Civil Procedure – OUTLINE
Professor Cannon
PART I. SELECTING THE PROPER COURT
Four requirements for a court to entertain a lawsuit – court must have:
· Jurisdiction over the parties to the suite
· Jurisdiction over the subject matter of the dispute
· Defendants must be served with process
· Venue must be correct
Civil procedure is difficult b/c:
· It is based on statutory rules (as opposed to case law)
· Statutory words mean exactly what they say they mean (Statutes are commands; case opinions are written to persuade)
· 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 a particular jurisdiction at any one time.
I. A. Jurisdiction Over the Parties
· Jurisdiction: the power of a court to declare and apply the law authoritatively to a particular controversy.
· Types
1. In personam: jurisdiction is based on the court’s physical power over individuals – can be established by:
a. Minimum contacts
b. Transient jurisdiction
c. Voluntary appearance
d. Consent
e. Domicile
2. In rem: jurisdiction founded only upon the presence of property within the state; the resulting judgment is limited to the property which support jurisdiction and does not impose personal liability on the property owner, since he is not before the court [Schaffer v. Heiter (1977)]; in rem includes both true and quasi in rem.
a. True in rem: jurisdiction founded only upon the presence of property within the state, 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 – binding upon “all the world” [Hanson v. Denckla].
b. Quasi in rem: jurisdiction founded only upon the presence of property within the state, judgment is binding only on those persons who are party to the actual notice and proceedings – there is no effect on the interests of persons not made a party in the actual notice (2 types (1) P seeks to secure a preexisting claim in the subject property and to extinguish D’s claim, or (2) “attachment jurisdiction”: P does not dispute D’s ownership of the property involved, P uses D’s property as the jurisdictional basis for asserting a personal claim against D (this claim may be unrelated to the property, the property will serve as a substitute or supplement for in personam jurisdiction, quasi in rem actions like this are started by “attachment or garnishment or seizure” ).
I. A. 1 In Personam Jurisdiction in State Courts
a. RULES – state courts can establish personal jurisdiction over the person of the D in one of the following ways.
1) Minimum Contacts – To establish in personam jurisdiction over the person of a non-resident D using the minimum contacts test, there must be statutory authorization (state long arm statute) and the exercise of jurisdiction must be consistent with the Due Process Clause of the Constitution (purposeful availment).
a) Statutory Authorization – usually in the form of a Long-Arm Statutes
(1) Purpose of state long arm statutes – to provide personal jurisdiction over non‑residents who cannot be found and served in the forum.
(2) Authority: a court cannot exercise extraterritorial jurisdiction without statutory authorization.
(3) Limitation: 14th Due is a limitation on states and how far their long‑arm statutes can stretch.
(4) Application: State courts have interpreted the st
e purposeful availment – due to a S.Ct. plurality, there are 3 approaches as to what is needed under a “stream of commerce” to establish minimum contacts and purposeful availment with the forum state – none are authoritative.
(A) Placement of a product in the “stream of commerce” is not sufficient alone to satisfy “minimum contacts” under “purposeful availment”; also, need an intent or purpose to serve the market in the state, such as advertising in the state or creating the product specifically for use in that state, mere awareness that the product would be used in that state is not enough. [O’Connor ]
(B) Jurisdiction premised on the placement of a product in the “stream of commerce” is sufficient; litigation should come as no surprise if D benefits economically from the forum state and indirectly benefits from the State’s laws that regulate and facilitate commercial activity. [Brennan].
(C) It is not possible to draw a line between “mere awareness” and “purposeful availment”; jurisdiction depends on the volume of product distributed and the hazardous character of the product
· [?] for example, in Asahi, D showed a compelling case that jurisdiction would put D at serious and grave disadvantage, also involved substantive social policy saying U.S. courts will use great care and reserve is exercised when extending jurisdiction to a foreign (of the U.S.) corporation.
(D) Exceptions: “stream” stops when consumer purchases the product and carries it to other states [Justice White in Woodson.]
