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Alabama Civil Practice and Procedure
University of Alabama School of Law
Alexander, Craig A.

Alabama Civil Practice and Procedure
Craig Alexander
Fall 2013
Need all three factors for court to hear case
Ø  Personal Jurisdiction: can you get jurisdiction over the person?
Ø  Subject Matter Jurisdiction: what kind of case is the court empowered to hear?
Ø  Venue: where can the suit be properly filed?
Personal Jurisdiction [in personam jx] I)       Rules are D oriented; π’s contacts don’t matter
a.        Authority of a court to require a person or thing to submit to binding adjudication
b.       Most cases are easy because:
                                                               i.            Resident of state being sued in
                                                             ii.            Consenting to PJx elsewhere or
                                                           iii.            D has physical presence in the state (Tag Jx)
c.        When an absent D comes into play, the courts use the minimum contacts rules
II)     Personal jurisdiction must satisfy Due Process requirements under 14th Am [as applied to states] and the 5th Am [as applied to federal government] a.        Adequate notice and chance to be heard in court
b.       Not an undue burden for you to travel to that state for court proceedings
c.        Receive benefit from that state
d.       Has to be fair and just
III)  Two types of personal jurisdiction
a.        Specific jurisdiction: contacts with that state give rise to the suit at hand
                                                               i.            Stream of commerce: can be used as justification for specific jurisdiction
1.       CANNOT be used to create general jurisdiction
                                                             ii.            Occurs when defective product gives rise to cause of action
                                                           iii.            Goodyear v. Brown
1.       Uncertainty about which subsidiary company made the defective tires because Goodyear USA didn’t have a jx problem in North Carolina, but the other subsidiaries did (they were foreign components to Goodyear USA); the other subsidiaries claimed that they didn’t have agents, stores, similar tires, or anything in North Carolina so they moved to dismiss for a lack of personal jurisdiction but the state court denied the motion
a.        SCOTUS reversed
2.       SCOTUS found there was no regular, systemic activity in North Carolina by the Goodyear subsidiaries making them subject to jx no matter what
a.        General nor specific jx were met in this case
b.       General jurisdiction: D has substantial contact with the state so that it’s considered “at home”
                                                               i.            D has a permanent presence = “at home”
                                                             ii.            Number and quality of the contacts are sufficient so D can be sued for anything
IV)  Minimum Contacts [absent Ds] a.        Due process requires person only to “have certain minimum contacts with [the state] such that the maintenance of the suit doesn’t offend “traditional notions of fair play and substantial justice”
b.       Depends on “quality and nature” of the contacts in the state
                                                               i.            Ex: voluntary commitment, benefitting from contacts, foreseeable, direct harm to be haled into court
c.        In some cases, even a single contact will do, but not contacts that are “casual” or “isolated”
                                                               i.            They have to be sufficiently connected
d.       Purposeful availment: emphasize benefits that a would-be D has obtained from its business activities conducted within the forum state; it’s about benefits
                                                               i.            Tool used to determine sufficient minimum contacts
                                                             ii.            If one does business in a state or otherwise enjoys the benefits of that state, one is availing himself to that state’s protections
e.        Purposeful direction: emphasizes D’s activities outside the forum state that have consequences inside the forum state; about the harm
                                                               i.            If one reaches into the state to cause harm, one is directing his activities into that state
                                                             ii.            Not enough that π creates the connection for D–D has to have created the connection
f.         Emphasis on the forum
                                                               i.            Nicastro v. McIntyre
1.       Nicastro injured his hand on a machine from McIntyre (incorporated business in UK) and filed suit against McIntyre in New Jersey; McIntyre argued no personal jurisdiction and the state court said that the company should’ve known that the New Jersey would get the product
a.        There was only one machine by McIntyre in New Jersey and it was the one that caused the accident
2.       SCOTUS reversed
a.        One machine isn’t enough for general jurisdiction
b.       Specific jurisdiction?
                                                                                                                                       i.      McIntyre never engaged in activities in New Jersey that revealed an intent to invoke/benefit from the protection of New Jersey state laws à didn’t purposefully avail themselves to the laws of NJ
c.        Stream of commerce is problematic for McIntyre because they manufacture products that they willingly put into the stream of commerce and those products can go anywhere à can look to the stream of commerce after determining if purposeful availment was met
3.       This case muddied the waters of the stream of commerce argument because if 1 machine isn’t enough for specific jurisdiction, then what about 2, 3, or 4 machines?
a.        How many is enough? Still up in the air.
V)    Factual Averments
a.        Ex parte Northstar Battery: have to state why the court has jurisdiction over the case and that the court has jurisdiction over the parties à factually aver personal jurisdiction in complaint
                                                               i.            The complaint failed to allege jurisdiction over Northstar and the court stated they must allege factual averments; because the plaintiff didn’t aver jurisdictional facts, the defendant didn’t have the burden of rebutting jurisdiction à the court found there to be no jurisdiction and dismissed
1.       Not explicitly required by the Rules, but it’s a good idea to show the court how they have jurisdiction
VI)  Jurisdictional Discovery
a.        Possibly available in early stages of the case if the defendant denies jurisdiction and the plaintiff wants to determine the plaintiff’s contacts with the state
b.       Northstar Battery: Apel Steel wasn’t entitled to jurisdictional discovery because they messed up the pleadings when they failed to allege facts for jurisdiction
                                                               i.            Without those factual allegations, the jurisdictional discovery would have been a fishing expedition
                                                             ii.            However, there is a 2011 AL Supreme Court case which states that courts are supposed assist plaintiffs in jurisdictional discovery unless the plaintiff’s claim is frivolous
                                                           iii.            Courts have broad discretion over discovery
VII)  No service = no personal jurisdiction
a.        Singleton v. Allen: trial court never acquired jurisdiction over the defendants because the defendants weren’t served; have to be served or waive service in order for the court to acquire jurisdiction
                                                               i.            Lawyers can waive service but they have to be authorized to do so and without that wavier of service
VIII)   Forum Non Conveniens Doctrine
a.        More of a venue statute but affects personal jurisdiction (Ex parte Rymer)
b.       Initially was created in order to alleviate the burden of AL courts from causes of actions that could’ve have been more easily pursued in other states or where the injury occurred
c.        Trial court empowered to determine whether the case out to be dismissed on ground of forum non conveniens
d.       Forum non conveniens clauses are permitted in contracts so long as the parties signed and agreed to them (Professional Insurance v. Sutherland was the first case to state that)
e.        A case dismissed on ground of forum non conveniens is dismissed without prejudice so the parties can re-file later in another more appropriate forum
Ø  Not a waivable defect/established under Article III of Constitution
Ø  12(h)(3): if the court determines at any time that it lacks SMJx, it MUST dismiss the action
I)       Court never has power to adjudicate if it lacks jurisdiction
a.        State courts = general jurisdiction
b.       Federal court = limited jurisdiction
                                                               i.      Exclusive federal claims: bankruptcy, antitrust, admiralty, patent/copyright/some securities [§ 1335-1365] II)     Court system in Alabama
a.        Small Claims Court
                                                               i.      Jurisdictional monetary restriction: $3,000
                                                             ii.      Ala. Code § 12-12-21: corporation can appear in small claims court without attorney
1.       Differs from district court
                                                           iii.      Relaxation of the rules in this court
b.       District Court
                                                               i.      Jurisdictional monetary restriction: $10,000
                                                             ii.      Cases handled differently from circuit court
                                                           iii.      All rules apply [rulebook notes limitation]                                                            iv.      Appeals
1.       Main avenue of appeal is to the circuit court
a.        Gets trial de novo
2.       Brought suit to circuit court on first instance = stuck with that court and cannot get more than $10,000 à not allowing P to get 2 bites at the apple
3.       Alabama Court of Civil Appeals
a.        Done in traditional “appeals” method [briefs, oral arguments, etc.] b.       Appeal can be made here if it’s solely a question of law or if there is a great record from the district court, and the Court of Civil Appeals is in the position to determine if the district court’s decision was in line with the record
                                                                                                                                       i.      In order to get this type of direct appeal to the Court of Civil Appeals, both parties have to waive right to jury
c.        Circuit Court
                                                               i.      Court of general jurisdiction in Alabama
                                                             ii.      No monetary limitation like in District Court or Small Claims
1.       Can sue over $10,000 lawsuit like in Circuit Court
2.       Can demand a jury
                                                           iii.      Where to appeal?
1.       Court of Civil Appeals
a.        Only court that takes domestic relations appeals and divorces, workers comp
b.       Any case under $50,000 goes to Court of Civil Appeals on direct appeal
                                                                                                                                       i.      Ex: Judgment for $49,999.99 goes to the Court of Civil Appeals
c.        What happens if you lose?
                                                                                                                                       i.      Petition the Supreme Court for cert and then they decide whether to hear
1.       If so, they can reverse the Court of Appeals
2.       Supreme Court of Alabama
a.        More than $50,000 goes directly to the Alabama Supreme Court
                                                                                                                                       i.      Case can be appealed to the Supreme Court but be sent to the Court of Appeals because the Supreme Court has the power to deflect cases that they feel aren’t worth their time or if they don’t like the case
1.       Parties can fight the deflection, but won’t likely be successful
b.       Writ of quo warranto (“by what authority”)
                                                                                                                                       i.      Can be used to question whether judge had authority to do something
                                                                                                                                     ii.      AL Sup. Ct has original jurisdiction of writs of quo warranto
III)  Cases become moot at any point in which there ceases to be a controversy between the parties (South AL Gas v. Knight)
a.        A justiciable controversy cannot be maintained on appeal if the subsequent questions raised in it have become moot by subsequent acts or events
b.       Mootness is a jurisdictional issue and the court can receive facts relevant to that issue on appeal be

II)     After looking at the appropriate statute for your D, look to Rule 82
a.        82(a): doesn’t extend or limit the jurisdiction of the courts
b.       82(b): If venue good for one defendant, then good for all defendants
c.        82(c): “Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought”
                                                               i.      Translation: if venue is proper to one D, then proper to all Ds
d.       82(d): improper venue
                                                               i.      When an action is commenced laying venue in the wrong county, the court, on timely motion of any D, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed à allows trial court to transfer case if venue improper
1.       After commencement of the action, there are 2 options:
a.        Voluntary dismissal: 82(d)(2)(A)
b.       Involuntary dismissal: 82(d)(2)(B)
III)  Outbound forum selection clause
a.        Enforceable unless unfair or unreasonable to enforce
b.       Ex parte Rymer: found the selection clause was enforceable
                                                               i.      2-part test:  (1) is the outbound selection clause unenforceable as a contract matter because it was procured by fraud or overweening bargaining power? and (2) is it unreasonable and does it make the defendant unavailable to have a day in court?
IV)  Limitations to Venue
a.        Medical malpractice actions
                                                               i.      Have to file in county that the malpractice occurred
1.       Cannot file at a satellite hospital location or at a hospital where the doctor rounds if more convenient
                                                             ii.      Favorable to hospital providers
b.       Wrongful death [Ala. Code § 6-5-410]                                                                i.      Venue is not where the personal representative lives but where the lawsuit could’ve been filed had the deceased survived à see Ala. Code § 6-5-410(e)
                                                             ii.      Downtown Nursing Home: personal representatives bring wrongful death actions, but the personal representatives had to be appointed when the suit is filed
1.       Personal representative was filed more than 2 years after the death of the decedent and since the cause of action expired and there was no personal representative was appointed by the end of the 2 year à case was a nullity when filed and there was nothing to relate back to
                                                           iii.      Ellis v. Hilburn: wife was appointed administratrix of the estate within the SOL period but filed the suit after the SOL ran
1.       Her cause of action didn’t expire because she was appointed so the expiration test didn’t apply
a.        Expiration test: if the 2-year SOL passes from the date the decedent died and no one has been appointed to the estate as personal representative or administrator within those 2 years, then the cause of action expires
SCOPE OF THE RULES: One Form of Action
Ø  Rule 1: Scope of the Rules
o    1(c): “These rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action”
o    Rules apply in Circuit courts, courts in full, like jurisdiction, and district courts
§  Check each Rule for the differences for the district courts
Ø  Rule 2: One Form of Action
o    “There shall be one form of action to be known as ‘civil action.’”
§  There are some proceedings which are governed by the Rules that aren’t civil actions
·         E.g., Doug Cooner’s disbarment case is governed by the ARCP but it’s a professional conduct/disciplinary case [Cooner v. Alabama State Bar] Ø  Rule 3: Commencement of Action
o    (a) Civil action is commenced when complaint filed with the court
o    (b) Original complaints must be accompanied by an informational cover sheet; failure to include the cover sheet doesn’t affect the validity of the commencement of the action à clerk just informs the plaintiff to complete a cover sheet
§  “Failure to comply with the requirements of this rule, the court in which the action is pending may make such orders as are just, including an order staying the proceedings until the cover sheet is filed or, after proper notice, an order dismissing the action; and, in lieu of any other orders, or in addition to any orders, the court may treat the failure to comply with the requirements of this rule as contempt of court”
o    Don’t have to file an informational cover sheet in district court unless it’s an appeal from the district court to the circuit court
o    Johnson v. Hetzel: substantial hardship waiver and filing fee weren’t paid so the action never commenced; paying the filing fee or submitting the court approved statement of hardship is the jurisdictional prerequisite for commencing the action
o    Kendrick v. Lamar: plaintiff claimed he told clerk to hold off on serving the complaint; action never commenced because plaintiff failed to show an intent to commence the action or an intention to serve and start the case
§  Filing the complaint and holding service can be done, but there has to be evidence showing an intention to commence the action à in this case, no evidence present