Outline, Civil Procedure (Brooks), Spring 2012
Chapter 2. Challenging Territorial Juris
A. Specific Challenges
Special Appearance:
· A D can appear w/ the express purpose of making a jurisdictional objection.
· If it is unsuccessful, cts allow D to defend on the merits of the case w/o losing the right to appeal.
· Must be made before any other appearance.
Differences: State v. Federal
· State: above definition
· Federal: Abolished; now D makes a motion to dismiss for lack of juris. over the parties. 12(b)(2). (“motion to quash”)
Cueller v. Cuellar, 1966
· Issue: When the D filed an answer and then a motion/plea to say that he is not amenable to process issued in Texas, should the ct accept the untimely plea?
· Holding: No, “the special appearance shall be made by sworn motion filed prior to plea of privilege or any other plea, pleading or motion.” Rule 120a (Texas).
· Policy/Level: Can either follow the policy behind the special appearance or the general appearance.
o Can’t apply it the way it reads; Have to look at it a different way; 1+1 doesn’t = 2.
· Brook’s View: R 15a is the most important for this case.
· FRCP: Rules 12b, 12g, 12h, 55a, 55b, 58. (Texas rule 120a)
o Can consolidate in FRCP, but can’t do the general before the special.
o Under rule 15a (discussed in 12h) the lower ct was wrong b/c of the exception to the exception. (?)
o Argument: strict reading of the rule, but this would undercut the rule.
§ In favor of extending juris and overlooking it.
o State’s interest: b/c she obtains welfare, state doesn’t want to allow the people of Texas to have to pay.
Default Rule – 55(a) & (b)
· Merits: A default addresses only the merits.
o If D defaults, he loses the right to defend on the merits due to policies:
(1) Judicial Efficiency: Policy against re-litigation
(2) Comity: Policy of deferring to ct rendered judgments, even if it is judgment by default.
· Juris: A default doesn’t address juris.
Collateral Attack:
· A D who defaults in an action in one juris may collaterally attack the default judgment when it is sued upon in a second juris.
· A challenge to the integrity of a prior judgment brought in a special proceeding intended for that express purpose.
Basis of attack: The D may make such a collateral attack either upon the first ct’s juris over the parties, or upon its subject matter juris.
Personal juris
In rem
SMJ: 1st ct had no statutory authority to try the kind of case or grant the kind of relief in question
Extrinsic Fraud: failure to appear in the first action was the result of fraud by the P.
No Collateral Attack if (Waiver): A D who appeared in the original action w/o objecting to juris., or one who unsuccess. litigated the juris. issue in the 1st action, may not collaterally attack the judg., but can do a direct attack.
Policies
Full faith and Credit: INTER-jurisdictionally (state v. state; state v. fed); policy → judicial efficiency & comity.
Res Judicata: INTRA-jurisdictionally (federal v. federal; cases w/in the same state; (same policies)
Steps:
(1) doesn’t show up for suit → so takes a default judgment
o (2) P takes judgment to D home state to collect
o (3) FF&C clause requires sts to enforce cts of other sts’ orders subject to concluding that juris. was met.
o (4) D’s state says:
§ No juris → not enforcing claim
§ Yes, juris → claim enforced w/o opportunity to discuss merits
Appealing Jurisdictional Issue
· State Cts
o If the objection to the juris is overruled, some states allow an interlocutory (immediate) appeal
o other states require D to make a choice b/t submitting to juris or accepting a default judgment which allows an appeal SOLELY on the basis of jurisdicion.
· Federal Cts
o Appeal of jurisdictional issue is interlocutory and therefore must be heard prior to any issues on the merits.
Baldwin v. Iowa State Traveling Men’s Ass’n, 1931
· Issue: When the respondent had a choice of not appearing, but appeared in the MI ct, then later attempted to raise the jurisdictional issue, can the case be tried again?
· Holding: No. There was no such res subject to the power of the state ct, and therefore its judgment was not binding upon those who were not actual parties. Judgment (reversed and remanded)
· Policy:
o Full faith and credit
§ inter-jurisdictional application
· State v. State (Harris v. Balk)
· State v. Federal (Pennoyer v. Neff)
o Res judicata
§ intra-jurisdictional application: 2 cts in CA or Federal v. Federal
o Day in Ct
· FRCP: Rule 55 – default
· Other: Not a collateral attack of a state proceeding (where it began), but of a federal ct (this will determine the relevant policy considerations). The way to preserve the jurisdictional issue- collateral attack- is to NOT show up.
Limited Appearance
· Definition: D appears in rem or quasi in rem, contests the case on its merits, but is subjected to liability only to the extent of the property or debt attached or garnished by the ct. (compared to a special appearance where the jurisdictional issue is contested but the merits are not).
· Main Points:
o Applies to in rem or quasi in rem
o Pre-trial motion that must be litigated before anything else
o If successful, than the property is released and there is no juris over the property in question or im personam over the D
o If unsuccessful, property is lost, but D is not subject to the ct’s in personam juris.
· Policy:
o Substantial justice and Fairness: A rule prohibiting limited appearance would force a D to either default on an in rem claim or submit to personal juris.
§ It is unreasonable to impose a burden of entering a general appearance in order for the D to protect property rights that are in peril.
o D likes this type of appearance: Allows D to defend his property but doesn’t subject him to the juris of the ct
· Steps:
D can make a general appearance and end the COA
D can make a special appearance to protect only the property that has been attached (Settle that Q and nothing else)
Doesn’t waive his special appearance as to personal juris
D attacks the attachment by saying there is something wrong w/ the underlying claim. Forces cts to look at underlying claim.
D can make a limited appearance as to property, and a special appearance as to juris
Special appearance must be raised right away
Chesire National Bank v. Jaynes, 1916
· Issue: When P attached D’s prop., but did not personally serve him, can the D appear generally to answer the merits of the case & defend the case, & at the same time make a special appearance to repudiate the juris. of the ct?
· Holding: Yes, he can. It was contended that he waived his special appearance when he submitted himself to the ct, but “this contention cannot be supported. After having raised his point seasonably, he did not waive it by proceeding in accordance w/ the rulings of the ct, which until reversed were the law
attend a trial either as witnesses, parties, or attorneys. Immunity is also granted for a reasonable time period before and after trial, for the journey into and out of the state.
Traditional Doctrine: Immunity from service of process in unrelated lawsuits. Only protects against presence; it is not enforced if the non-resident party is subject to juris under long arm statute.
Policies:
Non-resident D or P would be distracted by service of summons so as to disrupt judicial admin.
encourages attendance of non-residents to ensure judicial functions; unless immunity were granted, non-resident might be deterred from attending ct for fear of being subjected to new litigation
Preserves the dignity of the ct
Other View:
Doctrine is an exception rather than a rule
A ct will retain juris unless there is some affirmative showing that it would violate traditional concepts of fair play and substantial justice to retain juris over D.
Policies:
Non-resident P chose the forum and therefore made a choice to enter the state
Non-resident D chose to come into the state to defend himslef; D could have defaulted
Favors non-residents over residents
Use forum non conveniens: ct thinks that that the problem of immunity is best disposed of by using it.
Differences: State v. Federal
· State: Uses it
· Federal: Doesn’t need immunity
Wangler v. Harvey, 1963: Immunity (other view)
· Issue: Should the D, who was in the state b/c of a separte claim, have immunity from being personally served?
· Holding: No, immunity is an exception rather than the rule. There is no immunity here unless the P executed the suit to lure the D in.
· Policy:
o changing times
o encourages the search for truth; If you didn’t have the immunity rule, guy wouldn’t come to it.
o Dignity of the ct; in olden days, you didn’t want to have someone run in and arrest guy.
o Competing policy: fairness and efficiency.
· Brook’s View: Shifts the burden from the resident to the non-resident. If the doctrine applies, then it shifts. If a resident steps outside of a forum state, they are still subject to the juris based on domicile. A non-resident is usually not amenable to process by being outside of the state b/c there are no contacts. Very Holmsian opinion. Im personam v. in rem, Forum non conveneins doesn’t protect, so most people would prefer immunity. Immunity guarantees the D the decision that he wants.
· Other: Immunity rule – “all persons who have any relation to a cause which calls for their attendance in ct are protected from arrest while going to and attending ct and returning.” only makes sense when the parties seeking immunity can avoid juris by stepping outside of the juris. If you are amenable by domicile or doing business, etc., then the fact that you are outside, doesn’t affect the immunity doctrine.
