Civil Procedure
Bornstein
Spring 2016
Guide
Personal Jurisdiction
US Constitution Article IV §1 & Amendmentment XIV §1
Fla. Stat§48.193 (on TWEN)
FRCP 12: Defenses and Objections: When and How Presented; Motion for Judgement on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Rule 12(b)(1) (How to Present Defenses: lack of subj matter & personal jurisdiction)
28 U.S.C.§ §1391 (Venue)
28 U.S.C.§ §1404, 1406, 1631 (Change of Venue, Transfer to Cure Want of Jurisdiction)
Pennoyer (Personal Jurisdiction)
International Shoe (Min. Contacts Test)(traditional notion of fair play and justice)
Milliken (Domicile)
Gibbons (Long Arm Statutes)
Hanson (Purposeful Availment)
Shaffer (Merging In Rem and In Personam)(Gets rid of Quasi-In Rem)
Volkswagen (Foreseeability of the suit in that jurisdiction, not foreseeability of product ending up in that jurisdiction – Reject simple stream of commerce argument).
Burger King (Choice of law clauses) (Reiterate fair play and substantial justice)
Nicastro (Reiterate purposeful availment)(Reject stream of commerce for intent to avail in a state’s market)
Abdouch (Minimum Contacts with websites. Zippo Test and Calder Test)
Goodyear Dunlop (General Jurisdiction – Continuous and Systematic – Render essentially at home in state – allows claims unrelated to activities in the state
Burnham (divorce case – tagging is alive and well.)
Carnival (Consent to Jurisdiction. Forum Selection Clause)
Mullane – (Necessity for notice and restrictions on constructive notice)
Greyhound – Domicile Test. Transferring Venue
Piper Aircraft (Declining Jurisdiction)
Atlantic Marine Construction
Subject Matter Jurisdiction
Basis for Subject Matter Jurisdiction
US Constitution Article III §1 & 2
Original Jurisdiction
Power to create District Courts
28 USC 1331 (Rules Enabling Act)
Creating District Courts
FRCP 12(h)(3)
Motion to Dismiss for lack of Subject Matter Jurisdiction
Federal Question Jurisdiction
28 USC 1331
Louisville & Nashville Railroad v. Mottley (Question about constitution alone is not enough)
Jurisdiction
28 USC 1332 (a)-(c)
Rules for Diversity Jurisdiction
Redner v. Sanders (issue of dual citizenship and domicile)
Hertz Corp v. Friend (Nerve center of a corporation)
Complete Diversity
$75,000 and a Penney
Supplemental Jurisdiction
28 USC 1367
28 USC 1367(b) This only applies if diversity of citizenship is the sole reason for the claim. We skip (b) if federal question applies.
Common nucleus of operative fact
In Re Ameriquest Co. Mortgage Lending (Common nucleus)
FRCP 18
Joinder of Claims
Joinder of Claims are affected by supplemental Jurisdiction
FRCP 20
Permissive Joinder of Parties
Supplemental Jurisdiction Effects Joinder
28 USC 1441
28 USC 1446
Procedure for Removal
Caterpillar v. Lewis (Supplemental not extended)(Novel issues of state law goes to the state)
Time Limits
Erie Doctrine
28 USC 1652
Conflict of law
28 USC 2072
Rules should not abridge, enlarge, or modify any su
Rule 11 does not apply for discovery
Cannot “discover” opposing party’s trial preparation material
Hickman v. Taylor
FRCP 34
Producing the Documents
Reasonably usable form
Same form and method
Responses and Objections
FRCP 45(a)
Service Subpoenas
Protecting People
FRCP 33
No more than 25 unless court order
Answers and Objections
FRCP 36
Request for Admission
FRCP 30
Time limit
7 hours in one day
If impedes, delays or frustrates
FRCP 35
Physical and Mental Examination
FRCP 37
Failure to Make Disclosures
Zubulake v. UBS Warburg LLP
Good Faith Loss of Electronic Media
Dispositions
FRCP 41
Dismissal of Action
Voluntary Dismissal
Involuntary Dismissal
FRCP 55
Default Judgment
Peralta – Still need notice even in default judgment
FRCP 60(b)
Relief from a Judgment
FRCP 56
Summary Judgment
May be filed up to 30 day after the end of discovery
– Summ. Judgement not granted unless the nonmoving party can show that there is no genuine issue of fact
– MSJ trio – beyond metaphysical doubt
U.S Constitution Amendment VII
Right to Jury Trial
FRCP 1
Scope of the rules
Form of actions
