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Civil Procedure I Prof. Concannon Spring, 2012 I.

Personal Jurisdiction What states can sue the in? The analysis is the same in state & federal court. Whatever court you go to, the court has power over 1 of 2 things: 1. Power over , or 2. Power over s property Three types of personal jurisdiction A. In personum court has power over herself. has a connection with forum. B. In rem court has power over s real property in the forum state C. Quasi in rem court has power over s property When analyzing for personal jurisdiction must ask: (1) Does the state statute allow for personal jurisdiction? (long arm statute) If no, there is no personal jurisdiction. If yes, then do; (2) Constitutional analysis, due process test. A. In Personam Jurisdiction power over

General jurisdiction the can be sued in that forum on a claim that arose anywhere in the world. Helicopteros & Perkins jurisdiction if the had continuous and systematic ties with the forum Specific jurisdiction the is sued over claims that arises from activities in that jurisdiction must have a connection with the forum.

1. The Constitutional Limit Due Process a) Pennoyer (1878) Gives the traditional basis of jurisdiction. Four (4) traditional
basis are: (1) was served with process within the forum - presence (general jurisdiction) (2) s agent was served in the forum (3) is domiciled within the forum (general jurisdiction) (4) consents to jurisdiction

b) Hess (1927) expands Pennoyer with traditional basis jurisdiction. Non-resident

motorist act if you drive on our roads and are in an accident, you are consenting to jurisdiction and have appointed a state official as your agent for service/receive process who then mails notice to out of state. (specific jurisdiction).

c) International Shoe (1945) Does not expand Pennoyer, gives new test: (1) Have
jurisdiction if has such minimum contacts with the forum that jurisdiction (2) does not offend traditional notions of fair play and substantial justice. (1) International Shoe is very flexible and has led to expansion of personal jurisdiction. (2) It is clear that you can now serve process on outside of the forum. (3) Nowhere does it overrule Pennoyer (4) There seems to be two parts to the Shoe test 1. contact 2. fairness

d) McGee (1957) [insurance policy] even with only one contact, there is still
jurisdiction. (1) The TX company solicited the business in CA (2) s claim arose from the s contact with the forum (3) The state of CA has an interest in justice for its residents

e) Hanson (1958) the contact must result from s purposeful availment, [ reached
out to the forum] otherwise no jurisdiction.

f) World-Wide Volkswagen (1980) No purposeful availment by , no jurisdiction

over regional distributor or local dealership. (1) The unilateral movement of the does not afford jurisdiction, foreseeability alone for the product = not enough. Must be foreseeable that the would likely get sued in the forum. Calder (1984) the need not enter the forum to be served there. Causing an effect within the forum is enough. Burger King (1985) The S. Ct. makes it clear that International Shoe has two parts: contacts & fairness (1) You must have a relevant contact before you can look at fairness (2) Fairness the burden is on the to show that the forum is so gravely inconvenient that it is at a server disadvantage in the litigation. The relative wealth of the parties doesnt matter. Asahi (1987) Stream of Commerce ex. Make valves in state A, sell to mfgr. in state B. Mfgr puts valve into product and sells in states C, D, E. The valve blows up, someone wants to sue valve maker. Is there relevant contacts with states C, D, or E? Split decision 4-1-4: no law (1) Brennen theory There is a contact if product is put into stream of commerce and it can be reasonably anticipated that the product will reach the forum state. (2) OConnor theory You need Brennans theory + an intent to serve states C, D, or E. (advertised there, customer service, etc.) Without that, it is the unilateral act of a third party. McIntyre (2011) 4-2-3 English company sells product to a company in Ohio, which sells it to a company in NJ. sues the English company in NJ. Is there jurisdiction? (1) Kennedy theory adopts OConnors theory under Asahi and saysno. English company did not intent to serve NJ market. (2) Breyer theory does not meet Brennen or OConnor, did not comment further (3) Ginsberg theory would have upheld jurisdiction. Believes the Brennen theory. served with process in CA. CA must have general jurisdiction. ASK: Does the traditional basis under Pennoyer, the service of process in the forum good by itself or do you still have to analyze under International Shoe. (1) Scalia theory presence when you are served is good by itself. No other tests are needed, reflects traditional notion from Pennoyer. (2) Brennen theory you must meet International Shoe in every case, traditional basis is gone. (3) All nine justices upheld general jurisdiction. (4) The state of CA has an interest in justice for its residents.

g) h)



k) Burhnam (1990) 4-4-1 NJ citizen sued in CA on a claim arising in NJ, was

l) Goodyear (2011) S. Ct. unanimously said that continuous and systematic is ok, but
need more. Need to show that the is essentially at home in the forum (1) For a human being where you are domiciled (2) For a business where it is formed and where it has its principle place of business

(3) General jurisdiction cannot be based on purchases and sales. 2. Statutory Analysis - there must be a statute that allows the exercise in personum
jurisdiction a) long arm statute you are always trying to get a non-resident; and are almost always for specific jurisdiction. Some states say that the tort occurs where the injury occurs, others say no. There are two types of long-arm statutes: b) California long arm We have jurisdiction to the full extent of the Constitution. This equates the statute and the Constitution. c) Laundry list long arm lists various things a can do to subject themselves to jurisdiction. Courts interpret the same language in different ways.

B. In Rem & Quasi In Rem Jurisdiction Pennoyer, Holding: have jurisdiction so long as
property is attached at the outset of the case. Jurisdiction over s property (can be any kind of property). 1. In rem is about who owns the property; 2. quasi in rem the dispute has nothing to do with ownership of the property, owns it. 3. There must be a statute that allows for in rem/quasi in rem attachment statute says the court can attach property that owns or claims to own. 4. Then constitutional test: Pennoyer + Shaffer v. Heitener you must attach at the outset of the case + you must show that the , not the property, meets the International Shoe test. Exam Tip: Constitutional Test whether jurisdiction is constitutional 1. First, look for a statute that allows for personal jurisdiction. 2. Second, Is there a traditional basis (Pennoyer) for jurisdiction? If yes, tell about Burhnam split, both sides. If no, talk about International Shoe. a) How to apply International Shoe: (1) there must be a relevant contact between the and the forum; Look at to determine if there is a relevant contact (i) Purposeful availment must have reached out (specifically targeting) to the forum in some way. (ii) Foreseeability it must be foreseeable not that the product will get there, but that the could get sued in that forum. (2) Assess whether this is general or specific jurisdiction. This is the issue of relatedness. ASK: Does the s claim arise from the s contact with the forum? If yes = specific jurisdiction, like McGee, if no, only okay if we have general jurisdiction = must have continuous, systematic contact with the forum, and the must have some physical presence (essentially at home). (3) Assess whether jurisdiction if fair. The burden is on the to show that it is gravely inconvenient they are at a severe disadvantage to litigate in that forum. Look at fairness factors: (i) Inconvenience for and the witnesses Burger King (ii) The forum states interest McGee (iii) s interest (iv) The legal systems interest in efficiency (v) Shared substantive policies Calco not have jurisdiction because of an interest in family harmony


Notice A. Service of process governed by FRCP 4. Rules: 1. process consists of a (a) summons and a (b) copy of the complaint 2. service can be made by any non-party who is at least 18 years old 3. an individual 4(e)(2) a) personal service, b) substituted service: (1) it must be at the s usual abode [common sense] & (2) serve someone of suitable age and discretion who resides there (3) s agent (could be appointed by contract, by law, etc.) c) State law methods for service of process 4(e)(1) 4. a business 4(h)(1) a) an officer or managing or general agent of the business b) state law methods for service of process 4(e)(1) 5. waiver of service by mail 4(d) a) mail to the the process & 2 copies of the waiver form + SSE. has 30 days to sign and mail back. There is no longer a need for formal service. files papers with the court. If fails to do so, will be formally served process and then pay for that service.

B. Constitutional Standard Mullane, Holding: notice must be reasonably calculated under all
of the circumstances to apprise the party of the proceeding. Actual notice is not necessary or guaranteed by the Constitution.


Subject Matter Jurisdiction (SMJ) what court does the case go to, state or federal court? Every claim in federal court must be assessed for subject matter jurisdiction. (Personal jurisdiction is over parties, subject matter jurisdiction is over cases & claims) Federal courts have limited subject matter jurisdiction. A. Diversity of Citizenship 1332 (a)(1) 1. The case is between citizens of different states; & a) Complete Diversity Rule there is no diversity if any is a citizen of the same state as any b) Citizenship of a human a US citizen is a citizen of the state where domiciled. There is only one domicile for a human, can only be a citizen of one state. Domicile is changed by (1) physical presence; (2) intent to remain c) Citizenship of a corp. defined by statute 1332(c)(1) (1) a corp. is a citizen of states where incorporated; AND (2) the state of its principle place of business. Determined by Hertz, the ppb is the place where managers direct, control, and coordinate corporate activity (nerve center) d) Citizenship of unincorporated businesses citizens of states where their members are citizens. 2. Amount in controversy a) the amount exceeds $75,000 b) aggregation: must add multiple claims to get over $75K (1) Can aggregate s claims if: (1) v. (1) . May have multiple claims (2) Cannot aggregate if there are multiple parties on either side

(3) With joint claims use the total value of the claim, here the number of
parties is irrelevant.

B. Federal Question 1331

CITIZENSHIP IS IRRELEVANT; NO AMOUNT REQUIREMENT 1. If it arises under federal law. a) Well-pleaded complaint rule look only at the complaint, do not look at anything the says, in doing so, look only at the claim itself and ignore everything else. Mottley b) ASK: Is the asserting a federal right, if yes, federal question , if no, does not arise under, can not go to federal court

C. Supplemental Jurisdiction 1367 gets non-diversity, non-federal claims into federal court.
This covers additional claims to the case, original case must either have diversity or federal claim. EVERY CASE YOU SEE MUST BE ASSESSED FOR SUBJECT MATTER JURISDICTION, THEN LOOK TO ADDITIONAL CLAIMS FOR SUBJECT MATTER JURISDICTION THEN SUPPLEMENTAL JURISDICTION. 1. Gibbs (1966) (TN) (TN) #1 federal question #2 state law o Claims arose from same transaction or occurrence common nucleus of operative facts o Claim 1 Federal question jurisdiction = in federal court o Claim 2 no federal question b/c based on state law; no diversity b/c TN v TN o Ok b/c shares a common nucleus of operative facts. o Gives supplemental jurisdiction 2. Does 1367(A) grant supplemental jurisdiction over this claim? Answer is yes if it meets Gibbs (shares a common nucleus of operative facts) 3. Does 1367(B) take away supplemental jurisdiction? 1367(B) only applies in diversity cases, never in federal question cases; takes away jurisdiction of certain claims by s, not .

D. Removal 1441 transfers (removes) the case from state court to federal court. Only goes
from state to federal court. The opposite is called remand: federal court sends the case back to state court. To remove, files a notice of removal does not have to ask. 1. Removable if case meets deferral subject matter jurisdiction (does meet diversity or federal question) EXCEPTION: In diversity cases only: No removal if any is a citizen of the forum [in-state rule].

2. Must remove within 30 days of service of process

3. All s who have been served, must join the motion to remove [unanimity rule] 4. The 30 days starts again for newly served s.


Venue what district can the case be heard in? Difference between subject matter jurisdiction and venue, subject matter jurisdiction tells us we can go to federal court, venue tell exactly which federal court. A. s choices: 1391(b)(1)(2) 1. may lay venue in any district where all s reside a) IF ALL S RESIDE IN DIFFERENT DISTRICTS OF THE SAME STATE, MAY SUE IN ANY DISTRICT WHERE ANY ONE OF THEM RESIDES. (1) Human being resides in the district where domiciled (2) Business resides in all districts where subject to personal jurisdiction 2. may lay venue in any district where a substantial part of the claim arose. B. Transfer of venue moves from one federal court to another in the same judicial system. The original court = transferor; the one to which we transfer transferee 1. 1404 & 1406 TRANFEREE must be proper venue and have personal jurisdiction over without waiver by . Hoffman EXCEPTION: a) 1404 transfer can be order to any district if all parties agree 2. 1404 the transferor is a proper venue (orig. federal court). May transfer in the interest of convenience of parties & witnesses and in the interest of justice 3. 1406 transferor is an improper venue (orig. federal court), may transfer in the interest of justice or dismiss.

C. Forum non convenience where a court dismisses because there is a much more appropriate
court somewhere else. The more appropriate court is in a different judicial system can not transfer in this instance. The other court must be adequate (get some remedy). Piper Aircraft


Erie Doctrine in federal court, under diversity. There is an issue that the federal judge must decide. ASK: Must the judge follow state law? ANSWER: In diversity cases, the federal court must apply state substantive law. What is substantive law? The elements of a claim are pure substance. However, start the analysis with Hanna ASK: Is there a federal directive (statute, rule, constitution) on point? If so, apply the federal directive. [Rules Enabling Act] If no directive, then if the issue is substantive, must follow state law. To determine if claim is substantive, must: 1. Outcome determinative Guarantee Trust the claim asserted was barred by state statute of limitations, but the federal judge wanted to ignore this, S. Ct. said you must follow because state law is outcome determinative. It is outcome determinative because if you apply the state law the case is dismissed now, if you ignore the state law, the case continues. This provides for a different outcome, not allowable, must follow state law. 2. Balance the interests Byrd a state law that said the judge is to decide a certain decision, not a jury. Federal judge wanted a jury to decide, S. Ct. said must weigh the interests of the state against the federal interest. Therefore, you dont have to follow the state law if there is no systemic interest in the ______. 3. Twin aims of Eerie Eerie ASK: When the case is filed, if the federal judge ignores this state law, will is cause parties to flock to federal court? If yes, should follow state law because forum shopping is inherently unfair because instate s can not go to federal court, only out of state s, thus causing an inequitable administration of the law. o To avoid forum shopping, and o the inequitable administration of the law,


Pleading documents that get the case started A. The Complaint the s document. Rule 8(A). Must have: 1. statement of subject matter jurisdiction got to show why youre in federal court 2. short and plain statement of the claim 3. demand for relief tells the court what you want historically, the federal rules were said to require notice pleading, putting the other party on notice of the suit. However, this changed with Twambly and Ickbal. These two cases give three rules: 1. the court ignores conclusions of law 2. the must plead facts supporting a plausible claim 3. the court will use its experience and common sense to decide if the claim is plausible 4. EXCEPTIONS: 9(B) & (G) there are three tests a) if alleging 9(B) fraud or mistake youve got to give particularity, if alleging 9(G) special damages you must plead with specificity. B. Response Rule 12 must respond within 21 days of service of process. If you dont do this, risk default. Have two choices in responding: 1. motion not a pleading a request for a court order a) 12(e) motion for more definite statement (Rare) b) 12(f) motion to strike c) 12(b) defenses, can be raised by motion or answer. Motion to dismiss because lack of: 12(b)__ (1) Subject matter jurisdiction (2) Personal jurisdiction (3) Venue has laid venue in an improper place (4) Insufficient process problem with one of the two documents (5) Insufficient service of process problem with how process was served (6) Failure to state a claim (7) Failure to join an indispensible party (rule 19 party) d) Time: 12(h) impose very strict rules about waiver. If answer is a: 12(h)(1) says that any 12 (b)(2)(3)(4) or (5) defenses must be put in the first rule 12 response (Waivable defenses) 12(b)(6)(7) can be raised for the first time any time through trial 12(b)(1) can be raised anytime in the case. Never waived. 2. answer a pleading must do two things: a) under Rule 8(B) must respond to the complaint. In responding there are only three possibilities: (1) admit (2) deny Failure to deny is an admission; this is true on anything except damages. (3) lack sufficient information (do not know) can not use this if this is a matter that is in your control. b) Raise affirmative defenses Rule 8(C)(1) an affirmative defense injects a new fact. You must plead affirmative defense, if you dont you risk waiver.

Example: sues . files a motion for insufficient service [12(B)(5)]. The court denies the motion, now must answer. answers says no personal jurisdiction [12(B)(2)]. Whats the reaction? has waived because it should have been in the first response.


Joinder how big (scope) the lawsuit can get A. Claim joinder by Rule 18(A) 1. the can assert any claims against the , do not have to be related in any way. 2. Assess subject matter jurisdiction (can the case get into federal court?) B. Claim joinder by 1. Counter-claim Rule 13(A) (B) a claim against an opposing party [by back against the , filed as part of the answer] MUST ASSESS FOR SUBJECT MATTER JURISDICTION a) Compulsory counter claim 13(A)(1) a claim that arises from the same t/o as the s claim. This claim MUST be asserted in this case, if not asserted, it is waived. Ex. A & B in wreck. A sues B. A wins. THEN B sues A. Dismissed b/c is a compulsory counterclaim, waived. b) Permissive counterclaim 13(B) a claim that does not arise from the same t/o as the s claim. May be asserted here, but dont have to.


OK for federal court because (1) Compulsory Counterclaim because claim is against an opposing party and arises from s original claim; (2) subject matter jurisdiction, ok because there is diversity and meets amount in controversy


(1) Compulsory Counterclaim because claim is against an opposing party and arises from s original claim; (2) subject matter jurisdiction fails for diversity because NOT okay for amount in controversy and (3) there is no federal questions; (4) supplemental jurisdiction okay because of a common nucleus of operative facts (1367(A)), 1367(B) not applicable because this is s claim.

2. Cross Claim 13(G) a claim against a co-party. Must arise from the samet/o from the underlying case. [never compulsory] EXAM TIP:

You represent C, what claims do you file? C must file a compulsory counter claim against A b/c (1) its against an opposing party; and (2) it arises from the same t/o, if not it is lost permanently Assess CCC subject matter jurisdiction invokes diversity b/c its a claim against NY v. AL & is over $75K C may file a cross claim against B b/c 91) its against a co-party and (2) it arises from the same t/o Assess CC subject matter jurisdiction there is no diversity, NY v. NY & no federal question; if no to either then: Supplemental jurisdiction granted by 1367(A) t/o Gibbs; 1367(B) only applies to s claim, this is by . Crossclaim gets supplemental jurisdiction always b/c of Gibbs

C. Proper Parties Rule 20(A) who may be joined tool for the , when the is structuring the
case & wants multiple parties 1. 20(A)(1) ex. 3 people injured in cab sue driver in federal court a) A+B+C v. okay b/c (1) same t/o; (2) claim raises at least 1 common question of law or fact. MUST assess for subject matter jurisdiction 2. 20(A)(2) ex. 3 people injured in cab sue driver and cab company in federal court a) A+B+C v. + okay b/c (1) same t/o; (2) claim raises at least 1 common question of law or fact. MUST assess for subject matter jurisdiction

D. Necessary & Indispensible Parties Rule 19 involves an absentee party at must/should be

joined. Sometimes the court will force the joinder of the absent party. Joint tortfeasors are never necessary. Ex. v. A 1. Must ASK: Is A necessary, yes if Rule 19(a)(1) [policy reasons] a) 19(a)(1)(A) w/o A the court cannot give complete relief. Avoids multiple suits b) 19(a)(1)(B)(1) As interest may be harmed if not joined c) 19(a)(1)(B)(2) As interest may subject to multiple or inconsistent obligations.
Example: L owns 1K share of stock in XYZ Corp. M says owns stock jointly M v. XYZ wants court to cancel & reissue stock to both Is L necessary? Yes b/c (1) - 19(a)(1)(A) incomplete relief (2) - 19(a)(1)(B)(1) Ls stock cancelled harmed (3) - 19(a)(1)(B)(2) M might win against XYZ, L might sue XYZ & win = XYZ can not do both [inconsistent results] Is joinder of L feasible? Must ASK: (1) is the personal jurisdiction ; and (2) does it mess up diversity. If true bring in; if false rule 19(b) (1) proceed w/o L or (2) dismiss the case (rarely done) rarely happens unless there is another court where L can sue. If dismissed, L becomes indispensible means necessary but unable/cannot join - 12(B)(7).

E. Impleader Rule 14 tool for the , brings in a third party , because they may be liable for
the s claim against you (indemnity responsible in whole for claim or contribution responsible in part for claim)

* Not crossclaim b/c not a co-party

can bring a claim against third party defendant 14(a)(3), okay as long as from same t/o Third party defendant can bring a claim against 14(a)(2)(D), okay as long as from same t/o Then assess subject matter jurisdiction, if not, assess for supplemental jurisdiction.

F. Intervention Rule 24 Absentee brings self into litigation 1. Intervention of Right 24(a)(2) Absentee has a right to intervene if interests may
be harmed if not joined. [same as with necessary parties in Rule 19] 2. Permissive 24(b)(2) Absentee claims/defense in the case has at least one common question. Inclusion at courts discretion. May come in on either side of the v, coming in to assert a claim or defend a claim. Then asses absentees claim for subject matter jurisdiction. G. Class Action

VIII.Discovery IX.
Pre-trial Adjudication may be able to adjudicate without going to trial A. motion to dismiss for failure to state a claim Rule 12(b)(6) the court only looks at the face of the complaint, not evidence. The courts looks for: if everything the said were true, would they win? If no, there is no claim, then no need to go forward.

B. Motion for summary judgment Rule 56 the court can look at evidence
1. moving party must show there is no genuine dispute on a material fact 2. you are entitled to judgment as a matter of law

X.Trial resolve disputes of fact XI.Appeals final judgment rule XII.

Claim & Issue Preclusion Always about 2 cases: Case 1 judgment entered; case 2 judgment pending ASK: Does judgment in Case 1 preclude litigation of Case 2? A. Claim preclusion Res Judicata You get one case to vindicate one claim, can not sue a second time on the same claim. Applies when: 1. Both cases were brought by the same claimant against the same 2. Case 1 must have ended in a valid, final judgment on the merits. a) Rule 41(b) on the merits means all judgments are on the merits unless based on jurisdiction, venue, indispensible party 3. Both cases must involve the same claim a) Claim majority view the claim is the transaction or occurrence


b) Exception: Primary rights minority view entitled to a different claim for

each right invaded.
Example: L & M in crash both injured & both property damage Case 1: L v M property damage from crash reached valid final judgment on the merits Case 2: L v M personal injury from crash Is case 2 precluded? No, b/c (1) same claimant & defendant; (2) Case 1 ended in valid final judgment; (3) under majority view is same claim, so may not bring Case 2, BUT under primary rights, no, these are two different claims and therefore may have two cases Example: L & M in crash both injured & both property damage Case 1: L v M property damage from crash reached valid final judgment on the merits Case 2: M v L property damage from crash & personal injury from crash Is case 2 precluded? No, b/c (1) not same claimant & defendant; (2) Stop here b/c Case 2 will be dismissed because this is a compulsory counterclaim that should have been asserted in Case 1 (Rule 13(a)).

B. Issue Preclusion Collateral Estoppel used to narrow the litigation, focuses on an issue that
was decided in Case 1 which is brought up again in Case 2. Case 1 issues A, B, C,Issue A is out, already litigated D Case 2 issues X, Y, Z, A 1. Case 1 ended in a valid, final judgment on the merits 2. Must show that the same issue was litigated and decided in Case 1. 3. Must show that the issue is essential to the judgment in Case 1 why the judgment came out the way it did. 4. ASK: Against whom is issue preclusion used? Can only be used against a party of Case 1 required by due process. ASK: By whom is issue preclusion used? Mutuality says it can only be used by someone who was a party in Case 1. (Moving away from this.) Not required by due process. * Non-mutual issue preclusion being used by someone in Case 2 who was not a party in Case 1. Can come up in two ways: * Non-mutual defensive issue preclusion: means (1) non-mutual being used by someone who was not a party to Case 1; (2) defensive being used by the in Case 2. *Non-mutual offensive issue preclusion: means (1) non-mutual being used by someone who was not a party to case 1; (2) offensive being used by the in Case 2.
Example 1: L lends car to M, M crashes car with W. Case 1 W v. M negligence M wins valid final judgment, W is negligent Case 2 W v. L Does L get issue preclusion? non-mutual defensive issue preclusion Under the mutuality rule, you can not do it, but the majority view says the nmd is okay if party bringing suit had a full opportunity to litigate. W had an opportunity to litigate in Case 1 so, nmd is probably okay. Example 2: L lends car to M, M crashes car with W. Case 1 W v. M negligence M wins valid final judgment, W is negligent


Case 2 L v. W Does L get issue preclusion? Elements 1-4 are met, #5 most courts reject nmo. There is a trend, led by the federal courts, Parklane Hosiery, which says nmo is okay as long as its fair. Fairness factors: a) had a full chance to litigate in Case 1 b) could foresee multiple suits c) could not have joined easily in Case 1 d) There are no inconsistent judgments