CIVIL PROCEDURE
OLIVERI
FALL 2011
7 Step Checklist to Determine if a case can be heard
1) Does the court have personal jurisdiction?
a. Long arm statue?
b. Will court decline?
c. Will court Transfer?
2) Has defendant been given notice and an opportunity to be heard?
a. Was Service Proper
3) Does the court have venue?
4) Does the court have subject matter jurisdiction?
a. Can the claim/party tag along with Supplemental Jurisdiction
5) If in state court…can it be removed to federal court?
6) Have any of the above been waived?
Once we decide if it can be heard…
1) Which law to apply (Erie Doctrine)?
2) Who belongs in the case (joinder of parties)
3) What claims belong in the case (joinder of claims, supplemental jurisdiction)
4) How do we initiate and respond to a suit (proper pleading)
Traditional Basis of Personal Jurisdiction
o D is voluntarily present and personally served with process inside the forum state. (Pennoyer, reaffirmed by Burnham)…even if transitory.
o D is domiciled in the forum state (presence + indefinite intent to remain). (Milliken)
o D consents to jurisdiction
o Express (via contract or agent)
o Implied (motorist statutes)
o Voluntary appearance (contests the merits of case without challenging jurisdiction).
o D’s acts bring him within the state long-arm statute (tort against a citizen of the state).
o If it applies…is the Long Arm Statute Constitutional?
§ Sufficient minimal contacts with the state that the exercise of judgment is consistent with fair play and substantial judgment. (Shoe)
§ Minimal contacts MUST be voluntary (Hanson)
· They must be for some benefit to the party that the state is trying to get jurisdiction over.
§ Must purposely avail themselves of the benefits and protections of the state. Not enough that something is placed in stream of commerce and MIGHT get there. (Worldwide VW)
· It must be foreseeable that they would be facing jurisdiction in that state. (Asahi)
Pleading in General
i. Motion = a request for the court to do something. Consists of:
a. Notice of Motion
b. Motion
c. Brief in Support
ii. Complaint
a. Must invoke, at lest by reference, a substantive body of law
b. Sketch a factual scenario that, if shown to be true, falls within that body of law.
iii. Responding to the Complaint
a. Pre-answer motion – raises procedural objections under Rule 12. Not required
b. Answer – can still raise Rule 12 objections + admissions/denails/affirmative defenses. Required. See below
iv. Timing of Answer
a. Due within
i. 20 days of receiving compliant
ii. 60 days of receiving request to waive service
b. If pre-answer motion filed, answer is due within 10 days f courts denial of motion
c. P’s REPLY to an y counterclaims asserted must occur within 20 days of after service of the answer
v. Answers
a. States D’s defenses to each claim asserted and admits or denies each count of P’s complaint
b. Explicitly pleads any affirmative defenses
c. May (permissive) or must (compulsory) plead counterclaims
d. Points of Differences
i. A denial (I didn’t do it) is decided by the jury based on the merits of the case.
ii. An affirmative defense (I did it, but should not be liable because…) jury might decide based on facts if it happen. A judge may also decide if it is legally valid assuming it did occur.
iii. Procedural Objections – ruled on by court immediately, don’t go into merits of the case.
iv. Counterclaim – the P should actually pay the D
vi. Other Mechanisms to Narrow a Case
a. Rule 12 motions
i. (e) for a more definite statement
ii. (f) strike allegations from a complaint
iii. (b) to dismiss
PERSONAL JURISDICTION
a. Basic Principles
i. Whether the court has jurisdiction to decide a case between the particular parties, or concerning the property before it.
1. the power of a court to decide something.
ii. Three Types
1. In personam jurisdiction: jurisdiction over a person
2. In rem jurisdiction: jurisdiction over a piece of property
3. Quasi in rem jurisdiction: action in personam that is begun by attachment of D’s property….property stands in for the D’s presence
iii. Full Faith and Credit – Article IV § 1
1. Courts in one state have to recognize the valid judgments from another state.
iv. Due Process
1. 5th and 14th Amendments – a person cant be deprived of life, liberty, or property without due process of law. Filing in a state that does not have jurisdiction is a violation of due process
v. Traditional Basis of Personal Jurisdiction
1. D is present and personally served with process inside the forum state. (Pennoyer, reaffirmed by Burnham)…even if transitory.
2. D is domiciled in the forum state (presence + indefinite intent to remain). (Milliken)
3. D consents to jurisdiction
a. Express (via contract or agent)
b. Implied (motorist statutes)
c. Voluntary appearance (contests the merits of case without challenging jurisdiction).
4. D’s acts bring him within the state long-arm statute (tort against a citizen of the state).
a. If it applies…is the Long Arm Statute Constitutional?
i. Sufficient minimal contacts with the state that the exercise of judgment is consistent with fair play and substantial judgment. (Shoe)
ii. Minimal contacts MUST be voluntary (Hanson)
1. They must be for some benefit to the party that the state is trying to get jurisdiction over.
iii. Must purposely avail themselves of the benefits and protections of the state. Not enough that something is placed in stream of commerce and MIGHT get there. (Worldwide VW)
1. It must be foreseeable that they would be facing jurisdiction in that state. (Asahi)
b. Pennoyer v. Neff
i. Facts: original lawsuit, Mitchell sued Neff in Oregon contract dispute. Neff defaulted, was constructively served via small newspaper per statute…was in California and probably had no knowledge of suit. Neff acquired land in OR 1 year later, Mitchell had it seized to satisfy judgment and it was sold to Pennoyer. Neff found Pennoyer on land and initiated suit…Neff won because original court had no personal jurisdiction over Neff.
ii. What would create jurisdiction?
1. Voluntarily appear in court
2. Be found in the state
3. Be a resident of the state
4. Have property that was in the state at the time the lawsuit was filed and was attachd by the court prior to rendering judgment (quasi in rem).
iii. Bright Line Rule: Personal service of process within the state is Constitutionally required to obtain personal jurisdiction over a non-resident of the state in the absence of pre-suit attachment of property.
1. States are all powerful inside their borders (still true)
2. States have no power outside their borders (has broken down).
c. Challenging Personal Jurisdiction
i. Collateral Attack – do not defend against lawsuit, ignore it and allow a default judgment. Then attack it when filed in another state for enforcement.
ii. Rule 12 – allows D to appear in court this one time
1. special appearance in some jurisdictions
2. 12(b) defenses
1) Lack of subjec
the International Shoe test and its progeny.
o Eliminated the utility of quasi in rem. If it’s the same test, you proceed with personal jurisdiction because you get full faith and credit.
o Did NOT eliminate it…it still exists…but mortally wounded by taking away much of its utility.
iii. Contractual Provision Affecting Procedure
o Carnival Cruise Lines v. Shute – P’s were given a contract of adhesion that stated that litigation had to occur in FL> P tried to sue in Washington after getting hurt on cruise.
o A reasonable forum clause made in fgood faith will be upheld…even in a contract of adhesion.
o Clause saves everyone time and hassle, and could save all customers money.
o Types of Clauses
o Choice of law = state X’s law applies to disputes, even if heard in a different state (Burger King).
o Consent to Jurisdiction – parties consent to jurisdiction in State X but may also have jurisdiction elsewhere
o Forum selection caluse – limits the forum to only State X
o Arbitration Clause – dispute must go to arbitration instead of court.
o Only parties to the contract are bound. If a third party is injured, not bound. If a party is killed and a wrongful death suit is brought by family over the contract…they are not bound by these clauses.
iv. Foreseeability and Print Cases
o Cases
o Keeton v. Hustler – D can foresee causing injury in states where magazine is sold and can anticipate being sued there. P connection with the state doesn’t matter, only D.
o Jones v. Calder – reporter and editor challenge jurisdiction. Creates effects test…where the D does something intentionally, knowing it will have an effect on someone in another state…that will suffice for minimum contact.
i. Effects Test – intention torts only, really just publishing. Where a defendant intents to and does cause injury within a state jurisdiction is proper there based on the effects of the actions.
ii. D essentially reaches into the state to do damage.
o Compare Calder and Keeton
o Calder was more about minimum contacts, Keeton more about substantial justice.
o Calder was about jurisdiction over individual people, Keeton was about a corporate entity.
v. Personal Jurisdiction and the Internet.
o Bensusan Rest. Corp v. King – NY P sued over “Blue Note” web site. Court held that passive web site was not enough contact. Wasn’t aimed at NY. Provided info and wasn’t advertising or causing injury to NY.
o Pavlovich v. Superior Court – D made information regarding DVD encryption available online. P argued that alleged D was intending to harm people in CA (were movie industry was based). The passive act of posting information to a website not enough to create jurisdiction.
o When some someone actually targets a person with a website, that could create jurisdiction
o Spectrum of Interactivity.
o Purely Passive (only information) = no jurisdiction.
o Highly Interactive (like a store) = jurisdiction.
