CIVIL PROCEDURE – Spring 2014
Stravitz
OUTLINE OF THE PROCEDURE IN A CIVIL ACTION:
1. SELECTING A PROPER COURT
a. Courts of original jurisdiction.
i. General jurisdiction – district courts
ii. Inferior jurisdiction – municipal courts
b. Federal Gov
i. U.S. District Courts
ii. U.S. Courts of Appeals
iii. Supreme Court
c. Diversity of Citizenship
i. Capron v. Van Noorden
1. Duty of the court to see that they had jurisdiction, consent of parties could not give it.
2. COMMENCING THE ACTION
a. Service of Process
b. Summons / Must answer or Default Judgment
i. Tickle v. Barton
1. Plaintiff induced to come to banquet in county where process could be served
2. Cannot serve process by fraudulent means
3. PLEADINGS AND PARTIES
a. Complaint
4. THE RESPONSE
a. Motion to Dismiss
b. Answer
c. Counterclaim
5. OBTAINING INFORMATION PRIOR TO TRIAL
a. Pre-trial Discovery
b. Depositions, written interrogatories, production of documents, requests for admissions, physical examinations.
6. SUMMARY JUDGMENT
7. SETTING THE CASE FOR TRIAL
a. File a note of issue, trial date set.
8. THE JURY AND ITS SELECTION
a. Preemptory challenges
b. 6-12 jurors
9. THE TRIAL
a. Opening statement
b. Direct examination
c. Cross examination
d. Re-direct/re-cross
e. No hearsay evidence
f. After Plaintiff’s witness, Defendant may motion for a directed verdict.
10. SUBMITTING THE CASE TO THE JURY
a. Instructions or charge to the jury
b. Preponderance of evidence
c. Verdict – 3 types
i. General, general w/ interrogatories, special
d. Traditionally – unanimous jury required
e. Civil Cases – many times non-unanimous jury may stand
11. POST TRIAL MOTIONS
a. Judgment Notwithstanding the Verdict (J.N.O.V.)
b. Move for new trial
12. THE JUDGMENT AND ITS ENFORCEMENT
a. Writ of Execution
b. Injunction – decree – fails = contempt of court
c. Costs
13. APPEAL
a. Petition for a writ of certiorari
b. Present case by written briefs – oral argument
c. Affirm, reverse, or modify – new trial / remand
d. Reviewability v. appealability
14. THE CONCLUSIVENESS OF JUDGMENTS
a. Res judicta – a thing decided
1. Personal Jurisdiction
a. Can be waived
b. Development of Territorial Jurisdiction Doctrine
i. Pennoyer v. Neff
1. Stands for the principle that a person is not bound by a judgment unless the court properly acquired power over that person. A court’s power is limited by territorial boundaries.
c. 3 Ways to acquire Personal Jurisdiction:
i. In rem jurisdiction – power over land/property; property cannot be used to force someone into the state if the property is not the subject of the lawsuit. Decision binds the world.
ii. Quasi in rem jurisdiction – property attached to case to gain jurisdiction; property has nothing to do with the lawsuit. Only binds the parties before the court b/c not related to all of world’s ownership interest in the property.
iii. In personam jurisdiction – power over person present in state; no longer really relevant b/c people are more mobile. (pennoyer case)
1. 3 ways to consent as told by Pennoyer
a. Consent
b. service in state
c. Citizenship.
d. Modern Day – 2 types of Personal Jurisdiction
i. Specific– Plaintiff’s cause of action arises out of defendant’s activity in the forum state (i.e. SC driver at fault in NC and sued in NC)
ii. General–See Heading 8 (if the defendant enjoys the benefits of the forum state in connection with the activity, then he is subject to personal jurisdiction.) Plaintiff’s cause of action does not arise out of defendant’s activity in forum state. Defendant must be “essentially at home” in the state. (i.e. SC driver at fault in NC and sued in SC)
e. New Theory of Jurisdiction:
i. Consent theory – As a condition of doing business there, a state could require a foreign corp. to consent to service of process through the appointment of an in-state agent to receive process.
ii. Presence theory – A corp. engaged in activity w/in a state established a presence there for jurisdictional purposes.
iii. First Issue: Defining “doing business”
1. International Shoe Co. v. Washington (1945)
a. While not explicitly overturning Pennoyer, articulates new test for PJ. Logic – “To the extent that a corp exercises the privilege of conduction activities w/in a state, it enjoys the benefits and protection of the laws of that state.” If they get the benefits of the state then they should be subject to the power of that state’s courts.
b. “Minimum Contacts” test under Due Process – qualitative not quantitative
i. Arise out of D’s activity in the forum state
ii. D’s activity in the forum state is continuous & systematic
c. Greatly relies on whether D benefits from laws of forum state or privileges.
f. Establishing personal jurisdiction (SPECIFIC). Analyze:
i. Does the state authorize jurisdiction through a long arm statute?
1. If yes, then test to make sure the statute does not exceed the 14th Amendment’s due process clause. This test has two branches. (make sure statute is constitutional)
a. First – make sure it meets due process using the minimum contacts test from International Shoe.
i. Defendant needs minimum contacts with the state plus a claim related to those minimum contact
e apply?
b. (2) If so, does it comport with due process?
4. Holding: Actual injury occurred in Illinois, although the negligence regarding products liability occurred in another state. The court said Illinois had jurisdiction because that’s where the tortious act occurred. You can’t separate the tort from the accident. This does not violate due process.
5. In Gray, it comports with due process b/c they were benefiting from the sale in the state of Illinois.
6. “Stream of Commerce” – Manufacturer – can sell to several other manufacturers or businesses – doesn’t exit stream of commerce until purchased by consumer.
iii. Stravitz hypo: Mom and pop garage fixes a tire in NY, car owners drive back to Illinois & tire explodes causing injury.
1. Long-arm statute will not apply b/c mom & pop do not enjoy the benefits & protections of Illinois law typically.
2. In Gray, the valves would be going everywhere, including Illinois- therefore Illinois could have jurisdiction. In the tire hypo, the repairman obtained no benefit from the state of Illinois.
iv. Burger King
1. This was the doctrine until McIntyre! USE THIS TEST
2. Explains the two branch test outlined above.
a. Branch 1: Minimum contacts touchstone—only arises to be a presumption of proper jurisdiction. Turn to 2nd branch to overcome the presumption – If you have Branch 1, look to Branch 2 to make sure it’s ok.
b. Branch 2: Fair play and substantial justice
3. Can either enhance presumption or not
4. Using this test, if no minimum contacts, don’t even look at 2nd branch!
5. Holding: Jurisdiction was proper. There were minimum contacts, and fair play and substantial justice did not overcome these contacts.
v. Asahi v. Superior Court—only use for cases involving an ongoing flow of the Defendant’s goods into the forum state through a distributor or manufacturer. Uses the stream of commerce test to test for minimum contacts.
1. Stream of Commerce TEST: If you put your product in the stream of commerce, and you are aware of where it is going, then you are availing yourself of jurisdiction. (i.e. manufacturing or distributing goods)
2. Reasonableness factors regarding whether there is fair play and substantial justice addressed in this case: (1) burden on the defendant; (2) the interests of the forum state; (3) the plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive policies
3. In this case, weak minimum contacts was trumped by strong fair play and substantial justice factors
