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Civil Procedure I
University of Mississippi School of Law
Czarnetzky, John M.

Civil Procedure Outline
Fall 2002 – The Czar
 
 I.   Overview
 A.   Subject matter jurisdiction
     
    1. Cts of general jurisdiction- these cts have legal authority to hear any case, unless there is a legal authority that limits their power (i.e. probate cases)
     
    2. Cts of limited jurisdiction – only have the authority to hear those cases authorized by the statutes that create the court. EXAMPLE:   All Fed Cts are cts of limited jurisdiction
 
    3. Art III § 2 of US constitution deals with subject matter jurisdiction of Fed Cts. The outer bounds of the Fed Cts jurisdiction are set by Art III § 2  
 
    4. Art III § 2 is designed to protect people from possible prejudice of st cts
 
 B. Personal jurisdiction
     
 1.   A suit may only be brought in cts where the Ä is subject to personal jurisdiction. Applies to both Fed and state cts.
 
2. Citizenship in Fed diversity cases is determined by domicile
     2 criteria of domicile
       a. Residence- where the person lives
       b. Intent to reside indefinitely- statement of person’s intent combined with objective things like driver’s license, voter registration, etc. are determinative
 
 C. Stating the case
 
 1. Rule 8(a) – requires a short and plain statement stating:
             a. the reason for Fed jurisdiction
             b. the facts of the incident- why seeking relief
             c. the type of relief desired (damages)
 
 2. Rule 11- prime goal of Rule 11 is DETERRENCE
            ·     Attorney’s duty is to “Stop, look and listen”
            ·     This means that the lawyer is responsible for making a reasonable research of both the facts and law of every case
            ·     11 (b) 2 states that the claims and defenses of the suit must be warranted by law or by a nonfrivolous argument for the extension, modification, or reversal of the present law.
            ·     Rule 11 mainly concerned with deterring lawyers from filing frivolous lawsuits
            ·     IF a lawyer breaks RULE 11 he can be sanctioned by the ct
            ·     The sanctions are to be what is sufficient to deter a further breaching of the rule
            ·     Sanctions can include: attorney fees for other side, fines, or other non-monetary device
            ·     RULE 11 is NOT a fee-shifting device
            ·     “Pure heart, empty head” is NOT a defense for a RULE 11 sanction
II   PERSONAL JURISDICTION
 
Specific Jurisdiction
 
 A. Pennoyer v Neff,  1877
 
Case delineated two types of personal jurisdiction:
                   a. In personam- power of a court to render a decision over a person.
                   b. In rem- power of a court to render a decision over a thing (usually land)
     
·     Every state has exclusive jurisdiction and sovereignty over people and property w/in its territory
     
·     Due process of law would require an appearance or personal service w/in the state before a foreign D would be bound by any decision rendered by st ct.
     
·     14th amendment: “Due process clause” – prohibits any state from depriving any individual of life, liberty or property w/out due process; 14th Amendment is a blueprint for Federalism within U.S. ct system.
     
·     After Pennoyer, a state could gain personal jurisdiction over a foreign Ä by :
                   1. the Ä being served personally w/ process w/in the state
                   2. the Ä consenting to jurisdiction by voluntarily appearing
                   3. obtaining quasi- in-rem jurisdiction
     
·     Quasi-in-rem: If foreign Ä had property in forum state, Ð could have property attached by ct. This would provide the st ct with personal jurisdiction over a Ä. The case in question did not have anything to do with the property being attached
     
·     If property is in st, and if st ct attaches property, st ct can enter a judgment against Ä owner of property.
     
·     Pennoyer attached “Full faith and credit” clause of US Const. to jurisdiction. The cts of AL need not heed judgment against Ä resident of AL that was entered in a MS ct if the MS ct does not have personal jurisdiction over Ä.
     
·     Above is called a collateral attack.   Ä waits until Ð is seeking to enforce judgment of MS ct in AL Ä attacks judgment in AL ct, stating that MS never had PJ.
     
·     Pennoyer’s conceptual scheme
                   1. Power:
                               a. In personam
                               b. In rem
                   2. Consent
                              ·     Non-resident, who did not own property, could designate someone to accept service
                   1. Notice
                               a. In personam- notice (Service of Process) had to be either personal service w/in state or seizure of land. Almost guaranteed that Ä would receive notice
                               b. In rem – publication notice was OK. Very slight notice needed.
                             
Special Appearance — way of contesting personal jurisdiction without setting self up for process (think of as part time immunity. Ex. A sues B. B feels A doesn’t have personal jurisdiction and wants to contest on those merits. B (usually B’s lawyer) can make a special appearance before the court to argue no pers juris without binding self to court w/ appearance. 
     
      B.   International Shoe v Washington: 1945
Jurisd test changes from Pennoyer test (“Systematic & Continuous contacts”) to “Minimum contacts, so long as it does not violate traditional notions of fair play and justice.”
      
PENNOYER TEST                                        INTERNATIONAL SHOE TEST
      
 
·   General Jurisdiction- if a ct has Gen Jurs over a Ä, ct can hear ANY claim brought against Ä.
 
Systematic and continuous contacts
 
Can be sued for anything within state
 
·           Specific Jurisdiction- a st ct may still have PJ (in personam juris.) over a Ä if it can be shown that Ä has “certain minimum contacts so that maintenance of a suit does not violate traditional notions of fair play and substantial justice”
 
 
 
            1. Minimum contacts:
                              ·     Ämust have had contacts w/ forum state
                              ·     action (suit ) must arise from such contacts
                              ·     Ä must have “purposefully availed” himself of the laws of the state
                              ·     “purposeful availment” – usually, if Ä did business in the st with purpose of making $, Ä has purposefully availed himself
                              ·     If Ä has purposefully availed himself, he is said to have enjoyed protection of the laws of the state, and likewise is subject to the laws while doing business
                 
                  2. Traditional notions of fair play and substantial justice (TNFPSJ)
                              ·     ELASTICITY STANDARD – The fewer the contacts, the stronger they have to be.
                              ·     Things the ct will consider in deciding whether or not the maintenance of a suit violates the TNFPSJ:
                                           a. burden on Ä to be tried in the forum ct
                                           b. interests of forum state
                                           c. Ð’s interest in convenient and efficient remedy
                                           d. interstate judicial systems interest / Fed i
                                           e. interest of involved states in social policy
     
·.   International Shoe’s major contribution is that it did away with strict notion of actual presence as a required contact.
     
      C.   Hanson v Denckla 1958
                  ·     Applied “purposeful availment to individuals” 
                  ·     “unilateral activity of those who claim some relationship with nonresident Ä cannot satisfy requirement of contacts w/forum state.”
                  ·     individual Ä must do some act by which he “purposefully avails” himself of the privilege of conducting activities w/in forum state, thus invoking protection and benefit of forum state’s laws
     
      D. Shaffer v Heitner    1977
                  ·     stockholder derivative suit
                  ·     after this decision, quasi-in-rem (using property to gain jurisdiction) was not allowed if there was no other basis for PJ — in contrast w/ Pennoyer.
                  ·     SP ct said that all assertions of personal jurisdiction MUST be evaluated according to the standards set out in Int. Shoe (Minimum Contacts + TNFPSJ = PJ)
                  ·     Ct stated that : if a direct assertion of PJ over a Ä would be unconst. , then an indirect assertion should not be permissible either.
     
      E.   World Wide Volkswagen v Woodson 1980
·.   Regarded as the 1st “Stream of Commerce” case.
                  ·     was a products liability case
      

cts; contacts must be substantial
     
       I.   Burhnam v Superior Ct  1990
     
                  ·     Pennoyer ct stated that if Ä was served w/ process while in forum state, ct of forum state had PJ over Ä. Process is called “tagging”.
     
                  ·     Ct upholds this idea, but there is no majority as to why this true
     
                  ·     Scalia’s theory (he wrote the main opinion)
                               1. Tradition of cts has been to allow states to have PJ over non-resident Ä served w/in state / “Tagging” existed as a process when 14th Amendment was adopted. If the framers of amendment, didn’t want tagging, they would’ve explicty prohibited it.
                               2. Presence is enough to establish PJ
                               3. Scalia rejects idea that the Shaffer decision says that all assertions of state ct PJ (including in-state Service) must be evaluated according to the Int. Shoe test (MC + TNFPSJ).
                               4. Scalia says that Shaffer merely said that quasi-in-rem and in personam are the same and must be evaluated the same
       
                  ·     Brennan’s theory: (concurring opinion)
                               1. Shaffer dictates that all assertions of state ct PJ MUST be evaluated according to Int. Shoe and its progeny
                               2. Brennan states that the true insight of Shaffer is that all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process
                               3. Above seems to be a jab at Scalia’s opinion. Says that Ct is not obligated to uphold old notions of PJ that do not coincide with modern ideas about due process
                               4. Brennan says that, using Int. Shoe, (at least in this case)   a Ä who is served w/ process inside forum state is subject to PJ b/c he has availed himself to laws and benefits of forum state, as long as Ä is voluntarily and knowingly in state.
     
     
                  ·     Brennan relies upon Int. Shoe: asks “Is it fair?”
                  ·     Scalia relies upon Pennoyer: asks “Is Ä there?”
     
                  ·     CT has NOT decided if Burnham applies to corporate Ä. Burnham seems to suggest that PJ over a corporate Ä can be established by service of process on a corporate officer inside of state’s borders
     
                  ·     Brennan leaves open possibility that a Ä served w/ process w/in state would NOT be subject to PJ if Ä was not voluntarily or knowingly w/in state.
                  ·     maybe Ä flying in airplane over state
     
      3 Ways to establish PJ – overview:
     
 
 1. Specific Jurisdiction
 a.     Min contacts- purposeful availment (foreseeable being haled into ct b/c of contacts w/ state)
 b.     Traditional notions of fair play and substantial justice
· burden of Ä
· interest of forum state in hearing case
· Ð’s interest in convenient and efficient remedy
· Interstate judicial system’s interest in obtaining efficient resolution of conflicts
· shared interest of involved states in furthering fundamental social policy
 
2.   General jurisdiction
· domicile – individual
· articles of incorporation – corp.
· “home office” – nerve center or muscle center – corp.
· Ä has “systematic and continuos contacts” w/ forum state; contacts must be “substantial”
 
3.     Ä served with process while present in forum state
4.   Consent
     
     
      Consent as a substitute for power
     
      J.    Carnival Cruise Lines v Shute, 1991