Civ Pro Outline Freer Book 2018 PDF

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Outline for the summaries of cases in the book....

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Civil Procedure Outline ● Modern goal of civil procedure is to “secure the just, speedy, and inexpensive determination of every action and proceeding.” FRCP 1. ● Supremacy Clause provides that the Const. is supreme law of land. Federal law trumps state law. ● Const. addresses scope of federal power but also can impose direct restrictions on power of states. 14th Amendment provides that “No state shall deprive any person of life, liberty, or property, without due process of the law.” ● Trial courts have original jx. ● Appellate courts don’t try cases, so they don’t receive evidence/hear witnesses. Rely on record below, briefs filed by counsel, and oral argument. Appellate courts have panels consisting of multiple judges. Appellate Courts are limited to review of errors of law and even when there is error of law, doctrine of harmless error allows an appellate court to affirm a judgement even when the lower court made a mistake. o Appellate pronouncements are binding on lower courts due to the doctrine of precedent (stare decisis). Stare decisis lends consistency and stability to application of law. o Responding to changes in law, a court or higher court can overrule its opinion. This process of elaboration is the heart of common law system. ● Under Amer. Rule, each side pays her own attorney’s fees. Litigation is expensive, people must pay lawyers which may limit how much they recover. General Notes: ● Civil Procedure encompasses rules and procedures for civil claims. ● Sources of Law: (1) FRCP (2) Constitution (3) Statutes (4) Case law o Positive law: Statute and constitution. Courts review positive law. ● Formalism: evoked by rule of law; clearly defined rules, uniform, predictable, rules make before wrongdoing (prospective view) Functionalism: rooted in notion of individualized justice, ex parte/retrospective, more fair? Unit 1: Personal Jurisdiction Personal Jurisdiction – asks whether given court has the power/authority to make a decision that is binding on Defendant. Personal jurisdiction (jx) has three general types: (i) in personam (ii) in rem and (iii) quasi in rem. ● In personam jx is the power that a court has over an individual party. ● In rem cases is the power that a court has over property. In all ‘in rem’ cases property must be attached at outset of litigation: o True “in rem” is litigation about the property that decides ownership as to whole world. o Quasi in rem type 1 is ownership about property disputed b/w litigants. o Quasi in rem type 2 is that the property is the basis for jurisdiction and dispute is not about the ownership of the property. Historically (but no longer in practice today for Law Courts v Equity Courts): ● Law courts: remedies are money damages enforced “in rem” (against the property). In “in rem” case, jx only extends over property. o Law enforced “in rem” in property

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Where a P secures a money judgement, that award does not actually order the D to do anything. If the D refuses, she cannot be held in contempt of court. TO ENFORCE: P typically “attaches” property owned by Ds to pay the judgement. Full Faith and Credit clause makes valid judgments enforceable in other states EXCEPT when the court that renders the judgment lacks personal jx over the defendant. ▪ To Execute a Judgement (aka Writ in Execution - a court typically will order a sheriff or other similar official to take possession of property owned by a judgment debtor): When someone loses a case in state A and person does pay, person from state A can still attach property in another state b/c of Full Faith and Credit.

● Equity courts: remedies are injunctive relief (a court order for the defendant to stop a specified act or behavior)🡪 enforced “in personam” (against the person) o Equity enforced “in personam” in person. So like person giving property back o If D refuses to comply, then D will be held in contempt by the court. 14th Amendment is the way to challenge a jx issue via due process clause. “Nor shall any State deprive any person of life, liberty, or property, without due process of law…” aka protects the individual from the interests of the state Determining Jx has a two-step inquiry: (1) Statutory inquiry (2) Constitutional inquiry 1: Identify Forum - Make sure you state the appropriate court. Federal or state? (For fed court, for nonUS res, Ds can be hailed into ANY fed court.) 2. In personam? Specify whether it is in personam, in rem, or quasi in rem. Knock out alternatives. 3: Statutory Analysis - Is this statutorily permitted? Is this statutorily permitted through a long-arm statute (state) or Rule 4(k)(1)(A) (federal)? ● Long-arm statute: a statute that allows for a court to obtain personal jx over an out-of-state D on the basis of certain acts committed by an out-of-state D, provided that D has a sufficient connection with the state ● Rule 4(k) (federal) State statutes may be narrower than constitution and allow more protections. 4(k)(1)(a) directs you to look at A) long-arm statute or C) federal statute. ● Absent special lit, a fed court has personal jx only if a state court in which federal court it sits in would have personal jx. This is embodied in Rule 4(k)(1)(A). o Exception: Rule 4(k)(1)(C) provides for jx “when authorized by a fed. statute.” ▪ In this exception gov’t have sometimes done nationwide service of process to permit D to be served anywhere in US and any fed court could have jx. o Exception: Rule 4(k)(2) provides for p.j. in any fed. court where 1) the claim is based on fed law, 2) p.j. is constitutional and 3) there is no state which would have p.j. 4: Constitutional Analysis - Ask whether the statute comports with due process. Issue is whether decision is binding over D in accordance w/ 5th Amend due process clause for fed court or 14th Amend for state court.

5. In personam jx (needs to satisfy only one of them): Specific, General, Consent, Voluntary Appearance (tag jx), Resident In rem jx Shaffer v. Heitner test. 6. Knock out Alternate types of jx.: Knock out tag/voluntary appearance: D was not served w/ process while voluntarily in the state so forum cannot exercise personal jx over D (cite Burnham). Knock out citizenship: D does not reside of the state and is therefore not subject to the state’s personal jx. (cite Pennoyer v Neff) Knock out consent: D did not consent to personal jx in the state and therefore is not bound by court’s decision. Per FRCP 12(h), D did properly object and did not consent to personal jx in the forum. If a state mention a statute that might permit this. Knock out general: Here, Ds contacts are not related to the cause of action and the D is not essentially at home in the forum. Essentially at home would mean Ds PPB or place of Inc. Therefore, general jurisdiction is not applicable. (cite Daimler). LOOK FOR MOST SIMILAR FACT PATTERN. Always ask if you may need more facts for a more full answer. Specific Jx: Here the cause of action arises out of or relates to Ds contract w/ the forum state, so D will likely be subject to pj under specific jx. Specific jurisdiction will be compatible with the Due Process requirements if the non-resident D, who is not present, has certain minimum contacts with the forum such that maintenance of the action does not offend traditional notions of fair play and substantial justice (International Shoe v Washington). The two-prong analysis laid out in Int’l Shoe requires 1) minimum contacts/purposeful availment, and once that is satisfied, the analysis looks to 2) fair play and substantial justice, or what is called reasonableness. Furthermore, the constitutionality of specific jx requires that there be a sufficient connection between the cause of action and Ds contacts with the forum state. (BMS). General Jx: a state where a person can be sued for any claim, regardless of where the actions underlying the claim occurred. IE: For example, if David lives in Pennsylvania, then Pennsylvania will have personal jurisdiction over David for actions he commits anywhere. Pennsylvania courts may assert general personal jurisdiction over David. ●

An incorporated business entity is at home in its state of incorporation and the place of its principal place of business – – usually its headquarters. For example, if a company is incorporated in Delaware (Delaware is a favorite place to form a company) and its headquarters is in California, both Delaware and California will have general jurisdiction over the company.

Minimum Contacts: Ask whether non-res Ds actions constitute minimum contacts/purposeful availment? ● Stream of Commerce? Ask yourself whether Ds actions constitute minimum contacts/purposeful availment. Consider Asahi and McIntyre. o McIntyre: D must have done something to purposefully avail himself of forum. ● Intentional torts, like libel? Consider Calder Effects test. Reasonableness Factors:

● WWV: burden on D, burden on P, forum’s interest in lit. ● McIntyre: Ginsburg summarizes reasonableness in McIntyre as litigational convenience. ● Asahi: D burden of appearing, forum’s interest in adjudication, Ps interest in litigating in forum, judicial system’s interest, furtherance of social policies. Cases Pennoyer v Neff (Quasi in rem type 2): Physical presence rule. Property is present w/in state, so power is asserted over property. Court held that that they have personal jx over D if personally served w/in state or owns property in state that’s attached at outset of litigation, with substitute service, (overturned in Shaffer). For in rem cases substitute service is ok, if property is attached at outset of litigation. You can’t notify out of state people by constructive service. Substitute service isn’t ok for in personam jx. Service by publication is sufficient to inform parties of proceedings, where property is brought under control of court by seizure or some equivalent act at outset of litigation (attachment) for in rem b/c law assumes property is always in possession of owner and seizure will inform him he must look to any proceedings authorized by law. PJ over D in a state may not be achieved thru service by publication if action is based in personam. Under due process, no person is subject to jx of a court unless she voluntarily appears in court, is found w/in state, resides in state, or has attached property w/in state. Substitute service is never sufficient for in personam case, and in rem requires attachment at outset of litigation. Under Due Process Clause, no person is subject to the jurisdiction of a court unless she voluntarily appears in the court, is found within the state, resides in the state, or has property in the state that the court has attached. In Personam Jx: Hess v Pawlowski (implied consent): Out of state res gets into accident w/ in state P. P sues in state. State declares that use of highway by nonres is equivalent of appointment of registrar as agent on whom process may be served. Difference b/w formal and implied appointment is not substantial so far as w/ respect to due process clause. Hess is based on a consent theory—implied consent as basis for personal jx. State/public interest for forum to have PJ over torts committed w/in state. State law may declare that a nonres motorist impliedly consents to state court jx and substituted service of process for claims arising from the nonres’s use of the state’s highways. Modern era shifted away from presence and consent to doing business… Int’l Shoe v Washington: D breaches WA tax laws. P services via personal service to employee and mailed to D’s HQ. Court says Due Process only reqs that to subject D to in personam judgement, if he not be present w/in state, he has certain minimum contacts w/ it such that maintenance of suit doesn’t offend trad’l notions of fair play and substantial justice. Corp’s contacts were sufficient for spec. jx b/c min contacts were continuous and systematic. Int’l Shoe rejects presence test. Test focuses on whether Ds activities constitute min contacts such that jx is consistent w/ trad notions of fair play and substantial justice. Holds: Specific jx (Related to cause of action) & Isolated contact: maybe PJ. & Continuous and systematic contacts: yes PJ. General jx (Unrelated to cause of action) & Isolated contact – no PJ. & Continuous and systematic – maybe. Presence can be manifested only by activities carried on its behalf by those who are auth to act for it. Presence in forum has never been doubted when activities of corp. have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or auth. to an agent to accept service of process has been given. But to extent that a corp.

exercises privilege of conducting activities w/in a state, it enjoys benefits & protections of laws of that state. Exercise of privilege may give rise to obligations, and, so far as those obligations arise out of or are connected w/ activities w/in state, a procedure which reqs corp. to respond to a suit brought to enforce them can, in most instances, not be undue. Applying these standards, activities carried out in behalf of the appellant in WA were neither irregular nor casual. They were systematic and continuous throughout years in question. (specific jx & continuous and systematic - yes) Conversely, it’s been generally recognized that casual presence of corp. agent or even his conduct of single or isolated items of activities in a state on corps behalf aren’t enough to subject it to suit on causes of action unconnected w/ activities there. (general juris. & single or isolated contact no) To require corp. in such circumstances to defend suit away from its home or other jx where it carries on more substantial activities has been though to lay too great and unreasonable burden on corp. to comport w/ due process. While it has been held, in cases on which appellant relies, that continuous activity of some sorts w/in a state isn’t enough to support the demand that a corp. be amenable to suits unrelated to that activity, there have been instances in which continuous corporate operations w/in a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. (general juris. & continuous and substantial – maybe) Finally, though commission of some single or occasional acts of corp agent in a state sufficient to impose an obligation or liability on the corp. hasn’t been though to confer upon state auth. to enforce it, other such acts, b/c of their nature and quality and circumstances of their commission, may be deemed sufficient to render corp liable to suit. (spec jx and isolated – maybe) Hanson v Denkla: Donner, a PA res, est trust in DE w/ DE bank as trustee. After, Donner moved to FL, where she died and where her will was probated. One of her three daughters, Hanson (D), was executrix of Donner's will and primary recipient of DE trust. Donner's other daughters, Denckla (P) and Stewart, split majority of the estate when will was probated in FL. Denckla wished FL court to exercise jx over DE trust and trustee, in which case Hanson would have no share of estate. FL court assumed jx over the DE trust and enjoined the DE trust from paying. FL Supreme Court upheld decision that FL law applied to determine the validity of the DE trust. Meanwhile, Hanson filed a separate suit in DE. DE court ruled, among other things, the trust was valid under DE law. Delaware Supreme Court affirmed, holding that the FL judgment was not entitled to full faith and credit because FL lacked jx over trust res and had no personal jx over the DE trustee. Courts only have pj over Ds who have min. contacts to state. Unilateral activities of someone in state who claims a relationship w/ a nonresident D aren’t sufficient to satisfy minimal-contacts requirement. Rather, D is subject to personal jx only if it purposefully avails itself of privilege of conducting activities in forum. By conducting activities in forum, D calls upon benefits and protections of the state's laws. Here, FL court could not exercise personal jx over DE trustee. Trustee did nothing to purposefully avail itself of benefits/protections of FL. Trustee had no office in FL, transacted no business there, held no trust assets there, and it solicited no biz there. As trustee didn’t have substantial contacts w/ FL, Florida court lacks jx over the DE trust. Decision of FL court is reversed as void under the Fourteenth Amendment. DE court wasn’t req’d to give full faith and credit to invalid FL judgment, and DE court's decision is affirmed. D must’ve purposely availed himself of privileges of conducting activities w/in forum state, thus invoking the benefits and protections of its laws to be reasonably haled in court. FL lacked pj over DE bank b/c D hadn’t purposefully availed itself of FL. D Didn’t seek out FL residents, no offices, and actions in FL were b/c of unilateral action of P. Unilateral activity of those who

claim some relationship w/ a nonresident D cannot satisfy req of contact w/ forum. (just b/c Hanson moved to FL, her bank never performed any acts in FL.) It’s essential in each case there be some act by which D purposefully avails itself of privilege of conducting activities w/in forum, thus invoking benefits and protections of its laws. D is subject to personal jx only if D purposefully avails itself of the privilege of conducting activities in forum state. McGee v International Life Ins: Franklin, a resident of CA, purchased a life ins policy from In’t, TX co. w/ no offices or agents located in CA. F paid his premiums until his death, after which D refused to pay on ground that F had commit suicide. McGee, the beneficiary of F’s life insurance policy (P) sued Int’l (D) in CA state court and P was awarded a judgment. Unable to collect in CA, P filed in state court in TX but was rebuffed there due to improper service. A state court has jx over an out-of-state company if co. has substantial connections w/ state. CA court has jx over D b/c of Ds connection w/ California. Contract was delivered to a CA resident, and CA has an interest in protecting its insured residents. TX corp remitted payments and sent reinsurance cert back to D in forum. It’s not an undue burden on D to respond to allegations in CA given state of nat’l economy. PJ was appropriate. It’s sufficient for due process that suit was based on contract which had substantial connection (sending of reinsurance cert., accepting premium payments from state, contract was delivered in state, insured was a resident of forum) w/ state. There may be inconvenience to insurer if it’s held amenable to suit in CA, but not denial of due process. Forum court has jx over an out-of-state co. if co. has substantial connections w/ forum. This is an expansive view. **Difference b/w Hanson and McGee – nonresident bank had no interaction w/ forum.** NOT S.C. CASE - Gray v Amer Radiator: Gray (P) was injured by water heater that exploded. P bought heater in IL and sued in IL against Titan (D), company that had negligently made heater’s safety valve. D was served with the complaint in OH. D didn’t do business in IL, had no agent present in IL, and sold safety valves to a third party in PA where valve was attached to heater. An IL jx statute stated that nonres who commits a tortious act in IL submits to the jx of IL courts. It’s a reasonable inference that its commercial transactions, like those of other manufacturers, result in substantial use and consumption in out-of-state forum. To extent its biz may be directly affected by transactions occurring in forum it enjoys benefits from laws of forum. Fact that benefit D derives from forum’s laws is an indirect one, but doesn’t make it any less essential to conduct of his biz and it’s not unreasonable where a cause of action arises from alleged defects to say that use of such products in ordinary course of commerce is sufficient contact w/ state to justify a req he defend here. As general proposition, if a corp elects to sell its products for use in another state, it’s not unjust to hold it answerable there for any damage caused by defects in those products. Sale of safety valve thus gives D sufficient contacts w/ IL to be brought into court there now that valve caused injury there. If a corp elects to sell its products for ul...