Civil Procedure Outline – Fall 2007 Due Process Clauses I. Personal Jurisdiction (PJ) A) In Personam Jurisdiction (over the D herself) 1) General In Personam a. Can be sued in the forum on a claim that arose ANYWHERE in the world 2) Specific In Personam a. D is being sued on a claim that has SOME connection with a forum b. Arose from… some incident in the jurisdiction 3) Constitutional Limits of In Personam – Statute & Traditional Basis a. Pennoyer v. Neff – Raw Power (i) Raw physical power, state's power over people and things inside the state; gives us traditional basis for PJ: (a) Served with Process in Forum (gen. juris.) - PRESENCE (present at time) (b) D's Agent was Served with Process in Forum (c) D is Domiciled in the Forum (gen. juris.) (d) Consent (can always waive) b. Hess v. Paloski – Implied Consent – Service on Agent (sec. of state) (i) Rule: Service of process on State Official for out-of-state D is acceptable when specific jurisdiction exists (ii) 1926 - automobile accident in MASS, D gets out of state; MASS had non-resident motor vehicle act - appointing state official as agent for service of process, spec. juris. - based on Pennoyer concept of power; implied consent - SC expanding (iii) Implied Consent - i.e. driving in state is appointing agent in state c. International Shoe – Contacts + Fairness – Minimum Contacts (fair play & justice) (i) 2 Parts to Test: (a) Contact (b) Fairness (c) “D has such minimum contacts with the forum, exercise of jurisdiction does not offend traditional notions of fair play and substantial justice” (ii) Int’l Shoe Notes (a) SC giving NEW DOCTRINAL FORMULA (b) Test is very flexible - expand PJ, amorphous (c) Now clear can serve process OUTSIDE the forum state (d) Does NOT overrule Pennoyer v. Neff (e) This is test if PERSONAL SERVICE does not occur in the state d. McGee v. International Life – Nature of Contact (1 contact with outside state CA - SC says PJ) (i) Solicited - D solicited contract from California (ii) Relatedness - Ps claim "arose directly from contact with state (CA)" (iii) State Interest - CA had statute to protect citizens 4) Limiting Constitutional Jurisdiction a. Hanson v. Deckling – Purposeful Availment
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Civil Procedure Outline – Fall 2007 Due Process Clauses
I. Personal Jurisdiction (PJ)
A) In Personam Jurisdiction (over the D herself)
1) General In Personam
a. Can be sued in the forum on a claim that arose ANYWHERE in the world
2) Specific In Personam
a. D is being sued on a claim that has SOME connection with a forum
b. Arose from… some incident in the jurisdiction
3) Constitutional Limits of In Personam – Statute & Traditional Basis
a. Pennoyer v. Neff – Raw Power
(i) Raw physical power, state's power over people and things inside the state; gives us traditional
basis for PJ:
(a) Served with Process in Forum (gen. juris.) - PRESENCE (present at time)
(b) D's Agent was Served with Process in Forum
(c) D is Domiciled in the Forum (gen. juris.)
(d) Consent (can always waive)
b. Hess v. Paloski – Implied Consent – Service on Agent (sec. of state)
(i) Rule: Service of process on State Official for out-of-state D is acceptable when specific
jurisdiction exists
(ii) 1926 - automobile accident in MASS, D gets out of state; MASS had non-resident motor
vehicle act - appointing state official as agent for service of process, spec. juris. - based on
Pennoyer concept of power; implied consent - SC expanding
(iii) Implied Consent - i.e. driving in state is appointing agent in state
c. International Shoe – Contacts + Fairness – Minimum Contacts (fair play & justice)
(i) 2 Parts to Test:
(a) Contact
(b) Fairness
(c) “D has such minimum contacts with the forum, exercise of jurisdiction does not offend
traditional notions of fair play and substantial justice”
(ii) Int’l Shoe Notes
(a) SC giving NEW DOCTRINAL FORMULA
(b) Test is very flexible - expand PJ, amorphous
(c) Now clear can serve process OUTSIDE the forum state
(d) Does NOT overrule Pennoyer v. Neff
(e) This is test if PERSONAL SERVICE does not occur in the state
d. McGee v. International Life – Nature of Contact (1 contact with outside state CA - SC
says PJ)
(i) Solicited - D solicited contract from California
(ii) Relatedness - Ps claim "arose directly from contact with state (CA)"
(iii) State Interest - CA had statute to protect citizens
4) Limiting Constitutional Jurisdiction
a. Hanson v. Deckling – Purposeful Availment
(i) Purposeful Availment - To be a relevant, D must "avail" self to D, unilateral act over a 3rd
party
(ii) Donner from Penn, enters trust w/ DE bank, Donner moves to FL, but continues bank
interest while in FL, but DE wants PJ
b. Worldwide Volkswagen – “Reaching Out to the Forum” (if contacts not sufficient)
(i) Robinsons - move from NY to go to AZ, in OK they have accident, sue in OK - allege that
car was defective, sue 4 Ds, clear that 2 worked, unclear over…
(ii) Worldwide - only does business in CT, NY, and NJ
(iii) Seaway Motors - only did business in NY
(iv) SC says NO - B/C no relevant contact, did not "reach out" to OK, no reaching out to
state
(v) Foreseeability - relevant to PJ, but not enough to see that PRODUCT TO STATE, must be
foreseeable that OK could be SUED IN THE STATE
(vi) Foreseeable that car could go into, but must be substantial enough to avail
c. Calder v. Jones - Causing an Effect
(i) Causing & Effect in State - have minimal contact
(ii) D does not need to be in state to have PJ (can have minimaleffect
(iii) Case – defamation suit from FL writer to CA star
d. Burger King – “So Gravely Inconvenient that Severe Disadvantage”
(i) International Shoe has 2 parts - CONTACT & FAIRNESS, officially split
(ii) Must have relevant contact BEFORE looking at fairness
(iii) Under case, did have contact (20 year, million dollar deal that allowed FL law, availed)
(iv) D claimed that it wasn't fair for D to go -
(a) D must show - that forum is so gravely inconvenient that D is at SEVERE
disadvantage in the litigation, money doesn’t matter
(b) Brennan wrote this opinion
e. Asahi - Stream of Commerce Case (1987)
(i) Positions in Case
(a) Brennan: Contact if product goes into stream and reasonably anticipate that it gets to
C,D,E
(b) O'Connor: States interest involved and need more intention than the Brennan analysis;
need more than Brennan, PLUS intent to service state C,D,E
1. i.e. Advertising,
(ii) Stream of Commerce - manufacture in state A and ship to state B and they get to C,D,E
(iii) Question: Does state A defendant have contact with state B
(iv) Justices split 4 to 4 - splitting case, Stevens doesn't take decision
f. Burnham: Tag Jurisdiction – Split (Tradition v. Int’l Shoe)
(i) Positions:
(a) Scalia – Historical Pedigree – traditional importance of tag jurisdiction (I.S. is not
appropriate for this analysis)
(b) Brennan – Must apply Int’l shoe (instant case of 3 days in state was sufficient for
specific jurisdiction)
(ii) NJ defendant sued in CA, claim that arose in NJ but want to sue in CA, D is served with
process while in CA
(iii) Question: Does the traditional basis survive by itself or do you have to assess International
Shoe? No answer - 4/4 split, 2 approaches
(iv) On traditional basis - they may be good by themselves OR they may be supplemented with
contacts
5) General v. Specific
a. Helicopteros
b. Subject to General Juris if Continuous & Consistent Contacts with the Forum
(i) i.e Ford HQ in Detroit
B) RECAP
1) MUST have list of factors:
a. Traditional Basis – Question whether traditional basis apply?
(i) If Yes - traditional may be sufficient by itself, but may not b/c of Burnham
(ii) If Not - Int'l Shoe Test
2) International Shoe Test
a. Break into 2 parts:
(i) Relevant Contact b/t State and Forum
(a) Purposeful Availment - D must reach out to forum in some way, make money or use
roads or cause and effect (not 3rd party)
(b) Foreseeability - D could foresee being sued in the forum
1. Marketing to State
2. Zippo – elements
Active, passive, middle ground test
Active – PJ – repeated transmission of files
Passive – no PJ – buried files, stretch to find
Middle – o If level of site requires o Marketability of consumer
3. ALS Test (referenced in Raju)
Most applied – 4th circuit (all registered VA)
Requires: o Target, AND o Harm
4. LL Bean
Virtual Online Store – Zippo application
5. Nationwide Jurisdiction
Raju – Rule 4(k)(2) o Not in federal state, AND o Federal Question, AND o Not against the Constitution
(ii) If Yes… Fairness - fair play and substantial justice
(a) Convenience for Parties
1. BK - showed that if convenient then allow PJ
(b) Forum Law
1. More fair and convenient
(c) Arising From –
1. Does the P's claim ARISE FROM contact with forum…
2. If so - McGee, one contact was sufficient
(d) Relatedness
1.
(e) Inconvenience
1. For D and witnesses (BK standard)
2. Must show that he/she is SO inconvenienced
(f) State's Interest - McGee standard
(g) P's Interest –
1. litigating
(h) Legal System's Interest in Efficiency
1. Multiplicity of Suits
(i) Interstate Interest in Shared Substantive Policies
1. Kulko - no PJ b/c of family harmony
3) State Statute
a. Every state has statute about following:
(i) Service in forum
(ii) Domiciled in state
(iii) Motor-Vehicle
(iv) Long-Arm Statute - allows PJ over non-residents (2 kinds)
(a) California Statute - full due process
(b) Laundry List Long-Arm - gives series of things that non-resident can do that will
subject him to juris - specific jurisdiction
1. Enters Contract
2. Transacts Business
3. Buys Real Property
4. Others
(c) Grey v. American Radiator - interpretation of
1. "Committing tort in state" - i.e Manufacture widget in state A and it blows up
in state B; some will say no because manufactured in A; other courts will say that
injury occurred in state B
(d) Statutory language can be same but interpreted differently say
C) In Rem or Quasi in Rem (D is not in forum
1) Property is jurisdictional basis because D is not in forum
2) In Rem –
a. Dispute is about WHO OWNS THAT PROPERTY
3) Quasi In Rem (QIR) –
a. Quasi in Rem I
b. Quasi in Rem II
(i) Haris v. Bulk
(a) Securities and intangibles travel with owner
c. has nothing to do with ownership of that property, D owns it, has to do with
4) Mitchell v. Neff
a. Breach of contract, could not sue Neff in personam because not around, so Mitchell tried to go for
quasi in rem; Neff had property in Oregon, but problem was property was not attached in case)
b. Constitutionally the court must attach the property at the outset of a case
5) Steps:
a. Find the statute
(i) Can proceed if "property that D owns or claims to own" and statute should require
attachment
b. Constitutional Analysis (if yes)
(i) Probably still required but not enough
(ii) Schaffer v. Heitner - for IR and QIR, only ok if D meets Int'l Shoe test, D must have such
minimum contacts to satisfy
(a) Powell Concurring Opinion - may be satisfied simply by having property in forum,
especially if about land in forum and IN REM; if real property this is probably enough
(b) Must assess International Shoe test
6) Anti Cyber Squatting Consumer Protection Act
a. Register Domain name
(i) Definite for In Rem
(ii) Possible for In Personam
7) Comparative Jurisdiction
a. France – all citizens all over the world - jurisdiction over all the world
b.
II. Notice
A) Service of Process – Rule 4
1) Process = Summons & Copy of Complaint
a. Summons (Rule 4a & 4b)
(i) Signed by court, symbol of court's power over D
(ii) Rule 4(a) and 4(b)
(iii) Non-Party over 18
2) Serving on Human Being - Rule 4(e)
a. Alternatives for Process Rule 4(e)2 - 3
(i) Personal Service - walk up and hand service to person
(ii) Substituted Service - not serving D, serving a substitute => must have following 2
(a) Usual Abode
(b) Serve of "Suitable Age and Discretion who Resides There"
(iii) Serve Defendant's Agent
b. How to Serve Process - Rule 4(e)1
(i) "Any method for serving process under STATE law”
(ii) State where fed ct sits OR state where service is effected
(iii) This is where we get service through mail if state is allowing this
3) Service of Process on a Business
a. Serve on Managing Agent Rule 4(h)
(i) Officer – always accepted
(ii) Managing/General Agent –
(a) must be someone enough job responsibility that expect him to transmit important
documents
b. Rule 4(e)1 - use state law methods
4) Waiver of Service - Rule 4(d)
a. Request waiver, if not then has to pay for service
5) Immunity from Service
a. Fraud
b. Force
c. Coming because of another lawsuit
6) Geographic Limit of Serving Process
a. Rule 4(k)(1)(a) –
(i) Serve "throughout the state in which federal court sits"
(ii) In addition… "can serve out of state ONLY IF a state court in the state could do so" (i.e.
long-arm statute)
(iii) Same in fed ct and state ct because of Rule 4k1a
(iv) Exceptions:
(a) Rule 4(k)(1)(b), (c)
(b) 100 Mile Buldge – (d)
1. Rule 14
2. Rule 19
(c) 4(k)(1)(c) – Interpleader
1. Interpleader - anywhere
(d) 4(f)(1)- (3) – International Service
1. (f)(1) – Hague Convention
2. (f)(2) – absent Hague
3. (f)(3) – any other means available
B) Constitutional Standard for Giving Notice 1) Mulane v. Bank – Reasonable Notice
a. "Must be reasonably calculated under ALL of the circumstances to apprise the party of the suit"
b. Does not say that D has to get the service - even if D never got because substitute service given
appropriately
2) Jones v. Flowers (2006) –
a. If become aware that not actually received, may have to pursue other available means of service
b. Facts - someone wasn’t paying taxes on house, state sent to homeowner correctly, but registered
mail came back and so the ct said P may have
3) Constructive Notice – Notice by Publication
a. Mulane – for unknown parties only
(i) Usually this is not constitutional, normally won't meet the standard of Mulane
(ii) BUT under ALL circumstances, may be other circumstances where publication is all that can
be done
(iii) In MULANE - upheld publication for unknown parties in the trust
(iv) ALWAYS the last resort
(v) Actual Notice
4) Defective Notice Rule
a. Giving actual notice may not save the P if the statutory scheme is unconstitutional
b. Defective notice undermines the entire proceeding
C) Opportunity to be Heard 1) Pre-Judgment Seizure before judgment
2) Commercial Transactions (typically) -
a. i.e. installment plan purchase, seller wants REPLEVIN (getting property back), pendente lite, during
litigation seller wants the property; normally sheriff would take property, but not done today
b. Connecticut v. Door OR Fuentes - SC has established some safeguards for buyer, unclear how
many need to be present to make repossession unconstitutional (talk to Reynolds about this)
(i) P must give an affidavit and must be SPECIFIC
(ii) Get an order from a judge not from a Sheriff
(iii) P may be required to post a bond - putting up money for compensation if P is wrong
(iv) At some point, D gets a hearing on the merits
D) Random Service Notes 1) Summons
a. Signed by clerk
b. Names of court and parites
c. Name/address of attorney
d. Time to respond
e. Statement that failure will result in default
2) Against US
a. In Attorney Gen office
3) Local Govt – governor, or as described by state law,
4) In foreign country – Hague Service Convention
III. Justiciabilty
A) Define – needing property issues, parties, timing
B) Aspects:
1) Standing to Sue –
a. Proper parties bring case – party asserting a legal right be the appropriate person to enforce that
right
b. Personal stake in controversy
(i) Either direct injury, OR
(ii) Relief sought is likely to redress injury
c. Causation must be “fairly traceable”
d. Exception
(i) Qui Tam – whistleblowers (False Claims Act)
(ii) Jus Terrie – sue on behalf of
e. Not Allowed:
(i) Advisory Opinion – about upcoming statute
(ii) Political Questions – judicial is judging not enforcing
(iii) Timing – pendente lite
2) Appropriate Disputes
a. No advisory ruling, must be binding
b. Mootness – ruling will not matter any more
(i) Exception:
(a) Substantial state or national interest
3) Ripeness
a. Must be brought to the court at the right time
b. Declaratory judgment under USC 2201,
(i) Can get declaratory judgment if very likely chance of breach (think contracts)
IV. Subject Matter Jurisdiction (SMJ)
A) Intro Notes
1) Different entirely from PJ (over the parties), SMJ (over the case) - must have both
2) PJ - says can sue in state, but not what court one can go to
3) SMJ - says what court someone can go to inside state
4) Federal Court Limited SMJ –
a. Can only hear certain types of cases (diversity of citizenship and federal question)
5) State Courts - General SMJ - can hear ANY case, but states will normally divide based on efficiency
a. Minor Exception - state courts cannot hear SOME federal-question cases where there is
exclusive federal jurisdiction (anti-trust, federal securities, patent, etc…)
B) Diversity of Citizenship - USC 1332(a) - statutes, not federal rules (part of judicial code)
1) Basics:
a. Article III – Section 2
b. USC 1331, 1332, 1333, 1334
c. Freedom from Local Bias
(i) Pg. 325-327
2) 2 Requirements:
a. Citizens of Different States – complete diversity
b. Amount in Controversy must exceed $75,000
c. No – Probate or Domestic Relations
3) Citizens of Different States
a. Complete Diversity Rule [Strawbridge v. Curtiss]
(i) No diversity if ANY plaintiff is a citizen of same state as ANY defendant
(ii) One overlap will destroy - if FL P, 99 AL Ds and 1 FL D, doesn't work
b. Citizenship of Human Being
(i) Diversity of Citizenship - NOT "from" or resident
(a) For a US citizen, citizen of state WHERE SHE IS DOMICILED
(b) Domicile Factors:
1. Presence in the state, AND
2. Intent to make permanent home
(c) Only have one domicile at a time, and everybody has a domicile
(d) If moving – have to get there and plan to reside permanently but not until actually there
1. Exception
Going by sea
(ii) Nominal Parties
(a) Should be disregarded for purposes of diversity
(b) Pete Rose Case
(iii) Special Exceptions
c. Citizenship of Corporation - USC 1332(c)(1) [never domicile]
(i) Factors of Corporation
(a) Citizen of ALL states where incorporated
(b) Where Corp has Principal Place of Business (PPB) - can never have more than 1 PPB
1. Test for PPB:
Corporation's Nerve Center - where decisions are made, usu.
headquarters
Muscle Center OR Place of Activities - where does "more stuff" than
else
Total Activities Test - will use nerve center unless ALL activities are in
one state
(c) What if major operations all over
1. NY is Nerve Center, PA is Place of Activities, Activites in 4 other states - will
probably be in NY
(d) Exceptions
1. Insurance Agency – where person is domiciled
d. Citizenship Issues
(i) Class Action – domicile or rep only
(ii) Shareholder Derivatives – domicile of rep only
(iii) Executor – domicile of decedent
(iv) Rep of Incompetent – domicile of incompetent
(v) Rep of Minor – domicile of minor
(vi) Unemancipated Minor – same domicile as parent
(vii) Married Woman – same domicile as husband (traditional rule)
(viii) Armed Forces – domicile before entering service
(ix) Prisoner – domicile before incarceration
(x) Student out-of-state – same domicile as before school
e. Special Diversity Issues:
(i) Alien Jurisdiction
(a) Alien v. Alien – no diversity
(b) Citizen v. alien – diversity
(c) Alien & citizen v. alien – no diversity
(d) Alien & citizen v. alien & citizen – diversity
(e) Citizens of non-recognized states not permitted in diversity court
(f) Dual national – dominant nationality doctrine
(g) Alien corporations – not specifically mentioned in 1332(c)
1. Some courts treat them citizens of states of incorporation
2. Some courts treat them as citizens of state in US where they have their world-
wide principal place of business
3. Some courts say apply both
4) Exceed amount in Controversy
a. Legal Certainty Test – sum claimed by P and must be in good faith – must appear to a legal
certainty that claim is less than the jurisdictional amount to justify dismissal
b. Must EXCEED 75,000 (not including interest and fees)
c. Basic Info:
(i) Whatever P claims is ok
(ii) UNLESS "Clear to Legal Certainty" that she cannot recover more than 75,000
(iii) Would take a statutory cap to prevent for the most part
(iv) Ultimate Recovery is Irrelevant –
(a) P's ultimate recovery is IRRELEVANT to jurisdiction
(b) USC 1332(b) - explains this rule
d. Aggregation –
(i) Adding multiple claims to get over $75,000
(a) Aggregate all claims b/t P and D
(ii) Cannot aggregate multiple claimants on one side (i.e. 1 P v. 3 D)
e. Joint Claims – Class Action
(i) Only as joint tortfeasors can aggregate – if claims are severable then assessed independently
(ii) With JOINT CLAIMS - use total value of the claims
(iii) i.e. 3 people beat up one person for 76,000 damages, any one of 3 could be liable for all