Civil Procedure Attack Outline
OVERVIEW
State court rules of civil procedure are modeled after the Federal court rules regarding civil procedure
ARTICLE III SECTION I OF THE US CONSTITUTION
Established 1 courtà Supreme Court
All the other courts are to be established by Congressà congress has the power to give and take away the power of the courts except Supreme Court
Every state has at least 1 Federal District Courtà 13 US Court of Appeals
Federal Judges are appointed for lifeà Can be impeached (rare)à their salaries cannot be reduced
MAYà Means Discretionary
SHALLà Means it will be Mandatory
ARTICLE IV SECTION 1
Full Faith and Credit Clauseà If Judgment against D takes place outside of State in which D residesà I filed properly it will be enforced in the state in which D lives
A “Default Judgment” is if the D doesn’t show up to defend themselvesà A judgment will be rendered for P, probably for the full amount requested
14th AMMENDMENT SECTION 1
State Needs to have “Personal Jurisdiction” over person or it is a violation of Due Process
Subject Matter Jurisdictionà Can courts here the “Subject Matter” of the case
Personal Jurisdictionà Power of the courts to render a binding judgment over the parties in front of it, that other states will have to respect and enforce because of the “Full Faith and Credit Clause”
TYPES OF LAWSUITS P CAN BRING AGAINST D—“3” TYPES
In Personam—Lawsuit against a person himselfà Person is directly responsible and it exposes all of the D’s assets to being seized (best kind to bring)à D is entitled to the highest form of notice you can give them (personally serving)
In Rem—Against the thing or against the propertyà Attach the property or thing at the outset of the lawsuità Not required to personally serve notice by publication will suffice—(now must give notice by mail if possible as well)
Quasi In Rem—As if it involves the property or thing (Pennoyer Case)à Lawsuit against a person that seeks to subject certain property of that person and this property must be “Incidental” to the claim—now must give notice by mail if possible as well
3 THINGS TO COME OUT OF THE PENNOYER CASE
States are as powerful as the person or property found within the territorial borders of that state
“Doctrine of Transient Jurisdiction”à If the D is only passing through the s
argument then judgment is dismissedà if he is not then he will be liable—“Can be Malpractice”
STEPS TO ESTABLISH PERSONAL JURISDICTION
Step 1à Was the individual defendant Present in the forum when process was served on him / her?
If person is present inside the boarders of the forum state when served process thenà “General PJ”à Look for “Transient Jurisdiction” and also if a person uses highways of another state as a non resident of that state you are impliedly consenting to PJ in that stateà “Also a way to consent to PJ”
Exceptions to thisà Involuntary visit—“subpoenas or trials (immune) and if you were under duress or tricked to coming into the state.
If no then go to step 2
Step 2à Is Individual D Domiciled in Forum State?—Is Corporation Incorporated in Forum State?
Individualsà Subjective Approach—Where they have a physical presence within the state and have present intent to stay for the futureà
