Docstoc

CIVIL PROCEDURE OUTLINE

Document Sample
CIVIL PROCEDURE OUTLINE Powered By Docstoc
					CIVIL PROCEDURE OUTLINE

PERSONAL JURISDICTION

Pennoyer v. Neff: “Every state possesses exclusive jurisdiction and sovereignty over
persons and property within it’s territory.”

FACTORS FOR PERSONAL JURISDICTION:
  1.) Citizenship
  2.) Presence within the state of non-citizenship.
  3.) Consent
  4.) Property attached at the beginning of lawsuit (judgment limited to value of prop.)

      The state in which you live always has Personal Jurisdiction over you.

PROPERTY JURISDICTION:
  1.) Property within the state.
         a. The law assumes that you know what is going on with your property, and
             that you are responsible for actions regarding it.

       Basis for Property Jurisdiction
       1.) IN PERSONAM
              a. Consent (service of notice does not matter)
              b. Citizenship of State (personal service of notice required)
              c. Presence in State (personal service in state required)
       2.) IN REM
              a. Presence of property in State (publication or personal service required)
       3.) QUASI-IN-REM (judgment limited to value of property)
              a. Attachment of Property present in State (publication or personal
                  service of notice required)

       PROPERTY JURISDICTION IS NOW CONSIDERED TO BE
       “CONTACT” IN A MINIMUM CONTACTS CLASSIFICATION

CONSENT: A defendant can always consent to personal jurisdiction
   By filing an appearance, defendant accepts IN PERSONAM judgment.
   Allows Plaintiff to sue for greater amount than QUASI-IN-REM would allow
   Filing of a counterclaim or other use of court implies Consent of a defendant.

FULL FAITH AND CREDIT CLAUSE: A judgment in one state is enforceable in
another state (Constitution: Laws and Rules of X State must be respected by all others)
    Does not allow one state to violate due process of defendant.

Extending Jurisdiction
International Shoe: Watershed case in extending jurisdiction of states. Established two
principles that the court will use to determine jurisdiction by examining D’s contacts with
forum state:
    1.) The more continuous and systematic the contacts with the forum state are, the
        more likely the state will be able enforce it’s jurisdiction.
    2.) The contacts should be the cause of action.

       International Shoe Spectrum:

               Extent of Contacts                    Jurisdictional Contacts
               No Contacts                           No Jurisdiction

               Sporadic or Casual                    No Jurisdiction
               (not related to cause of act)

               Single Act                            Specific Jurisdiction
               (related to cause of act)

               Sporadic or Casual                    Specific Jurisdiction
               (related to cause of act)

               Continuous and Systematic             General Jurisdiction
               (not related to cause of act)

MODERN APPROACH TO PERSONAL JURISDICTION
  1.) Defendant must have minimum contact with forum state
  2.) Fair Play and Substantial Justice required.

   FACTORS:
     1.) Number of Contacts (More contacts, the more likely the forum state’s court
         will be able to exercise jurisdiction.)
     2.) Whether contacts are related to cause of action.

LONG-ARM STATUES

       FACTORS:
       1.) NUMBER of contacts: the more the better (McGee: Single contact may be
           sometimes enough to grant jurisdiction.
       2.) Contacts must be PURPOSEFUL
              a. O’Conner: Requires advertising, sales agents, etc.
              b. Brennan: Regular flow + knowledge equals contacts.
       3.) RELATEDNESS of contacts: More related, the better
       4.) FAIRNESS is important (McGee)
              a. Forum State must have interest
              b. Plaintiff’s interest must be taken into account
              c. No undue burden on plaintiff
OVERVIEW OF PERSONAL JURISDICTION
  1.) Minimum Contacts:
         a. More is better
         b. Related is better
         c. One contact may be enough if it has enough connections.
         d. Cause of action did not “arise out of” contacts in the forum state.
         e. Contacts must be purposeful (defendant must have purposely availed itself
             of the laws and benefits of the forum state)
         f. No contacts, no personal jurisdiction
         g. Taking product into forum state is not enough to constitute minimum
             contacts.
  2.) “Fair Play” and “Substantial Justice”:
         a. Convenience for defendant and plaintiff
         b. Forum state must have some interest
         c. Plaintiff must have interest in the forum state
         d. There must be shared interest of states/judicial system.

FLOW OF COMMERCE:
     BRENNAN: Injection of product into the regular flow of commerce, plus
     knowledge that it will come to the forum state, is enough to equal minimum
     contact.
     O’CONNOR: There must be some other action, such as advertisement in the
     forum state, sales representatives in the forum state, or perhaps marketing of a
     product specifically for the forum state.

NEW BASES OF JURISDICTION: TECHNOLOGICAL

TELEPHONE AND E-MAIL
   States can assert personal jurisdiction over non resident defendants who commit
     injuries over telephone and e-mail if the telephone calls and electronic mail were
     purposefully directed to the forum state.
   Personal jurisdiction is usually not exercised when injuries occur over a single
     unsolicited phone call.

“ZIPPO INTERNET CASE TEST”-
   1.) “Active Sites”: Commercial sites that regularly conduct business through the
       internet (online stores, etc.) These are always subject to personal jurisdiction in
       states.
   2.) “Interactive Sites”: Websites where you access them to get information, but do
       avail themselves for interaction, such as e-mail contact, message boards, etc.
   3.) “Passive Sutes”: Informational websites. They provide free information only, with
       no requirement from the user. These sites are almost never subjected to
       personal jurisdiction.
SHAFFER v. HEITNER: Eliminates the distinction between IN PERSONUM and IN
REM jurisdiction.

CONSENT
   By filing a special appearance to contest jurisdiction, a defendant is consenting to
    the court’s authority to determine

Consent can be achieved in several ways:
   1.) Show up in court and say, “I consent to jurisdiction”
   2.) File a general appearance
   3.) Special appearances show consent to court’s jurisdiction to determine whether
       there is personal jurisdiction.
   4.) Corporation can consent by appointing an agent for service of process (in addition
       to having minimum contacts).
   5.) Through contract that consents to personal jurisdiction.

      “Forum Choice Contracts”: Provisions in signed documents that establish,
       contractually, where any disputes in the case to be litigated in.
          o Supreme court has held that a forum choice clause should decide where a
              case ought be litigated if it has been agreed upon via contract.

CONTESTING PERSONAL JURISDICTION

   1.) Direct Challenge
           a. “Special Appearance” before the court.
           b. Motion-to-Dismiss for lack of Personal Jurisdiction pursuant to 12(b)(2) in
               federal code.
                    i. Must be made prior to the trial.
           c. First pleading/response contest to Jurisdiction
           ADVANTAGE: Allows defendant to retain the right to challenge merits of the
           case. If a default judgment is entered, only thing that can be challenged is
           jurisdiction.
   2.) Limited Appearance: In some states, a defendant can make an appearance to
       contest jurisdiction involving attachment—can only contest up to the value of
       attached property.
   3.) Collateral Attack: No attack on first case. Instead, D waits until a default
       judgment has been entered and then challenges personal jurisdiction
       ADVANTAGE: Does not require a defendant to actually show in court, which
       lends credit to belief that there is lack of minimum contacts.

SERVICE

      Notice must be reasonably calculated, under all the circumstances, to apprise
       interested parties
           1.) Personal service must be given to known defendants. (BEST OPTION)
           2.) For unknown defendants, service ought be sent to their last known
               address, and plaintiffs must use due diligence in attempting to locate the
               defendant.
           3.) If defendant cannot be found, then notification via publication is
               constitutionally acceptable.

RULE 4: Federal Rules of Civil Procedure

Rule 4(c): Any person not a party to the lawsuit, at least 18 years old, can effect service
in federal court. (Generally, a U.S. Marshall, Sheriff or Professional Process Server)

Rule 4(d): (Notice via Mail)
    Service by mail is allowable if defendant waives personal service.
    Gives defendant incentive to respond (if he does not, he must pay cost of personal
       service)

Rule 4(e):
    This rule allows for service pursuant to state law.
    Personal Service must be given to:
           o Person of suitable age at residence of the person receiving service.
           o Authorized agent of the person

      Details of service are important ; if mistakes are made, in the process of service to
       one side or the other, defendant will walk free.
      It is OK for an agent for service of process to be appointed so long as they fulfill
       their duty to transmit all legal court documents required by law.

“Motion to Quash”- Motion to dismiss based on improper service.
“Summons”- What is actually being served by server of process.

CORPORATE SERVICE:
   Anyone who is “Well-integrated” into the fundamental nature of the corporation
     can be considered an adequate individual for service of process.
   A corporation may assign the task of accepting process.

IMMUNITY FROM SERVICE:
   Someone in the forum state for the purposes of a trial is immune from personal
    service.
   Diplomats residing in the United States are also immune from service of process.
   If an individual is enticed into jurisdiction by fraud or trickery, service of process
    is invalid.

SUBJECT MATTER JURISDICTION
   Objections to jurisdiction can be raised at any time.
   Once a court finds it lacks Subject Matter Jurisdiction, it must dismiss the case.
STATE COURT SUBJECT MATTER JURISDICTION:
   State courts are courts of “unlimited jurisdiction” (State courts can hear ANY
     actions within their borders)
   Congress can limit by creating exclusive jurisdiction for some federal remedies.

FEDERAL COURT SUBJECT MATTER JURISDICTION

Article III of the U.S. Constitution enumerates the powers of the federal court system.
     Federal courts are structured in order to maintain to separation of powers.
     All federal court powers are derived from Article III.

DIVERSITY JURISDICTION (§1332)
    Exists to protect out of state litigants from prejudice

   REQUIREMENTS
     1.) Complete Diversity
           a. No plaintiff can be from the same state as any defendant.
           b. Citizenship of a case is determined at the time the case is filed.
           c. Citizenship is a person’s “true, fixed and permanent home and
               principle establishment to which he has intention of returning”
                   i. When individual has more than one residence, there are several
                       factors to use in determining the person’s domiciling:
                           1. Place of Employment
                           2. Bank Accounts
                           3. Mailing Address

       2.) Amount in Controversy:
             a. Must be over $75,000
             b. Amount must be determined in good faith and with some legal
                certainty of the outcome (Duetsch v. Hewes Realty)

       3.) Rules:
              a. 1 Plaintiff, 1 Defendant: Claims can be aggregated, even if not related
              b. Multiple Plaintiffs, 1 Defendant: Claims cannot be aggregated, unless
                  the plaintiff can show that they have a single, indivisible harm or a
                  common undivided interest.
              c. Multiple Defendants: No aggregation unless D’s are jointly liable.

CORPORATE DIVERSITY:
   Corporations are considered citizens of states which they are incorporated in, and
   Principle Place of Business
        o “Nerve Center Approach”: Determines principle place of business by
           where decisions about corporations are made.
        o “Corporate Activities Approach”: Where the production of the corporation
           is centered.
           o “Total Activity Approach”: Combines nerve center approach and
             corporate activities approach.

UNINCORPORATED ASSOCIATIONS: (Partnerships, Unions)
   Considered to be citizens of every state in which they have a member.

NOTES:
     §1339: Prohibits creating diversity jurisdiction via collusion or manipulation.

FEDERAL QUESTION JURISDICTION- §1331
   Federal Question Jurisdiction is determined by the Plaintiff’s complaint, in the
    form it would be well pleaded in (“Well Pleaded Complaint” rule from Mottley)

DETERMINING FEDERAL QUESTION JURISDICTION:
   If Plaintiff’s cause of action based on only federal, there is FQJ
   If Plaintiff’s cause of action is based only on state law, there is no FQJ.
   Combination of State and Federal Law:
         o If losing on federal law means loss on whole case, then there is FQJ.
         o If losing on federal is not totally decisive (plaintiff could still win on state
            law), then there is NO FQJ.
   If there is no private right of action (right to sue) in a federal act, there is no FQJ.

SUPPLEMENTAL JURISDICTION (§1367):
   Federal courts may hear state law claims, supplementally, when the federal
     claims and the state law claims derive from a common nucleus of operative
     facts.
         o Courts can decline to hear supplemental jurisdiction when:
                 There is a danger of juror confusion between state/federal law
                 Federal claims have been dismissed, leaving only state claims
                 It appears that the state issues dominate the facets of case
   There must be a “Common Nucleus of Operative Fact” (as by Gibbs case)
         o Codified as “Part of the same case or controversy” (§1367(a))
   Courts is prohibited to hear claims of plaintiffs against non-diverse defendants
     pursuant to §1367(b)
         o Defendant is free to cross-claim or interplead against a non-diverse party,
            however.

       ZAHN and the $75,000 Question:
         o Roughly ½ of courts will allow a claim that does not meet the $75,000
            diversity requirement to be added so long as the main claim (nucleus
            claim) meets the requirements (1367b Rule)
         o The other ½ holds that all parties in a case must meet the $75,000
            jurisdictional requirements, even the ones which are added under
            supplemental jurisdiction (Zahn Rule)
      If there is no prohibition, the court can utilize it’s discretion pursuant to §1367(c)
       to dismiss supplemental claims when:
            o Claim raises a novel issue of state law
            o The claim substantially predominates over the claim or claims over which
               the district court had original jurisdiction in.
            o The district court has dismissed all claims over which it has original
               jurisdiction, or
            o In exceptional circumstances, there are other compelling reasons for
               declining jurisdiction.
                     Economy
                     Fairness
                     Comity

REMOVAL JURISDICTION (§1441)
   Allows the defendant to choose the forum by having a case removed from state
    courts to federal courts
   Removal must be filed for in 30 days after the initial hearing or service
       o Remand can be made at any time before the judgment.
   ONLY a defendant can file for removal of a case.
       o “Well Pleaded Complaint” rule still applies: court looks at plaintiff’s
            complaint to determine whether or not removal/remand is in order.

SEPARATE AND INDEPENDENT CLAIMS:
     1.) §1441(c) allows the court to hear claims only when jurisdiction is based on
         §1331 Federal Question
     2.) This does not apply when there is not diversity.

INTERLOCKED CLAIMS:
     1.) §1367 determines whether or not supplemental jurisdiction can be exercised.
         If it can be, then §1441 authorizes removal of claims to federal court
     2.) Discretion to hear claims comes from §1367(c)

VENUE (§1391)
   Determined by the statute, not the constitution
   Venue is always about location and convenience
   When talking about venue, it is a federal district, not just a state

   1.) District where any DEF resides, if all DEFs reside in the same state.
   2.) District where a “substantial part of events or omissions” occurred
   3.) If there is no district where action otherwise can be brought, proper district is
       where the DEF is subject to personal jurisdiction
            a. Only applicable when 1 and 2 cannot be used.
   4.) §1391(c) Corporations: Venue is whatever venue would have Personal
       Jurisdiction over the corporation
   5.) §1391(a) Aliens: can be sued in any district
TRANSFER OF VENUE
   If original venue is proper §1404
        o Convenience of parties and witnesses
        o Action could otherwise be brought
   Original venue not proper §1406
        o Dismiss or, in interests of justice, transfer

FORUM NON CONVENIENS
   Triggered when the venue in the original court is proper.
   Case could have been brought in another court

              Private Interest:
                   Access to proof
                   Convenience of Witnesses
                   Availability of process (possible to subpoena witnesses?)
                   Presumption of the court is in favor of the Plaintiff’s choice.

              Public Interest:
                  Administrative difficulties would be made easier by change
                  Jury Duty would be less cumbersome
                  Diversity ; prefer state whose law would apply.

      Form Non Conviens plaintiff’s preference is given less weight when plaintiffs
       are foreign.

       APPEALS: Can only appeal abuses of discretion on the part of the district court
       judge.

APPLICABLE LAW: STATE v FEDERAL

Erie R. Co. v. Tompkins: Federal court applies state statutory law and state common law
to all substantive matters before a Federal court sitting in diversity.
    - Federal law prevails on procedural matters.

The York Trio:
    Cases that determined that the state courts and federal courts should reach same
      decision.
          o If applying federal law would change the outcome of the case, then the
               federal court would apply state law.

The Official Test (4 Steps):
   1.) Does the Federal Statute or Rule directly conflict with State statute or rule?
           a. YES: Federal Rule is Applied
           b. NO: Step 2
   2.) Is the issue clearly substantive?
           a. YES: Apply State Law
         b. NO: Step 3
3.) Will the application of federal law change the outcome?
         a. YES: State Law
         b. NO: Step 4
4.) If the issue is clearly not outcome determinative, apply the Byrd test: determine if
    the issue is “bound up” with the substantive rights of the parties. If the answer is
    yes, apply state law. If the answer is no, balance federal and state interest.


   SUBSTANTIVE: Does the law affect the rights in the party in court.

   PROCEDURAL: Rules/Laws that determine how a court adjudicates the
   outcome.

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:48
posted:4/26/2010
language:English
pages:10