Civ Pro I Course Outline PDF

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CIVIL PROCEDURE OUTLINE: FALL 2019 GREENBAUM Table of Contents Territorial Jurisdiction…………………………… 1 Modern ……………………………………………. 2 Modification of Minimum Contacts ………………3 Long-Arm and Modern Refined…………………...4 TJ in Federal Court…………………… ………….. 6 Notice……………………………………………….. 7 Subject Matter Jurisdiction……………………… 7 Diversity Jurisdiction……………………………… 7 Amount in Controversy…………………………… 8 Federal Question………………………. ………….. 8 Supplemental Jurisdiction……………………….. 10 Removal…………………………………………….. 11

Venue…………………………………………………12 Change of Venue and Forum Non Conveniens……12 Ascertaining the Law (Erie)……………………….. 15 Erie Doctrine Application…………………………..16 Choosing the litigation process: Costs……………...18 Notice Pleading………………………………………18 Pleading Special Matters……………………………19 Discovery……………………………………………..21 Summary Judgment…………………………………22 Jury Trials……………………………………………23 Preclusion Doctrine………………………………… 25 Res Judicata………………………………………….26 Collateral Estoppel………………………. …………28 Alternatives to Litigation…………………………. 29

REQUISITES OF A VALID JUDGEMENT Subject Matter Jurisdiction Territorial Jurisdiction Notice Venue GOALS OF DUE PROCESS Fair Play and Substantial Justice a. Interests of defendant b. Interests of plaintiff c. Interests of state d. Ease of access to witnesses/evidence Sovereignty of States a. Interstate federalism

Territorial Jurisdiction Whether the STATE may assert authority to hear a case involving a particular party/property (Within a court’s domain) Traditional Territorial Jurisdiction: States have jurisdiction over people and property within their boundaries, but no jurisdiction over those outside of them. –– Notice must be served within state boundaries Types of TJ: In personam (over persons)

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Personal Jurisdiction: action brought directly against an individual to establish personal liability on a claim –– brought by a court against a person/thing - Can only be asserted if exercise of power is authorized by statute and is consistent with the Due Process Clause of the Constitution In Rem (over property) - In Rem Jurisdiction: establish an individual’s interest in a particular property against all potential adverse claimants - Quasi-In Rem I Jurisdiction: an action brought to establish an individual’s interest in particular property against specific named parties - Quasi-In Rem II Jurisdiction: brought on a claim that does not relate to the property itself (ownership is not at issue), but in which jurisdiction is based on the attachment of property -

Pennoyer v. Neff (1877, US Supreme Court) - Issue: Can a state court exercise personal jurisdiction against a non-resident who was not personally served with process within the state but by publication in a newspaper? - Rule: No person is subject to the jurisdiction of a court of the state unless he: (1) Appear in the court, (2) be found within the state, (3) be a resident of the state, (4) have property in the state [only to the extent of such property at the time the jurisdiction attached] –– court authority only extends over the property therein - Quasi-in-Rem II Jurisdiction- must attach property at beginning to give fair notice to defendant and to secure jurisdiction (don’t want to allow defendant to sell property in the middle of case and lose jurisdiction) - Must have power (person/property present in the state), must exercise the power (serve with process/attach property), and must give notice (serve with process/attach property/publication) Territorial Jurisdiction is based on: - Citizenship- A state can have jurisdiction over its citizens even if they are not within its boundaries because, as citizens, they reap the benefits of privilege and protection and therefore have reciprocal duties - Presence- if person (corporation) is present in a state, that state can have jurisdiction - Status- fictional property within state (marriage) - Consent- if party gives consent to jurisdiction, court has it - Actual- give consent - Implied- actions within state - Voluntary Appearance- show up for the suit Modern Territorial Jurisdiction: Issue was how to deal with corporations outside of a forum state when jurisdiction sought Before: trying to fit corporations into in personam jurisdiction as we had before –– “ presence” (where the corporation is incorporated) or via “consent” ✭✭International Shoe Co. v. Washington (1945, US Supreme Court) ✭✭ Foundational case for territorial jurisdiction - Issue: Whether within the limitations of the Due Process clause, appellant has by its activities in Washington rendered itself amenable to proceedings in the courts of Washington - Rule: Three-Part Minimum Contacts Test (MODERN APPROACH FRAMEWORK) (1) What are the defendant’s activities in the forum? (General Activity) (a) Contacts, ties and relations with the forum (b) Can stop here for general jurisdiction, but GJ is RARE (2) Relationship of defendant’s activities in the forum to the cause of action being sued upon (a) Specific jurisdiction ground (3) Other facts? Is it consistent with fair play and substantial justice (a) More factors to consider in deciding whether jurisdiction should be had –– witnesses, travel to court, etc.- usually comes into play in the “maybe” situations (b) Ex: the state's interest in providing a forum for its residents - Fairness and reasonableness are the main factors for due process - Reasoning: Rejected presence and implied consent test for corporations. Minimum contacts new standard. - Minimum Contacts Standard: Defendant must have taken actions that were purposefully directed toward

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the forum state (such as selling goods in the state) - Ask defendant: what are their contacts, ties and relations to the forum?

MINIMUM CONTACTS TEST: ––––––––––––––––––––––––– General activity is Continuous + ––– Systematic

General activity is Casual + Isolated

Activities give rise to cause of action

YES Jurisdiction (Specific Jurisdiction)

Maybe jurisdiction (almost always YES)

Unconnected to cause of action

Maybe (sometimes) Jurisdiction –– NO jurisdiction “Whether or not the activity is substantial and of such a nature that it can allow jurisdiction” (General Jurisdiction)

General Jurisdiction: if the circumstances met, can be sued for anything in jurisdiction –– GENERAL activity - GA = Continuous/systematic + unconnected cause of action - Want this type of jurisdiction when (1) there is citizenship of individual (domicile) or corporation (incorporation), (2) When the individual is present, or (3) when the individual or corporation has sufficiently extensive contacts in the state and receives benefits therein - Can sue entity for anything, subject to liability anywhere Goodyear Dunlop Tires v. Brown (2011): Supreme court REJECTED the argument that continuous sales into a state can suffice to support general jurisdiction - In DICTA, the court endorsed the idea that a corporation is subject to general jurisdiction where it’s at home –– in its principal place of business or where it’s incorporated (equivalent of domicile) - Unclear whether they’re subject to general jurisdiction outside of these two categories Hertz Corp. v. Friend (2010): Supreme Court adopted “home office” or “nerve center” test for principal place of business for diversity purposes under §1332(c)(1). IN GENERAL: general in personam jurisdiction analysis should focus on the extent of the defendant’s in-state activity, and that activity may be much greater in states where a corporation has production or sales facilities than the state of the home office. Specific Jurisdiction: sued for a SINGLE, SPECIFIC cause of action that arises out of activities - G/A = Continuous OR isolated + connected cause of action - Sufficient with any level of minimum contacts or actual consent given - Can’t sue for anything, but can sue for actions related to the State Guidelines of Minimum Contacts Test: (1) Applies to individuals and corporations, though corporate defendants are really the only ones using this test (Kulko v. Superior Court –– 1978). (2) Limitations on personal jurisdiction found in long-arm statutes are distinct from constitutional limits imposed by the minimum contacts test (3) Defendant may have sufficient contacts with the state to support personal jurisdiction even if she did not act within the state (physically) (4) Focuses on the time of the defendant’s act NOT the time the lawsuit was filed - Parties who conduct activities in state accept risk that activities will require them to return

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DIFFERENT FROM SERVICE OF PROCESS TIMELINE: Burnham v. Superior Court (1990): Reaffirmed jurisdiction based on in-state service of process, which only requires that the defendant be present in the state at the time that the summons and complaint are served upon her –– need not have any contact with state at the time of the events giving rise to the suit Presence Jurisdiction: -

Corporation

NO jurisdiction based on mere presence [International Shoe]

Property

NO, jurisdiction based on mere presence [Schaffer]

Individual

YES, jurisdiction based on mere presence [Burnham]

Shaffer v. Heitner (1977 US Supreme Court) [Interest of property] Is the presence of property in a state enough for in rem jurisdiction? NO - Rule: Applying to in rem jurisdiction the same test of “fair play and substantial justice” as governs in personam jurisdiction - To justify in rem jurisdiction, the basis for jurisdiction may be sufficient to justify jurisdiction over ‘interests of persons in a thing” –– can’t sue a thing, only interests in the thing - Reasoning: Apply International Shoe Minimum Contacts Test to IN REM jurisdiction, too - Used to have two different ways of looking at personal & property jurisdiction, now the same Burnham v. Superior Court (1990 US Supreme Court) [Individual Presence post- International Shoe] Does the mere presence of a person in a state gives the court jurisdiction over that person? - Court determined that the mere presence of an individual in a state is enough to support in personam jurisdiction if personally served while in the state –– NO NEED FOR MIN. CONTACTS TEST IN THIS CASE - SPLIT on rationale: - Scalia: TRADITION/History controls –– presence remains a good form of territorial jurisdiction for individuals because it’s a continuing tradition within our legal system –– no need for minimum contacts test here. Once you’re in the state, you’re subject to suit there. - Brennan: Presence is a good standard because it’s consistent with minimum contacts test, since a person is voluntarily and knowingly in the state, therefore they should have clear notice that they may be subject to suit there (receiving benefits/privileges while they are in the state) Daimler AG v. Bauman (2014) [CORPORATIONS] Whether a foreign corporation was subject to personal jurisdiction in CA for actions taken in Argentina based on General jurisdiction? Rule: Contacts with the state are “so substantial and of such a nature” as to warrant general jurisdiction when continuous and systematic conduct in the state renders the defendant “AT HOME” there. - For Individuals: Domicile - For Corps.: (1) Place of incorporation, (2) Principal place of business, or (3) Exceptional Circumstances [Perkins = only case USSC found Gen. Jurisdiction]

Territorial Jurisdiction after Daimler: General Jurisdiction: Thing for which you’re so affiliated with, can even be sued for unrelated claims (can be sued for ANYTHING) in the forum–– based on substantial, continuous and systematic course of business - Corporations: “At Home” –– general jurisdiction in place of incorporation or principal place of business - Persons: place of domicile Specific Jurisdiction: must be a specific tie between the defendants activity in the forum state and cause of action being sued upon Consent: has always been a ground for personal jurisdiction as long as it’s actual consent, not implied (Int. Shoe)

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Long-Arm Statutes and Modern Refined (World Wide Volkswagen test is MOST RECENT w/ BK emphasis) -

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Long-Arm Statutes: Works to extend jurisdiction Common law bases are given (presence, consent, citizenship) –– Some reach the boundaries of due process, others are limited –– if due process allows a state jurisdiction, it doesn’t have to take it. - Statutory basis for jurisdiction not needed for presence of an individual and consent - Statute needed for all other bases of TJ Goals of due process in TJ: - Protect defendants against the burdens of litigating in a distant/inconvenient forum –– based on fair play and substantial justice (would need to be a substantial burden for no fair play) - Ensures that states do not reach out beyond their own sphere of sovereignty –– intra-state federalism: need something that respects the sovereignty of each state and makes sure that no one overreaches where the case should be handled in another state - NEED BOTH THESE GOALS TO HAVE PROPER JURISDICTION Expansion of TJ (between International Shoe and WWVW): - Emphasis on reasonableness and fairness (FPSJ) - Expansion of interstate commerce –– more contact between in-state plaintiffs and out-of-state defendants - Reduced burdens of travel + communication –– easier to fulfill FPSJ factors

✭✭World-Wide Volkswagen Corp. v. Woodson (1980, USSC) ✭✭ Adding to our minimum contacts test from International Shoe –– but curbing expansion of TJ –– the more interrelationships between states, the more cautious courts had to be - Plaintiffs brought suit in OK against the manufacturer (audi), importer (VW America), distributor (WWVW) and dealer (Seaway) –– Long arm statute of Oklahoma says “substantial revenue” extends jurisdiction over corporations and manufacturers - OK argued that audi/VW earned substantial revenue via car buyers in the state –– SUPREME COURT DOES NOT BUY THIS ARGUMENT - Rule: State court may exercise in personam jurisdiction over a non-resident defendant only so long as there exists minimum contacts between the defendant and the forum –– due process clause does not contemplate that a state may make a binding judgement in personam against individual/corp defendants with which state has no contacts, ties, or relations - Need affiliating circumstances for State Court TJ (in addition to g/a in forum state + relationship to c/a) - REASONABLE ANTICIPATION: Defendant should reasonably anticipate being hailed into court in the state where the cause of action took place - Anticipate = knowledge - What makes it reasonable for the party to expect a suit? Reasonableness = Knowledge+ - Volume of business –– can foresee products ending up in various locations –– potential of liability increases as the volume increases, companies plan on suits - Dangerousness of product –– selling such an inherently dangerous product, can reasonably anticipate a suit where it’s sold - Value –– if product is expensive, plan around its value/expect something to happen where it’s going - WILLFUL BLINDNESS IS NO DEFENSE, should KNOW - PURPOSEFUL AVAILMENT: Defendant purposely availed himself of the privilege of conducting activities in the state, which gives clear notice that defendant is subject to suit there - An intentional act by one party directed into a certain state, permitting the state to exercise jurisdiction over said party - Action must be purposeful –– implies intent - SERVING THE MARKET: Defendant directly or indirectly serves the market in the State - Could be either where customers are from or the place of sale –– argued both ways depending on purposeful availment or reasonable anticipation - Foreseeability is NOT enough, unilateral activity by another with a relationship tot the defendant

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is not enough Three lessons from WWV: (1) Practical lesson: Forum Counts - people may have reasons for wanting state v. federal court (& vice versa) (2) Jurisprudential lesson: law is not static, it evolves (3) Lawyering lesson: unsettled law and the indeterminacy of language - manipulate language to support ideas ON AN EXAM: Apply the 3 views of Affiliating circumstances for TJ and see whether there is jurisdiction (1) Reasonable anticipation –– knowledge+ (dangerousness, value, etc.) (2) Purposeful Availment –– action purposely directed toward state (3) Knowledge –– anticipation in general

Specific Jurisdiction in post-WWVW world ✭✭Burger King Corp v. Rudzewicz (1985) –– MOST RECENT TJ CASE✭✭ [Contract case] - Revised minimum contacts test: - Branch 1: Sovereignty - General Activity (contacts, ties and relations of defendant to forum) - Cause of Action (relationship between c/a + g/a in the forum) - Affiliating circumstances (knowledge, knowledge+, purposeful availment, maybe serving market) - Branch 2: Fairness - Fair Play and Substantial Justice factors –– witness travel, ease of travel, protect defendant, etc. - Rule: Apply Totality of Circumstances test –– look at contract and surrounding circumstances - ✭Gives weight to Branch 2- If Branch 1 (contacts) is really strong, need compelling case showing that the forum is unfair for TJ. If Branch 1 isn’t really strong, then if Branch 2 is really strong, TJ is good. Choice of law provisions + Forum Selection clauses Forum Selection: places where lawsuit may (sometimes MUST) be filed; provides personal jurisdiction by consent - Examples: agree to submit TJ in State X, agree that suit may be brought only in State X (exclusive) Choice of Law provisions: law to be applied regardless of forum (Burger King) - Affects territorial jurisdiction but does not grant it –– not consented to by this provision alone - Policy debate: some say this comes with freedom of contract and ability to plan, others say potential for overreaching boundaries of TJ Bristol-Myers Squibb - Pre- BMS tests: (1) “Arise out of” defendant’s activity in the forum (2) “Connected with” activity in the forum (3) Claims unconnected to activity, but “Relate to it” Territorial Jurisdiction in Federal Court - Constitutional limit: minimum contacts with the United States (not commonly used) - Long-Arm Statute –– ✭FEDERAL RULE 4(K) - Clause (1)- if state court has jurisdiction, federal court in the same state can have jurisdiction - Federal court could also get TJ through statute - Clause (2)- If consistent with the Constitution, federal TJ can be had over actions in which Δ has minimum contacts with the US, but not enough with any one state to be subject to TJ in any state

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Territorial Jurisdiction

Over property (in rem)

Over persons (in personam)

General jurisdictio n

Corps .

Apply International Shoe and its progeny Specific jurisdiction

Interstate Federalism Factors AND Fair Play and Substantial Justice Factors

individu als

–– Must meet both but interstate federalism is the most important (Burger King)

Notice Tell other party an action is being brought against it (Due process of 5th and 14th amendments) ✭✭Mullane v. Central Hanover Bank & Trust Co. (1950 Supreme Court)✭✭ - For purposes of notice, jurisdiction labels are irrelevant –– can’t say you have power over out-of-state parties if you can’t send them notice - Service can be effective outside State boundaries if the state has a strong interest in non-residents - RULE: Notice must be reasonably calculated to inform under ALL circumstances - Nature –– will reasonably convey the necessary information - Time –– reasonable time to allow for appearance - Means –– something reasonable that a person who wanted to inform would adopt - Flexible –– under all circumstances; due regard for the practices and peculiarities (not so rigid) Classes of beneficiaries –– different notice requirements for different classes of people (1) People whose whereabouts are unknown and cannot be determined with due diligence –– a customary alternative (such as publication) is sufficient (2) People whose interests are not current in the suit –– customary alternative sufficient (3) People who are known beneficiaries –– publication not sufficient, (RCI or best alternative, like mail) - M...