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Civil Procedure I
University of Dayton School of Law
Harrison, Jack B.

OUTLINE FOR CIVIL PROCEDURE – HARRISON (Fall 2008)
 
I.            Big Picture
a.       In order for a court to hear a case, it must have both subject-matter and personal jurisdiction.
                                 i.      Often set by statute
                               ii.      Can it be waived?
1.       Subject-matter jurisdiction cannot be waived
a.       Jurisdiction can be challenged by attorneys and judge at any time
2.       Personal jurisdiction can be waived
a.       Special appearance = when a party appears solely to challenge jurisdiction
                              iii.      The higher the level of contacts with the state, the higher probability of jurisdiction
                             iv.      The higher the level of disconnect between claim and activity, the lower the level of jurisdiction
                               v.       
b.      Steps in evaluating personal jurisdiction:
                                 i.      Is there a statute or rule that gives the court a basis for the exercise of jurisdiction?
                               ii.      Is the exercise of jurisdiction constitutional?
1.       Does the defendant have minimum contacts with the state?
2.       Are the defendant’s contacts so substantial that s/he can be subject to unrelated claims on a theory of original jurisdiction?
3.       Has property of the defendant been seized within the state? Is this enough for jurisdiction?
4.       Has the defendant consented to the jurisdiction of the forum state?
5.       Was the defendant personally served within the forum state (presence)?
                              iii.      Is venue proper?
                             iv.      Was proper notice given? 
II.            Personal Jurisdiction and Venue
a.       Types of personal jurisdiction
                                 i.      In personam jurisdiction – permits a court to enter a judgment against an individual as a matter of equity/injunctive relief or legal relief. (International Shoe Co. v Washington: expanded Pennoyer; must be substantial activities that take benefits and protections of a state.)
                               ii.      In rem jurisdiction – permits a court to adjudicate the rights of all possible claimants to a specific piece of property. (Pennoyer v Neff: must have presence or consent to serve nonresidents)
                              iii.      Quasi in rem jurisdiction – cause of action against a property that’s attached the claim.
b.      Service
                                 i.      Within jurisdiction
1.       All assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe. (Shaffer v Heitner).
2.       If you have physical presence, you can be served. (Pennoyer v Neff).
3.       You can be served even though the suit was unrelated to the defendant’s activities in the state. (Burnham v Superior Court – note that the opinion was not controlling)
4.       Notice must be reasonably calculated, under all circumstances, to appraise interested parties of the lawsuit. (Mullane v Central Hanover Bank & Trust Co.)
c.       Minimum contacts
                                 i.      What is the idea of minimum contacts? Due process requires only that in order to subject a defendant to a judgment in personam, he have certain minimum contacts with it such that the maintenance of the suit does not offend tradition notions of fair play and substantial justice. (International Shoe Co. v Washington).
1.       Must be systematic and continuous.
2.       Implies tacit consent of the defendant to the forum state.
3.       Single contact can trigger jurisdiction if there is a substantial connection to the forum state. (McGee v International Life Insurance Co.).
4.       Minimum contacts apply to quasi in rem jurisdiction, too. (Shaffer v Heitner). 
d.      Applying minimum contacts
                                 i.      The cause of action must be related to the nature of the contacts (specific jurisdiction).
                               ii.      Two step analysis by courts to determine PJ via minimum contacts:
1.       The defendant must have committed an act to purposefully avail himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. (Hanson v Denckla).
a.       Voluntary act of the defendant establishing a relationship with the forum state.
                                                                                                i.      Unilateral act is not enough. (Hanson v Denckla)
                                                                                              ii.      Long-term relationship with a forum resident satisfies requirement. (Burger King v Rudzewicz).
                                                                                             iii.      A single act seeking to serve the forum market is sufficient to assert a claim growing out of that act. (McGee v International Life Insurance Co.)
b.      Stream of commerce
                                                                                                i.      A defendant must serve or seek to serve the forum state’s market in order to establish minimum contacts and delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state (World-Wide Volkswagen v Woodson).
                                                                                              ii.      Awareness of products entering the stream of commerce and ending up in the forum is not sufficient to establish minimum contacts (Asahi Metal Industry Co. v. Superior Court).
                                                                                             iii.      A consumer’s unilateral act of purchasing a product and bringing it to the forum state is not sufficient in establishing minimum contacts. (World-Wide Volkswagen v Woodson).
c.       Internet
                                                                                                i.      The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the internet. (Zippo Manufacturing v Zippo Dot Com, Inc.)
                                                                                              ii.      Sliding scale of three types of websites:
1.       Passive – simply viewing. PJ is not permitted.
2.       Interactive – sending/receiving data. The level of interactivity and commercial nature of the exchange of information that occurs on the website determines PJ.
3.       Intentionally active – doing business over the internet such as a contract. PJ is sufficient.
2.       Reasonableness/fairness is calculated by looking at several factors: (World-Wide Volkswagen Corp. v Woodson):
a.       Burden on the defense;
b.      Forum state’s interest in adjudicating the dispute;
c.       the plaintiff’s interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff’s power to choose the forum;
d.      the interstate judicial system’s interest in obtaining the most efficient resolution of controversies;
e.      and the shared interest of the several States in furthering fundamental substantive social policies
                              iii.      Long-arm statutes extend jurisdiction to the outer limits of Due Process to include nonresidents/out-of-state defendants.
1.       State attempts to obtain jurisdiction over defendant through legislation. Is acceptable if it does not violate Due Process. (World-Wide Volkswagen v Woodson) (Hanson v Denckla)
a.       Look to unfairness/reasonableness to defendant of bringing a case in the forum state.
e.      Beyond minimum contacts: other bases for jurisdiction
                                 i.      General jurisdiction
1.       If the defendant has enough substantial contacts to the forum state, but the claim is unrelated to these contacts (i.e. no specific jurisdiction), is it possible to bring suit under general jurisdiction?
a.       General jurisdiction is proper only where “a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.” (Bird v Parsons)
2.       Three approaches/judicial theories
a.       Proximate cause/substantive relevance test – the defendant’s cause must be the legal cause of the plaintiff’s injury; Are the defendant’s contacts with the forum relevant to the merits of the plaintiff’s claim?; most restrictive test.
b.      But-for – the plaintiff’s claim would not have arisen in the absence of the defendant’s contacts.
c.       Substantial connection – Causation is of no special importance. Judges consider the totality of the circumstances to determine whether the tie between the defendant’s contacts and the plaintiff’s claim is close enough to make jurisdiction fair and

      v.      As long as you meet the statutory requirements for venue under 1391, the issue of fairness and convenience is essentially settled.
1.       Can raise issue of forum non convenies but is only accepted under extreme circumstances.
a.       remember, it’s a common law doctrine and it is ruled by statutory law
                             vi.      The final provision of 1391 (a) is primarily used to gain jurisdiction over foreign defendants because they do not meet the requirements of residence or substantial portion of events…
1.       for disputes b/w US residents, venue typically falls under A or B.
                            vii.      Transfer of Venue
1.       Two ways under federal courts
a.       Forum non conveniens = common law doctrine of venue transfer
                                                                                                i.      Transfer if grossly inconvenient to the defendant.
                                                                                              ii.      If the proper jurisdiction is another country, federal courts can dismiss the case (Piper Aircraft Co. v Reyno)
                                                                                             iii.      Courts have to guard against forum shopping and unequal protection under the law.
                                                                                            iv.      Several factors used to determine if case should be transferred:
1.       Convenience of witnesses; relative ease of access to sources of proof; convenience of the parties; locus of the operative facts; availability of compulsory process i.e. compel unwilling witnesses to testify; costs of obtaining attendance of willing witnesses; trial efficiency and the interests of justice, based on the totality of the circumstances; interest in having trial in forum familiar with the law i.e. current court does not have expertise (J. Lyons & Co. v. Republic of Tea, Inc.)
                                                                                              v.      Change in substantive law less favorable to plaintiff is irrelevant (Piper).
                                                                                            vi.      Alternate forum must be available to hear the case.
                                                                                          vii.      Forum non conveniens is codified in 1404.
b.      28 USC 1404/1406
                                                                                                i.      28 USC 1404 Change of Venue
1.       (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.(c) A district court may order any civil action to be tried at any place within the division in which it is pending.(d) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.