Civil Procedure outline PDF

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Final Outline for Civil Procedure fall 2019...

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Personal Jurisdiction ● In Personam ○ Must be a statutory basis for exercising PJ over a nonresident defendant. (Long-Arm Statute) ○ Federal courts only have personal jurisdiction where the state in which it sits would have personal jurisdiction (FRCP Rule 4(k)(1)(A)) ○ General ■ Traditional Bases (Pennoyer v. Neff) ● “Presence”/”tag”/”transient” Jurisdiction: Defendant or agent was served with process in the forum. ○ Court is split on whether “shoe analysis” applies when served outside the plaintiff's home state, in the forum where they are to appear. (Burnham v. Superior Court) ■ Scalia- Old View, Brennan- Requires Shoe ● “Residence”: Defendant domiciled in the forum. ○ Can be served with process outside that state for a suit in the state where they are domiciled. (Milliken v. Meyer) ○ No fairness/Due Process analysis where Defendant is at home. (Daimler) ● “Consent”: The defendant consents to personal jurisdiction or waives an objection. The plaintiff always waives/consents just by filing the complaint. ■ Implied Consent: Plaintiff was served on an agent appointed by operation of law. (Hess v. Pawloski) ● Example: Nonresident motorist act (every state has one). ■ Modern Rules ● General jurisdiction proper where defendant is “essentially at home.” Can be sued here for claims arising anywhere. (Goodyear Dunlop Tires Operations, S.A. v. Brown) ○ Humans are “essentially at home” in the state of their domicile. ○ Corporations are “essentially at home”: (Daimler AG v. Bauman) ■ (1) Where it is incorporated; AND ■ (2) Where it maintains its principal place of business. ● (The “nerve center” where managers make business decisions.) ■ (Special Rule) Also “at home” in a place similar to where jurisdiction was proper in Perkins (Daimler) ● In Perkins, all the business activity took place in one state. ○ Specific ■ Minimum Contacts: “Such minimum contacts with [the forum] that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington) ● Tests apply only if Defendant cannot be served within the forum. ● Order of Operations: Must be a relevant contact before fairness becomes relevant. (Burger King Corp. v. Rudzewicz) ● Contact Part ○ A contact can be one single contact. (McGee v. International Life) ○ Purposeful Availment: The contact must be voluntary. The defendant must purposefully avail itself of the forum in some way. (Hanson v. Denckla) ■ Unilateral Act of a Third Party - No Good: A unilateral act of a third party does not purposefully avail the defendant. Must be “foreseeable” that defendant would be “haled into court” there.

NOT foreseeable that a unilateral contact would be made. (World-Wide Volkswagen v. Woodson) ○ “Relatedness” Between the Contact and the Claim ■ Must arise out of the very thing or event, etc. of the claim. Can’t get jurisdiction for a similar claim. (Bristol-Myers Squibb v. Superior Court) ● Example: Can’t joining a class action for harmful medication in florida just because you had a similar injury from a similar pill in New York. ○ Stream-of-Commerce (Products Liability) ■ Brennan (Asahi)/Ginsburg (McIntyre) Approach ● Relevant contact if defendant puts its component into the stream of commerce and can reasonably anticipate that it would be used in the forum state. ● Directing a company to sell throughout the United states is like targeting the entire United States. Should anticipate being haled into court wherever harm occurs. ■ O’Connor (Asahi)/Kennedy (McIntyre) Approach ● Relevant contact if: ○ (1) Defendant puts it’s component into the stream of commerce and can reasonably anticipate that it would be used in the forum state. AND ○ (2) Targeted the forum state in some way. ■ Examples: Advertising there, providing customer service there ○ No contact for a unilateral act by a third party. ■ Minority View - One Product Sold into the Forum State is Not a Stream (Bryer and Alito McIntyre Dissent) ● Not enough for contacts in a stream of commerce case. ● (Only bring this up and talk about it. This is not law.) ○ “Effects” Jurisdiction (Intentional Torts) ■ Don’t Need to Set Foot in Forum: A libel suit against a California resident that relied on phone calls to california sources, documented events that took place in California, and caused the reputational harm in California to a California resident were considered sufficient. (Calder v. Jones) ■ Not enough just for harm to be done in the forum: Needs some kind of contact in the forum. Plaintiff returning home to the forum and feeling the effects there alone is not enough. (Walden v. Fiore) ○ Contacts Over The Internet ■ The Old Approach: Sliding-scale. More interactive a website is, the more likely a website is found to be a contact. (Zippo Manufacturing Co. v. Zippo Dot Com, Inc.) ● (This is no more because websites are now almost all interactive. Every visit to a website surely can’t be considered a contact.) ■ The New Approach: Something shows that the specific forum is being targeted over the internet. (Revell v. Lidov) (Telemedicine?) ● Harmful effects from an article that are felt in forum over the internet are not enough, distinguishing Calder. (Revell v. Lidov) ● Fairness Part:

○ Fairness/Due Process analysis does not apply where defendant is at home. (Daimler) ○ Fairness Factors (balance and come to a reasonable conclusion) (Burger King Corp v. Rudzewicz) ■ (1) Inconvenience for defendant and their witnesses in having to travel to the forum. ● So “gravely” inconvenient for defendant that they are at a “severe disadvantage” in the litigation. ● Relative wealth of the parties is not determinative. ■ (2) The forum state’s interest in providing a courtroom to plaintiff. ■ (3) Plaintiff’s interest in litigating in the forum. ■ (4) The legal system’s interest in efficiency, ■ (5) Any shared substantive policies of the states. ○ Due process does not guarantee that defendant will be sued in the most convenient forum, or even a “good” forum. It guarantees only that they will not be sued in an unconstitutionally unfair forum. ● In Rem ○ Property must be present in the forum state. ○ Can be real, tangible, or intangible (brokerage account, copyright) property ○ Property is Jurisdictional Predicate ○ Suit is about figuring the proper owner of the property ○ Shoe must be satisfied. Defendant must have sufficient contacts and must be fair under due process. (Shaffer v. Heitner) ● Quasi-In-Rem ○ QIR Type 1 ■ Property must be present in the forum state. ■ Can be real, tangible, or intangible (brokerage account, copyright) property ■ Property is Jurisdictional Predicate ■ Suit is about figuring the proper owner of the property ■ Shoe must be satisfied. Defendant must have sufficient contacts and must be fair under due process. (Shaffer v. Heitner) ○ QIR Type 2 ■ Property must be attached at the outset of the case. ■ Can be real, tangible, or intangible (brokerage account, copyright) property ■ Property must be present in the forum state. ■ Claim is against defendant for anything other the ownership of the property. Ownership is not in dispute. ■ Shoe must be satisfied. Defendant must have sufficient contacts and must be fair under due process. (Shaffer v. Heitner) Notice & Opportunity to be Heard ● Notice must be “resonable calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.” (Mullane v. Central Hanover Bank & Trust Co.) ○ Must: ■ (1) Apprise defendant; and ■ (2) Provide defendant a chance to defend. ○ Can only provide notice of publication when no better method is possible. Must do due diligence beforehand. ● The Summons (FRCP 4(a)(1)) ○ Issued by the court ○ Inform defendant that they have been sued. ○ Informs defendant that they must respond within 21 days of service of process (or risk default.)

○ And gives information about the court and the case. ● Service ○ Process may be served by any non-party who is at least 18 years old. (Rule 4(c)(2)) ○ Any method of serving process that’s allowed by state law. (FRCP 4(e)(1)) ■ Especially important to service of process by mail ● Nothing in FRCP allowing this, but states often allow by registered mail in their long-arm statute. ○ Service on a Natural Person (Human) (FRCP 4(e)) ■ Alternative Methods of service (FRCP 4(e)(2)) ● “Personal Service”: Process server hands documents to defendant (FRCP 4(e)(2)(A)) ● “Substituted Service” (Very Strict Rules) (FRCP 4(e)(2)(B)) ○ (1) Must be accomplished at defendant’s dwelling or usual abode; AND ○ (2) Process must be left with someone of “suitable age and discretion”; AND ○ (3) That person must reside there. ● Service on Defendant’s Agent ○ Service on a Business (FRCP 4(h)(1)(B)) ■ Can Serve: ● (1) An officer ● (2) A managing or general agent; or ○ (This is decided by job responsibilities, not title. Satisfied if they have responsibilities that one would expect them to communicate the important message.) ● (3) Another agent authorized by law to receive process. ■ Or methods permitted by state law (FRCP 4(h)(1)(A)) ○ Waiver of Service (Rule 4(d)) ■ Parties can use regular mail to waive the need for formal service of process. ● Includes in the mail: ○ (1) A summons notifying defendant of the suit. ○ (2) A copy of the complaint ○ (3) Two copies of a waiver form ○ (4) A self-addressed stamped envelope. ■ Defendant has 30 days after the mailing in which to sign a waiver form and mail it back in the envelope provided. ■ Plaintiff then files the waiver in court, and it becomes effective. ■ The case is then treated as if defendant was served with process on the day plaintiff files the executed waiver form in court. ■ Rule 4(d) does not provide for service by mail, it provides for waiver by mail. ■ Defendant does not waive the right to object to persona jurisdiction or venue. ■ Two incentives for defendant to waive service. ● (1) Defendant has 60 days from plaintiff mailing the waiver to respond to the complaint. (Longer than the 21 days for regular service.) ● (2) Defendant will not have to pay for the process server. ○ If defendant doesn’t respond to the waiver in a timely fashion, and did not have a good cause for refusal, defendant will have to pay for the costs of serving process. ○ Geographic Limit. ■ Process can be served anywhere within the state in which the federal court sits. (FRCP 4(k)(1)(A)) ■ Service can be made outside the state in which the federal court sits only if state law allows. (Usually in long-arm statute)

○ Service of Other Documents ■ Litigation will proceed after defendant is served with process. ■ Defendant will (or should) respond to the complaint by filing an answer or a motion. ■ All of these documents will be “served” on the other parties to the case. ■ Methods of Service for Other Documents (less strict) (FRCP 5(b)(2)) ● Delivery ● Regular mail ○ Service is deemed complete when the document is deposited in the mail. ○ If a document requiring the other party to respond is sent by mail, they have an extra 3 days added to respond. ● Email (if the other party agrees) Subject Matter Jurisdiction ● What court in the state will plaintiff sue? ● Exercised over cases, not parties. ● To enter a valid judgment, the court must have both personal jurisdiction and subject matter jurisdiction. ● State courts have “general” subject matter jurisdiction, they can hear any kind of case, even if it arises under federal law. ● Federal courts have “limited” subject matter jurisdiction. ○ Article III of the Constitution sets the outer boundary of cases that can be heard in federal courts ■ Congress must pass a statute that actually grants these powers to the federal courts. ● Subject matter jurisdiction can’t be waived like personal jurisdiction. ○ The federal recourt itself must raise the question of whether it has subject matter jurisdiction even if no party challenges it. ○ Even if lack of subject matter jurisdiction is not discovered until the case is on appeal, years later, the judgment will be set aside. ● Two Major grants of subject matter jurisdiction: (1) Diversity of citizenship, & (2) Federal question ○ Diversity of Citizenship Jurisdiction ■ Article III of the Constitution permits federal courts to hear cases “between citizens of different states.” ■ Claims in these cases arise under state law. ■ The congressional grant establishes 2 requirements (28 USC Sec. 1332(a)(1)) ● (1) The case must be between “citizens of different states” ● (2) The amount in controversy must exceed $75,000.00. ($75,000.01+) ■ Every plaintiff must be of different citizenship from every defendant. (Strawbridge v. Curtiss) ● Federal enclaves such as D.C., Puerto Rico, and Guam are treated as states in this regard. (28 USC 1332(e)) ■ Complaint must address “citizenship” That exact word. Calling it “residence,” or saying defendant is “from” somewhere will get the case dismissed. (CITE) ■ Citizenship of a Natural Person ● State where they are “domiciled” ○ The place where they are expected to return when traveling. ○ Their permanent home. ● Natural persons only have one domicile. (Different than businesses) ● Changing domicile requires two things: ○ (1) Must be physically present in the new place ○ (2) Must form the intent to make that place your new home. ■ Citizenship of a Corporation (28 USC Sec. 1332(c)(1)). ● (1) Every state where it has been in corporated ● (2) The state where it has its principal place of business.

○ The PPB is the place where managers “direct, control, and coordinate corporate activities” called the “Nerve Center,” usually the headquarters. (Hertz Corp. v. Friend) ■ Citizenship of Unincorporated Businesses ● Citizen of all states where their members reside. (CITE) ■ Aggregating Claims for Amount in Controversy ● We aggregate the claims of a single plaintiff against a single defendant. ● We do not aggregate claims asserted by or against multiple parties. ● However, if the case involves a joint claim or joint liability, the court will look to the value of the claim itself, and the number of parties is irrelevant. ○ Federal Question Jurisdiction ■ The court is permitted to hear cases “arising under” federal law. (Article III and 28 USC Sec. 1331) ■ No amount in controversy jurisdiction. ■ Citizenship of the parties is irrelevant. ■ Well-Pleaded Complaint Rule ● In determining whether a case “arises under”federal law, the court only considers the complaint, and ignores extraneous matters that plaintiff may have pleaded like affirmative defenses. (Louisville & Nashville Railroad Co. v. Mottley) ○ Supplemental Jurisdiction (28 USC Sec. 1367) ■ If a claim does not satisfy diversity or federal question and cannot be added to the case, the claims may possibly be added under supplemental jurisdiction. ■ Allows a federal court to hear non-federal, non-diversity claims-claims that by themselves could not go to federal court. ■ Proper only if the claim being joined is so closely related to the original claim that got the case into court, that they can be considered part of the same “case” or “controversy.” ● Claims comprise part of the same case if they share a “common nucleus of operative fact.” that they would reasonably be expected to be tried together. (United Mine Workers v. Gibbs - MAKE SURE IN CURRICULUM) ○ Not relevant that claim is brought against a different party, as long as they are a part of the same “common nucleus.” ■ Supplemental Claims Against Additional Parties ● Supplemental jurisdiction can apply to claims asserted by or against an additional party. THe fact that the supplemental claim is against a different defendant than the original claim is irrelevant. (28 USC Sec. 1367(a)) ● The following limits apply, but only in diversity of citizenship cases, AND only to claims asserted by plaintiff: (28 USC 1367(b)) ○ Denies supplement claims (1) by plaintiff against parties joined under FRCP 14, 19, 20 and 24, (2) by a plaintiff joined under FRCP 19, and (3) by an absentee seeking to intervene as plaintiff under FRCP 24. ● Courts have discretion to decline supplemental jurisdiction in certain situations. (28 USC Sec. 1367(c))(United Mine Workers v. Gibbs) ○ Areas of discretion include: ■ If the claim that initially got the case into federal court were dismissed early in the case. (28 USC Sec. 1367(c)) ● Removal From State to Federal Court (28 USC Sec. 1441, 1446, 1447) ○ Allows defendant who was sued in state court to “remove” the case to federal court. ○ Goes only from state trial court to federal trial court. ○ Removal is proper if the case filed in state court satisfies the requirements for federal subject matter jurisdiction. ■ Either diversity or federal question. ○ Defendant does not need permission to move.

○ Removal is proper only to the federal district that “embrac[es]” the state court in which the case was filed. ○ Defendant files a “notice of removal” in the appropriate federal court. ■ Defendant must allege the subject matter jurisdiction basis on which removal is made. ■ Notice must be accompanied by all documents that have been served upon defendant by that point in the state litigation. ■ Defendant then “promptly” serves a copy of the notice of removal and other documents on plaintiff. ○ Unanimity and Timing ■ All defendants who have been served with the document that makes the case removable must join in the notice of removal. ● The document that makes the case removable is usually the complaint. ■ All defendants must join in the notice of removal within 30 days. ■ If a new defendant is served, or a new document makes the case removable, the 30 days starts anew from that point. ○ Diversity Exceptions ■ (1) Diversity cases should not be removed if ANY defendant is a citizen of the forum where plaintiff filed the case. ■ (2) Defendants should not remove a diversity case more than one year after it was filed in state court. ● (Example: The case first becomes removable from a new document being filed over a year into litigation.) ● Exception: Removal is allowed more than one year after the case was filed, but only if the federal court finds that plaintiff acted in bad faith to prevent removal. (28 USC Sec. 1446(c)(1)) ● Motions to Remand ○ No time limit on plaintiff’s bringing a motion to remand for lack of subject matter jurisdiction. ○ Plaintiff may move to remand for reasons other than lack of subject matter jurisdiction. ■ Example: defendant didnt’ follow the rules for removing the case: ● (Failing to sign notice of removal, failure to serve adverse parties with proper documents ,etc. ○ Plaintiff must make the motion to remand no later than 30 days after defendant filed the notice of removal in federal court. ■ Failure to do so waives. ○ Instate defendant rule must be raised by plaintiff. The court can/will let an instate defendant into federal court if plaintiff doesn’t move to remand. ○ No time limit for remanding a case where there is no subject matter jurisdiction. Venue, Transfer, & Forum Non Conveniens ● Venue tells us exactly where (geographically) the case will be filed in the chosen judicial system. (28 USC Sec. 1390(a)) ● Venue may be dictated by statutes setting special venue provisions. Always look out for these first. ● In general, venue is permitted in the federal district where (1) defendant resides; or (2) where the claim arose. (28 USC Sec. 1391(b)) ● If plaintiff files suit in an improper venue, defendant must make a timely objection, or else the defense is waived. (FRCP 12(b)(3)) ● General Grants of Venue: (28 USC Sec. 1391(b)) ○ (1) “Residential” Venue: a district where defendant resides. ■ Specifically, venue is proper in any district where all defendants reside. ● Sub Rule: If all defendants reside in different districts of the forum state, then venue is proper against all defendants in a district where one of them resides. ■ Where do defendants “reside” for venue purposes?

● A human resides in the district where they are domiciled. (28 USC Sec. 1391(c)(1)) ○ A person can only reside in one district at a time. ○ However, non U.S. citizens can be sued in any judicial district and are disregarded if there are multiple defendants. This includes lawfully admitted immigrants who are not permanent residents. (28 USC 1391(c)(3)) ● Entities like corporations and partnerships reside in all districts where they would ...