Civil Procedure Outline-Brown Beagle PDF

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Table of Contents – Civil Procedure Outline PUBLIC POLICIES TO CONSIDER............................................................................................................................2 PERSONAL JURISDICTION.......................................................................................................................................2 SERVICE & PROCESS..............................................................................................................................................5 SUBJECT MATTER JURISDICTION..........................................................................................................................6 REMOVAL AND REMAND.........................................................................................................................................9 VENUE & FNC......................................................................................................................................................10 RAISING/CHALLENGING JXN CHALLENGES.......................................................................................................11 ERIE QUESTION- WHAT LAW APPLIES................................................................................................................12 PLEADING (COMPLAINT AND ANSWER)..............................................................................................................14 DISCOVERY............................................................................................................................................................18 RIGHT TO A JURY TRIAL......................................................................................................................................22 JURY SELECTION..................................................................................................................................................23 DISPOSITIONS OF A CASE.....................................................................................................................................24 APPEALS................................................................................................................................................................27 FRCP 60-EXTRAORDINARY RELIEF FROM JUDGMENT.....................................................................................29 PRECLUSION..........................................................................................................................................................30 JOINDER AND SUPPLEMENTAL JURISDICTION....................................................................................................32 CLASS ACTIONS—FRCP 23.................................................................................................................................35

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Civil Procedure Outline DEP—Tarkington (Winter 2009)

PUBLIC POLICIES TO CONSIDER I.

II. III. IV. V.

Federalism- Allocation of powers between the federal government and state governments a. Where federal law exists and conflicts with state law, the federal law controls so long as it concern an issue properly within the purview of the federal government Separation of Powers Cost of litigation and court’s resources Lawyers love having an option on where they can sue—thus we still have diversity cases Protect against in-state biases

PERSONAL JURISDICTION I.

II.

III.

General Information: a. Pennoyer v. Neff- Need to bring the person into the jurisdiction of the court at the outset of the suit i. Two Principles: 1. Every state possess exclusive jurisdiction over person and property within its territory 2. No state can exercise direct jxn and authority over persons and property w/o its territory b. PJ requires two things: i. Constitutional authorization (minimum contacts) ii. Statutory authorization (long arm statutes) Automatic Personal Jurisdiction: a. Domiciliary of the state: Current dwelling and intent to stay i. Must physically move there b. Personally served within the state (Burnham) i. Being in the state is considered sufficient minimum contact ii. Scalia- Tradition dictates that all you need to have is to be personally served in the state iii. Brennan/White- D’s presence in the state dictates that it is sufficient b/c they meet the minimum contact test (D, while in CA, was “partaking of the fruit of the economy”) iv. Bottom line: Judges all agree that service in state is sufficient for PJ—(just differ on reasoning) v. Exception: Doesn’t work if the person was tricked into coming into the state OR if you solely appear to be part of a case pending in that state (e.g. witness or special appearance) c. Consent i. Appoint an agent for service of process ii. Contract with a forum selection clause 1. Even when not freely negotiated and there is disparity in bargaining power 2. May be able to fight it if you can prove: a. Forum selection clause deprives you of a meaningful day in court, OR b. Prove lack of notice of the forum-selection clause iii. Consent to abide by the cts determination regarding PJ once you show up and contest jurisdiction d. Erroneous appearance i. Appeared in the state erroneously, not under special service, and was served ii. Come in for a different purpose like a traffic ticket and appear before the court e. If yes to any of these question, you have PJ, if not look to the following items: Step 1: Long Arm Statutes (Statutory Authorization) (Call D’s back into the state to defend against a lawsuit) a. Due process doesn’t actually confer any jurisdiction on state courts; it only defines the outer bounds of permissible jurisdictional power—it is up to the leg. of each state to actually grant their courts PJ b. State long arm statutes-authorization to the cts of power to have jurisdiction over anyone. Three types: i. Authorize jurisdiction to the maximum extent allowed by due process (CA)- Min. cont test ii. Enumerated list (Authorizes jxn over D’s based on specific types of contact w/forum state)

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IV.

1. If this type, check statute first, then min. contacts 2. This is a literal construction interpretation (must fall within the list) 3. Tortuous acts: (Two interpretations) a. Felt in the state = jurisdiction (Ill Rule) b. Must be committed in the state = jurisdiction (NY Rule) iii. Enumerated, but interpreted to be the extent of due process—Min contact test c. Where PJ would be constitutional, but the long arm statute does not authorize it, some courts allow P’s to use quasi-in rem jurisdiction as an alternative statutory basis d. Federal long arm statutes (Rule 4k) i. 4(k)(1)(a)- Directs you to the state long arm statute 1. If state statute authorizes it, move on to minimum contacts a. Really a three part test: i. Meet 4(k)(1)(a) ii. Meet the states long arm statute iii. Must be constitutional—have min. contacts ii. 4(k)(1)(b)- 3rd party and 100 mile rule 1. If served within 100 miles for a judicial courthouse, jurisdiction counts and Rule 14 & 19 2. Must still have minimum contacts with US to get this iii. 4(k)(1)(c)- When authorized by federal statute 1. Special courts: bankruptcy, antitrust, interpleader, securities 2. Min. contacts not with US, not specific state iv. 4(k)(2)- Underlying case based on fed law, no state has jurisdiction, min contacts met 1. Claim has to be from federal law and D must be foreign 2. Not subject to PJ in ANY state court with general subject matter jurisdiction v. Can also use in rem as statutory authorization 1. In rem still requires minimum contact Step 2: Purposeful Availment- Minimum Contact Test Directed at the State (Constitutional Authorization) MINIMUM CONTACT RULE (According to Intl Shoe) *Related or give rise to liabilities *Unrelated to lawsuit Yes, personal jurisdiction Some cases say NO, but if it is soooooooo +Continuous and systematic continuous or substantial then YES (this means you may general jurisdiction) contact +Single or (Hess Case), Yes it CAN BE if signf. No, personal jurisdiction related Isolated Contact -The key is to see how related it is to the suit

Two Parts Part 1: Minimum Contacts (Moved away from “presence” and “consent”) States no longer need an implied “consent” statute like in Hess NOTE: P does NOT have to meet in min. contact requirement—it is only for D Part 2: Reasonableness/Fairness—Traditional notions of fair play and substantial justice (Memorize all) Five Factors a. (1) Continuous or systematic (all of the contacts—regardless if related to the suit) i. Specific Jurisdiction: Found when contacts are not necessarily continuous and systematic, but are related to the action ii. General Jurisdiction: Found when the contacts are so systematic and so continuous that a forum has PJ over them on any action brought 1. If it is the co’s HQ, it will probably have general jurisdiction in that state 2. You have general jurisdiction in your domicile, you may have it if you are a resident iii. TEST NOTE: Always mention that you are going to go for specific, if that is what you want; otherwise, if you start making a lot of arguments about a lot of unrelated contacts, it looks like you are arguing for general jurisdiction

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b. (2) Relatedness (contacts just related to the suit) i. Is it specifically related to the suit c. (3) Foreseeability i. Unilateral Act (WWVW)- If unilateral act of P—no jurisdiction 1. If D has a contact w/a 3rd party and the 3rd party unilaterally, w/o D’s control gets contact w/the state, then D is NOT subject to suit based on the 3rd party’s contact 2. Corp. must reach out to make sales—if corp. puts product into the stream of commerce expecting to sell into that state, than the state has PJ, but if consumer brings the item there by a unilateral act—NO PJ d. (4) Purposeful availment i. Contracts (BK v. Rudzewicks) 1. Prior negotiations 2. Contemplated future actions 3. Terms of the contract 4. Actual course of dealings ii. Goods: Stream of Commerce (Asahi v. Superior Court) 1. O’Connor- Stream of Commerce “Plus” (4 Votes) a. Awareness of stream of commerce is NOT enough for purposeful availment of minimal contacts b. Need some additional activity aimed at the specific state for it to be enough c. Things that give you the “plus” part to indicate an “Intent or purpose to serve a foreign state” i. Designing product for the market in the forum state ii. Advertising in forum state iii. Establishing channels iv. Providing advice to customers v. Marketing the product through someone who has agreed to be their distributor in that state 2. Brennan- Stream of Commerce (4 Votes) a. Anything within the chain of distribution is within the stream of commerce and therefore constitutes minimum contacts b. Maj. in VW in dicta said that what is in the chain of distribution is sufficient for minimum contacts c. This is the broadest interpretation 3. Stevens (3 Votes) a. Consider the following about the units sent in the stream: (Two Prong Test) i. Volume (must have 100,000), OR ii. Hazardous character of the component 4. NOTE: If there is stream of commerce plus additional contacts stated by O’Conner, than you have 8 judges (law); if only stream of commerce, but no additional contacts you have 4 judges—then look to see if you have over 100,000 units, if so you have 5 judges (law), if not you have 4 judges (not law) iii. Property 1. Property is now only a contact—must be evaluated according to minimum contact test 2. Recovery limited to amount of property attached 3. Only true and quasi 1 really will give you PJ a. True In Rem: Jurisdiction over property (“Against the property”) i. Will have “minimum contacts” b/c all contacts related to the property in the state, subject to specific jurisdiction ii. Gives specific jurisdiction iii. Shaffer- Got rid of the “attach” req. and all you have to do is look at the min. contacts to meet the constitutional requirement b. Quasi In Rem 1- Dispute about the property

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i. Determines rights and property against specific claimants 1. Adverse possession, mortgage v. mortgagee ii. Gives specific jurisdiction c. Quasi In Rem 2- Dispute is unrelated to the property OR property that is related, but not about ownership i. Must attach the property at the outset to assert the court’s jurisdiction over the property ii. This is a gap filler if the states long arm statute is crappy-P can attach the property and use in rem to get PJ even when the states long arm statute wouldn’t allow it iv. Calder Test 1. What state is targeted in the article/website? 2. What state feels the “effects” of the article/website 3. Activities in article took place in forum v. Internet- Zippo Test 1. How interactive is the website? a. Passive site = No PJ b. Interactive = Use Calder test to see if directed at people in the forum 2. How related is the internet contact to the related suit? vi. Corporations 1. May be sued in states where they have purposeful contacts, though the state of incorporation has significance (only for general jxn) e. (5) Fairness/Reasonableness (traditional notions of fair play and substantial justice) (Memorize all 5) (1) Burden on the defendant (2) Interest of the plaintiff in obtaining relief (3) State interest in adjudicating the dispute (4) Efficiency of the interstate judicial system 1. Where are the witnesses from, etc… (5) Shared interest of several states in their substantive social policies i. NOTE: These reasonableness tests come into play when min. cont. are really weak, IF min. cont. are very strong, then the reasonableness test will ONLY matter if it creates a high level of unreasonableness creating a constitutionally concern or it denies a person their day in court ii. Must be unconstitutionally unreasonable for it to really affect the situation

SERVICE & PROCESS I. II.

III.

Two part process: Constitutional and Statutory tests Notice: Constitutional Requirement a. DP of 5th and 14th amendment require: 1) Reasonable notice AND 2) Opportunity to be heard b. DP requires notice that must “under all the circumstances, (1) be reasonably calculated to apprise interested parties of the pendency of the action and (2) afford them an opportunity to present their objections” (Mullane- merely published it in the newspaper) i. If you have actual notice that they don’t know, you must provide them more information c. Classification is irrelevant (rem, personum, etc) in determining whether notice is adequate d. Ordinarily, notice by publication is NOT sufficient e. Must at least mail it to them when practical and you know their address f. Best means of service NOT required g. Does NOT create a subjective test—it is an objective test of reasonably practicability Service (FRCP 4): Statutory Requirement a. Service requires two things 4(c)(1): 1) Summons and 2) Copy of the complaint b. Time limit for service— Have 120 days to serve after filing the complaint – 4(m) i. Fed Question: State of limitations (SOL) tolls when you file the suit ii. Diversity JXN: SOL will start tolling by whatever the state statute says (two possibilities) 1. File the suit

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2. By service of suit c. Who can serve process i. 4c1- Plaintiff is responsible for service of summons and complaint within Rule 4(m)—120 days ii. 4c2- Service may be performed by anyone (1) NOT a party to the suit and (2) at least 18 yr old 1. 4c3- At request of P, the court may direct that service be effected by a US Marshall iii. Typically canNOT use the attorney to send the lawyer to serve process d. How to serve process on an individual within US judicial district—FRCP 4e i. Service upon a person from whom a waiver has not been obtained and filed (other than an infant or incompetent person may be effected in any US judicial district) 1. 4e1- pursuant to the law of the state in which the DC is located, OR 2. 4e1- pursuant to the law of the state in which service is effected, OR 3. 4e2- delivering a copy of the summons and complaint to the individual personally, OR 4. 4e2- by leaving copies at the individuals dwelling or place of abode with some person of suitable age and discretion then residing thereon, OR a. Suitable age and discretion is usually over 18 yrs old b. General Rule: You must choose their main home to serve them (even if you spend hundreds of millions building/creating a second home) c. Kashagi Exception: i. Serve them while they are living in that particular residence ii. Must have sufficient indicia of permanence 5. 4e2- by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process e. How to serve process on infants and incompetents—FRCP 4g f. How to serve process on Corporations and associations—FRCP 4h i. According to provisions in 4e1 (in accordance to state law where court sits), OR ii. By delivering summons and complaint to an officer, manager, or general agent, OR 1. Secretary at front desk is usually NOT good enough—unless she has been appointed agent by the company iii. By delivering the summons and complaint to an agent authorized by appointment to receive such process and if by statute, by also mailing it to defendants g. How to serve process on the US and its agencies, corporations, or offices—FRCP 4i (Must serve to at least two people and maybe even three) i. Deliver a copy to one of three people: (NOTE: You cannot mail it! 1. Attorney of the district where the suit is brought, 2. Assistant US attorney, OR 3. Clerical employee of the US ii. Mail a copy to the attorney general of the US in Washington iii. Send a copy to the agency or the officer iv. NOTE: This rule requires duplicate service (usually 2-3 people) h. In rem service—FRCP(n)(2) i. You may use in rem to serve someone IF you prove that the other methods didn’t work 1. You MUST first show the other methods didn’t work i. Sewer Service- Dishonest process servers who certify that process was served when in it wasn’t

SUBJECT MATTER JURISDICTION I.

General Principles: a. SMJ canNOT be CONSENTED to or WAIVED by either party b. You can assert at any time that there is no SMJ, if correct, the case will be thrown out (even after verdict) c. SMJ canNOT be waived by the courts (courts cant usurp this authority) i. “A court that doesn’t have SMJ cannot assume it, however worthy the cause” d. Types: i. State Courts- Have general jurisdiction (may be broken up into smaller courts that can hear exclusive issues)

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II.

III.

1. The aggregate of state courts can hear pretty much anything (there are five exceptions) 2. States are free to divide SMJ among whatever courts they decide a. Some divide by specialty some by monetary amount ii. Federal Courts- Have limited jurisdiction 1. Limited to what is contained in Article III—if not in Art. III, then there is no SMJ 2. Generally have two types: a. Diversity jurisdiction b. Federal question jurisdiction Federal Question Jurisdiction a. Purposes of the rule are to procure the following in the interpretation of the law (USE): i. Uniformity (Don’t want states making different laws concerning fundamental rights) ii. Sympathy (Fed judges more sympathetic to policies underlying federal legislation) iii. Expertise b. §1331- DCs have “original jurisdiction of all actions arising under the constitution, laws, or treaties of the US”—what does arising under mean i. Does NOT impose an amount in controversy requirement! c. Holmes test: What law creates the question or cause of action d. Well Pleaded complaint rule (Mottley): (§1331- “arising under” interpretation=well pleaded complaint) i. Federal issue must be in the complaint!—cannot be anticipated by the answer or by the reply, but must be in the original claim—Federal defense insufficient for federal question jurisdiction ii. Even if P knows that D is going to answer with federal law, it is NOT enough for P to get into federal court iii. Purposes of the rule: 1. Predictability: P know where to file and will down on number of cases that can be heard in federal court—almost any state claim will have a federal defense claim 2. Jxn must be established at the outset: (Pennoyer)- Jxn must begin when action starts iv. Well-pleaded rule is NOT part of the constitution—congress could defin...