Civil Procedure I Outline

First decision is where to sue. In order to determine this, you need to determine whether personal jurisdiction, venue and subject matter jurisdiction are ok.
 
Personal Jurisdiction
Old Way: Personal Jurisdiction – Types
In Personam Jurisdiction, which is judgment of the person – court can order person to do or refrain from doing something or can collect or pay damages.
In rem jurisdiction, or the power to adjudicate rights to a specific piece of property
Quasi in rem jurisdiction is the power to adjudicate something else such as specific performance of a contract or a dispute where there is no jurisdiction over D, but jurisdiction does exist over D’s property.
Old Way: How to obtain Jurisdiction (Pennoyer v. Neff (p. 77))
Service within state, unless fraudulently induced
Seizure of Property, which has to be before judgment and debt can be property
Pennoyer v. Neff (p. 77) Says that you can seize property as a way of establishing personal jurisdiction (In Rem) but that you have to give the person proper notice
 
Modern Approach to Personal Jurisdiction
·         Does the D have an established, significant relationship with the state? In state process, domicile, continuous and substantial business in the state, consent to suit in the state?
o       If Yes than you have Personal Jurisdiction
o       If no, apply the minimum contacts test
 
The Minimum Contacts Test
International Shoe v. Washington shifts away from Pennoyer test. Establishes that you don’t have to be physically present in the state if you have “minimum contacts.” Measurement should be made so that it is consistent with “traditional notions of fair play and substantial justice.”
 
Guide to whether minimum contacts exist:
Is D voluntarily “purposefully availing himself to jurisdiction?
Is D taking advantage of states laws, selling stuff there, profiting off its citizens?
Especially Important: Is D delivering products into the stream of commerce of the state? Can it be expected that the products will end up in and be used by people in the state?
Is it reasonable for state to assert jurisdiction?
Does the state have an interest in regulating D’s behavior, does the state have an interest in protecting its residents?
Does forcing D to defend in forum state create a burden, does not allowing P to bring case in forum state create a burden?
Is D situated in such a way that it’s not hard for him to defend anywhere? This is probably true of a big multinational corporation, less so for mom and pop store.
D’s Property in Forum
Shaffer v. Heitner (p. 104) does for property what Shoe does for person because court rules that you can’t get personal jurisdiction by seizing property that is unrelated to P’s cause of action
 
Specific Jurisdiction
A single contract can sometimes be enough to get personal jurisdiction. In cases that arise out of some specific event which occurred in the forum, that is enough.
McGee v. International Life (p. 116) P in CA, D in TX. P suing for payout on insurance policy. Court finds that CA has interest in obtaining redress for its residents, it would not be burdensome to D. Note how D had to send contracts and whatnot to P in CA.
Hanson v. Denckla (p. 118) Says that “minimal contacts” mean you have to have some contacts. Doesn’t want this rule to get too loose.
World Wide VW Corp. v. Woodson (p. 119) Limits the stream of commerce rule because it says that company who sold cars in NY is not really availing itself to the laws of OK, even if it could imagine its cars getting there someday.
 
General Jurisdiction
If forum has general jurisdiction over D, than P can bring any claims against him. This is important because it guarantees any P that he has at least one place where he can seek action against a D.        
For example a person has general jurisdiction in the state which they are domiciled in, and corporations are subject to general jurisdiction where in their state of incorporation, headquarters or where they have substantial activity
Washington Equipment Manufacturing Co. v. Concrete Placing Co. (p. 148) Obtaining certificate of authority not enough to consent to general jurisdiction.
Burnham v. Superior Court (p. 150) Jurisdiction based on physical presence alone constitutes due process because it’s a tradition.
 
Consent
Express Consent:
If you’ve got general jurisdiction, then you’ve got express consent. Examples of Express Consent: Living there, being incorporated there, etc all are express consent
Implied Consent
Appearance – if you answer than you’ve consented to jurisdiction
 
What if you don’t want to consent? 
You file a 12(b)(2) Motion: Object to jurisdiction, however by making this motion you are consenting to allow court to decide the question of jurisdiction. If you fail to raise this, you cannot appeal on question of jurisdiction. If you don’t use it, you lose it.
Don’t answer and default. If you do this, then you can wait for P to come to your state to initiate action to enforce L1. You can default judgment on grounds of lack of jurisdiction. If you lose this, however, you give up opportunity to be heard on the merits.
 
Contracting for Consent
If you contract with a party it might be ok for one party to impose a forum selection clause or something like it in the contract. Carnival Cruise Lines v. Shute. In that case, for example, the cruise line took on passengers from all 50 states so it would be burdensome for it to defend cases in all of them. There’s not real prejudice to make passengers prosecute in Florida, so the selection clause is ok. Also, its part of the reason the ticket is so cheap.
 
Notice
You have to have notice because our system is adversarial, and due process requires it.
Exceptions:
D is in hiding, it’s assumed that if he’s in hiding he knows about the case so notice isn’t really needed.
Divorce cases where spouse has abandoned wife/husband
Mullane v. Central Hanover Bank & Trust Co. (p. 174) Must make reasonable effort to contact those that you can, if you can’t than newspaper notice is good enough.
 
Long Arm Statutes
State’s can enact statutes that extend their jurisdiction (either in a limited way or, such as in California, to the lengths the Constitution will allow.
Examples of Specific Acts warranting exercise of jurisdiction: Transaction of business, commission of tort, ownership of property within state, contracting to insure something or someone in state.
Gibbons v. Brown (p. 192) Court used long arm statute to get jurisdiction over someone. 
 
What can a D do when he’s served with process from a state he doesn’t think has jurisdiction over him?
·         Show up and challenge jurisdiction (Direct Attack!)
o       Most states allow for a special appearance to be made. This means that the D shows up and challenges only jurisdiction. However, if the D raises any other issues at this time than the state can decide that personal jurisdiction has been waived and go forward with the suit.
o       In federal courts and in states that have adopted the federal rules, a D can file a 12(b)(2) motion and any other motions all at the same time without waiving personal jurisdiction. 
·         Effects of Not challenging Jurisdiction
o       Use it or lose it. If it’s not filed at the outset it can not be challenged later.
·         Challenging Jurisdiction gives the court consent to decide the jurisdictional issue. 
o       If the court rules that it does have jurisdiction, than the suit goes forward.
o       If the court rules that it does not have jurisdiction, it’s dismissed.
·         What can a D do if he loses the jurisdictional fight?
o       Fight the case on the merits and (assuming he loses) fight jurisdiction on appeal.
o       Federal Courts will not allow an interlocutory appeal to challenge the district court’s ruling on jurisdiction because it is not a final judgment, although some states will allow immediate appeal.
·         Ignore the original suit, wait for default judgment and challenge jurisdiction (collateral attack!)
o       P files suit in state A, D is a resident of state B. D can ignore the suit, in which case P will receive a default judgment against B. In order to collect that judgment, P will have to have a court from state B recognize the judgment, at which point D can ask that court to decide the jurisdictional issue. If D wins, P cannot collect from D in state B. 
·         Dangers of collateral attack
o       Once P has received default judgment, he has a judgment on the merits and D can no longer defend himself against them. If he loses the jurisdictional challenge, then he must consent to judgment.
·         Why does collateral attack work?
o       D is allowed to challenge jurisdiction after a decision on the merits because jurisdiction was never litigated in L1. However, if D loses the reason he cannot challenge the merits is because that has been decided.
·         What if P brings suit in a state where D owns property?
o       D must use direct attack. If he allows P to get default, than P can use the property to satisfy the judgment. D could show up at that point to challenge the sale, but if the court rules it does have jurisdiction than he will not only have lost on the merits, but will lose the ability to challenge jurisdiction in his home state because P will never go to home state and collect.
 
Subject Matter Jurisdiction
§         Federal Courts are courts of Limited Jurisdiction. Article III of the Constitution gives federal courts jurisdiction over cases between states, between citizens of different states, between citizens and aliens, cases involving foreign ministers and consuls, admirality and maritime cases, cases arising under the federal Constitution and federal law.
 
Diversity Jurisdiction (28 USC 1332).
Complete Diversity
·         In order to have complete diversity, no P can be from the same state as any D.
·         What’s it mean to be a citizen of a state?
o       For people it’s domicile; where the person has taken up residence with intent to reside indefinitely
o       For corporations it’s where incorporated AND where principal place of business is located.
·         Complicated, multi-party diversity issues:
o       Say you’ve got two D’s. You’ve got a valid federal claim against a non-diverse D and a state law claim against the diverse D. Can you sue them both in the same case, even though there isn’t complete diversity?
o       Courts say yes. That if each would be allowable on their own, both would be allowable together.When does citizenship attach?
·         At the time the claim is filed. So for example, it doesn’t matter if P or D moves before or after the fact to the state where the other is from. It only matters on the day the suit is filed.
 
Amount in controversy ($75K) met?
·         As long as there is a good faith claim for an award greater than $75K, it’s good enough for diversity. In order for there to be no good faith claim, the judge would have to find “to a legal certainty” that the amount in controversy could not be met.
·         What if there are multiple claims and multiple D’s?
o       A P may aggregate claims against a single D to meet the amount in controversy.
o       A P MAY NOT aggregate claims against multiple D’s to get the amount in controversy.
o       Two P’s may not add their claims together to get to the amount.
o       General Rule: would each P be able to sue each D and get to the amount?
§         Minority Rule: As long as one P can get $75 against one D, other P’s can have other claims that are smaller.
·         What if you are suing two D’s in the alternative?
o       As long as you could theoretically get $75K from either (don’t need both) than you’ve met the requirement.
·         Mas v. Perry (p. 229) Must have complete diversity. For diversity purposes your domicile is the place where you intend to reside, or if no such place exists than the last place you resided.
·         Saadeh v. Farouki (p. 236) Aliens are considered residents of the state where they reside.
 
Arising Under Jurisdiction
·         28 USC 1331 is the statute passed by Congress granting the lower federal courts the right to hear cases “arising under” the Constitution, laws or treaties of the US. 
o       This was passed in 1875 because the US govt. didn’t trust the southern states to enforce newly passed Civil Rights legislation.
o       28 USC 1331 has been interpreted much more narrowly than the Constitutional interpretation.
o       How is it different? A claim only arises under federal law if it is brought by the P, anticipated defenses don’t count. Louisville & Nashville R.R. v. Mottley.
o       This is known as the well pleaded complaint rule. Jurisdiction will be decided based on the elements needed to establish the claim in the complaint. While this seems strange, because cases that turn on federal law won’t get into federal court, it makes sense from the standpoint of judicial administration. Courts need to be able to determine jurisdiction from the outset, and P’s could get courts into federal court by raising possible defenses in their complaint that the D never actually raises.
·         What’s a good way of determining whether a case “arises under” federal law according to the well pleaded complaint rule?
o       If the cause of action is a state law cause of action (tort, contract, property) than it does not arise under federal law. If the cause of action arises under a federal cause of action (civil rights violation, bankruptcy, etc.) than it does arise under federal law.
o       Another approach is the “substantial federal issue” test. Even if the claim arises out of a state law claim, if in order to prove that claim the P has to prove that there is some major federal law involved than it could “arise under” federal law.
·         What’s the implication of the requirement that the federal claim be in the P’s case?
o       If a D files a counterclaim in a state law case that arises under federal law it is not grounds for removal to federal court.
·         Louisville & Nashville Railroad v. Mottley (p. 215) You cannot get federal arising under jurisdiction because of an anticipated federal defense. 
 
Supplemental Jurisdiction
§         Background – Pendent and Ancillary Jurisdiction
o       Pendent covered when P had multiple claims against D, some state and some federal. Pendent gave court the right to hear the state case too.
o       Ancillary Jurisdiction was where D could, either through counterclaim or interpleader, join a claim to a case even if the court wouldn’t otherwise have jurisdiction.
§         United Mine Workers v. Gibbs (p. 244) If you’ve got a valid federal claim, the court can hear your supplemental state law claim.
§         Supplemental Jurisdiction (28 USC 1367)
o       1367 (a) gives federal court that has original jurisdiction over a claim supplemental jurisdiction over other claims arising out of the same “case or controversy” under Article III.
§         United Mine Workers v. Gibbs (p. 244) says that once it attaches, it attaches. Federal claim dismissed, court can still hear state law claim.
§         Three Part Test:
·          Substantial Federal Claim,
·         Common Nucleus of Operative Fact,
·         One Judicial Proceeding.
o       1367(b) applies when the case is in federal court because of diversity:
§         When federal jurisdiction is based solely on diversity of citizenship, P cannot bring claims against persons under R. 14, 19, 20 or 24. Also, no jurisdiction by those proposed to be joined by R. 19 or seeking to be joined under R. 24
o       Court has discretion whether or not to exercise supplemental ju