CIVIL PROCEDURE
MULLENIX
FALL 2014
I. CHOOSING THE FORUM
Requirements for Federal Jurisdiction:
Must have good personal jurisdiction (waivable)
Must have good subject matter jurisdiction (not waivable); may be diversity of citizenship or federal question
a. Personal Jurisdiction: the power and authority of a court to render a binding enforceable judgment over a nonresident ∆; if the judgment is not valid or binding, other states don’t have to recognize it (Art. IV §1 Full Faith and Credit Clause); when the forum is federal court, look to forum state’s law to determine PJ (FRCP 4(k)(1))
i. Traditional Bases: Territorial Jurisdiction
1. PHYSICAL PRESENCE (within state): always valid for asserting PJ
a. In personam: residing within the state (Pennoyer v. Neff)
b. Tag Jurisdiction: nonresident transient presence within the state
i. As long as a person is served with process while visiting a state, the court can assert PJ (Burnham v. Superior Ct. of CA)
ii. Application of Minimum Contacts unnecessary
iii. Only applies to individuals, not corporations
2. PROPERTY
a. In rem: valid when the property is directly related to the cause of action
b. Quasi in rem: land must be attached prior to legal proceeding there there’s a nonresident Δ; recovery limited to property value (Pennoyer)
i. Shaffer v. Heitner destroyed quasi in rem
1. (Except in admiralty law)
2. All PJ assertions are subject to International Shoe minimum contacts
3. In rem is still valid when the property is directly related to cause of action
3. CONSENT
a. Express Consent
i. Voluntary appearance
ii. Instate agent appointment
iii. Forum-selection clauses
1. Business-to-Consumer: valid (Carnival Cruise v. Shutte)
2. Business-to-Business: jurisdiction be contractual consent; prima facie is valid unless the Δ can show it was a contract of adhesion or unconscionable contract
a. Unequal bargaining power, fraud, or inconvenient to π
b. Implied Consent
i. States have the right to regulate inherently dangerous activity when the statute granted implied consent (Hess v. Pawloski)
ii. Waiver OR Consent by Failure to Object
1. FRCP 12(h)(1) + FRCP 15(a)(1)
iii. General appearance presenting other defenses or objections
1. Special appearance is waived if Δ presents other defenses
ii. Modern Approach to Due Process: is it fair/reasonable to subject nonresident Δ to the forum state’s PJ?
1. LONG-ARM STATUES [First Step in Assessing PJ]
a. Illinois-style: long, detailed explanation of each available assertion of PJ; still broad, but very specific
b. Oklahoma style: intermediate style; it’s long like an Illinois-style, but it simply permits PJ to the full extent of the Constitution like a California-style
c. California-style: permits assertions of PJ to the full extent of the Constitution; must apply the minimum contacts test
2. MINIMUM CONTACTS: no quantitative test
a. Purposeful Availment: if ∆ purposefully avails himself to the benefits of the forum state, he is subject to that forum’s PJ because he must foresee being haled into court
b. Approaches to Minimum Contacts:
i. International Shoe MINIMUM CONTACTS
1. Fairness to the ∆
2. An assertion of PJ has to be consistent with the “traditional notions of fair play and substantial justice.”
3. To assess whether PJ applies, analyze:
a. Status of the individual (person, corporation, etc.)
b. Quality and nature of the contacts (presence of agents, offices, substantial revenue, property in state, duration of business, protection from state)
c. Must have “continuous and systematic activity within the state”
4. Only the ∆’s contacts with the forum matter, not the π’s (Keeton v. Hustler)
ii. World-Wide Volkswagen REASONABLE FORESEEABILITY
1. Test moves from fairness to the ∆ to “Affiliating Circumstances”
a. Would the ∆ reasonably anticipate being haled into court?
b. If you make a product, send it elsewhere and it injures someone, it is fair to hold you answerable. By knowingly putting the product into the stream of commerce, you accept the jurisdiction of whatever state is might eventually end up in.
c. Adding Gray v. American Radiator Long-Arm Statutes to International Shoe Minimum Contacts do find the standard for asserting PJ
2. Establishes the 5 Factor Test
a. Burden on ∆
b. Forum state’s interest in adjudicating the dispute
c. π’s interest in obtaining convenient and effective relief (Kulko v. Superior Court)
i. When the interest is not adequately protected by π’s power to choose the forum (Shaffer v. Heitner)
d. Judicial efficiency
e. Shared interest of the states in furthering substantive social policies (Kulko)
3. Brennan thinks it needs to be more broad and creates his own 4 Factor Test, basing PJ on the interest of the forum state, whether litigation is connected to the forum, whether ∆ is linked to the forum, and the burden on ∆ is not unreasonable.
iii. Hansen v. Denckla UNILATERAL ACTIVITY
1. The minimum contacts must be between the ∆ and the forum state. A third party’s contacts are not sufficient.
2. π’s actions are not considered
iv. Hansen v. Denckla CENTER OF GRAVITY
1. It is not sufficient that most events are clustered in a state.
iii. GENERAL & SPECIFIC JURISDICTION
a. Introduced by International Shoe, endorsed by Helicopteros
b. General: a state may assert PF based on Δ’s “systematic and continuous” activities within the state
c. Specific: a state may assert PJ based on contacts related to the cause of action; without these contacts, there is no PJ [Brennan]
i. But/For Test
1. But/for the Δ’s actions…
2. π’s claim arises out of contacts between Δ and the forum
ii. Burger King 3 PART SPECIFIC JURISDICTION TEST
1. Δ must have purposefully directed activities at the forum state OR purposefully availed himself of the forum state’s benefits
2. π’s claim arises out of Δ’s forum-related activities
3. Courts can assert PJ if there’s fair play and substantial justice
iii. Events need to occur in the forum state for specific jurisdiction to apply (Goodyear Dunlap v. Brown)
iv. CONTRACT
1. Introduced in McGee
a. A contract is sufficient if there’s a substantial connection and the state has interest in adjudicating
b. “Single contract, single contact” is sufficient
2. Amplified/refined in Burger King
a. “Contracts PLUS”
b. Contract alone is not enough—need a contract plus additional actions (prior negotiations, terms of contract like choice of law provisions, acutual course of dealing like payments)
v. STREAM OF COMMERCE
1. Introduced in Gray v. American Radiator
a. Places less weight on inconvenience to Δ and fairness issues
b. Manufacturers who put product in stream can be sued even without knowledge of where it will end up; even if there are middlemen
c. Fairness = due process (fair to π)
2. Refined in WW Volkswagen
a. Foreseeability: Δ must have expectation product will be bought in forum state, otherwise “every seller of chattels…”
b. Unilateral Activity: π’s bringing products to the forum state is not enough to assert PJ
3. Modern Application: Asahi Metals [Ongoing Debate]
a. Purposeful Direction: O’Connor’s plurality decision—manufacturers purposefully direct product to forum state; can show purposeful direction by:
1. Designing product there
2. Advertising there
3. Customer support there
4. Market through distributor selling in a forum state
ii. Displaces the Gray + WW Vol
aimed must be in good faith; D must prove to a legal certainty that the claim is really less than the jurisdictional amount to justify dismissal
5. MULTIPLE PARTY/CLAIMS: Aggregation Rules
a. Class Actions: permits the aggregation of class members’ claims to satisfy the $5 million amount-in-controversy (overturned Zahn)
b. Single p with multiple claims: may aggregate all related and unrelated claims p has against a single D; must arise out of the same event
c. Multiple ps with “separate and distinct” claims: two or more ps cannot aggregate those claims to meet the jurisdictional amount
d. Multiple ps with “joint and common” interest OR a “single indivisible harm”: two or more may aggregate their claims
iv. Federal Question Jurisdiction: based on Art. III §2 (the Constitution, laws, or treaties of the U.S.) and 28 USC §1331; no amount in controversy requirement
1. Authority
a. Constitution: more expansive than §1331
i. ORIGINAL INGREDIENT THEORY—federal courts have jurisdiction over a p’s cause of action (“the original cause”) if it is based in part on federal law; even if the majority of the issue revolved around a nonfederal law/question (Osborn v. Bank of the U.S.)
1. Rejected as too expansive
2. Congressionally Chartered Organizations: as long as there is a “sue or be sued” provision in their charter that specifies federal courts, federal courts have good SMJ (American Red Cross)
b. Statute 28 USC §1331—ARISING UNDER
i. All claims “arising under” the Constitution, laws, or treaties of the U.S.; though it is the same language as that in the Constitution, the statute has been interpreted more narrowly
ii. Rejects the Original Ingredient standard
2. How to Assert Federal Question Jurisdiction
a. Is there an EXPLICIT right of action?
i. The cause of action is expressly stated in the Constitution, a federal statute, or a treaty
ii. CREATION TEST—federal law must create the cause of action (J. Holmes); the mere invocation of federal law doesn’t get you into federal court; must “pierce the pleadings”
b. Is there an IMPLIED right of action?
i. 4 FACTOR TEST (Cort v. Ash)
1. Is p part of the class for whose benefit the law was enacted?
2. Congressional intent
3. Purpose of the legislative scheme
4. Is p’s cause of action traditionally relegated to state law?
ii. SCOTUS no longer favors implied rights of action
c. Is there an IMPORTANT FEDERAL INTEREST?
i. Could ps get relief in state court based on the strength of all their other claims? If so, no important federal interest.
ii. “Litigation-Provoking” Problem: does the presence of a federal issue in a state-created C/A “arise under” the laws of the US?
iii. Solving it Pre-Merrell Dow:
1. Smith Test: p sued to enjoin Missouri trust company from investing in federal bonds, arguing the Congressional act authorizing the creation of the bonds was unconstitutional. SCOTUS held the claim DID “arise under” federal law because deciding whether the act was unconstitutional was a federal question. [Expansive View]
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