Select Page

Civil Procedure I
University of Illinois School of Law
Hyman, David A.

Professor Hyman
Civil Procedure
Spring – 2014
1. Personal Jurisdiction (PJ)
– Involves one single issue: can the P sue the D in this state?
 (a) In Personum: Power over D herself (ALWAYS prefer this type of power)
– General: D can be sued on a claim that arose anywhere in the world
– Specific: D can be sued on a claim that arose in the forum (doctrine of relatedness)
(b) In Rem: Power over D’s property – about who owns the property
– Prefer In Personum, but maybe LAS doesn’t reach that case, but has property in the forum
Pennoyer: had court seized the property at the outset of the case, QIR jurisdiction would have been ok.
(c) Quazi in Rem: Power over D’s property – has nothing to do with ownership, D CLEARLY owns the property, the dispute is about something else. Must seize the property at the outset.
I. Is there a statute?
Is there a statute that allows jurisdiction? For In Rem, attachment statute.  If not- NO PJ.
II. Constitutional Analysis
1. Does a traditional basis apply (a la Pennoyer)- presence in forum, domicile, etc?
            – If so, based on Burnham, maybe the traditional basis is sufficient by itself.
2. Then apply Int’l Shoe (in 3 steps)
            a. Is there a relevant contact between D and the forum? 
                        – You MUST have this, or there is NO jurisdiction despite fairness (BK)
                        – How to get it: (1) purposeful availment (Y-McGhee, N-WWV) by D;
(2) Foreseeable that D could get sued in that forum (WWV).
            b. If there is a contact, is it related? (Specific v. general jurisdiction)
                        – Does THIS claim arise from D’s contact w/ forum? If yes, specific. If no, only
ok if you have (Goodyear – continuous, systematic, be essentially at home).
            c. Is jurisdiction fair? Five factor test, with no weighted help tho…
                        i. Inconvenience for the D + her witnesses (BK huge burden)
                        ii. Forum state’s interest (McGhee)
                        iii. P’s interest (esp if P is badly injured, interest in litigating at home)
                        iv. Legal system’s interest in efficiency
                        v. Shared substantive policies
2b. For In Rem, follow Shaffer + Int’l Shoe
2. Notice Due process requires notice + opportunity to be heard.
A. Service of Process (FRCP 4)
1. Process consists of the summons [4(a)(1)]+ copy of the complaint
2. Service can be made by any non-party who is at least 18 years old [4(c)(2)] 3. Service on an individual [4(e)(2)]:
(a) Personal service – anywhere (home, office, gym, etc)
(b) Substituted service – ONLY possible at D’s dwelling or usual abode and person served must be of suitable of age (no magic age) and discretion who resides there (no babysitter)
(c) Defendant’s agent – might appoint by contract, might be appointed by law (non-resident motorist act)
    PLUS 4(e)(1): methods permitted by state law (where court sits or where service is effective)
4. Service on a business [4(h)(1)]: Serve an officer or a managing/general agent + 4(e)(1) above
5. Waiver of service [4(d)]: By mail (NOT service by mail, waiver) process + 2 copies of waiver form + include a self addressed, stamped envelope. If D signs + mails, she waived formal service. If D does NOT mail it back, (a) must serve process + (b) D pays costs of service
B. Constitutional Standard (Mullane v. Central Hanover Bank:)
Notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding. Methods under Rule 4 are ALL constitutional even if D didn’t receive it (through substituted service). 
3. Venue
A. Plaintiff’s Choices §1391(b)(1) + (b)(2)
            1. You can lay venue in any district where ALL D’s reside (NOT citizenship – humans reside in all districts where domiciled; businesses reside in all districts where subject to PJ for this case- BROAD) 
                        – If all D’s reside in forum state, you can lay venue where any one reside
            2. You can lay venue in any district where a substantial part of the claim arose
                        – Can be more than 1 district where a substantial part of the claim arose
B. Transfer of Venue §1404  –  §1406 (Piper Aircraft v. Reyno)
* In both, the transferee (where you’re sending it) must be a proper venue AND must have PJ over D.
            1. §1404: Transferor is a proper venue – may transfer based upon convenience of the parties and witnesses and in the interest of justice.
                        a. Public factors:
                        b. Private factors:
            2. §1406: Transferor is NOT proper venue – court may dismiss or transfer in interest of justice
                        a. Forum non conveniens: Court dismisses because there is another court that is more convenient. Courts dismiss because transfer is impossible (other court is in a different judicial system)
                                    – Other court must be adequate + available (remedy lower does NOT matter)
4. Subject Matter Jurisdiction (SMJ) What court, in that state, do we go to? State or Federal?
            – US Constitution Art. III: Federal Courts are of limited jurisdiction
            – For every single claim in fed’l court, there must be SMJ.
A. Diversity of Citizenship §1332(a)(1)
1. Case is between citizens of different states
            a. Complete diversity rule: there is NO diversity if ANY P is a citizen of same state as ANY D
            b. Citizenship of a human being: for a US citizen- state where domiciled (only have 1)
                        – To establish a new domicile, you must be present in the new state + form the intent to
make that your permanent home.
            c. Citizenship of a corp.: §1332(c)(1): any state where incorporated + principle place of business
 Hertz: PPB is the “nerve center” – Managers direct, control, and coordinate
            d. Citizenship of Unincorporated Businesses: use citizenship of all members – could have 50!
2. Amount in controversy exceeds $75,000
            a. Amount must exceed $75k (exactly $75k doesn’t work) – doesn’t include interest
            b. Aggregation: Do aggregate P’s claims if there is 1P v. 1D (even if claims are totally unrelated)
– Do not aggregate if multiple parties on either side (1P v. 2D’s) 
            c. With a joint claim (joint tortfeasors), you use the total value of claim (# of parties is irrelevant)
B. Federal Question §1331
1. Claim that arises under fed’l law (NOT enough that case raises fed’l issues, the claim itself)
– Is P enforcing a federal right? If yes, fed’l question. If no, not fed’l question.
Lousiville + Nashville RR v. Motley: Well-pleaded complaint rule: look ONLY at the complaint; do NOT look at anything D says, only P’s complaint. Ignore everything but the claim itself.
C. Su

nse or they’re waived
2 – 12(b) 6-7 can be raised for the first time ANY time through trial (NOT appeal)
3 – 12(b)(1) can be raised ANY time throughout the case
 (b) Answer: Pleading w/ 2 things needed
            1. Must respond to complaint (admit – deny – lack sufficient information [Rule 8(b)(5)]                         – To say you lack sufficient information, it MUST be out your control
                        – Failure to deny is an admission on ANY allegation except damages
            2. Raise affirmative defenses (Rule 8(c)(1) includes SOL, SOF, and TONS more)
                        – Difference b/t affirmative defenses and denials: in an affirmative defense, you
inject a new fact/raise something new, in denials you just say it’s not true
                                                – Must add them or you risk waiver
7. Discovery
A. Required Disclosures
            1. FRCP 26(a): must produce certain info without request
                  (a)(1) Initial disclosures – ID people w/ discoverable info + documents + elect stored
info you might use, P must give calculation of damages, D must show insurance
                  (a)(2) Expert witnesses
                  (a)(3) Pretrial required disclosures – tell the other side everything we will rely on
B. Discovery Tools
            1. Deposition under Rule 30 (oral) + 31 (written)   
– Answers are ALWAYS oral; may depose non-parties but she must be subpoenaed
2. Interrogatories under Rule 33 – written questions, answered in writing, only to parties
            3. Request to produce under Rule 34 – written request for access to stuff (docs, ESI, etc)
                        – Under 34(c) you may get info from non-party but only with subpoena
            4. Medical Exam under Rule 35 – must get a court order (so it’s not a tool of harassment)
                        – May be ordered of a party or someone in party’s legal custody/control ONLY
            5. Request for admission under Rule 36 – only to parties – force an admit/deny if discoverable
C. Scope of Discovery
            1. Rule 26(b)(1) – may discover anything relevant to a claim or defense (reasonably calculated to lead to admissible evidence) so long as it’s not 26(b)(2) privileged.
– Broader than admissible; Hearsay is inadmissible, but you can discover it!
            2. Work Product under Rule 26(b)(3) [Trial preparation materials] material prepared in anticipation of litigation it is protected from discovery [Chiquita]                         – Not absolute though; you can override some work product w/ substantial need, although
mental impressions, conclusions, opinions + legal theories are ALWAYS protected
– Can be generated by any representative of the party, not just an attorney