Civil Procedure Outline Cannon Fall 2011
Part 1: Selecting the Proper Court
Four Requirements for a court to entertain a lawsuit—court must have:
· Jurisdiction over the parties to the suit
· Jurisdiction over the subject matter of the dispute
· Defendants must be served with process
· Venue must be correct
Civil Procedure is difficult because:
· It is based on statutory rules (as opposed to case law)
· Statutory words mean exactly what they say they mean
· 51 systems of civil litigation/procedure, all of them heavily statutory in nature—one can never talk about civil procedure in the abstract, generalization; one is only talking about the rules in particular jurisdictions at any one time
Jurisdiction over the Parties
1. Jurisdictionà A government’s general power to exercise authority over all persons and things within its territory
i. Personal jurisdictionà the power to issue a judgment binding a person or affecting his property
1. Minimum contacts
2. Transient jurisdiction
3. Voluntary appearance
4. Consent
5. Domicile
ii. In remà A court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it
1. Judgment is binding on all persons with respect to their interest in the property involved, regardless of whether or not they were parties to the actual notice of the action
iii. Quasi in remà
1. Jurisdiction in a case about specific parties’ interests in property in the forum state
A. Judgment is binding only on those persons who are party to the actual notice and proceedings
2. Jurisdiction in a case unconnected with property in the forum state that uses the property as a basis for jurisdiction
A. This is unconstitutional, as it fails to satisfy minimum contacts
In Personam Jurisdiction in State Courts
To determine whether the courts of the state where the suit is filed can exercise personal jurisdiction over the defendant, one must always ask two questions:
1.) Is jurisdiction authorized by the state’s long arm statutes?
2.) Is jurisdiction permissible under the Constitution of the United States?
1.) Is jurisdiction authorized by the State’s long arm statute?
A. States are free to grant their courts the power to exercise personal jurisdiction to the limits of the due process clause or to confer only part of the constitutionally permissible jurisdiction
i. Long arm statutes are constructed differently in different states:
1. Some grant the courts the full scope of personal jurisdiction permissible under the due process clause
2. Some states allow their courts to exercise jurisdiction only on specific types of contact with the forum state
a. Frequently authorize state courts to exercise jurisdiction over cases arising out of contacts such as committing a tortious act within the state, transacting business in the state, or owning property in the state
B. Two Questions for Long-Arm Jurisdiction:
i. Statutory Interpretation Question: Does this court have statutory authorization for the exercise of in personam jurisdiction under the meaning of the statute
1. If NO, the case stops
ii. If YES, procedural question: Is the statute, as interpreted, consistent with the 14th Amendment for Due Process
2.) Is jurisdiction permissible under the Constitution of the United States?
RULE:
An assertion of jurisdiction is constitutional under the 14th Amendment Due Process Clause if:
1.) There is a traditionally recognized basis for jurisdiction, or
2.) The defendant has sufficient minimum contacts with the forum state such that the assertion of jurisdiction is consistent with traditional notions of fair play and substantial justice
1.) Traditional Basis for Jurisdiction:
A. Persons Located Within the State
i. Domicileà If an individual real person is a citizen of the forum state, she is subject to jurisdiction of its courts
1. A person is present in the state
2. With the intent to remain for an indefinite period of time
ii. Service:
1. In-state service of process on an individual within the forum state suffices, constitutionally, to establish personal jurisdiction even if his presence is temporary and even if his presence is entirely unrelated to the lawsuit
B. Consent:
i. A non-resident party can consent to the personal jurisdiction of a state’s courts in advance of the suit
1. Forum Selection Clauses:
a. Forum state must be the state indicated in the forum-selection clause
b. Scope of the forum-selection clause must include this type of controversy
2. Foreign corporations file with state authorities a consent to jurisdiction as a condition for doing business in the forum (Express Consent)
ii. Implied Consent:
1. A state may have a substantial interest in regulating nonresidents in a particular in-state activity. Where a state has done so, the nonresident is considered to have impliedly consented to personal jurisdiction.
a. Ex. à Non-resident motorist statutes
C. Voluntary Appearance
i. If a party voluntarily appears in court in response to a complaint without challenging jurisdiction, he will have waived personal jurisdiction and will be subject to the court’s jurisdiction.
2.) Minimum Contacts Test:
A. General Jurisdictionà A court’s power to hear any claim against a D, regardless of the claim’s connection to the D’s contacts with the forum state.
i. TESTà When the claims are unrelated to the D’s contacts with the forum state, personal jurisdiction may only be exercised if those contacts are continuous and systematic and sufficiently substantial
1. They can be sued in the State for any claim even if it is unrelated to the in-state activities
2. Examplesà
a. State of incorporation: A corporation may be sued in any state in which hit is incorporated
b. Headquarters: an entity of any kind of subject to general jurisdiction in the state where its headquarters or headquarters like activity is located
B. Specific Jurisdictionà Refers to jurisdiction over a defendant in a case arising out of his contacts with the forum state
i. When a party is not a citizen of a state, the court may still establish personal jurisdiction over that party if he has a minimum number of contacts with the state that do not offend the traditional notions of fair play and substantial justice.
1. Minimum Contactsà Depends on whether the D has purposeful contacts with the forum state such that she can reasonably anticipate being subject to jurisdiction in that state’s courts.
2. Reasonablenessà Depends on an analysis of five factors relating to the burden on the parties, the interest of the states, and considerations of judicial efficiency.
C. Minimum Contacts
i. Purposeful Availmentà If a D purposefully avails itself of the benefits and protections of the forum state’s laws, it can reasonably anticipate jurisdiction in a lawsuit arising out of those contacts
1. To determine look at:
a. D has “substantial connection” with the state
b. D deliberately engages in significant activities within the state
c. D creates “continuing obligations” between himself and the residents of the state
d. D avails himself of the privilege of conducting business in the state
e. D’s activities are shielded by the benefits and protections of state laws
f. The suit must be related to contacts with the forum state (not “random”, “fort
iii. Jurisdiction based on waiver or consent
4. Jurisdiction Based Upon Physical Presence
i. Transient jurisdictionà occurs when a nonresident D is actually found and served within the forum state, but when the D’s presence there is: 1.) only intended to be brief; 2.) unrelated to the controversy raised by P’s claim
a. Burnham v. Superior Courtà Burnham was served as a D in a California action for separation, child support and spousal support during his brief visit there on business and to visit his children. Half the court upheld traditional transient jurisdiction and half said that he had to fulfill the minimum contacts test but that it was easy to do
Jurisdictional Reach of the Federal District Courts
1. Federal district courts act like state courts with regard to in personam jurisdiction
Rule 4(k)(1)à Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
(A) Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located
(B) Who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued;
(C) When authorized by federal statute
Rule 4(k)(2)à For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over the defendant if:
(A) The defendant is not subject to jurisdiction in any state’s court of general jurisdiction; and
(B) Exercising jurisdiction is consistent with the United States Constitution and laws
1. The rules governing the scope of personal jurisdiction in federal court are found within Rule 4(k) of FRCP. This provides four methods for establishing personal jurisdiction over D’s”
A. Scope of the Host State’s Jurisdiction
i. Federal courts ordinarily may exercise personal jurisdiction to the same extent as courts of the states in which they are geographically located, unless another provision of the rule applies.
1. Must look at the forum state’s jurisdictional statutes
B. Bulge Rule (Impleaded Parties)
i. If a party is joined under Rule 14 or Rule 19, personal jurisdiction may be established over that party by serving her within 100 miles of the court where the summons was issued
1. You do not have to satisfy the forum state’s jurisdictional statute
C. Federal Statutes
i. If a claim is asserted under a federal statute that authorizes personal jurisdiction based on nationwide or worldwide service of process, then such service on the D will establish personal jurisdiction, provided that D has minimum contacts with the U.S.
D. Fall Back Provision
i. If the D to a claim arising under federal law is not subject to personal jurisdiction in any state, then, in a federal question case, a federal court may exercise personal jurisdiction over the D if doing so is consistent with the Constitution
1. The Constitution requires that the D have minimum contacts with the entire U.S.
