Civ Pro 1 Outline

I. Jurisdiction - Power to declare the law. To render a legitimate decision, the court must have the
power to issue.
A. Must have BOTH Territorial and SMJ to make legitimate decisions.
1.
Territorial or sometimes simply personal jurisdiction;
a) In Personam - imposing personal liability over one person in favor of another
(1)
When a court has in personam jurisdicition over a defendant, the
defendant becomes personally liable for any judgement rendered.
(2)
If defendants assets within the forum state are inadequate, an in
personam judgment can be taken to another state for enforcement against other
assets.
(a)
Full Faith and Credit - A decision made by the courts of one
state must be acknowledged by other states. Conversely, if there is a lack of
either personal or subject matter jurisdiction, then it is not legitimate. Rem
- Affecting interests of all persons in designated property. Adjudicates the
rights in the land. All people in the world must abide the rights of the land
even though the idea that the land itself has rights is a complete fiction.
(3)
In rem jurisdiction does not focus directly on people, but more on things.
Frequently, in rem jurisdiction determines ownership of real property within the
state in which the court sits. Even persons who are not in the state, or do not
participate in the proceedings, may have their rights affected in the res
acted on by the court.
b) Quasi-in-Rem - Affecting the interests of particular persons in designated
property, and historically used as an alternative way to secure jurisdiction where in
personam jurisdiction was unavailable. (much of this is irrelevant in contemporary
law)
(1)
Background on Quasi-in-Rem jurisdiction:
(a)
Harris v Balk (1905)
i) Quasi-in-rem jurisdiction was approved where Epstein, a Maryland
plaintiff, wanted to sue Balk on a debt. Balk, however, lived in North
Carolina and personal jurisdiction could not be obtained over Balk in
Maryland.
ii) However, Harris owed Balk. Harris traveled to Maryland, and
while there Epstein attached Harris debt to Balk. The debt was Balks
intangible property.
(1)
Attachment - the process by which a sheriff brings an item
of property into the control of the court.
(2)
The property over which Maryland had control was
conceptualized as the basis of jurisdiction. Any judgment rendered
was limited to the value of that property.
II.
Rule 4

Rule 4: Summons

4(a)

(1) A summons must:

(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintifs attorney or
- if unrepresented - of the plaintif
(D) state the time within which the defendant must appear
and defend.
(E) notify the defendant that a failure to appear and defend
will result in a default judgement against the defendant for
the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) Bear the courts seal.

4(b)

Issuance. On or after filing the complaint, the plaintif may

present a summons to the clerk for signature and seal. If the
summons is properly completed, the clerk must sign, seal, and
issue it to the plaintif for service on the defendant. A summons
or a copy of a summons that is addressed to multiple
defendantsmust be issued for each defendant to be served.

4(c)

(1) In General. A summons must be served with a copy of the

complaint. The plaintif is responsible for having the
summons and complaint served within the time allowed by
Rule 4(m) and must furnish the necessary copies to the
person who makes service.
(2) By Whom. Any person who is at least 18 years old and not
a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the
plaintif's request, the court may order that service be made
by a United States marshal or deputy marshal or by a
person specially appointed by the court. The court must so
order if the plaintif is authorized to proceed in forma
pauperis under 28 U.S.C. 1915 or as a seaman under28
U.S.C. 1916.

4(d)

(1) Requesting a Waiver. An individual, corporation, or

association that is subject to service under Rule 4(e), (f), or (h)
has a duty to avoid unnecessary expenses of serving the
summons. The plaintif may notify such a defendant that an
action has been commenced and request that the defendant
waive service of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii)For a defendant subject to service under Rule 4(h), to
an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive
service of process;
(B) name the court where the complaint was filed;
(C) Be accompanied by a copy of the complaint, 2 copies of
a waiver form, and a prepaid means for returning the
form;
(D) Inform the defendant, using text prescribed in Form 5,
of the consequences of waiving and not waiving
service;
(E) State the date when the request is sent;
(F) Give the defendant a reasonable time of at least 30
days after the request was sent -- or at least 60 days if
sent to the defendant outside any judicial district of the
United States -- to return the waiver; and
(G) Be sent by first-class mail or other reliable means.
(2) Failure to Waive. If a defendant located within the United
States fails, without good cause, to sign and return a waiver
requested by a plaintif located within the United States, the
court must impose on the defendant:
(A) the expenses later incurred in making service; and
(B) The reasonable expenses, including attorneys fees, of
any motion required to collect those service expenses.
(3) Time to Answer After a Waiver. A defendant who, before
being served with process, timely returns a waiver need not
serve an answer to the complaint until 60 days after the
request was sent -- or 90 days after it was sent to the

defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintif files a waiver,
proof of service is not required and these rules apply as if a
summons and complaint had been served at the time of
filing the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a
summons does not waive any objection to personal
jurisdiction or to venue

4(e)

Serving an individual Within a Judicial District of the United

States. Unless federal law provides otherwise, an individual -other than a minor, an incompetent person, or a person whose
waiver has been filed -- may be served in a judicial district of
the United States by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in the
state where the district court is located or where
service is made; or
(2) Doing any of the following:
(a) delivering a copy of the summons and of the
complaint to the individual personally;
(b) Leaving a copy of each at the individuals
dwelling or usual place of abode with
someone of suitable age and discretion who
resides there; or
(c) Delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.

4(f)

Serving an Individual in a Foreign Country. Unless federal law

provides otherwise, an individual -- other than a minor, an
incompetent person, or a person whose waiver has been filed -may be served at a place not within any judicial district of the
United States:
(1) by any internationally agreed means of service that is
reasonably calculated to give notice, such as those
authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents;
(2) If there is no internationally agreed means, or if an
international agreement allows but does not specify
other means, by a method that is reasonably
calculated to give notice:
(A) as prescribed by the foreign countrys law for
service in that country in an action in its
courts of general jurisdiction;
(B) As the foreign authority directs in response to
a letter rogatory or letter of request; or
(C) Unless prohibited by the foreign countrys law
by:
(i) delivering a copy of the summons and of
the complaint to the individual and that
requires a signed receipt; or
(3) by other means not prohibited by international
agreement, as the court orders.

4(g)

Serving a Minor or Incompetent Person. A minor or an

incompetent person in a judicial district of the United States
must be served by following state law for serving a summons or
like process on such a defendant in an action brought in the
courts of general Jx of the state where service is made. A
minor or an incompetent person sho is not within any judicial
district of the United States must be served in the manner
prescribed by Rule 4(f)(2)(A),(f)(2)(B) or (f)(3)

4(h)

Serving a Corporation, Partnership, or Association. Unless

federal law provides otherwise or the defendants waiver has
been filed, a domestic or foreign corporation, or a partnership
or other unincorporated association that is subject to suit under
a common name must be served:
(1) In a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for
serving an individual; or
(B) By delivering a copy of the summons and of
the complaint to an officer, a managing or
general agent, or any other agent authorized
by appointment or by any other agent
authorized by appointment or by law to
receive service of process and -- if the agent
is one authorized by statute and the statute so
requires -- also mailing a copy of each to the
defendant; or
(2) at a place not within any judicial district of the United
States, in any manner prescribed by Rule 4(f) for serving
an individual, except personal delivery under (f)(2)(C)(i)

4(i)

Serving the United States and Its Agencies, Corporations,

Officers, or Employees.
(1) United States. To serve the United States, a party
must:
(A)(i) deliver a copy of the summons and the
complaint to the United States attorney for the
district where the action is brought -- or to an
assistant United States attorney or clerical
employee whom the United States attorney
designates in a writing filed with the court clerk -or
(ii) send a copy of each by registered or certified
mail to the civil-process clerk at the United
States attorneys office;
(B) send a copy of each by registered or certified
mail to the Attorney General of the United
States at Washington, D.C.; and
(C) If the action challenges an order of a nonparty
agency or officer of the United States, send a
copy of each by registered or certified mail to
the agency or officer.
(2) Agency; Corporation; Officer or Employee Sues in an
Official Capacity. To serve a United States Agency or
corporation, or a United States officer or employee
sued only in an official capacity, a party must serve
the United States and also send a copy of the
summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or
employee.
(3) Officer or Employee Sued Individually. To serve a
United States Officer or employee sued in an
individual capacity for an act or omission occurring in
connection with the duties performed on the United
States behalf (whether or not the officer or employee
is also sued in an official capacity), a party must
serve the United States and also serve the officer or

employee under Rule 4(e), (f), or (g)

(4) Extending Time. The court must allow a party a
reasonable time to cure its failure to:
(A) serve a person required to be served under
Rule 4(i)(2), if the party has served either the
United States attorney or the Attorney General
of the United States.
(B) Serve the United States under Rule 4(i)(3) if
the party has served the United States officer
or employee.

4(j)

Serving a Foreign, State, or Local Government.

(1) Foreign State. A foreign state or its political
subdivision, agency, or instrumentality must be
served in accordance with 28 U.S.C. 1608
(2) State or Local Government. A state, a municipal
corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the
complaint to its chief executive officer; or
(B) Serving a copy of each in the manner
prescribed by that states law for serving a
summons or like process on such a
defendant.

4(k)

Territorial Limits of Efective Service.

(1) In General. Serving a summons or filing a waiver of
service establishes personal jurisdiction over a
defendant:
(A) who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district
court is located;

4(l)

4(m)

4(n)

0.
a) Territorial Jurisdiction is almost always discussed as a limitation on the states.
(1) While this is true as a general rule, territorial jurisdiction, as a practical matter,
also limits the federal courts sitting in the states. (Crudely) The limits of
territorial jurisdiction of a federal court are the same as the limits of the
territorial jurisdiction of the state courts of the state in which the federal court
sits. This is the result of FRCP 4(k) which governs the effectiveness of the
service of summons in the federal courts.

(2)

(3)

(4)

(5)

(a) FRCP 4(k)(excerpted and paraphrased) Territorial limits of Effective

Service:
i) Service of a summons is effective to establish jurisdiction over the
person of a defendant who could be subjected to the jurisdiction of
a court of general jurisdiction in the state in which the district court is
located.
ii) Without this rule, federal courts would be fantastically more
appealing for plaintiffs. Since the plaintiff has the option of which
court to sue in, where there is concurrent jurisdiction. Plaintiffs would
all end up per suing their cases in the federal system, and the state
course would become irrelevant.
Jurisdiction over family status
(a) Another exception stated in the Pennoyer decision was the states
unqualified authority to determine the status of one of its citizens towards
a non-resident even without service of process or personal notice to the
non-resident: this is the domestic relations exclusion.
Waiving Personal Jurisdiction
(a) Rule: if a defendant does not raise an argument against personal
jurisdiction either in his pre-answer motion under 12(b)(2) or in his answer
under rule 8, he will have waived this defense
Limited appearaces
(a) A defendant appears Only to argue a case on its merits
(b) Only for quasi in rem action
(c) Defendant does not consent to or waive an objection (Rule 12/Rule 8) to
personal jurisdiction.
Exceptions under Penoyer
(a) Presence
i) Very similar to the concept of consent
(1) Being in the state at the time consents to that states PJx.
(2) This rule actually continues on in the form of TAG jurisdiction.
(3) Even at 30,000 feet, if you pass over their territory, you may be
served with notice that you are subject to their PJx.
(4) When a Corporation is the defendant, mere presence of some
product of theirs is not enough to establish their presence.
However, if the corporation is conducting a certain level of
business there then they may have indeed consented to the PJx of
that states courts.
(b) Consent
i) If the D is someone outside the normal reach of a courts PJx, have
they agreed? If they agree to the personal jurisdiction the court may
here the case. Though there are early mechanisms of interface with the
court that either do not consent to the PJx, or have at least not waived
the right to raise PJx issues later. If you sign a waiver when served,
you consent to the PJx
(c) Family status

i) Penoyer the exception is first mentioned that the state had the
authority to determine its citizens status towards a non-citizen even
without the regular requirement of proper service of process or
personal notice of the non-citizen.
2.
How to Challenge PJX when a Defendant does not think its legit (look to rule 12
for some issues they might bring up)
a) A defendant can just not appear at the scheduled time.
(1)
They issue a default judgment because the defendant wasnt there to argue
anything.
(2)
Then the defendant may collaterally attack the default judgement.
(a)
However, remember Res Judicata, the decision has been made. The
only part that the defendant can later collaterally attack is the Courts Jx to
make such a decision.
(b)
Accordingly, the defendant cannot bring up whatever their defense
might be in the case because once the court has made its decision, (even
when its a default judgement) the case can no longer be argued on its
merits.
b) A defendant might make a special appearance.
(1)
This puts the defendant under a magical protection, where their presence
in the Jx is for the very purpose of arguing that the court has no PJx, they will
not be present as is sometimes sufficient for PJx to be established.
(a)
This is only available in state courts
(b)
They will not waive any claims the defendant might make
regarding the courts Jx.
(c)
As long as the D is in the state with that magical protection, they
cannot be served, because he is NOT the right kind of present to be
served at that time.
(d)
A D with this protection may ONLY argue issues regarding the Jx
of the court, they cannot start arguing things about the case based on its
merits.
(e)
Once a defendant wins, and proves that the court has no Jx, he
leaves the state. If he loses, he might have to stay and get involved in the
state trial at that point.
i) However, if the state allows interlocutory appeals, he can then appeal
the decision on Jx at that time. And that would effectively put the trial
on hold until the appeals court had made their decision.
(f)In Federal court, special appearances are no longer even a thing. But, a D
can move to dismiss the complaint by other means. Either under 12(b)(2)
motions or even in his answer under rule 8.
c) A defendant can always simply raise the issue of Jx in a pre-answer motion (rule
12) or in the answer itself (rule 8)
3.
When has the defendant waived their right to fight PJx?
a) If the D does not raise an argument against PJx either:
(1)
In his pre-answer motion under 12(b)(2)
(2)
Or in his answer under rule 8,

b) Then he has waived the defense. The line where this happens is at the answer
stage, once youve answered you cant go back and raise the issue later.
4.
International Shoe stuff to know:
a) There is a shift here from one question that used to answer PJx issues to another
question that will be the binding one from international shoe carrying all the way on
to today (though there have been a lot of qualifications and further elaborations in
the form of new tests and requirements for application)
(1)
OLD QUESTION WAS: is D present in the state?
(2)
NEW QUESTION IS: is it fair to subject D to suit in this state?
(a)
New question is all about minimum contacts, not previously even
considered.
(b)
The new requirement for PJx to be fair is certain minimum
contacts with the territory (in which the court in question sits) such that the
maintenance of the suit does not offend Traditional notions of fair play
and substantial justice.
(c)
It is with this case that the whole game changes from something
like the old feudal model to something more like todays model.
5.
After International shoe, PJx comes in two conceptual flavors: General and
Specific Jx.
a) Essentially, in states of general Jx, the defendant is subject to any and all suits that
might be brought there. It differs for corporations and individuals. Otherwise, where
the court has no general Jx, they must have a specific Jx, which requires a bit more
analysis to not offend those traditional notions of fair play and substantial justice.
6.
General PJx
a) The defendants contacts with the forum state are sufficiently substantial to sue
them in that state even though the case is unrelated to those contacts. (ie, all cases
can now be heard your contacts are so substantial)
(1)
The contacts that are required are termed continuous and systematic.
(2)
If the Ds contacts are not continuous and systematic as is required for
general Jx, they are going to have to fall under specific Jx, and that will mean
that the case must further arise out of those same contacts with the forum state.
b) Specific Jx is only going to fall in one general place that is set well before any
analysis. And it will be very foreseeable to the defendant that they might get sued
there.
(1)
For corporations, general Jx is where the corporation is domiciled and
that means, under the doctrine of dual citizenship, that it will be both where they
are incorporated, (often delaware) AND also where they have their Principal
Place of Business. Its not figured out immediately, but the supreme court
eventually decides to favor the nerve center test for where this place is.
Though doubtless its still a contentious issue considering teleconferencing and
such today.
(2)
For persons of the individual persuasion, its a simple matter (or is it) of
where they are domiciled. Remember here that there are 2 prongs of analysis for

figuring out where a person lives. One, they have to actually live there, and two,
it must be without any plans to leave.
(a)
So, a person in school for a few years is domiciled there, even if
they might have some intention of leaving at some point. A persons
domicile is the last place where both prongs of the analysis where both
simultaneously met. Until a person intending to leave the state has actually
come to reside in another state without the intention to leave that second
state, they will be domiciled in the first state. In that audi case, they were
even in transit to another state, but the fact remained that they had not yet
gotten there.
7.
Specific Jx
a) This is the other flavor of personal Jx. One of the two must give the court PJx
over the defendant if it is going to get PJx at all.
b) The cause of the action is related to acts within the forum state.
(1)
So if the plaintiff alleges there were injuries at some other time outside the
forum, he cannot point to other actions by the defendant within the forum as
giving rise to specific Jx. The action must be regarding the very same actions
that were the actions giving the court Jx. Otherwise the claim may have Jx in
some other court but not this one.
c) You must consider the relationship between the defendants contacts and the claim
in the plaintiffs suit.
(1)
The defendant can raise the issue that the minimum contacts are there, but
that the action does not arise from those same minimum contacts. If the contacts
were so broad as to be continual and systematic, then it would be general Jx
they might have.
d) Question = where did the activities that give rise to the action occur?
(1)
If the action regards activities somewhere outside the forum, then the
defendant must by subject to the courts general jurisdiction. They cannot arise
from activities outside the forum state that are not the same as those developing
minimum contacts within the forum state.
8.
Minimum contacts
a) A defendant must have minimum contacts with that state in which they are sued
to be subject to their PJx
(1)
What is meant by minimum contacts? -- few things to keep in mind
(a)
Look at the specific behaviors of the defendant within the forum
state
(b)
The mentality of the intentionality of the defendant in that state
(purposeful availment)
i) Policy here is to subject people to the courts of a state where they have
benefited from that states laws. Obvious fairness requires that
availing yourself of a states laws has a certain quid pro quo
understood by both parties. If you didnt want to deal with the forum
state, then you had best stay away from ever taking advantage of that
states laws. If you do take advantage of that states laws, then you

have impliedly consented to the principal that you may get sued on
those same contacts with the forum. This whole issue of minimum
contacts is never meant to step outside of what a reasonable person
might think were their commitments to the state. And to not offend
Traditional notions of fair play and substantial justice.
9.
Traditional Notions of Fair Play and Substantial Justice.
a) Obviously points to long-standing notions of what kind of behavior should and
should not make you eligible for suits in a given forum state. A person who has
made every effort to stay out of a given state, and not subject themselves to that Jx,
should not be unduly surprised by the suit.
(1)
A suit may never offend TNFPSJ
(a)
The fairness is judged by a combination of:
i) The burden of the defendants appearing in that states court.
(1)
This is relative, and set off against the other party. If the
defendant is a large corporation that either has the resources, or
even the agents in that state that they can hear the case closer to
the individual party, then that is where it will be heard. Individuals
should not be called across the country where the other party is
well within its own means to come across to the other partys side
of the continent.
ii) The regulatory interests of the state in enforcing its laws or
protecting its citizens.
(1)
Again, this concern is set off against all the other
considerations for TNFPSJ. If its the case, however, that a states
citizen has been harmed very badly, then that state has an even
greater interest in calling the defendant back into the territory for
the trial. An example would be some personal injury. The state has
a very strong interest in protecting the physical persons of its
citizens, and that will likely override any concerns about whether
its hard for the other party to come for the trial.
iii) The convenience to the plaintiff in brining the action to the forum
state.
(1)
The states that are furthest from individual plaintiffs are
going to be hard to get to. The courts are allowed to factor in the
relative ease that someone that has say, a broken leg, might be able
to travel across the country and have the case over there. They
should be allowed, since they are the one injured, to have the case
heard more closely to them.
10.
The shoe spectrum

11.

Subject Matter Jurisdiction

a) The focus of subject matter Jx is to consider whether the court was enabled by the
constitution and subsequent acts of congress to hear cases of the kind proposed.
(1)
It may be that the court would have PJx over the defendant, but would not
have SMJx to hear cases of that kind.
(2)
The court must always have both kinds of Jx,
(3)
Unlike personal Jx that can only be contested early in the trial, subject
matter Jx can be contested at any time, even
b) Diversity -- A federal court can only hear certain cases.
(1)
The purpose of Diversity Jx is to provide plaintiffs and defendants a
neutral court to hold the proceedings where otherwise there might be some
concern over the state court possibly being biased towards out of state citizens.
(2)
The purpose of many of the limitations on diversity Jx is to keep cases out
of the federal court system. The judges of the federal courts are experts on
federal law, and are disadvantaged when interpreting state laws.
(3)
In diversity cases, the court will apply the substantive law of the state in
which the district court sits.
(a)
The law phrase comes from the Decisions Empowering act and
was thought, from Tyler to Erie, to only mean that the federal courts had to
apply state statutes, and could substitute their own, general federal
common law for the legal precedents of the state.
(b)
However, with the Erie decision that thinking changed. Ever since
the federal courts have had to apply the state common law as well as the
state statutes.
(c)
Federal courts are still enabled to use their own procedural rules.
So long as those procedures do not change the outcome of the case as it
would have been in state court.
i) This is problematic because almost any difference in federal procedure
could have a substantial effect on the outcome of the case.
ii) Several tests have been proposed in attempts to resolve the issue of
whether a difference in the federal rules is so different that it cannot be
followed.
(1)
Bryd test
(2)
Hannah test

iii)
(4)
1332 (a) The courts will have original Jx over certain controversies that
meet certain requirements.
c) Federal Question
(1)
A federal question arises from the well pleaded complaint, and not any
of the possible defenses.
(a)
For instance, a claim of defamation would be an issue of state law.
And simply because the defendant can raise the second amendment as a
possible question at trial it does not give the federal court the Jx to hear the
case because it was not included in the well-pleaded complaint.
(2)
Barton says to assume on the exam that any fact patter concerning a
contract, tort, or property matter is state law. And that any fact pattern that deals
with an aspect of the US constitution, or federal statute, is federal law.
(3)
d) (Other SMJ exists that will not really concern us)
B. Challenge and Waiver of Personal Jurisdiction
1.
C. General and Specific Jurisdiction
1.
General Jx
a) For corporations, this is generally 2 states (dual citizenship)
(1)
The state where the corporation was incorporated
(2)
The state where the corporation has its Principal Place of Business or
Headquarters
(a)
Subject to the nerve-center test
b) For a person, this is where the person lives.
D. Rule 11