Civil Procedure I Outline

Civil Procedure Outline
TOPIC AREA ONE: CHOOSING THE PROPER COURT
TERRITORIAL (PERSONAL) JURISDICTION
a.       Rule 12(g)—a defendant waives territorial jurisdiction if it does not raise the issue in the answer or the pre-answer motion
b.       PENNOYER V NEFF
 
PERSONAL JURISDICTION
Steps for essay
Check the long arm statute
Make sure it is within the constitutional standards
Begin by looking at whether the D is in the state, if so there is tag jurisdiction under Pennoyer and affirmed by Burnham.
Or D served in state
D consented to suit in the state
D makes a general appearance in the suit
Corporations are deemed to be domiciled either in their principle place of business or state of incorporation
Must have minimum contacts under International Shoe so as to not offend traditional notions of fair play and justice
See if they “personally availed” themselves to a suit
                                                               i.      Either by directing their actions there
                                                              ii.      Whether person received the benefits and protections of the state’s laws
                                                            iii.      Whether it would be reasonably foreseeable they would defend a suit there
                                                            iv.      Whether he should reasonably anticipate being haled into court there
Specific or General Jurisdiction
                                                               i.      Specific—suit arises out of contacts in state
                                                              ii.      General—a D has systematic and continuous contacts with the state
1.       That itself is not the standard. When the suit arises out of unrelated operations, must be “so substantial and of such a nature as to justify suit against it on causes of action arising from dealing entirely distinct from those activities.”
2.       The Supreme court has not stated exactly what contacts are necessary to allow general jurisdiction but has indicated that they must be extensive. The Supreme Court has indicated that there have been cases in which a defendant’s contacts are so continuous and substantial that the state can exercise jurisdiction in that state for causes of actions arising from dealing entirely distinct from those contacts. International Shoe. 
3.       The Perkins case represents what appears to be the SC’s only approval of exercise of general jurisdiction. There, the president and principal stockholder of a foreign Company moved to Ohio and carried on the company’s operations in that state, thereby subjecting the company to jurisdiction in Ohio, even for matters unrelated to its Ohio contacts. 
4.       Also compare contacts to Helicopteros. The contacts in question with the forum, consisted of the Ds purchase of 80% of its helicopter fleet, as well as spare parts, from a Texas company, the sending of its pilots to Texas for training, and a visit by the CEO to negotioate a contract with the joint venturers whose employees were killed in the accident. Held: No jurisdiction. 
5.       The Supreme Court has not indicated whether secondary factors beyond the defendant’s contacts are relevant to a general jurisdiction analysis.  
Contacts must be continuous and systematic, not have a casual presence or isolated and single activities
Balancing prong to protect D from the burden of litigating in distant/inconvenient forum—balances burden of D in state against
State’s interest in providing forum in the dispute
P’s interest in bringing the suit to this forum
Burden of D in litigating in that forum
                                                               i.      Burden of travel or prejudice—in this day of easy mobility and great technology
Most efficient judicial relief
Example by Pfeffer:    In this case, the cause of action arises out of Driggs’ contacts with California, thereby calling for an analysis under the Court’s specific jurisdiction jurisprudence: Hanson, World-Wide, Burger King et al. Under this line of cases, the primary focus is on the defendant’s activities. More specifically, a defendant can be subject to jurisdiction in a state if the defendant’s contacts arise as a result of the defendant’s purposeful direction of its activities toward the forum state. World Wide. This does not require that the defendant actually enter the forum state. Burger King. Yet, if the defendant’s product enters the forum state as the result of the fortuitous action of a third party, that alone will not be enough to allow the exercise of jurisdiction. Word Wide. The defendant’s contact must meet a minimum threshold should the court then examine the additional factors. Burger King. Exercise of jurisdiction will not be constitutionally valid unless the defendant’s contacts with the forum state are of a quality and degree that she could foresee being haled into court in that forum. World Wide.
 
     After analyzing defendant’s contacts with the forum state, the Court must next look to secondary factors, which may allow cut in favor of exercising personal jurisdiction where the defendant’s contacts alone would not, or cut against exercising jurisdiction even where the defendant’s contacts are otherwise sufficient. Burger King. Those factors are the plaintiff’s interest in litigation in the forum, the forum’s interest, the burden on the defendant, the efficient ……
Example of Presence within state: Pennoyer had said it was necessary, and implied that it was sufficient, for purposes of in personam and in rem jurisdiction for a person or property to be physically in the state in question and be served with process at the outset of the suit.  After International Shoe, we see that presence within a jurisdiction is no longer necessary to obtain jurisdiction (minimum contacts that do not offend due process are sufficient).  This then leaves open the question whether presence alone is still sufficient to confer jurisdiction.
Burnham was a plurality (i.e. not binding opinion).  If you were asked which way a court should rule if you were a judge or advisor to the court, you would have to note that technically that this is an open question.  More specifically, Scalia would say that presence to satisfy constitutional concerns in the state was sufficient in all cases (with minor exceptions like trickery) under the Pennoyer and older cases, whereas Brennan would conclude that presence in the state would almost always be sufficient minimum contacts under international shoe.  That is, in almost all cases, presence is going to be sufficient, although different justices reached that conclusion based upon different reasoning.
Example: Mississippi’s exercise of personal jurisdiction over Dunston will found to be constitutional. A state’s exercise of personal jurisdiction over an out of state defendant is constitutional (i.e. consistent with the due process clause) if that defendant has such minimum contacts that exercising jurisdiction will not offend traditional notions of fair play and substantial justice. (Int’l Shoe). The degree of contact that a defendant must have with a state to meet this test depends upon whether or not the cause of action arises from the defendant’s contacts with the state (what has sometimes been called specific jurisdiction), as opposed to being unrelated to those contacts (what has sometimes been called general jurisdiction) (Int’l Shoe, Perkins). More precisely, a lesser showing of contacts will be necessary for the exercise specific jurisdiction, than for the exercise of general jurisdiction. (Int’l shoe –note that Int’l Shoe does not use the terms specific and general, but nonetheless uses that conceptual framework). In this case, Mississippi’s exercise of personal jurisdiction over Dunston’s would be considered specific jurisdiction.   The suit in question is based a car accident that allegedly occurred due to Dunston’s advertising to, and providing service to, Mississippi residents. Therefore, the suit against Dunston arises out of Dunston’s contacts with Mississippi. 
 
                To determine whether the exercise of jurisdiction is constitutional, post- Int’l Shoe cases have created a framework in which the nature and extent of the defendant’s contacts are considered in light of additional factors,   But, those add’l factors only come into play if the defendant himself has in fact established the necessary contacts with the forum state (Burger King, World Wide Volkswagen; Hanson). Put differently, to determine whether the exercise of personal jurisdiction is constitutional, a court must first examine the defendant’s contacts with the forum state; and only if those contacts meet a minimum threshold should the court then examine the additional factors. (World Wide; Burger King).
 
                In examining whether the defendant’s contacts are sufficient to meet the first part of the court’s two prong analysis, the focus on whether the defendant purposely availed himself of the privilege of conducting activities within the forum state or purposely directed his activities toward the forum state (World Wide; Burger King; Hanson). A defendant need not actually enter the forum state for that state to exercise jurisdiction (Burger King). But, exercise of jurisdiction will not be constitutionally valid unless the defendant’s contacts with the forum state are of a quality and degree that she could foresee being haled into court in that forum (World Wide).
 
                Here, Dunston’s contacts with Mississippi were purposefully directed to Mississippi. Dunston not only advertised in Mississippi, but geared his advertisement toward encouraging Mississippians to come tohisbar. And in fact the advertisement worked, as many of his patrons came from Mississppi, including Ivan Toomuch. And because Dunston intended to have Mississippi patrons frequent his bar, and in fact knew that he did, when he tortiously served a patron too much alcohol, it can fairly be said that, as in Jones, Dunston’s activities were aimed at Mississippi and that he knew that his tortuous actions would likely have an effect in that state. Also, although Dunston did not enter Mississippi, he purposely reached out to do business with persons in that state. (Burger King).
 
                These same facts distinguish this case from World Wide. Unlike the Dunston, who intended to, and in fact did, derive substantial revenue from Mississippi, the defendants in that case did not target Oklahoma, apparently derived no revenue from that state, and may never have had a car enter that state prior to the accident in question. In contrast to the World Wide defendants, Dunston, b