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Civil Procedure I
Temple University School of Law
Duru, N. Jeremi

Civ Pro Outline (Duru, Spring 2011)


A.   Questions to Consider
1. Cost of Litigation (Money, time, effort, stress, yada yada yada)
a. Is it worth it?
b. Will I win?
c. Might they counterclaim against me?  Might my dirty laundry come out as a                                                   result of this litigation?
2.     Adversarial System- motivation of parties, who has the money, which defendant to                                          target

B.     Fifth and Fourteenth Amendments – forbids the states from “depriving any person of                   
life, liberty or property without due process of law”

C.     Opportunity to be heard
1.     Fuentes v. Shevin (installment contract, repossession without notice)
a.  Need meaningful time between notice and deprivation, unless there are                                                           extraordinary exceptions
i. Important government interest or general public interest
ii. Special need for prompt action
b.  Need meaningful (adequate) opportunity to be heard
2.     Mitchell v. W.T. Grant Co (creditor seized property of person behind on installment                                           payments)            
a.  Court distinguished from Fuentes, said no hearing before deprivation was ok
b.  Same fact pattern as Fuentes, different result
c.  Those who dissented in Fuentes were the majority here
3.    Moral of the Story:  Law is “fluid, foggy, and conflicted.” Don’t think about what the                                       law is in isolation, think of where it might be, where it could have been and                                                                 how close it was to being there


A.      Personal Jurisdiction: Power of a Court to enter a judgment against a specific defendant
1.       Three types of Personal Jurisdiction
a.        In Personum: With respect to personal rights and obligations, the court exercises its power to render a judgment for or against a person by virtue of his presence within the state’s territory or his citizenship. (Not property)
b.       In Rem: With respect to property, the court exercises its power to determine the status of property located within its territory and the determination
c.        Quasi-In-Rem: With respect to personal rights and obligations of the defendant and the defendant has property in the state where the court is located; property attached at the time of the judgment

B.      Traditional Personal Jurisdiction
1.       Non residents can be brought within the court’s jurisdiction only by presence (service) in the state (Pennoyer), residence in the state (served you when you return) or consenting to be sued in the state (Hess)
2.       In person (Strict boundaries)
a.       Pennoyer v. Neff
i.         Facts: Neff owed Mitchell some money for legal services. When he didn't pay, Mitchell sued in Oregon State Court.  Neff didn't live in Oregon and never appeared at the trial. He probably didn't even know it was going on.  Mitchell submitted an affidavit that Neff owned land in Oregon and lived in California but couldn't be found. In order to satisfy the requirement of service of process, Mitchell put an ad in a local newspaper saying he was suing Neff.  The Court confiscated Neff's land and sold it at auction to generate the money needed to pay Neff's debt to Mitchell.  The land was conveniently bought by Mitchell, who in turn sold it to Pennoyer. When he found out what happened, Neff sued Pennoyer in Federal Court to get his land back.
ii.        Rule: A court may enter a binding judgment against a non-resident only if he is personally served w/ process while within the state or if he has property within the state, if that property is attached before litigation begins.
b.       “Full Faith and Credit” Clause – full faith and credit shall be given to each state to the public acts, records and judicial proceedings of every other state
i.         Will be enforced as long as the state rendering judgment had jurisdiction and due process satisfied
c.        The decision makes the boundaries between states very substantial- state affiliations, regional affiliations
3.       Express
a.       Kane v. NJ
i.         Facts: New Jersey Procedure – Anyone who drives in NJ has to appoint an agent and that agent receives process, which thereby fulfills due process whether the out of state person comes
ii.        Rule: Constructive service through an agent is ruled constitutional
iii.     Negative?: Hard to keep track, inefficient
4.       Implied
a.       Hess v. Pawloski
i.         Facts:  MA resident sues a PA resident for a car accident in MA.  Under statute, MA appointed an agent to stand in for driver for service of process
ii.        Rule:  Personal jurisdiction over residents of other states is constitutional because there is implied consent [when travel to other states] to be subjected to personal jurisdiction within that state
iii.      “ Privileges and Immunities Clause”- Can’t discriminate against citizens of another state

C.      The Shift to Minimum Contacts (The Umbrella Rule)
1.       Way of thinking about personal Jurisdiction: One Rule, Minimum Contacts
a.        Can make personal jurisdiction arguments no matter what side you’re on
b.       This is because the development of the rule is fluid and ongoing
c.        Not a series of discrete rules culled from various cases, but rather one rule expounded upon, examined, debated
d.       At the end of this road, we’ll have a big basket of cases that expand on the minimum contacts test and use the cases most beneficial to you
e.       One of these cases is not overruling the next, rather, it’s adding meat to the bones of the rule
2.       International Shoe v. Washington (1945)
a.       Introduces a new standard to replace Pennoyer
b.       Legal Realism (fluid, flexible) wins out over Rigid Formalism of Pennoyer
c.        Rule: Personal jurisdiction requires certain minimum contacts with the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”
i.         Systematic and Continuous
ii.        Receiving benefits from protection of the law
iii.      Large volumes of business
iv.      NOT irregular or casual
v.        HOWEVER, sometimes, incidental, irregular or casual contact is enough depending on the nature and quality of the act in question i.e Kane and Hess (driving)
d.       Four International Shoe scenarios:
i.         Continuous and Systematic/ Related ® Personal Jurisdiction
ii.        Continuous and Systematic/ Unrelated® Maybe Personal Jurisdiction
(1)     Factual analysis
(2)     The price we pay for moving away from Pennoyer
iii.      Occasional/Related ® Maybe Personal Jurisdiction

i.                     Facts: BK in FL, where it was incorporated (choice of law clause in K for FL) sues MI franchise owner in FL.  D received training n FL and all financial obligations were due in FL.  Lower court found for P, D appealed and Court of Appeals found for D, saying even though there were minimum  contacts and statue was constitutional, it was fundamentally unfair and a violation of due process.  BK appealed.
ii.                    Holding: Contract alone is not a contact, must show substantial connection to the forum state, but must be weighed against other factors.  BK wins, PJ in FL.
iii.                  Establishing that the defendant has minimum contacts creates a rebuttable presumption that it is fair to require him to defend there. The burden shifts to the defendant to show that it would be unfair to defend in the state.
iv.                  Rule: Balancing test for minimum contacts vs. equity considerations
i.      the extent of a defendant’s purposeful interjection in the forum state;
ii.      the burden on the defendant in defending in the forum;
iii.      the extent of conflict with the sovereignty of the defendant’s state;
iv.      the forum state’s interest in adjudicating the dispute;
v.      the most efficient judicial resolution of the controversy;
vi.      the importance of the forum to the plaintiff’s interest in convenient and effective relief; and
vii.      the existence of an alternative forum.
e.        Asahi Metal Industry Co. Superior Court
i.                     Facts: Injured party Zurcher files products liability suit against foreign co. Cheng Sin (Taiwan), which sues Asahi (Japan), which files for indeminification against jurisdiction. Cheng makes tire tube, Asahi makes valve used in tire tube.
ii.                    Important Facts: Asahi’s total business with Cheng- 1.24% (1981), 0.44%, Cheng, 20% of US sales in CA i.e. is it reasonable for Asahi to know valve would end up there?
iii.                  Holding: No Personal Jurisdiction (Only point of agreement)