances. Use Mathews and Lassiter test to determine if necessary
b.       Gideon v. Wainright: decided lawyers required in criminal proceedings where liberty is at issue
c.        Pros of Lawyers: knowledge in particular areas, expertise, can be more fair for both sides, consistency, equality, objectivity, focusing of issues
d.       Cons of Lawyers: Large burden in cases w/o heavy legal issues, expensive, inequality of lawyers are not equally matched, no need to make simpler system
e.        Lassiter v. Dept. Soc. Serv.: custody of child (liberty issue) hearing mother denied a lawyer—was she denied due process since state didn’t provide her with a lawyer?  Court finds that even with a lawyer it wouldn’t have made a difference given the facts (min. chance of Err. Dep.).
i.         Lassiter Rule: Where Individual’s interests are the strongest and state's interests at the weakest, and there is a high probability of error, then we have a need for council—which means it is a case-by-case basis.
ii.        Problem: court is deciding this before the case, before any facts presented, complicated case might look simple if there is no lawyer present to show, the court has to make inferences

Personal Jurisdiction à In what state can you sue?
V.      In general
a.       Apply state long-arm statutes
b.       Assess minimum contacts:
i.         Purposeful availment and foreseeability of suit
ii.        Relatedness of contacts and suit: completely related
iii.      Fair play and reasonableness factors
1.       Burden on D
2.       Forum state’s interest in adjudication
3.       P’s interest (effective/convenient relief)
4.       Interstate judicial system’s interest (efficiency)
5.       Shared state interest (social policies)

VI.    Introduction to Personal Jurisdiction
a.       Why have “jurisdiction?”
i.         We have right to notice and hearing, but where? We want to believe that judge/jury/place have some reasonable 
reason to believe they have authority
ii.        Four Categories of Juris: Minimum Contacts (cyberspace, contracts, libel, stream of commerce), Presence, Property, Consent
iii.      Pennoyer v. Neff (1877)– first case to turn territorial conceptions into constitutional reqmnt.  No longer good law!!
1.       Mitchell claimed Neff owed money—took him to court, Neff was in CA so notice came in newspaper article, and judgment 
entered. Another case a year later whe

n say once the purchaser leaves the state, can’t get PJ in that new state

IX.   Minimum Contacts – Fair Play
a.       Keeton v. Hustler Magazine (1984): Keeton wanted to sue in New Hampshire because they have a long statue of limitations on liable; court determined that since the magazine is distributed widely in NH, could sue in NH
b.       Calder v. Jones (1984): Jones lived in Cali, editor of National Enquirer lived in FL; court determined since magazines distributed in Cali and that was where she lived, it was reasonable that injury would occur in Cali
c.        Libel Cases – Keaton and Calder – What do we learn?
i.         Assess intent behind injury; look at type of offense – intentional tort?
ii.        Look at distribution of product by the company – all over, or directed?
iii.      Libel suits may be different from stream-of-commerce
iv.      These will help us determine stream of commerce and limits
d.       Asahi Metal v. Superior Court (1987) (Taiwanese tire valve maker) – Stream of Comm. + Case
i.         Court applies the WWVW standards and decides on reasonableness.
1.       Burden on D: very high, have to come from Asia
2.       Forum state’s interest: Cali doesn’t really care because not citizens of the state
3.       P’s interest: Original P from original law suit of motorcycle crash settled already, doesn’t care what will happen with D’s
4.       Interstate judicial system’s interest in efficient resolution
5.       Shared state interest in substantive social policies: for 4 & 5, better to allow law suit in Taiwan or Japan, not in Cali
ii.        O’Connor + 3 other judges: D must “purposefully avail himself” to state. Stream of commerce alone not sufficient
1.       Must have concerted action to state (ads, state specific design, customer service etc., agents targeting state)
2.       Not enough just to know that products might be used there
3.       Didn’t get 5 votes for majority
4.       Plaintiff’s lawyer will want to argue for O’Connor’s test, because will prove Brennan’s test while doing so, so moving forward, P’s lawyers will use O’Connor test
iii.      Stevens + 2 other judges adds: need volume, value, hazard
iv.      Brennan + 3 other judges: has expansive view of stream of commerce, contacts are sufficient to allow PJ
e.        J. McIntyre Machinery, Ltd. v. Nicastro (2011)
i.         UK company manufactures machinery, NJ worker got hurt using it wants to sue in NJ, not more than 4 machines in NJ, McIntyre attends conferences in US but not in NJ
ii.        Due Process Right: prevent exercise of jurisdiction (court denied this reasoning)
iii.      Majority (4 judges) Purposeful Availment: contacts not enough, have to show intent to be held to laws of forum state, be aware of business in the state (interprets Asahi in O’Connor’s way, ignoring Brennan’s opinion)
iv.      Concurring Opinion (2 judges): states this is a single sale, so no jurisdiction in NJ
v.       Dissent (3 judges): contacts are sufficient, same as Brennan’s opinion in Asahi
f.        Troubled Young Man Hypo (p 130)
i.         First Step: long arm statute; is the Dr. Subject to the jurisdiction via statue?
ii.        Second Step: it is foreseeable to get sued there/reasonableness
iii.      What is the limiting factor?

X.      Jurisdiction Based on Contract
a.       FRCP 4 – Summons/Serving
i.         Notes: 4(a)(1) Contents of Summons – to include copy of complaint; 4(c) Service – served by 18+; 4(d) Waivers; 4(e) Method – in US gen. following state law or at minimum personal service OR delivery at dwelling to someone of age who resides there OR to specifically authorized agent; 4(g) Minor/Incompetent – get special service; 4(l) Proof of service – must be given to court unless waived; 4(m) Time Limit – 120 days after complaint filed, or dismissed, court can extend
b.       BK v. Rudzewicz – BK sues franchisers in K gone wrong in FL where BK headquarters is located, but franchisers had restaurant in MI
i.         Ct says need purposeful direction of activities to forum-specific acts done by D to forum; minimum contacts- foreseeability of being sued there; after this consider fair play and substantial justice: 4 fairness factors from WWVW.
ii.        In this case court found juris since D was sophisticated, reached out to FL, K itself governed by FL law; 20 year contract etc.
iii.      Purposeful availment in K cases can look at: prior negotiations, future consequences, terms of K, actual course of dealing—these will make the K constitute “contact activity”