CIVIL PROCEDURE (PATRICK BAUER) Spring 2012
I. 3 characteristics making CP (“Civil Procedure”) difficult[E1]
a. It is foreign to our everyday experience
b. This is a strange mix of material-there is no clear answer to some questions while some is very mechanical
i. When you have the mechanical stuff, you have to know the rules.
ii. On the other material, have an analytical framework (Steps of analysis).
c. Sometimes we get so lost in the detail, we forget the big picture. There is one overall structure [E2] of the course.
II. Choosing a forum
a. Personal Jurisdiction (PJ)-“Territorial Jurisdiction, Adjudication Jurisdiction”
i. Main Issue: In what state can the plaintiff sue the defendant?
ii. What matters: In any court, the court must have power over something.
1. Over the defendant herself
2. Or Over the defendant's property
1. 3 kinds of personal jurisdiction
a. In Personum
i. Court has power over defendant herself—All assets may be seized to satisfy judgment, judgment can be sued upon in other states.
b. In Rem
i. Court has power over defendant's property–Power to adjudicate a claim about property itself
c. Quasi in Rem (“QIR”)
i. Court has power over defendant's property—Power to seize property or debt of D when there is no personum jurisdiction; judgment only affects property.
iv. How to ascertain which type of jurisdiction
1. Due Process tell people how far they can go in exercising jurisdiction of any of those types.
a. Two Step Test
i. Then the state must have a statute giving that court the jurisdiction. States can give their courts less power than due Process does. Is there a statute that allows for jurisdiction? Usually this is a long-arm statute on the exam.
1. If answer is No–there is no personal jurisdiction even if the case would fall within the due process circle.
2. If answer is Yes–then we must assess whether jurisdiction is constitutional
ii. Statutory analysis and then a constitutional analysis
2. Constitutional Analysis (“Due Process”)
a. In Personum-power over defendant herself, this is the preferred power.
1. General Jurisdiction (“Gen”)- Defendant can be assumed in the forum for a claim arising anywhere in the world.
2. Specific Jurisdiction (“Spec”)-Defendant is sued by a claim arising in the forum (“Relatedness”).
ii. Constitutional Limit:
1. The “Traditional Bases” for In Personum Jurisdiction
1. Defendant is served with Process in the Forum “Gen”-(aka “Presence”)–you had to be present in the forum when you were served with process.
2. Service on the defendant's agent in the forum
3. Defendant is domiciled in the forum “Gen”
4. Defendant Consent's-you can always consent to waive your due process rights.
2. If it doesn't fall under these traditional bases, it is tough to get In Personum Jurisdiction.
2. Hess v. Polasky:
1. The Traditional Bases were expanded to cover for issue of what to do when Defendant avoids traditional bases.
1. Every State now has a “non-resident motorist act.”–
1. Statute says: If you drive into a state, you are consenting to In Personum Jurisdiction. Furthermore, you appoint a state official as your agent for service.
2. Consent goes to implied consent & it uses the agency
3. International Shoe:
1. Here, there is a new formula restating principles.
2. “There's jurisdiction if the defendant has such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play.”–Shoe Test.
3. Problem here is defining the terms of the test
4. 3 important things happened by International Shoe:
1. By now, you can serve process outside of the forum so long as they meet a test.
2. There seemed to be two parts: a Contact part and a Fairness part.
3. This does not overrule Pennoyer–it exists alongside the traditional bases.
1. Court emphasizes that the Texas company solicited business[E3] , and that California had an interest in providing justice.
1. Gives an important phrase, “Under International shoe, the contact between defendant and forum must result from the defendant's purposeful availment.”
1. This means defendant must reach out to the forum.
6. World Wide Volkswagon
1. Further exemplified the rule of Hansen. Court says there is no jurisdiction because there is no Purposeful Availment. Case was a little surprising because it was foreseeable that the car would reach Oklahoma.
2. Court says “foreseeability is important, but it must be foreseeable that the defendant could get sued in the forum. This seems completely circular
7. Burger King:
1. The court makes it clear that there are two parts to International Shoe (There is contact and there is fairness). You must assess Contact First…if there is no contact, fairness is not enough.
2. Court put the burden on the defendant to show that this forum is so gravely inconvenient that you are at a severe disadvantage–this is almost impossible to show since the relevant wealth of the parties does not matter.
1. First of the “Stream of Commerce” cases
1. If you make contact in one state is it foreseeable that it will end up in another state. The justices were split, but there are two valid theories
2. Brennan Theory: It is a contact if you put the product in the stream of commerce and can reasonably anticipate that it will get to another state.
3. O'Connor's Theory: Said you need what Brennan said plus some intent to serve state C, D, or E.
1. The theories:
1. Kennedy's four justices adopt the O'Connor Theory. It was not met on the facts here.
2. Bryer's two justices don't take a side…he seems to buy both, but doesn't feel either is met on the facts.
3. Ginsberg's Theory: was consistent and likely a little broader than Brennan. If you target the US, you can have forum anywhere.
4. If you get stream of commerce, you have to argue these theories.
1. He is sued in California in “Gen”….the question arose, “Do the traditional Bases exist alongside International Shoe?”
2. Court splits four to four.
3. Two viable theories
1. Scalia's Theory: Presence when you are served is okay by itself, you don't have to go through International Shoe at all. Thus, the Traditional Bases are alternatives to International Shoe.
2. Brennan Theory: You always apply International Shoe, because it replaced the traditional Bases.
1. Before Goodyear, court said you had general jurisdiction if “contact was continuous and systematic.”
2. In Goodyear, Court says “general jurisdiction” arises only when “in states where defendant is essentially at home.” This cannot be based on buying or selling in the state. There needs to be some physical presence.
1. The best example is domicile. But for a corporation, look for “state of incorporation, state of principle place of business.” Problem is whether it goes beyond this.
1. OVERALL FRAMEWORK
1. You have to analyze the facts.
1. Constitutional Analysis:
1. Does a traditional basis apply?
1. If one does, then traditional basis by itself may be enough (Scalia in Burnham)
2. On the other hand, in Burnham they split 4-4 and Brennan said you have to do Shoe.
1. Apply International Shoe
1. Two steps:
1. There must be a relevant contact between defendant and the forum.
1. To see if it is relevant:
1. Relevant contact results from purposeful availment (they reach out).
2. Relevant contact means it must be foreseeable that the company would be sued there.
1. What is contact?–different theories
2. What is foreseeability.
2. Argue arguendo that there is a contact. If so, Is the jurisdiction “general” or “specific”?
1. Does the plaintiff's claim arise from the defendant's contact with the forum.
1. If yes, this is Specific J. (McGee)
2. If no, then it is only ok if there is General J. Under Goodyear, this means it must be a state where the defendant is essentially at home.
2. There must be Fairness:
1. The burden is on the defendant to show that it is unconstitutionally inconvenient.—this is hard to do.
2. The court has 5 factors:
1. Inconvenience for the defendant
2. The forum states interest (McGee)–California had an interest in getting justice
3. Plaintiff's interest–especially if plaintiff is injured
4. Efficiency–not well defined
5. Shared Substantive Policies- Court has done little with this. Hard to define.
III. Statutory Analysis
a. Every State has a series of personal jurisdiction statutes.
i. They all have statutes that allow for the traditional bases.
b. Every states has 2 kinds of statutes to go after non-residents.
i. “Non-resident motorist act”–Specific Jurisdiction and it has to be a motor vehicle crash case.
ii. “Long Arm statutes”–2 kinds
1. California type: probably not on your exam, it says “we have jurisdiction to the full extent of the constitution.
2. Laundry-list long arm: list things that non-residents can be sued for in the forum. They are specific jurisdiction statutes.
a. The same language may be interpreted differently in different courts.
i. Ie. “commission of a tort in a forum”
1. New York: where harm occurred.
2. Other: Where manufacture occurred.
E JOINT CLAIM AND THE NUMBER OF PARTIES IS IRRELEVANT. The professor will say “JOINT”
ii. Federal Question (“FQ”) (J.C. 1331)–every time you see the term “Federal Law”, look at federal question.
1. Citizenship is irrelevant and no amount is in question.
2. How to tell it is a federal question: The claim must arise under Federal Law.
1. Look only at the plaintiff's claim in the complaint.
1. Motley: “Well Pleaded Complaint Rule”–this means you looYk only at the claim and ignore the extraneous stuff.
3. No clear definition of “arising under”—but generally it must be the source or integral of the claim.
4. Not enough to assert state-created claim requiring interpretation of Fed.
2. All you have to do is ask yourself, “Is the plaintiff enforcing a Federal Right?”
1. If yes, it goes to federal court.
2. If no, then it is not a federal question.
iii. What happens if a claim does not meet diversity or federal question? Then we try Supplemental Jurisdiction–(J.C. 1367[E6] ). This will not get a case to federal court, but it might get a claim there. (DON'T EVER USE THIS UNTIL YOU HAVE SHOWN THERE IS NO DIVERSITY AND NO FEDERAL QUESTION)
1. Supplemental Jurisdiction[E7] lets a federal court hear a non-diversity, non-federal question claim. This is a claim that by itself could never go to federal court, but we may get it into court via supplemental jurisdiction.
· A+B+C=$ (formula)
· T1→▲=simplest case
[E2]A + B + C = $$
[E3]1 contract was enough for minimum Contacts
[E4] · Waiving of Service (4.d)-alternative
o Don’t use close to the statute of limitations
· Serving an individual (4.e)-
o Use federal rules (3 ways) (4.e.2.a-c)
o Follow state law (1.305)of where district court is located or state where service is being made
§ Signed waiver
§ Serving them personally
§ Serving them at their dwelling house or to someone there 18 years old.
§ Upon individual’s spouse, if probable cause to believe spouse lives at dwelling house.
· Small Claims (under $5000)-631.4
o If corporation: clerk mails by certified mail, return receipt requested, a copy of original notice with copy of answer form.
· Service by Publication (1.310)
o If personal service is impossible, original notice by be served by publication in certain circumstances.
· Known Defendants:
o Service is made on known defendant, a copy of notice shall be sent by mail to mailing address, and proof shall be filed.
· 1.306+ 1.305
o Serve under 1.305 or if that is not possible, then in any manner consistent with due process of law prescribed by order of the court.
[E5]Summons must be served within 120 day s after complaint is filed. In some states the statute of limitations is satisfied when complaint if filed, in others statute of limitations is satisfied only when is served.
[E6] · §1367(c)—court may decline to exercise Supplemental jurisdiction if:
o Claim raises a novel or complex issue of law.
o Claim substantially predominates over federal claim
o Court has dismissed all federal claims
o There are other reasons in exceptional circumstances
· §$1367(d)—the statute of limitations is counted while claim is pending and 30 days after it is dismissed
o If federal judge dismisses your state claim, you have 30 days to get your claim in state court.
o This recognizes a resource constrained Gibbs can take both state and federal claim to state court (saves on money).
[E7]Codification of Ancillary Jurisdiction=jurisdiction by parties other than plaintiff.