Civil Procedure II
Spring 2011, Stravitz
I. Chapter 1. A Survey of the Civil Action
A. The Authority of the Court to Proceed with the Action
1. Capron v. Van Noorden (1804) – P claims that he filed the suit in the wrong court, and so he should get another shot in the correct court. Court held that the court didn’t have subject matter jurisdiction and therefore the P could bring the case in the state court.
a. Rule: A party may waive their personal jurisdiction, but may not waive their subject matter jurisdiction.
2. Tickle v. Barton (WV, 1956) – D, a VA citizen, owned the car, driven by Coleman, which injured the P, Dick Tickle. D filed a plea of abatement (aka, motion to dismiss for inadequate service of process), arguing that the service was acquired by fraud. D was tricked into coming from VA to WV by the P’s lawyer, where he was served.
a. Rule: Service acquired by fraud is not proper.
b. The WV Sup. Ct. said that if what the D claims is true, then the D is entitled to judgment on his plea of abatement.
II. Chapter 2: Jurisdiction Over the Parties or Their Property
A. The Traditional Basis for Personal Jurisdiction
1. Territorial Theory for jurisdiction – Three Distinctions
a. In Personam –
i. Must be served personally with process inside the territory of the jurisdiction by voluntarily coming into the territory, or by being a citizen of the state.
ii. A judgment in an In Personam case can reach all of the opponent’s assets in the US (thanks to the full faith and credit clause).
b. In Rem –
i. The court exercises its power to determine the status of property. The claim is limited to the value of the property attached.
ii. This would bind the entire world, not just the parties. In rem cases allowed the defendant to be served by publication (depending on state law), because theoretically, the property would be under the control of the court making it more likely the defendant would be notified of the case. This is all you can do, if this wasn’t sufficient, then no one would ever buy property.
iii. Examples include quiet title, foreclosures, etc.
c. Quasi In Rem –
i. Same as above, but only binds the particular piece of property, and only those before the court.
ii. Two types– 1) claims related to the property and 2) claims unrelated to the property, where the property is simply being used to make the D come to the state and defend a claim.
1) E.g., you go to CA and interview with Apple. An Apple exec. injures you while driving. After being treated in CA, you come back to SC and want to sue the exec. If the exec. owns a house in Hilton Head, you could attach the house and force the exec. to litigate.
a) Until 1978, it was clear this was OK, but since then, it might not be ok for non-real property.
d. Pennoyer v. Neff (1877) – P sued D to recover a tract of land in OR. D acquired the land after he sued P for services rendered as an attorney. The P was not a resident of OR and was not personally served in the first suit, but served via publication. P didn’t show to the first trial and default judgment was entered for D.
i. Rule: In order for an in rem jurisdiction case to be decided by the court, the property must be brought under the control of the court.
ii. The Court held that the P’s property was not under the control of the court; it was not attached.
1) If the property was not under the control of the court, then the property could simply be sold prior to the end of the case.
iii. The court didn’t have personal jurisdiction over him in the prior case because he was not a resident of OR and he was not personally served.
iv. This case hooked up the full faith and credit clause and the due process clause under the 14th Amendment
1) The FF&C clause allows someone to take a judgment (with valid personal and subject matter jurisdiction) and bring it to another court and get credit for it.
v. Territorial limits on process: A state cannot serve an individual domiciled in another state with process and summon that person to respond to a lawsuit against him.
1) Principle that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory.
vi. The court recognized that times were changing. They said that they could litigate the civil status of a citizen without being able to serve the other party. Also, the court noted that corporations must appoint an agent to receive service of process.
a. Note that the full faith and credit clause requires states/ jurisdictions to enforce proper judgments from any state in the US.
i. Hypo – Two SC citizens sue each other. A gets a judgment over B. B only owns property in GA. A could force B to transfer his GA property to him by going to GA and providing the judgment and under the full faith and credit clause, GA would have to enforce the judgment.
b. Saenger – P goes to CA to sue D. D served P with a counterclaim while he was there. P abandons the lawsuit and default judgment is entered for D. D tried to enforce this judgment in TX. The Court said that this was ok.
i. Stravitz does not believe that this case would apply to third party actions, because the act of filing suit against the defendant cannot be stretched to consent for that court to settle disputes between plaintiff and non-defendants.
c. Blackmer (1932) – Domicile in a state is enough to bring an absent defendant within reach of the state’s jurisdiction for purposes of a personal judgment by means of appropriate substituted service. The US subpoenaed an American citizen in France. This was challenged, but the Court said that this would not offend French sovereignty because he had obligations to the country he had residency to.
d. Citizenship is determined by domicile; the concept of where someone has their permanent fixed home and the place they plan on returning
i. One doesn’t lose his domicile until he establishes a new one. (ex. On the way to another state, not yet domiciled there until you get there and establish domicile).
ii. You can have as many “residencies” as you want
e. “Transient Jurisdiction” –
i. Grace v. MacArthur (1959): Supreme Court upheld personal jurisdiction of Arkansas court to hear case in which the defendant was served with process while flying over Arkansas on a flight from Tennessee to Texas
ii. Stravitz questions whether really still acceptable
1) Don’t rely on this.
2) See Burnham v. Superior Court below for modern version of transient jurisdiction
B. Expanding the Basis of Personal Jurisdiction–
1. At the turn of the century and early 1900’s, automobiles became much more common and brought many causes of action. In NJ, they would have a trooper standing on the state line and make anyone driving into the state sign a statement appointing an agent for service. This was in 1916. As cars became more prominent, this became impossible, and MA enacted a law stating th
e is a distinction between “general” and “specific” jurisdiction.
a. General Jurisdiction– D has sufficient contacts with the forum state to warrant asserting jurisdiction over him for all matters. It doesn’t matter if it arose out of the action because the contact is so significant. (COA can arise out of another jurisdiction).
b. Specific Jurisdiction– A Defendant may have sufficient contact w the forum to warrant asserting jurisdiction over it for matters related to its activity w the forum w out having sufficient contact w the forum to warrant general jurisdiction. The cause of action arises out of the breach of duty in the forum state.
4. Note that a citizen domiciliary of a state is the same as the corporation having its principle place of business in a state. A citizen of a state may always be sued in SC under general jurisdiction.
D. Specific Jurisdiction and State Long-Arm Laws–
1. The Development of Long-Arm Laws
a. Long arm statutes seek to provide personal jurisdiction over nonresidents who cannot be found and served in the forum.
i. Analysis is a two-part inquiry; 1st- Does the state’s long-arm statute confer jurisdiction; and 2nd- Is the exercise of jurisdiction constitutional?
b. Gray v. American Radiator and Sanitary Corp. (Ill. 1961) – P (Gray, Ill.) sues D1 (Titan, OH) and D2 (Am. Sanitary, PA). P’s water heater exploded and injured P, P for negligent construction of safety valve (constructed in OH, an “out-of-state act with an in-state consequence”). P served Titan’s agent. Titan filed a motion to dismiss that it did not commit a tortuous act in Illinois. The statute provided that the negligent act must take place in Ill. for the long-arm statute to apply.
i. The underlying DPC issues still affecting the power of state court to enter binding judgment against one not served w process w in the state depends upon
1) Whether he has certain minimum contacts with the state; and
2) Whether there has been a reasonable method of notification.
ii. Rule: Doing a given volume of business is not the only way in which a nonresident can form the required connection w the state; it is sufficient if the act or transaction itself has a substantial connection with the State of the forum.
1) Whether the type of activity conducted w/in the state is adequate to satisfy the requirement depends upon the facts in the particular case.
2) Relevant inquiry: whether defendant engaged in some act or conduct by which he may be said to have invoked the benefits and protections of the law of the forum.
a) Titan’s commercial transactions result in substantial use and consumption in Illinois.
b) They enjoy benefits from the laws of the state and protection which the law has given to the marketing of water heaters.