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

CIVIL PROCEDURE SHORT OUTLINE
 
PROCEDURE
            Attributes of a good procedural system
                        Cost – Cheap to operate
Determinativeness – Easy to figure out what the outcome is
Finality – Arrives at a clear and final answer
Input Sensitive – Results from the process is tied to what the substantive law says matters
Outcome Values, Process Values
Value in ensuring a proper result is outweighed if coming to that outcome is:
too time consuming and costly
everyone else has to wait in line so the issue could be resolved
limited collective resources to build courthouses and pay juries
6 KEY THEMES OF CIVIL PROCEDURE
1. – Judicial power is divided horizontally and vertically
2. – Upstream rules affect downstream alternatives
3. – Fundamental tension between getting it done and getting it right
4. – Most things don’t become lawsuits, most lawsuits don’t go to trial
5. – Some things just aren’t worth doing
6. – Lawyers make the system go
7. – FRCP are the successes, cases in the textbook are the failures and are uncommon
            RULES V. STANDARDS
RULE – consistency, certainty, ex ante, predictable – easier to settle, (incorporation and domicile)
STANDARD – ambiguous; the more standard-like, the more difficulty lower court judges will have of getting it right, less shadows of expectations, (mc and tnfpsj)
THINKING SYSTEMICALLY – one purpose of civ pro is to help the lawyer think systemically, Sometimes you have to sacrifice individuals on the altar in exchange for broader justice across the system; cant save one at the expense of the entire system
JURISDICTION – Sorting Mechanism – Used to limit choices of where to litigate
                        3 sources of authority – DP clause, Art.3 §2, and Art. 4 Full faith and credit
            PERSONAL JURISDICTION – jurisdiction of the court over the defendant (due process clause)
            SUBJECT MATTER JURISDICTION – jurisdiction of the court over the type of case (Art. 3 §2                       
FEDERAL QUESTION – question arising under the laws of the US (§1331)
DIVERSITY – parties from each side are from different geographical areas (§1332)
            VENUE – Place where trial takes place (Rule 1391a)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PERSONAL JURISDICTION – Power, Consent, Notice
            Operates to protect the interests of the defendant
            PJ is Waivable if not challenged by defendant in first document given to the court
                        – Only one shot to challenge PJ
HYMAN’S RULE OF PJ – if you find yourself litigating over PJ, you are probably guilty of committing malpractice, barring technological change
DOMICILE – 1)Where you physically reside; and 2) have no present intention to go elsewhere
                        – guy living with g/f and at mom’s house across stateliness [Hawkins v masters farms]                         – Counts if a home you owned that gets mail, even if subletted to other people
POWER, CONSENT, NOTICE
            if you have power you dont need consent
if you have consent you dont need power
notice w/o power or consent is meaningless
power w/o notice is meaningless, barring small subset of vaughn notice circumstances
question of consent w/o notice – presumably you waive out of notice, and that will stick
CONTESTING PJ
SPECIAL APPEARANCE – allow defendant to challenge PJ without waiving jurisdiction when he shows up to court to contest
COLLATERAL ATTACK – suffering default judgment and then attacking PJ when def comes to your state to enforce default against you
POWER – circumstances that court has power over both present or absent defendant
OVER PRESENT DEFENDANTS – in personam, in rem, quasi in rem
You can get power of PJ over defendant if he, his property are presently located in the state [Pennoyer]             – Exceptions are marriage and divorce, def doesn’t have to be present [Pennoyer] Domicile counts as ‘soft’ physical presence in the context of pj – [Miliken]                         OVER ABSENT DEFENDANTS – in personam
Minimum Contacts and TNFPSJ – Needed to satisfy Due Process [International Shoe] Minimum Contacts – 3 elements
1.      Number of contacts
2.      Magnitude/significance of those contacts
3.      Relatedness of those contacts
TNFPSJ – elements
Inconvenience, disparity, difficulty of def litigating in state
                                                Interest of the plaintiff and forum state in hearing the dispute
                                                Interest of the foreign state
HANSON – in hanson the trustee defendant was in DE, Donner moved to FL subsequently, the def itself did nothing in FL except send Donner checks so no PJ [hanson v denckla] MC – Focus on what the defendant did in regards to the forum state – not what the plaintiff or third parties did
WWVW –
PURPOSEFUL AVAILMENT – did def take advantage of the laws of the state to serve the state market in question? [Worldwide VW v. Woodson] – the absent defendant WWVW being sued does meet the req. of the DPC because they do not have enough minimum contacts with the forum state
NO FORESEEABILITY – blackmun dissent proposing foreseeableness as the standard – is rejected, because almost anywhere would have pj over anyone just as long as the item subject to suit is movable; like a mr coffee
CONTACTS – in the search for MC, you would look to see if seaway had any contacts by talking to people and finding out if they bought anything from the for a, did any business, swap cars, get parts, etc.
– Magnitude/significance, and relatedness can turn on whether there is:
specific jurisdiction – jurisdiction over disputes that arise out of the contacts
general jurisdiction – jurisdiction without regard to the contacts themselves
ASAHI –
STREAM OF COMMERCE – merely being aware that its products could end up in the forum state and into the “stream of commerce”, does not satisfy MC and TNFPSJ. There must be “purposeful direction”. [asahi v superior court] – Things Inc. Into Other Things – do not have enough MC and TNFPSJ to create power over an absent defendant.
UNSETTLED – what counts as serving a foreign state when you launch your product into the sea of commerce remains unsettled
INT. COMPANIES – international companies, will require a higher showing of TNFPSJ even if there are contacts
LONG ARM STATUTE – statute that reaches beyond the borders of the state to assert jurisdiction on absent defendants. states vary if they want to go to the con. limits. [Asahi]                         [insert MC/TNFPSJ graph] PAVLOVICH – pavlovich posts source code for CSS online to break open DVD’s, has nothing to do with CA, never been there, no contacts, did not try and serve the market, it is simply by posting something in TX that he has caused injury to CA
ACTUAL CONTACTS – pavlovich passively put info out on the web that did not cause him to need to have contact with people from the forum state, although CA people might have been downloading, and his info caused injury to CA residents, but court says there is no PJ because there are not actual contacts
SALES – if he had actually sold or shipped things to CA, like online store like LL Bean, then there would be PJ in that case
 
OVER ABSENT DEFENDANTS – in rem, quasi in rem
SHAFFER – International Shoe analysis of MC AND TNFPSJ applies to in rem and quasi in rem [Shaffer v heitner] – Delaware didn’t care enough about vindicating its laws to require defendants to consent to jurisdiction by purchasing stock in a DE company
– if owning stock gave in rem PJ, then way too many people could be sued in DE
TRANSIENT “TAG” JURISDICTION
                                    – Abbreviated physical presence in a state giving rise to PJ – [Burnham] – Fool proof way of getting jurisdiction over a defendant
MAJORITY – Pennoyer lives on in tag jurisdiction, if there is physical presence there is no need for international shoe analysis [scalia majority, burnham] BRENNAN CONC. – wants a international shoe analysis here and balancing test, to weigh the benefits and burdens of allowing PJ
WHITE CONC. – physical presence will give rise to PJ barring force or fraud
GENERAL JURISDICTION – where there is contacts unrelated to the cause of action. Rare. Microsoft.
CONTINUOUS AND SYSTEMATIC – wherever contacts are continuous and systematic – so overwhelming that there might not be a necessity for there to be a relatedness required by the criteria [perkins v benguet] DOMICILE – [§ 1332c] for individuals
                                    GJ FOR CORPORATIONS – place of incorporation, or primary place of business
HELICOPTERO – court denies general jurisdiction in TX because the cause of action has no connection to TX, on similar facts to penguet, but difference is:
GJ BY NECESSITY – in benguet, there is absolutely nowhere else the suit can be brought so GJ by necessity is created [benguet]  
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2/11/09
[top line +, next column ‘international shoe’] [second line -, next column ‘asahi’] [third line +/-, next column ‘burger king’] [bottom line -, next column ‘wwvw’, asahi could be here too] ————————————————————————————-
 
CONSENT
RUNS PARALLEL – Runs in parallel to power, only need to deal with power when there is no K, and vice versa
– way of creating jurisdiction where there isn’t, and divesting jurisdiction where there otherwise would be.
– Can be take it or leave it, or a BFE
BURGER KING – 2 partners doing business with BK break deal and get sued by BK, BK has choice of law provision and su

tion)
                        (1,2) – same as above
(3) – is a standard, where you are found rather than PJ, in a burnham based world the inquiry will end up largely converging
 
SUBJECT MATTER JURISDICTION – Division of authority b/w state and fed gov’t – separation of powers
            Non-waivable, can be enforced at any time by any party as well as the court
            CONCURRENT – state and fed authority in diversity cases over $75k, also (Ven diagram)
EXCLUSIVE – fed authority exclusive to patents, copyrights, admiralty, bankruptcy
                        – Exclusive state authority in areas such as family law
            2 GRANTS OF SMJ – need to have one of these to get into fed court
FEDERAL QUESTION – §1331 – claim must arise under federal law
            ie: patents
            – fed questions can be heard joined or heard in state court, unless cause is fed court only
            – fed question must arise under federal statute, in the orig. plaintiff pleading [motley]             – problem with declaratory judgments under fed q, def. can manufacture jurisdiction
DIVERSITY JURISDICTION – §1332
SCREENING MECHANISM – fed q – plaintiff’s pleading and well plead complaint rule has purpose as a screening mechanism (motley)
WELL PLEAD COMPLAINT RULE – artful pleading should not be allowed to create SMJ where it doesnt belong, or defeat SMJ where it is authorized
– look at the complaint as it is framed and simultaneously have an overlay to look at what is really going on – have they left out all of their fed claims but its really a fed claim, on the other hand if they included fed claim but not about that, you can get rid of a case even though it looks like there is SMJ as it did in piper v reyno
 
CHALLENGING SMJ
            RULE 12b-1 – dismissal for lack of SMJ
            RULE 12b-6 – dismissal for failure to state a claim (failure to state a fed claim)
FEDERAL QUESTION – def can challenge by asserting either one of the above, for being not being a federal claim, or the facts don’t apply to federal law
ONLY GET ONE BITE – can only challenge SMJ in court once, like PJ. Also, not clear if law allows collateral attacks on SMJ, can challenge at anytime throughout, need not be a pre-answer motion
 
DIVERSITY JURISDICTION – §1332 – from const. but from statute. 1,2,3,4 principle instances of DJ
            1. $75K – amount in controversy must be over $75k
            2. DIVERSITY OF CITIZENSHIP – between:
                        1 – Citizens of different states
                        2 – Citizen of a state and citizen of a foreign country
                        3 – Citizens of different states + citizens of a foreign party as additional parties
                        4 – Foreign state and citizen of a state
COMPLETE DIVERSITY – requirement for diversity, that all plaintiffs must be of a different citizenship of all defendants
OVER $75K – amount in controversy must be $75k or greater
FACE OF COMPLAINT – unless it is a legal certainty they cannot to get it, if the complaint asks for $75k or more then that is enough
AGGREGATE – individual plaintiff can aggregate claims that total up to $75k or more
            Multiple individuals cannot aggregate their claims to make $75k, unless class action
CORPORATE CITIZENSHIP – c(1) – where incorporated or state of principal place of business
FOREIGN CITIZENSHIP – §1332a(2) – can sue in federal court
1332a2 – not to be read literally, does not allow 2 alien parties living in the same state to get diversity just because one alien can be considered to be a citizen [farouki] STILL SUE IN STATE – you can still sue in state court if no SMJ, not like PJ
CITIZENSHIP – assessed at the time when the lawsuit is filed, not at any other time
LIMITATIONS – 2 limitations, family law and probate, regardless if they have satisfied diversity and dollar threshold