1 CIVIL PROCEDURE CHECKLIST PERSONAL JURISDICTION – in what state can the plaintiff sue? • In Personam – power/jurisdiction over defendant o Constitution – General (claims unrelated-need more contacts… Helicopteros, Perkins, Burnham)v. Specific Jurisdiction (claims arose) Defendant is served in the forum Defendant’s agent is served in the forum (Pennoyer) Defendant is domiciled in the forum Traditional Basis Defendant consents to jurisdiction in the forum Implied Consent to jurisdiction (Hess) Minimum Contacts (International Shoe) • Solicitation of business • Independent uncontrollable acts of 3rd person (Hanson) • Purposeful availment (McGee) • Foreseeability that D would be sued in forum (VW) • Unilateral act of 3rd party (VW) • Stream of commerce: (Asahi) o Brennan – yes, if put in stream of commerce and anticipate is going to the forum o O’Connor – Brennan plus an intent or purpose to serve the forum (advertise, customer service) o Stevens – Reasonable Purchase + Hazardous • Continuous and systematic o Purchases in forum not enough (Helicopteros) • Presence in state: (Burnham) o Scalia – no need to look at min. contacts o Brennan – must look at min. contacts Fairness (International Shoe) – look at if minimum contacts • Relatedness (McGee) o General jurisdiction – contacts not related to claim o Specific jurisdiction – contacts directly related to claim • Burden on the D and witnesses (BK) • State’s interest (McGee) • Plaintiff’s interest, legal systems interest in efficiency, interstate interest in shared substantive policy (not used much) o State Statute Nonresident motorist and long-arm statutes common Jurisdiction over D who commits a tort in the forum: (Gray) • Tort committed where the product is negligently made • Tort committed where product causes harm • In Rem and QIR – power/jurisdiction over the defendant’s property o In Rem – suit about ownership of the property Attachment of property will satisfy (Pennoyer and Schaeffer) o QIR – claim has nothing to do with the ownership of the property 2 Attachment of property alone will not satisfy, must also have minimum contacts (Schaeffer) NOTICE – Notice must be given and an opportunity to be heard under due process clause o Service of process – Federal Rule 4 Include summons and copy of complaint Service by any nonparty at least 18 years of age Methods of service – Rule 4(e)(2) • Personal Service • Substituted Service ok if: o D’s dwelling house or usual abode o Service on a person of suitable age and discretion who resides there • Service on D’s appointed agent OR • Any method allowed by the state in which the federal court sits or the state where service is effective Waiver of Service of Process – Rule 4(d) • No process, merely a waiver of service of process by mail Can serve throughout the state where the federal court sits or out of state is state law allows o Constitution OK if reasonably calculated under all circumstances to apprise the defendant (Mullane) Service by publication only ok in very rare cases where identity of defendants is unknown (Mullane) o Opportunity to be heard Safeguards: • Pre-attachment hearing or exigent circumstances for Due Process (Connecticut v. Doehr) 3 Part Test: 1) Strength of D’s private interest 2) Risk of erroneous deprivation 3) Interest of party seeking remedy Plaintiff must give an affidavit o Plaintiff must state specifics o Order from a judicial officer o Plaintiff can be required to post a bond o Defendant gets a hearing on the merits at some time 3 SUBJECT MATTER JURISDICTION – What court system in the forum can you sue in? • State courts can hear all cases (with a few limited exceptions) • Federal court can only hear certain cases: o Diversity of Citizenship §1332 Complete diversity rule at time case is filed Amount in controversy must exceed $75K • Does not count interest or costs • Amount in the complaint unless clear to a legal certainty that could not recover that much • Aggregation: adding two or more claims to get over $75K o Aggregate claims if there is one P v. one D even if totally unrelated claims o No aggregation if multiple parties on either side o With joint claims, use the total value, do not divide by the s (Π sues multiple s for the same tort) Citizenship for persons = domicile (only one place) • Presence in the state • Subjective intent to make that state your home Citizenship for corporations • All states where incorporated • One state where principle place of business o Nerve center – decisions made o Muscle center – activity takes place o Total activity – combo of above Tie: Nerve center unless all activities in one state Citizenship for unincorporated business: • Citizenship of all members of the association Representative • Look to citizenship of person being represented o Minors o Incompetents o Decedents • Class action look at citizenship or representative o Federal Question (Mottley and the railroad passes) Well pleaded complaint rule: • Look only at the complaint, not the defenses to the complaint • Claim must arise under federal law, not just mention it • Removal Jurisdiction o Only from state to federal court and only by defendant with all defendants in agreement o Remove only to federal district court embracing the state court o Must remove w/in 30 days of the case becoming removable o Two exceptions applying only to SMJ by diversity of citizenship: No removal if any defendant is a citizen of the forum If D who was a citizen is dismissed then becomes removable and have 30 days, but there is a one year time limit in which a case can be removed • Remand – waived after 30 days -§1447(c) o No SMJ o All D’s did not agree to remove o Year long limit is up 4 VENUE – In what federal district do you lay venue? • Cases removed from state court to federal court have their own provisions o Federal Court embracing the state court has venue • BASIC PROVISIONS §1391 (a) – diversity and (b) – federal question o For any case at all, diversity or federal question, there are two choices of venue: Any district where all defendants reside • Human – same as domicile • Corporation -in all districts where it is subject to personal jurisdiction • If all defendants reside in different districts of the same state, you may lay venue where one of them resides Any district where a substantial part of the claim arose • Transfer of Venue o Must be within the same court system Between federal district courts Between county courts in the same state, but not between states o Only transfer to a court with proper venue and personal jurisdiction over D, absent a waiver o Three statutes: 1404(a) -original court is a proper venue • May transfer, but look at: o Convenience of the parties and witnesses o Interest of justice o Look at center of gravity of the case, which of the proper venues is the best • Court to which the case is transferred must apply the choice of law rule from the original court 1406(a) -original court is an improper venue • Can dismiss or transfer in the interest of justice • Court applies its choice of law rule 1406(c) -Forum non conveniens • Can not transfer because better or more appropriate court is in a different judicial system (Piper) o Look to same things as 1404 (Gilbert Factors) • Dismisses because litigation would be far more appropriate in another place • Court can impose conditions on an FNC dismissal, such as waiving certain rights 5 CHALLENGING FORUM SELECTION – how the D challenged P’s forum selection • Special appearance – allows the defendant to challenge personal jurisdiction o Some states say that if you raise other defenses with personal jurisdiction then you run the risk of raising the personal jurisdiction right o If you make a special appearance to contest personal jurisdiction and lose then you can not default and contest PJ again (Baldwin) • Federal Rules o Let’s get all threshold defenses out of the way as early as possible o Force the defendant to make all threshold defenses at the same time o Rule 12 Within 20 days after service of process, you must make a motion or you must answer • Motion – request for a court order, not a pleading • Answer – a pleading Rule 12 (b) lists seven defenses that can be raised either by motion or answer • SMJ (1) • Personal Jurisdiction (2) • Venue (3) • Insufficient process (4) • Insufficient service of process (5) • Failure to state a claim (6) • Failure to join and indispensable party (7) Rule 12 (g) and (h) • Tells you that: o 2 – 5 must be put in the first Rule 12 response or else they are waived If you answer and then you realize you forgot to contest one of these, you can move to amend the answer o 6 and 7 can be raised for the first time any time through trial, not at appeal o 1 can be raised any time even for the first time on an appeal PLEADINGS – documents filed setting forth claims and defenses • Federal rules very liberal, just for putting each other on notice • Rule 11 o Requires attorneys to sign all documents except discovery o Signature certifies everything in Rule 11(B) o Procedural aspects of Rule 11(b): Effective every time document is brought to court Sanctions are discretionary – meant to be deterrents Motion for violation is served but not filed for 21 days giving other party time to fix it • Plaintiff’s Complaint – Rule 8(a) – what P files to start law suit o Must have three things: 6 Statement if SMJ Short and plain statement of the claim • Exceptions – 9(b) and (g) -fraud, mistake, special damages Demand for judgment – tell them what you want 8.e.2 – alternative theories • Defendant’s Response o Answer or motion within 20 days Motion to dismiss Summary judgment motion o Answer – pleading that must do two things: Respond to all allegations of the complaint by: • Admit • Deny o Failure to deny treated as admission except damages • I don’t know – lack sufficient info (acts as denial) Raise affirmative defenses • Officially waived if not in your answer • Admit that you did it, but there is some other reason that P can not win (statute of limitations, self-defense) • Rule 8(c) – lists affirmative defenses (not all inclusive) to know if P needs to raise or can be left to D • Rule 8(d) – P is deemed to deny affirmative defenses • Amended Pleadings – Rule 15 o 15(a) – three basic rules P has right to amend once before D answers (not a motion) D has a right to amend once w/in 20 days after answering If no right to amend, can seek court’s permission o 15(b) – concerns variance Where evidence at trial does not match what was pleaded • Other party doesn’t object, treat as if in the original pleading • Other party objects, evidence is inadmissible, but can motion to amend the pleadings to include o 15(c) – amending after statute of limitations has run Relation back – treat amended pleading as if filed when original was • If state law allows it 15(c)(1) • New claim against existing party if material is from same transaction, or occurrence as original claim 15(c)(2) • New D in case of technical defect, both P, old D, and new D knew you meant to sue new D 15(c)(3) Voluntary Dismissal: -(41.a.1) P can dismiss w/o prejudice (only 1st claim) before D answers or moves -(41.a.2) P can dismiss after D answered on court’s approval Involuntary Dismissal: -(41.b) Court may dismiss w/prejudice b/c failure to prosecute, pursue action, obey orders… -Court may dismiss if P fails to show entitlement to relief