Civil_Procedure_Exam_Analyses by mattheworso

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									Civil Procedure Exam Analyses PERSONAL JURISDICTION
I. Does the State long arm statute confer jurisdiction?  If yes, move on  If no, then no Jx Is the exercise of Jurisdiction Constitutional? A. Was D personally served within the forum state according to proper procedure?  if yes, Ct. may constitutionally exercise PJx (Burnham)  If no, See B or C B. Did D intentionally direct his tortious conduct at a forum state and intend to cause harm in that state? (circular argument → making final judgment just to assert Jx)  If yes, Ct. may have Jx under the ―effects test‖ (Calder v. Jones)  If no, see C C. Did the D have minimum contacts such that the exercise of Jx is consistent with fair play and substantial justice? (Int’l Shoe) ***If property is in state must still establish minimum contacts (Scheaffer) Was D’s Contact w/ the forum state continuous and systematic?  if yes, then this establishes General Jx and the claim need not be closely related to contacts (Hanson)  if no, move to 2 2. Does P’s claim arise out of D’s contacts w/ forum state?  If yes, then this establishes (specific Jx) and Ct. can exercise Jx. (McGee)  If no to 1 or 2, then No Jx 3. If 1 or 2, are Contacts a result of Purposeful Availment? (Hanson v. Denkla)  Are the contacts random or attenuated? (must be no) – Volkswagen  Are they such that D could reasonably foresee being haled into court in the forum state? (Volkswagen)  Are D’s acts merely placing a good into the stream of commerce? i. O’Connor analysis: placement into the Stream of Commerce + Knowledge is not enough to establish purposeful availment, must have additional acts such as advertising for that market, designing for that market, etc. (Asahi) ii. Brennan Analysis: placement into the Stream of Commerce + Knowledge and expectation of purchase in that market is enough to establish purposeful availment, or sufficient quantities. (Asahi) Once minimum contacts are established, is the exercise of Jx consistent with traditional notions of fair play and substantial justice? (Burger King)  Very heavy fair play factors can override min. contacts, like in Asahi, but rare  Need stronger minimum contacts where fair play factors are very strong  Ct. balances forum state’s interest in providing the forum  The P’s interest in obtaining convenient and effective relief  The interstate judicial system’s interest in obtaining the most efficient resolution of controversies  The shared interest of the several states in furthering fundamental social policies 1.

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Any Special Bases for Jx?  Implied Consent (Hess)  Waiver 12(h)  Cts. generally honor forum selection clauses Is Jurisdiction sought in a federal case? - FIXXXXXXXXXXXXXXXXXXX  Rule 4(k)(1)(A) provides  So long as it is consistent with the Constitution, federal courts have personal jurisdiction with respect to claims based on federal law over defendants are subject to the jurisdiction of the courts of general jurisdiction of any state  Simply apply the minimum contacts test to establish constitutionality Are there any challenges to Personal Jx?  Collateral Attack? If you challenge jurisdiction in the enforcing court after failing to make an appearance and the rendering court entered a default judgment against you. o This is risky because if the enforcing court does not rule in your favor on the Jx challenge, you will not have an opportunity to litigate or defend the matter due to the Full Faith and Credit clause – it is already decided. o D may not challenge personal Jx collaterally if he already challenged in the original action directly.  If under Direct Attack you make a challenge and lose o D may defend on merits of suit o If D loses suit, may in appeal, argue the Jx was incorrect  Special Appearance under Federal Rules? ] o D may make objections to the merits w/o waiving objection to Personal Jx, but o D must first object to personal Jx before making objections to the merits.

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DUE PROCESS
Sufficiency of Service Test I. Method of service authorized/ required by state law or the FRCP (Rule 4)?  Rule 4 – i. (a) Requirements for summons: signed by clerk, seal of ct., identify the court and parties, directed to D, name and address of P or P’s attorney, Time within which to appear, notification of failure will result in default judgment ii. (c)(1) Summons must be served together w/ complaint (2) service may be effected by any person not a party and is 18 y/o or older iii. (e) Personal Service for Individuals w/in US: Must not be an infant or incompetent, will be valid (1) per sate law, (2) personal service/ delivery to dwelling house or usual place of abode, must be received by one of suitable age, who lives there. Delivery may be made to an authorized agent to receive service iv. (f) Service on individuals in foreign country: (1) internationally agreed means (Hague convention) (2) or other applicable international agreement that is calculated to give notice (A) per law of foreign country (B) as directed by foreign authority (C) by personal service or any form of mail requiring signed receipt. v. (h) Service on Corporations: (1) in a judicial dist. in the US in the manner in (e)(1) or by delivery to an officer or a managing or general agent or other agent authorized by appointment of law to receive service. (Mailing may also be authorized). Notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”? – Mullane  doesn’t say it actually has to reach them  FRCP are constitutional minimums but states may go further  Must: i. reasonably convey the required information ii. afford a reasonable time for those interested to make an appearance iii. employ a means that a person desirous of actually informing the absentee might reasonably adopt to accomplish it. iv. be either reasonably certain to inform those affected, or …not substantially less likely to bring home notice than other of the feasible and customary substitutes.  Notice by Publication - Mullane Has Service Been Waived?  Rule 4(d) i. (1) D may waive service. This does not affect objections to venue or Jx ii. (2) FRCP doesn’t allow mail, but mail of request of waiver per 4(d)(2) may suffice  D who waives before being served has 60 days after request per 4(d)(2) was sent. (90 day if outside US)

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SUBJECT MATTER JURISDICTION
I. ARISING UNDER JURISDICTION– 1331  28 USC § 1331 – the District Cts shall have original Jx of all civil actions arising under Constitution, laws, or treaties of the US.  Arises under federal law when P’s statement of his own claim shows it is based on federal law (Well-Pleaded Complaint Rule).  Plaintiff’s anticipation of defendant’s federal defense is not enough to establish arising under jurisdiction. i. Does federal law create P’s cause of Action? 1. If yes, then the court has SM Jx 2. If no, go to ii ii. Does Plaintiff’s right to relief on a state claim necessarily depend on resolution of a substantial issue of federal law? (Franchise Tax Board, Grable, Merrell Dow) 1. Must weigh the gravity of the federal interest, and the claim must have some plausibility 2. If Yes, then the court has SM Jx 3. If No, then look to iii iii. Where federal law creates a substantive right but no explicit cause of action [right to sue], does it create an implied cause of action [right to sue]? (Merrell Dow) (sometimes applies where constitutional rights violated) 1. Courts may imply a federal cause of action if a. P is a member of a protected class b. There is evidence Congress intended to create an explicit or implied remedy c. implying a cause of action would fit in the underlying regulatory scheme d. implying a cause of action would not infringe on traditional state regulation e. implying a cause of action would not lead to a flooding of Fed Cts over similar cases 2. If court does not find an implied right here, then it must dismiss. **Artful Pleading exception: If a P pleads only a state law claim, but federal law completely preempts the state law claim, Courts will construe it as essentially a federal law claim. **Skelly Oil Rule: But for the availability of the declaratory judgment the federal claim would arise only as a defense to a state created action, jurisdiction is lacking. [―Because I’m filing a federal declaratory judgment cause of action, I have a federal cause of action regardless of the underlying claim.‖—Failed argument]

II. DIVERSITY JURISDICTION – 1332  28 USC § 1332(a) – A district court shall have original jurisdiction of all civil actions where the amount in controversy exceeds in sum or value of $75K exclusive of interests and costs and is between  (1)Citizens of Different states (complete diversity—Strawbridge)  (2)-(4) Deal with foreign states and citizens of foreign states  2 Steps to Establish Diversity Jurisdiction → measure diversity at the time the action is filed 1. Determining Citizenship  For US Citizens, determine where person is domiciled – mere residence is not enough  Domicile: a place of true, fixed, permanent home and principle establishment and to which he has intention to return when absent.  If domicile has changed then party must show 1) he has taken up residence in the new place, and 2) he has an intention to remain there  For Corporations—1332(c)(1)  Corporation is citizen of state where incorporated, as well as state where principle place of business o To determine the principle place of business: depends on situation and circuit  Bulk-of-the-Activity approach  Nerve center approach (hq)(when tough to tell bulk of activity)  Modern-Mixed Approach—look at the totality of the business (many cts)  For Unincorporated Organizations—Gibbs  Deemed to be a citizen in any state where any of its members are citizens 2. Determining the Amount in Controversy  P’s amount claim must be in good faith  There has to be some reasonable dispute to the amount  The final judgment need not exceed 75K  Look to the value of the object if not measured by money  1 plaintiff with more than 1 claim  Plaintiff may aggregate amount of its multiple claims as long as they add up to exceed 75K  May not duplicate damages  If 1 plaintiff and 2 defendants, cannot aggregate if the claims do not arise out of the same cause of action.  Multiple Plaintiffs  One plaintiff must exceed the 75K amount, others get supplemental jurisdiction as long as don’t violate 1367(b) – Exxon  Class Actions—1332(d) if exceed 5 million simple diversity is okay; if not, need 75K anchor claim and others get supplemental jurisdiction (but then need complete diversity) - Exxon III. SUPPLEMENTAL JURISDICTION – 1367  28 USC § 1367(a) except for (b) and (c), federal court have supplemental jurisdiction over all claims that are part of the same case or controversy under Article III as a claim over which it has original jurisdiction. o The state and federal claims must derive from a common nucleus of operative fact – Gibbs o If the claim does not derive from common nucleus of operative fact, then no supplemental Jx  If anchor claim is “arising under” then supplemental jurisdiction is good—this includes claims that involve joinder or intervention  If the anchor claim is a diversity claim, 1367(b) limits supplemental jurisdiction stating the district courts shall not have supplemental jurisdiction under subsection (a) over claims by [original] plaintiffs against defendants made parties under: rd o Rule 14(a) – 3 -party D’s o Rule 19(a) – Compulsory Joinder o Rule 20 – parties permissively joined o Rule 24 – Intervention  Imagine P would have sued such parties originally and then see if they meet diversity requirements. o …Or over claims by persons proposed to be joined as Ps under Rule 19 or seeking to intervene as Ps under Rule 24 o Otherwise, P could get around diversity req’ts and get into Fed ct when diversity isn’t really there Claims still allowed: o Rule 20 Plaintiffs where amt in controversy is problem and there is a $75K anchor claim → still need complete diversity o Rule 23 class action Ps – same as Rule 20 Ps – need $75K anchor claim and still need complete diversity o Cumpulsory Counter claims 13(a) o Additional parties to compulsory counterclaims 13(h) o Cross Claims 13(g) – D vs. D rd rd rd o Impleader 14 – 3 party D’s claims by and against 3 party P; 3 party D against original P Is there a reason to decline supplemental Jurisdiction? 1367(c) o The claim raises a novel or complex issue of state law o The claim substantially predominates over the federal law claim or claims o The District court has dismissed all claims over which it has original jurisdiction o Exceptional circumstances: there are compelling reasons for declining jurisdiction Procedure – 1367(d) o Tolling period of 30 days

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