Civil Procedure Outline PDF

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Personal jurisdiction info...

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CIVIL PROCEDURE OUTLINE I.

PERSONAL JURISDICTION

PERSONAL JURISDICTION

IN REM

IN PERSONAM

QUANSI IN REM

TRUE IN REM QIR I

QIR II

TRADITIONAL BASIS

1. 2. 3. 4.

DOMICILE CONSENT AGENCY PRESENCE

MIN. CONTACTS TEST

1.LONG ARM STATUTE 2.CONTACTS/PA 3.RELATEDNESS -ACTIVITIES -CONTACTS -EFFECTS TEST -SREAM OF COMMERCE

4.REASONABLENESS/ FAIRNESS

a. Definition – The power of the court to enter a binding, final judgment against the defendant. COMPOSED of (1) Connecting factors (2) Reasonable expectations b. Consent(s) to Personal Jurisdiction i. Voluntary Appearance – If a defendant files an answer to a complaint without challenging the courts jurisdiction, any potential objection to jurisdiction is WAIVED.  Voluntarily appearing means you’re automatically under the court’s jurisdiction **A SPECIAL APPERANCE IS NOT A VOLUNTARY ONE ii. Consent to Service on an Agent - By appointing an agent for the receipt of service of process, a defendant consents in advance to being sued in the State’s courts. iii. Transient or Tag Jurisdiction- Passing by the state  bound by the State

iv. v.

In Rem- Based on either tangible or intangible property attachment belonging to defendant. Quansi In Rem- “as if against a thing” i.e. debt unrelated to land  take control of house

Personal Jurisdiction Arises from PENNOYER v. NEFF NOTE: A defendant must be properly served. Service by publication is not effective. c. Process: Connection with form proven  notice  due process  Judgment I. Court always has PJ over person who files claim (Plaintiff), focus is on the defendant II. Defendant can waive the right to challenge PJ consent III. DUE PROSSESS required: Right to notice, to defend, and cannot be charged for the same offence twice. IV. Courts get PJ (1) IN PERSONAM or (2) IN REM V. In Personam - is the best way to go for maximum recovery. Judgment creates personal obligation, a personal debt, that can follow the defendant anywhere (OPEN BOX) TAKE THEM FOR EVERYTHING THEY HAVE! VI. IN Rem – Subjects only the property to the judgment and does not create a portable debt against the defendant. SEALED BOX.  True In Rem- Property must be attached at the outset of the litigation. Litigation is about the attached property and binds all interested parties in the property even those without notice.  Quansi In Rem I – Property is attached at the outset of litigation and is about the attached property BUT binds only the party receiving notice (i.e. foreclosure).  Quansi In Rem II – Is not about the attached property. Recovery is limited to the value of the attached property. (Pennoyer case). D. Minimum Contactsi. Contacts (quality and nature) ii. Purposeful Availment (benefits and protections of the forum state) iii. Relatedness (specific or general jurisdiction) iv. Reasonableness (4 fairness factors)  Long Arm Statute -all states have one  Personal Availment - based on activities in the forum i.e. contracts with parties in the forum  Effects Test – only in cases of intentional torts  Stream of commerce Theory - Foreseeability is not enough

- Volume doesn’t matter - # of products in the state vs others - is there any advertising, training programs ect.?  Relatedness -> how do the activities relate to the nature of the lawsuit aka cause of action? -but for test is not enough -arising from -proximate cause  Reasonableness (QIR II no fairness analysis) II.

SUBJECT MATTER JURISDICTION I. Definition- A courts power over a claim -Article III section 1 -Statutes  28 U.S.C. 1331, 1332 -Never presumed -Can be contested at any time, by any party, and at any level.

3 Different forms of SMJ -Arising under -Between different citizens of different states -Alienage Jurisdiction b. Arising under Federal Law I. Congress has the power to change the scope of the constitution II. District court has original jurisdiction in arising under III. There has to be an essential federal ingredient IV. Cause of Action by Plaintiff must address a Federal Issue - Therefore in determining federal question in SMJ only allegations of plaintiff’s complaint can be considered in determining the federal question. - It is not enough to for Federal Issue to be present in the question, must be in allegations as well. V. In SMJ is NOT Personal availment, it is PURPOSEFUL availment 

c.Essential Federal Ingredient Test (1). Necessarily Raised (2). Actually disputed (3). Substantial (4). Capable of resolution in Fed. Ct. w/out disrupting balanced approved by congress. d. DIVERSITY STATE v. STATE I. 28 U.S.C. §1332: AMOUNT IN CONTROVERSY MUST EXCEED $75,000.00 II. COMPLETE DIVERSITY IS NEEDED - DOMICILE = CITIZENSHIP - You can only have one domicile

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U.S. citizen domiciled abroad does not fall under SMJ A Company can have dual citizenship depends on: (1)where the corporation is (2) and where there principle place of business or HQ is located - Aliens cannot sue each other - Know where people are really from before commencing YOU FILE IN THE WRONG CT. YOU MAY LOSE A LOT OF TIME AND MONEY. - Time of filing (30 days?) E. SUPPLEMENTAL JURISDICTION i. At Bare bones- A federal claim filed with a State Claim…. Saves courts time and money even though a Fed. Ct. doesn’t originally have authority over state claims ii. Arise from Pendant and Ancillary Jurisdiction -Pendant: additional claims/parties brought by original plaintiff -Ancillary: additional claims/parties brought by person other than the plaintiff -Supplemental: statutory codification of pendant and ancillary jurisdiction  Never available to get the original case into court. “A State claim may proceed in Fed. Ct. when it accompanies a Fed. Claim that arises from a common nucleus of operative fact.” ONLY APPLIES TO FEDERAL QUESTION JURISDICTION NOT DIVERSITY iii. Important exceptions - If a Fed. Claim is dismissed, the Fed. Ct. looses jurisdiction over the state claim - If the claims predominantly are relied upon state claims over Fed. Claims then the court should dismiss without prejudice to allow Plaintiff to re-file in St. Ct. - Fed. Ct. sides with unions unless they commit or encourage violence...