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Civil Procedure II
University of California, Hastings School of Law
Marcus, Richard L.

Civil Procedure II Outline * * Prof. Marcus * * Fall 2010
I. Geographic location of litigation (jx and venue): Page 2
A. History
B. Long Arm Statute → step one
C. Due Process → step 2 (specific jx),
D. Special Circumstances
E. Venue
F. Notice
G. Litigating Jurisidiction
II. Getting in to federal court: Page 12                                                                                                                      A. Diversity Jurisdiction
B. Federal Question Jurisidiction
C. Supplemental Jurisidiction
D. Removal
III. the Erie Doctrine Page 18                                                                       
A. Why Erie?
B. Functional treatment
IV. Choice of law Page 24
A. Background
B. traditional/first restatement
C.  Comparative impairment/ interest analysis
D. 2nd restatement
Appendix: Erie flowchart
I. Geographic location of litigation (jurisdiction and venue)
A. history
            1. The traditional theory of jurisidiction
                        a.  had to do with power over people or property within the borders of the                                      state
                        b. in order get jx you had to have one of these two types of jx
                                    i. in personam: jurisidiction over the person
                                    ii. in rem: jurisidiction over the property only
Pennoyer v Neff (1877) p 681
Facts: Neff sued pennoyer. pennoyer had been sold land by mitchell that mitchell had obtained in default judgement and Neff wants the judge to give him the land back. In Lower court neff won. Court ruled that judgement in case 1 was no longer good because the constructive service provision in OR required that an affadavit be submitted to show that the notice was printed in the paper, and instead mitchell submitted an affadavit of the editor
Holding: the OR judgment was invalid and unenforceable- it violated due process.
Analysis: states do not have jx over people or things beyond their borders. this was an in personam judgement, not in rem because  the property at issue in this case was not actually part of the original case. → If the land had been attached at the beginning of the suit, there would have been notice and the judgement would have been valid
                        c. elements of personam jx
                                    i.  service while in state
                                                – note that process can NOT reach across state lines and summon                                                     someone from another state (under Pennoyer)
                                    ii. general appearance
                                                – if a party appears it submits to jurisidiction
                                    iii. special appreance: can contest without submitting to broader jx                                                              – limited to the property → resulting judgement only for the                                                            specific property involved!
                                    iv. fraudulent inducement into the forum: telling someone you have spa                                          tickets, you get them there, then you serve them
                                    v. transient jx: designed to capture the notion that jx can be based upon                                          service of process within the state even if the person is just passing                                      through (on an airplane!) 
                        d. in rem
                                    i. notice:  constructive or actual
                                    ii. quasi in rem: only connection of defendant to state is that there is                                               property.
                                                –  There is no connection btwn property and claim
                                                –  judgment will only affect that property, not any other property
                                    iii. limited appearance
Harris v Balk ( 1905) p 693
Harris owed money to balk who owed money to epstein
1. epstein v harris –MD and 2. balk v harris- NC
JX à Epstein used MD attachment procedures to attach Harris' debt to Balk
Question here: where is the debt? With the debtor? Balk tries to argue that he had no property in MD and MD had no JX. The court says that “the obligation to pay the debt” goes with the debtor
court says that there was a valid judgement because there was jx
NOTICE à court then focuses on notice and says that even though neither harris or epstein gave notice, Balk still GOT it. This was Harris' obligation to give notice.
notice IS constitutionally required but NOT as a Jxal matter.
                        e. implied consent:
Hess v pawloski (1927) p 697
MA statute that getting privilege of driving means  appointing agent for service of process (registrar). Also must send notice to defendant after “Service of process within state on registrar”
how can this be justified under Pennoyer? State always has jx to determine status of citizens….and CONSENT. So, it is the consent that is applicable in this case.
Court says that driving in the state is implied consent
sidenote here: insurance indemnity is with insured, not necessarily in other state
            2. Shift to minimum contacts
                        a. under international shoe, minimum contacts replaced in the “power over”
international shoe (1945) , p 700:
Facts: int

/14 can be served within 100 miles of the courthouse even if they are in another state
ii. rule 4(k)(2) if there is nowhere else that the suit can proceed and there are sufficient contacts to make it constitutional, the suit can proceed
iii. some federal statutes for federal claims, like antitrust or securities, authorize nationwide service of process; say that you can sue anywhere
C. Due Process → step 2 (specific jx), asks whether exercise of jx would violate due process : due process requires purposeful availment and reasonableness
1. purposeful availment
            a. based on hanson v deckla: “some act by which defendant avails itself of the privilege                of conducting activities in the forum state”
Hanson v Deckla (1958)  p 711
Trustee in delaware and woman who set it up in florida. Sisters in florida trying to get jx over the trust, but the trustee never did anything in Florida at all
Holding/analysis: Unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. There must be some act by which the df purposefully avails itself of the privilege of conducting activities w/i the forum State, thus invoking the benefits and protections of its laws.
            b. voluntary action by the defendant establishing a connection with the forum such that    they could have appreciated that the connection could lead to being sued in the forum
                        i. foreseeability                             
                        ii. Contacts
                                    – single contact can be sufficient to make jx
McGee v International Life Insurance Co.p 709
Plaintiff won judgment in CA court against life insurer. Insurer was served at place of business in TX. CA court based jx on long arm statute. The insurance policy had been bought by a CA resident, and the company was bought. When it was bought it mailed a “reinsurance certificate” to CA.
Holding: there were sufficient contacts
Analysis: court applies international shoe.  focuses on nationalization of economy, mentions business conducted across state lines by mail. Mentions that insured was resident of CA, contract delivered there, premiums mailed from there. Also mentions that