Civil Procedure, Professor Katherine Florey
Spring 2013
Remember: Must have 1) territorial jx, 2) sm jx, 3) proper venue, 4) notice of D
DUE PROCESS – fair treatment through the normal judicial system; 5th Amendment mandated due process in federal proceedings, 14th A applied same to states
• General RULE: The extent of due process is to be determined based on doing a sort of cost-benefit analysis of accuracy and fairness (often public policy interests) vs. the cost (burden on government).
A. Adversarial Culture
1. Consult substantive law; decide which court, factors:
a. SM Jx; P Jx; Venue
b. Consider: convenience to P; favorable jury (local sympathy); speediness of trial (faster in federal)
2. Litigation is last resort; most cases don’t go to Court because:
a. Naming – people don’t realize they suffered
b. Blaming – people don’t know someone is at fault
c. Claiming – don’t bother for number of reasons
B. Statutes of Limitations – statute stipulates amount of time to bring claim
1. A balance between fair notice and fair administration of justice. Courts reward aggressive Ps.
2. When does claim for an injury “accrue?”
a. At time victim is aware of its probable cause, not when aware of legal claim/rights
b. United States v. Kubrick: Veteran Ear Neomycin; SL ran out; SLs are used to ensure D repose, freshness of evidence, and they encourage P diligence;
C. Elements of a Fair Hearing
1. Basic Due Process: notice; right to appear; right to counsel/cross-examine; neutral decision-maker/process
2. Courts will consider: Accuracy & Stakes v. Fairness & Cost
a. Goldberg v. Kelly: Welfare Termination Hearing; 14th Amendment: no person can be deprived of property w/o due process. When significant (life/liberty/property) interest at stake, and writing or “post-termination” hearing not sufficient, personal hearing required
b. RULE: Amount of process due is proportional to weight of value at stake (fairness)
3. Cost-benefit analysis: Potential harm and risk of error v. gov interest and potential burden
a. Matthew v. Eldridge: Disability Insurance Terminated; Opposes Goldberg v. Kelly:
i. Matthews v Eldridge Three-Part Balancing Test:
1. Private interest (the importance of the interest at stake);
2. Risk of an erroneous deprivation (the interest considered against the procedures used, and the probable value of additional procedural safeguards); and
3. Government's interest (costs, additional bureaucracy)
b. Van Harken v. City of Chicago: Chicago Parking Violations; City of Chicago changes parking violations to civil offenses and takes away ability to cross-examine, with hearing offices hired by the Dept of Revenue. Ds are probably at fault for tickets so C-B analysis shows there is little at stake, enough process is being served
i. RULE: The lesser the interest at stake (harm is low), the less process is due; due process allows experimentation to determine the most efficient methods.
TERRITORIAL JURISDICTION – the power of a court to engage in binding adjudication over a person or a thing:
A. General Principles
1. In Personam (personal jx): jx over the person (physical)
2. In rem: D has property in the forum, litigation is regarding title of property (Quiet title – when a number of people have claims to a property and the court determines who has claim)
3. Quasi in rem: Lawsuit based on property rights of a person absent from the jurisdiction
a. Type 1: dispute is related to the property; classic example of in rem jx when the property is the subject of the dispute but the property owner is absent from the jurisdiction; i.e. bank forecloses property (doesn’t have to be real property)
b. Type 2: property is unrelated to suit the court gains jx over the person’s property by attaching it to the suit; shares of stock unrelated to behavior of Board (Shaffer)
B. Methods of Obtaining Personal Jurisdiction
1. Traditional Basis for Jurisdiction
a. Pennoyer v Neff: the 14th Amendment limits a state’s jurisdiction over people; traditional methods of obtaining personal jx (presence, consent, domicile)
b. Presence/Service
i. Types of Appearances:
1. General appearance – even if it was an inadvertent appearance, then you are in the jx and must go on
2. Limited appearance – appearing in quasi in rem case only to the value of the property in that state (less used now)
3. Special appearance – this limits to considering personal jx argument; different RULEs in state and federal law
a. (RULE 12): D can make a special appearance to contest jx; this is different from a general appearance in which a person just shows up for the case (Hess v. Pawloski)
4. A state has personal jx over a non-resident by serving papers while in state (Burnham)
5. Note: If you respond on the merits, you waive your right to challenge jurisdiction
b. Consent/Waiver
i. Implied Consent: assumes person is assenting to courts having jx over you in that state
1. State can assign someone to receive process for you in the state; MA could use registrar of motor vehicles as agent for purpose of service of process for out-of-state non-resident motorists complies with 14th Amendment (Hess)
ii. Explicit Consent: signing a contract with a forum selection clause
1. Carnival Cruise Lines
c. Domicile (at home there)
2. Modern Basis for Jurisdiction
a. Long Arm Statutes – CA to the max of Due Process under Constitution, NY less
i. New York Long Arm Statute is less than Constitutional Limit (Bensusan – Blue Note
b. General Jx versus Specific Jx
i. General Jx:
1. Rule: state has jx over D because D’s contacts are so “substantial and continuous” that they essentially render D at home (Int’l Shoe)
2. Contacts don’t have to be related; can be unrelated; D is essentially domiciled because of quantity and quality of contacts with forum
3. Perkins: the company is all but domicile and thus there is general jurisdiction
4. LL Bean v Gator.com: Court states that because 6% of LL’s Bean’s clothing sales in California is likely enough to determine general jx; even though they had not singled out California
5. Goodyear: not a lot of contacts; little sale, not a lot of marketing; must be so continuous and systematic as to be essentially at home
ii. Specific Jx:
1. Rule: where state has jx over a D because D’s activities in the state gave rise to the claim: few contacts of high relatedness or many contacts with somwhat relatedness works
2. A few contacts (closely tied)—-Many contacts (less tied to suit)
3. Generally, the more contacts you have, the less tied they need to be
c. Minimum Contacts: Use “notions of fair play and substantial justice”; D must have taken advantage of the “benefits and connections” of the state’s law (Int’l Shoe)
i. Relatedness: Traditional notions of fair play & substantial justice (fairness) (Shoe)
ii. Purposeful Availment: a D avails herself “of” the state laws; targeting a place making it reasonably foreseeable that you could get sued there (Burger King)
1. While it was possible for a car to travel, WWV had not purposefully availed itself of the laws, not foreseeable, no minimum contacts; putting in “stream of commerce” is not necessarily availing you to suit everywhere those products may end up (Worldwide Volkswagon)
iii. Foreseeability: reasonable anticipation of suit in that forum (Worldwide VW)
iv. Stream of Commerce: Asahi Split (Most cases are likely not “stream of commerce” cases):
1. O’Connor: “mere awareness” of stream of commerce + something else
2. Concurrence: placing into “stream of commerce” is sufficient
v. Purposeful Direction: Need stream of commerce + something more – need to actually be targeting/directing product to end up in jx (Asahi O’Connor)
vi. Effects Test: 1) intentional act, 2) expressly aimed at foreign state, 3) that harmed it
1. If you engage in activities in one state and realize that effects can be felt in another state, then, even if you have no other contacts in that other state suit may still be valid against you. (Jones v Calder)
2. E.g. Someone throws a hand grenade from Nevada into California; the person is never actually in the state, but the grenade definitely affects California;
3. Single highly-connected act to the dispute is sufficient
vii. McIntyre v Nicastro
1. Plurality = Only if the D intends to submit to the sovereign (in this case State of New Jersey) may a court find jurisdiction – targeting the US as a whole is not specific enough
2. Seems to show the US Supreme Court is moving towards O’Connor’s view in Asahi of stream of c
nt. Several other steps could have been taken; losing house is a big stake!
ii. Mullane: as long as procedure adopted is reasonable, then it is sufficient
v. Note: For exam, notice will usually be satisfied by service of process
b. Service
i. Cannot use trickery to lure someone into jx;
ii. But, once they are in jx, you can do anything you want
iii. Service while in state is still valid (Burnham)
iv. Only applied to people, not corporations
v. Make sure to make the distinction between tag jx (serve D within state you are suing – gotcha ya!) and service of process
c. Service of Process: required for every case to serve D
i. Mechanics in RULE 4
ii. RULE 4(C) – summons and complaint
iii. RULE 4(D) – waiver
a. Mailer copy of complaint
i. If D fails to waive, D must pay cost of service
ii. If D waives, 60 days to answer (vs. 21 days in ordinary circumstances)
iii. There is a great deal of D to waive process because of the 21 v 60 days; this is usually what is done
SUBJECT MATTER JURISDICTION –
RULE: court must have subject matter jx in addition to territorial/personal jx in order to adjudicate a case; subject matter jx is NOT waivable
A. General Principals
1. Defined: power of federal or state court to adjudicate a case according to what type of suit the case presents or the identity of the parties;
a. State Courts: courts of general jx, meaning they have concurrent power over federal issues; they can also have courts of limited jx, and this varies greatly per state
i. State courts have exclusive right to try cases where there is no basis for federal SM jx, aka state issues
b. Federal Courts: federal courts are courts of limited subject matter jx
i. Establishing limits on their own jx is one of the federal courts biggest jobs
ii. Article III creates a laundry list of potential powers for federal courts: “The judicial power shall extend…to all cases…arising under the Constitution, the laws of the U.S. and treaties…”
iii. 28 USC 1331: “The district courts shall have original jx of all civil actions arising under the Constitution, laws, or treaties of the U.S.”
This statute does not go up to the C limit; courts have interpreted it more narrowly
2. Which court if state and federal court both have jx?
a. Many cases can be tried in both courts; it is up to P to decide
b. There can be more than one statute that gets you into federal court
c. Sometimes the D can move to federal court when initial case is brought in state court
B. Getting into Federal Court
1. To get into federal court you need:
(A) Diversity of parties OR
(B) Federal question
(C) Admiralty or other (but we won’t discuss these much further)
2. Once in federal court, you can assert a claim if:
(A) Diversity
(B) Federal question
(C) Supplemental (28 USC 1367) – allows some state law claims in federal court (will discuss this later)
3. Burden of proof on P to show they have met requirements necessary for fed jx
