Civil Procedure I Outline

CIVIL PROCEDURE – PreTrial Checklist
(5 basis for motion to dismiss under Rule 12(b))

I. Territorial JN – raw power and the Constitution (5th and 14th Amendments’ Due Process Clause)
In personam, in rem or quasi in rem #1 or #2 – whether the court has power over the parties to bring them into court and bind them to the decision. P v. N is the first case to treat personal/territorial (?) JN as a constitutional issue. It linked the idea of a State’s raw power over people and things within its territory to the Due Process Clause, preventing a State from seizing someone’s property or entering a judgment against them without due process of law (notice and an opportunity to be heard)
Summary: Does the assertion of PJN satisfy the Due Process Clause of the 5th and 14th Amendments?
– Contacts are always required: a party purposefully availing themselves of the benefits and protections of the forum, asserting PJN must not offend traditional notions of fair play and substantial justice, burden on Δ, the interests of the π and the forum state, interstate judicial system. Specific and general JN
– Outside the Minimum contacts test: The domicile of an individual; the state of incorporation of a corporate Δ; the physical presence of the Δ in the forum state at the time of service (Burnham); when Δ consents; or when a party challenges JN, the court’s ruling one way or another is binding
A. First, look at forum’s Long Arm Statute – analysis is that the statute must fit inside the parameters of the Due Process Clause requirements to be constitutional (under the 5th and 14th Amendments to the Constitution)
B. In Personam JN is determined by:
1. Physical Presence – if you are physically in a state when you are served, the state has in personam JN (ala Pennoyer v. Neff, Burnham)
2. Domicile (multiple residences, one domicile) –
a) A natural person is considered a citizen of the state in which they are domiciled (1- presence in the state at some point in the past and 2 – a present intent to reside in that state permanently/indefinitely). Domicile confers JN even if the person is absent from the state at the time (Milliken).
(1) Center of gravity test to determine domicile if Δ has multiple residences:
(a) Mailing address
(b) Drivers license, voter registration
(c) Property/intangible assets
(d) Current location
(e) Club memberships
(f) Employment
(2) You keep your domicile until you create a new one/domicile of your parents.
b) Corporations’ Domicile
(1) Place of Incorporation AND
(2) Principal place of business
3. Substitutes for Physical Presence to Obtain P JN
a) Express Consent (agreeing to personal JN by defending the case on the merits or by assigning someone else as your agent for service of process in the forum state)
(1) Consent can be in a forum-selection clause if both parties have the power to bargain (?) and negotiate, as with companies. SEE CARNIVAL v. SHUTE
b) Implied Consent – counter/crossclaims
c) Waiver/Failure to Assert Defense (if an objection to P JN is not raised as part of the Δ’s very first action with the court, it is considered to be waived and cannot be brought up later. If the Δ objects to P JN and loses, then defends the case and loses, the objection to P JN can be raised again on appeal. In federal court, it is permissible to include an objection to JN with defenses on the merits as long as P JN is in the FIRST action.
4. Minimum Contacts
Purposeful availment of the benefits and protections of forum law can constitute presence for purposes of T JN – Int’l Shoe. Consider all 5 min contacts plus reasonableness factors. Ask whether the Δ (individual or corporation) had sufficient minimum contacts that he would reasonably expect to be haled into court there, and such that the maintenance of a suit against Δ does not offend “traditional notions of fair play and substantial justice.” (M.C. = C. QuIBS; RAP)
Traditional notions of fair play and substantial justice – should/would the defendant reasonabl