Civil Procedure Hershkoff Fall 2020 PDF

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Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020

PERSONAL JURISDICTION

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General Jurisdiction

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Specific Jurisdiction

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Ford Motors Upcoming Case

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Property-Based Jurisdiction

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Federal Courts

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Challenging Personal Jurisdiction

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Cases

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SERVICE OF PROCESS, NOTICE, AND OPPORTUNITY TO BE HEARD

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FRCP 4: Service of Process in Federal Court

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Notice

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Notice Requirements

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Cases

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Opportunity to Be Heard: Provisional Remedies SUBJECT MATTER JURISDICTION

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Constitutional Framework

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Diversity of State Citizenship/Alienage Jurisdiction/§1332

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Amount in Controversy

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Federal Question Jurisdiction/§1331

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Constitutional and Statutory Requirements

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Determining Whether Federal Question Jurisdiction Applies

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Cases

48

SUPPLEMENTAL JURISDICTION Cases

51 54

JOINDER RULES

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REMOVAL: § 1441/§ 1446

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VENUE

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Determining Venue

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Transfer

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Forum Non Conveniens

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ERIE DOCTRINE Statutes

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Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020

Cases Case Chart

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Flowchart

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Federal Rule of Civil Procedure or Federal Procedural Statute

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Judicially Devised Procedures or No Federal Rule/Statute

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Choice of Law Rules

72

Federal Common Law

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PLEADING Pleading Under the Rules of Civil Procedure

73 74

FRCP 7: Pleadings

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FRCP 8: Complaints

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FRCP 9: Fraud or Mistake

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Rule 84

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Plausibility Pleading Cases

77 78

FRCP 11: Signatures and Sanctions

80

FRCP 15: Amendments

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U.S.C. §1927 and Inherent Judicial Authority

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FRCP 16: Case Management

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Local Rules and the Judge’s Managerial Authority

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DISCOVERY

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SEVENTH AMENDMENT CIVIL JURY RIGHT

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SUMMARY JUDGMENT

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FRCP 56

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FRCP 56: Burdens

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Cases

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PRECLUSION

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Claim Preclusion

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Issue Preclusion

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Intersystem Preclusion

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Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020

PERSONAL JURISDICTION ▪

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Personal jurisdiction is a court’s power over a person or property. Essentially, personal jurisdiction asks whether the court has the power to enter a judgment that will bind the parties. Personal jurisdiction can be waived, which means that a party can choose to accept that court’s power to enter a binding judgment over them. Personal means a person (natural or a juridical entity such as a corporation). Property means a thing such as property or a share of stock. Judgments lacking personal jurisdiction are invalid and not entitled to full faith and credit o Full Faith and Credit Clause: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

General Jurisdiction ▪

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Refers to a court’s exercise of power over a defendant when the cause of action does not arise out of or relate to the defendant’s contacts with the forum o All-purpose jurisdiction and not specific to defendant’s in-state activity o Happens when the presence of the defendant in the forum is so substantial the cause of action need not arise out of the contacts Statutory analysis and constitutional analysis o Does a statute authorize general jurisdiction? ▪ Generally, probably need a “constitutional max” statute to exercise general jurisdiction over a defendant who is not present in the state ● You could argue you don’t need a statute ● If you have a constitutional max statute, as long as the constitutional requirements are met, the statutory requirements are met ▪ Look to the federal long-arm statutes as well!!!! ● FRCP 4 o Constitutionality of exercising general jurisdiction ▪ Due process ▪ Contacts so substantial that it makes sense for the company to be subject to general jurisdiction in the forum no matter the cause of action o An open question concerns the applicability of the five-factor reasonableness inquiry to a court’s exercise of general jurisdiction People o Traditional basis of jurisdiction was based on physical presence in the state (Pennoyer) ▪ Pennoyer constitutionalized the exercise of personal jurisdiction by bringing it under the due process clause of the 14th amendment ▪ Pennoyer limited the plenary authority of state courts by making it clear that they could exercise jurisdiction over their territory and domiciliaries in a way that comported with international law ▪ Pennoyer: Oregon judgement was void because Oregon lacked a basis for asserting power consistent with the territorial theory; Neff was not in the state, wasn’t a resident, and did not have property o Domicile (Milliken): must have both permanent residence and intent to remain (Mas v. Perry) ▪ Can be served outside of the state if a citizen of that state Page 3 of 99

Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 ▪

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Milliken: Milliken sued Meyer (Wyoming domicile) in Wyoming state court. Meyer didn’t appear, so court entered default judgement. On collateral challenge, Colorado court found exercise of personal jurisdiction was valid. ▪ Mas: in suit challenging subject matter jurisdiction, court found diversity of citizenship because Mrs. Mas had no intention of returning to Mississippi (her last place of domicile) but didn’t intend to stay in Louisiana (where she was living as a student), so Mrs. Mas is domiciled in Mississippi and is therefore a citizen there, and court could exercise diversity jurisdiction. o Transient presence in the state at the time of service (Burnham – Scalia plurality) is assumed constitutional because this is a traditional basis of jurisdiction, and is naturally within the bounds of traditional notions of fair play and substantial justice ▪ If an agent of a company or a person is properly served in a state, a court in that state can exercise jurisdiction over the company or person ● Even if the transient presence is in the airspace above the state ● Does not matter how long the person is in the state as long as they are in the state when they are served ● Burnham: wife sued husband for divorce in California while he was there on business/visiting the kids. Since she served him in California while he was physically present there, the court held that CA could exercise general jurisdiction over him ● Personal jurisdiction, once properly established, cannot be negated by a defendant’s fleeing a jurisdiction ▪ State just can enter default judgment ▪ But Brennan concurrence (Burnham, Carnival Cruise) states that we should nonetheless apply a reasonableness test and International Shoe minimum contacts ● Still need an analysis of constitutionality ● Less compelling if the CEO of the company was served in a forum while on vacation and not there in a business capacity o Person’s agent is served while in the state o Person or company could consent to general or specific jurisdiction ▪ NOT CLEAR IF THIS IS CONSTITUTIONAL ▪ Could happen contractually (Carnival Cruise) or by estoppel (Ireland) ▪ Impliedly (Hess) Corporations – Pennoyer’s basis for jurisdiction has expanded through subsequent decisions recognizing that, particularly for corporations, “presence” is a fiction so should look to contacts to establish a basis of jurisdiction o Place of incorporation (Goodyear, Daimler) ▪ Goodyear: called place of incorporation and principal place of business “paradigm bases for general jurisdiction,” which was quoted in Daimler o Principal place of business (Goodyear, Daimler) – defined as the corporation’s “nerve center:” the state in which corporate decision making and overall control take place (Hertz) ▪ Places where corporation is “at home” (Daimler) ● “The corporation’s affiliations with the state are so continuous and systematic as to render it essentially at home in the forum state” ▪ Daimler:

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Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 ▪

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Plaintiffs sued Daimler (German company) in California federal court, alleging that its Argentinian subsidiary committed human rights abuses in Argentina. ▪ Plaintiffs put forth an agency theory, alleging that Daimler’s American subsidiary’s contacts (including distribution in California through independent distributor) could be treated as Daimler’s. ▪ Court found that contracts could not be attributed to Daimler on an agency theory to establish general jurisdiction unless they rendered the corporation at home there. ● Rule of thumb: do not attribute contacts of subsidiary to a parent company and vice versa ● BUT, “marketing the product through a distributor who has agreed to serve as the sales agent in the forum State” may mean that the manufacturer is still subject to personal jurisdiction there (O’Connor, Asahi) ▪ Affirmed in Goodyear ▪ Court held that the North Carolina district court couldn’t exercise general jurisdiction over foreign tire manufacturers when a small percentage of their tires were distributed in North Carolina by other affiliates because these affiliations didn’t meet the Daimler standard of continuous and systematic. o Sotomayor dissent in Daimler – some corporations are so big they won’t be subject to jurisdictions where they do lots of business o Absent “exceptional” circumstances, general jurisdiction is limited to those states in which defendant is incorporated, domiciled, and/or has its principal place of business, that is, the place where defendant is fairly regarded as at “home.” o Jurisdiction exercised on the basis of “minimum contacts” sufficient to satisfy “fair play and substantial justice” ▪ Whether defendant’s contacts are so continuous and systematic and sufficiently substantial as to justify the court’s exercise of jurisdiction on any cause of action on the theory that the defendant is de facto “present in the forum” (International Shoe) The continuing viability of the International Shoe test for all-purpose jurisdiction (continuous, systematic, and sufficiently substantial) also is in doubt.

Specific Jurisdiction ▪

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Cause of action relates to contacts or arises out of contacts with the forum (Bristol-Myers Squibb) o Ex: Bristol-Myers Squibb: class action plaintiffs sued defendant in California court. SCOTUS held that the California court couldn’t exercise specific jurisdiction over the claims of non-California residents in the class because their claims did not arise out of contacts with the forum. Steps o Does the cause of action/person fit within the statute? Page 5 of 99

Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 o o

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Is the statute itself constitutional? Is the exercise of jurisdiction constitutional? ▪ Due process ▪ Fair play and traditional notions of justice o Does the cause of action relate to or arise out of the defendant’s contacts with the forum? o Is the exercise of jurisdiction reasonable? First ask: o Is there a forum-selection clause? o Is there a state/federal long-arm statute? (see below) Consent o Express (Kane) ▪ Cause of action relates to the contract ▪ Test is reasonableness and fairness based on contract principles, not based on Constitution or statute ▪ Could include forum selection clause ● Difference between consent and ouster clauses ▪ Consent: waive any objections to jurisdiction ▪ Ouster: “disputes shall be tried before courts of X state and only X state” ▪ Usually found to be void because they interfere with state sovereignty ▪ HOWEVER, if clause is reasonable and fair, could still be upheld: ● Ex: Carnival Cruise: o SCOTUS enforced forum selection clause contained on cruise line ticket because enforcing the clause was reasonable. ▪ It would eliminate surprise and reduce costs for the company and customers. ● Ex: Bremen: ▪ Contract had forum selection clause choosing London court. ▪ When plaintiff was injured and sued in Florida, SCOTUS held that case should be dismissed because “forum selection clauses are prima facie valid and should be enforced… unless enforcement is unreasonable.” ▪ It’s important to enforce this clause for purposes of trade and commerce. o Implied: jurisdiction is limited to causes of action relating to/arising out of the activity governed by the consent statute ▪ Ex: Hess: ● Court allowed the exercise of personal jurisdiction in Massachusetts over a nonresident motorist based on ▪ A Massachusetts statute stating that a nonresident motorist consents to the exercise of jurisdiction in causes of action relating to their motoring activities and Page 6 of 99

Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 ▪

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Based on the fact that defendant was personally served in Massachusetts. o States cannot make corporations’ ability to do business in the state conditional upon consent to service (Flexner v. Farson) Enumerated Acts Long-Arm Statute: two questions o Statutory questions: ▪ Is the cause of action actually one of the enumerated acts? Does the person in question fit into the statute? ● Be really specific about whether the cause of action falls within the statute – read the statute super, super specifically ▪ Is the statute itself constitutional? ● The due process clause of the 14th amendment creates the standard for assessing the constitutionality of state long arm statutes ▪ Does it include traditional bases of jurisdiction that we’ve considered valid bases for exercising jurisdiction? ▪ Does the statute contain bases for jurisdiction that aren’t valid bases for jurisdiction (does it go beyond domicile, presence, etc.?) o Constitutional question: does it comport with due process? ▪ International Shoe developed the idea that a corporation could be subject to personal jurisdiction in a state in which it was not headquartered or incorporated if it had minimum contacts with the state, relating to the cause of action, such that an exercise of personal jurisdiction would not violate traditional notions of fair play and substantial justice ▪ Worldwide set forth a two-pronged test of minimum contacts and reasonableness ● Some justices, such as Black in McGee and Brennan in Worldwide, see the two prongs as a sort of sliding scale ▪ The greater the contacts the less strong the case for reasonableness of personal jurisdiction need be ▪ Can instead do a single composite inquiry where the lack of minimum contacts may be compensated for by the reasonableness factors ● Scalia and most justices see the satisfaction of the minimum contacts analysis as a prerequisite for the reasonableness injury ▪ Are there minimum contacts sufficient so that the suit does not offend traditional notions of “fair play and substantial justice?” ● SPEND THE MAJORITY OF YOUR TIME ON THIS ● Assessed both by the quality and quantity of the defendant’s contacts with the forum state (International Shoe) ● THE CONTACTS RELATED TO THE CLAIM ARE WHAT MATTER. CONTACTS MUST ARISE OUT OF THE CLAIM – DO THIS ABOUT MIN. CONTACTS ● Inquiry is justified by the need to protect defendants from distant or inconvenient litigation and ensure that state power does not reach beyond the limits imposed by a co-equal sovereign federal system ● Purposeful Availment ▪ Purposefully avails itself of and invokes the benefits and protections of the forum’s laws (Hanson) Page 7 of 99

Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 ▪

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Contact between the defendant and the forum must be because of something the defendant did ▪ Ex: Hanson: ● Dora Donner set up a trust in Delaware and then independently made her trust appointment in Florida. ● No personal jurisdiction over the trustee because the contacts with Florida were the result of the unilateral activity of Dora Mrs. Donner. o The trustee didn’t purposefully avail himself of the privilege of doing business in Florida. Foreseeability: Reasonably expect to be haled into court (International Shoe, World Wide Volkswagen ) ▪ Ex: International Shoe: ● Court held that the exercise of personal jurisdiction over a Delaware company in Washington was valid because o Salesmen lived, earned commissions, and rented properties to show sample products in the state. o The company solicited orders and shipped shoes into the state. o The company purposefully availed itself of the benefits and protections of the state such that it should reasonably expect to be subject to litigation there. A “single or occasional” contact that has a “substantial connection” can suffice (McGee – insurance company) ▪ Especially if dangerous act ▪ Ex: McGee: ● Beneficiary of a California resident’s life insurance policy sued the Arizona insurance company in California. ● Even though that policy was the only policy that was sold in California, court held that the exercise of personal jurisdiction was valid because the “suit was based on a contract which had substantial connection within the state.” Cannot simply be plaintiff’s unilateral activity in the forum (World Wide Volkswagen , Waldon v. Fiore) ▪ Mere foreseeability is not enough ▪ Just placing your product into the stream of commerce does not subject you to suit wherever ▪ Ex: WWV: ● Plaintiffs were in a car accident and brought a products liability suit in Oklahoma. Page 8 of 99

Claire Bartholomew, Hershkoff, Civil Procedure, Fall 2020 Defendants’ only connection with Oklahoma was that its car, sold in New York to New York residents, was in an accident there. ● Court held that the defendants couldn’t be subject to personal jurisdiction based only on the plaintiffs’ unilateral activity in Oklahoma, regardless of whether or not it was foreseeable that the car end up in Oklahoma. ▪ Ex: Waldon: ● Nevada gamblers had their earnings wrongfully seized in a Georgia airport and sued in Nevada. ● Court held that Nevada couldn’t exercise personal jurisdiction because the defendant must have had contacts with the state itself, not just the people who live there ● Plaintiffs “cannot be the only link between the defendant and the forum” Contracts-Plus IS THERE A CONTRACT???? ▪ Do the parties have a contract that connects the defendant(s) to the forum state? (Burger King) ▪ Ex: Burger King: ● Burger King brought suit in Florida (where it’s headquartered) against its Michigan franchise owner. ● Court examined the quality and nature of their contract (20 years long, anticipates close relationship) to hold that since defendant established a substantial and continuing relationship with Burger King’s Miami headquarters, o It received fair notice that it could be subject to suit in Florida (contract said disputes were governed by Florida law) o It didn’t demonstrate that being subject to jurisdiction would be substantially unfair ● The Florida court could exercise jurisdiction. ▪ A single contract that has a “substantial connection” can suffice (McGee) ▪ Factors evaluated (Burger King) ▪ Long-term nature of contract ▪ Continuing obligations related to the forum ▪ Negotiations in the forum ▪ Choice of law clause ▪ Forum selection clause ▪ Be...