Civil Procedure Outline Fall 2011 CHAPTER 1- Survey of the Civil Action

1. Selecting a Proper Court (state or federal court) a. Must have jurisdiction over the subject matter (that is the constitution and statutes under which the court operates must have conferred upon it power to decide this type of case) i. Diversity of citizenship (the parties are citizens of different states or one of them is a citizen of a forgein country) ii. Required amount in controversy (currently more than $75,000) b. Jurisdiction over the person (must be subject or amenable to suit in the state in which the court is located so that judgment may be entered against him) -Personal J/D : Can the court take this case with THIS D? y Limits to P/J comes from the state statutes and from the 14th Am. y State and Federal courts that sit in the same jurisd. Have the same personal Jurisd over a D y TICKLE V. BARTON- Ps lawyer tricked D into coming into the forum in order to serve him so they could get personal jurisd. D lived in VA; the court was in W.VA. Court said that it will not uphold personal jurisd. On the basis of fraud ; case is remanded to the jury to determine if the service of process is valid. y Can obtain Personal J/D in 3 ways o Where the offense happened o Where the D resides o Where the D is served -Subject matter J/D: Can the court take this TYPE of case? - STATE courts: o 1. State courts can take almost every type of case, with the exception of those that are granted exclusively to the federal courts by congress.(i.e patents) - FEDERAL courts: much more limited SM jurisd. o Can take IF 1) diversity of citizenship 2) federal question  1. Diversity of Citizenship y regulated under 28 U.S.C S 1332 (p.239) y Want to protect out of state parties from local prejudice y Amount in controversy must exceed $75,000 y Must be complete diversity between ALL P and ALL D o Federal question o The action must arise under federal law o Exists under 28 U.S.C S 1331  The district courts shall have original jurisdiction of all civil actions arising under the const., laws or treaties of the United States(p.239)

- REMOVAL: if P brings a case in state court, but it could have been brought in Fed court, D has the right to remove it to any Fed court that has original jurisd. D does not have this option if the case is brought in his home state.

o Commencing the Action/ Notice c. Service of process- typically consists of a summons which directs D to appear and defend under penalty of default, that is unless D answers the summons a judgment will be entered against him. i. Can be made by 1. Personal delivery 2. Mail 3. Leaving it at Ds home or office- **Idea is that you want D to know that there is an action against them, why there is one and give them time to answer complaint or challenge it o Pleading and Parties d. Complaint- written statement that will contain one parties claim against another (what happened and the law that can relive) i. The system may desire the pleadings to furnish a basis for identifying and separating the legal and factual contentions involved so that the legal issues may be disposed of at an early stage ii. The pleadings may be intended to establish in advance what party proposes to prove at trial so that his opponent will know what contentions he must prepare ti meet iii. The pleadings may be intended to give each party only a general notice of his opponents contentions in which event the system would rely upon subsequent stages of the lawsuit to identify the legal and factual contentions of the parties and to enable each to prepare to meet the opponents case y FEDERAL RULE 8 (a) Claim for relief, must contain three things o Short and plain statement of the grounds for the courts jurisd. , unless the court already has jurisd. And the claim needs no new jurisd. Support o A short plain statement of the claim showing that the pleader is entitled to relief o A demand for relief sought which may include relief in the alternative or different types of relief o The Response e. Can challenge a complaint by a motion to dismiss ( can challenge courts jurisdiction over subject matter, service of process or venue) i. Also can use motion to dismiss for failure to state a claim or cause of action(demurrer)

1. Granted if a. The complaint may clearly show that the injury is one for which law furnishes no redress b. P may have failed to include an allegation on a necessary part of the case c. The complaint may be so general or so confused that the court finds that it does not give adequate notice of what Ps claim is o Obtaining info prior to trial Discovery f. Allows parties to exchange info about their claims and defenses and to prepare for trial i. Written interrogatories ii. Production of documents iii. Requests for admissions g. require both parties to identify indvs likely to have discoverable info and to provide copies of documents that the disclosing party may use to support its claims or defenses (FED RULE 26 a) o Summary Judgement h. Motion can be supported by demonstrating that the crucial issue will have to be resolved in the movers favor at trial because the opposing party will be unable to produce any admissible evidence in support of her position on issue o Setting the Case for trial o Jury and its selection o Trial i. Opening statement j. Direct examnination k. Cross0examination l. Re-cross examination m. Closing arguments o Judgement n. Final say unless a party appeals which is then brought to appellate court AUTHORITY OF THE COURT TO PROCEED WITH THE ACTION -court must be chosen that has jurisdiction over the subject matter of the suit and in which jurisdiction over the person of the D may obtained. CAPRON V. NOORDEN - Plaintiff sued Defendant for trespass on the case in federal court in North Carolina. Judgment was found for Defendant. Plaintiff appealed arguing the federal court lacked jurisdiction. o It was the duty of the court to see that they had jurisdiction for the consent of parties could not give it

o P brought suit against D, D won at trial. P appeals and argues that there was no SM jurisd. (even though he picked the court), Court agrees with P, he is now able to re-file the case in state court and essentially get another trial. ROL- A judgment rendered by a court created pursuant to Article III of the U.S. Constitution is ineffective unless said court has subject matter jurisdiction over the case. o No diverse parties = no power (no one can consent because its an institutional rule o FEDERAL RULES OF CIV PRO:  Rule 8. General Rules of Pleading y (a) Claim for relief o 1. ** A short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs n new jurisdictional support o 2. A short and plain statement of the claim showing that the pleader is entitled to relief o 3. A demand for the relief sought, which may include relief in the alternative or different type of relief

** UNLIKE the federal courts which exercise only the limited subject matter jurisdiction bestowed by the Const., as further restricted by acts of congress, STATE courts of general jurisdiction have jurisdiction over the subject matter of a very broad spectrum of lawsuits** Diversity Jurisdiction - reference to the jurisdiction of the federal courts which under Article 3 Section 2 of Const. extends to cases between citizens of different states designating the condition existing when the party on one side of lawsuit is a citizen of another state and the other is citizen of different state. Subject Matter Jurisdiction: power of a court to hear and determine cause os the general class to which proceedings in question belong TICKLE V. BARTON (PERSONAL JURISDICTION) - Plaintiff sued Defendant for trespass on the case in a court that was not located in the jurisdiction of Defendants residence. Defendant alleged that Plaintiffs attorney procured an alias (second) summons and lured Defendant to a certain location under false pretenses, where Defendant was served with the alias summons by the county sheriff. Defendant moved to dismiss on the grounds that service procured by trickery and deceit was ineffective - Ps attornery lured Barton into jurisdiction for football ceremony, Barton challenged the validity of the service off the alias process upon him on the ground that he had been induced to come to that place by trickery, artifice and deceit

ROL If a defendant can prove that he was served with a summons and complaint only as a result of fraudulent conduct on the part of the plaintiff or the plaintiffs agent, the service is ineffective. o The law will not lend its sanction or support to an act , otherwise lawful, which is accomplished by unlawful meanssuch fraud is once affecting the court itself and the integrity of the process

Conclussiveness of Judgements DES MOINES NAVIGATION &RAILROAD CO. V. IOWA HOMESTEAD CO. - Plaintiff sued Defendant in Iowa state court. Plaintiff and Defendant had been involved in a previous lawsuit that started in state court but was later removed to federal court. Plaintiff argues that because Plaintiff and Defendant were both Iowa corporations and consequently citizens of the same state, the federal court had no jurisdiction to render judgment in the previous action, making the previous judgment void. o Suit is brought and tried in fed court , P loses. P tried to bring the case again in state court on grounds that the fed court did not have SM jurisd. RULE OF RES JUDICATA- the final judgment on merits by a court of competent Jurisd. Is conclusive of the rights of parties in all later suits involving the same cause of action. Where a case has been removed to a federal court, appealed to the SC and there decided on the merits , all without objection to the jurisd. It is bar to a subsequent action between the same parties on the same cause of action - ROL When a federal court finally disposes of a case on the merits and such disposition is upheld on appeal, subject matter jurisdiction is impliedly recognized. The Full Faith and Credit clause requires any court in a subsequent case based on the same facts involving the same parties to be bound by the previous judgment.

CHAPTER 2 PERSONAL JURISDICTION (P.71)

Personal Jurisdiction: whether the court has power over a particular D or item of property. There needs to be POWER OF CONNECTION between court and D. Determining Jurisd. o Is there a statute or rule that gives the court a basis for the exercise of JD? o Is the exercise of JD constitutional?  Must satisfy Due Process (14th Am)

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Fair and adequate notice Minimum contacts

3 types of Per JD o In personam: JD based on states authority over D. This type of JD is personally binding on the D, and is entitled to full faith and credit by all other states o In rem: permits a court to adjudicate the rights of all claimants to a specific piece of property o Quasi in rem How does court get power over a D? o DOMICILE ( where D lives) o Service of Process within JD (exceptions are fraud and immunity to witnesses and parties who are in the JD soley to take part in a court proceeding o Consent  By contract: agree in a contract to consent to a particular JD  By appointment of an agent : person can appoint an agent in JD to receive service of process in a particular state  Voluntary Appearance :appear to argue the suit w/o contesting JD (D can appear to contest JD w/o making himself subject to JD if it is done BEFORE suit begins) -Implied Consent : states assume JD with law such as those governing travel on highways  HESS V. PAWLOSKI: Court upheld JD based on a statute that treated driving with in the state as implied consent to suit in that state on claims arising from that driving y The Court notes that Pennoyer v. Neff, 95 U.S. 741 holds that notice sent outside the state does not satisfy jurisdiction requirements, but they distinguish this case because a nonresidents use of a state road acts as an implied consent to suit y ROL A state can enact and enforce regulations designed to protect an important public interest, even against nonresidents, as long as the regulations treat residents and nonresidents equal

-Presumed Presence : by doing business in a state, consent to suit there TRADITIONAL BASES FOR JURISDITIONS : POWER THEORY -PHYSICAL PRESSENCE IN FORUM - DOMICILE: a persons current dwelling and where they intend to remain indefinitely - Personal Service with in JD: if D is served while in the forum state JD will generally be upheld

Property: JD is upheld if there is property within the state that is attached prior to litigation o PENNOYER V. NEFF: the court found that for the state to exercise power over indvs. Or property, there must be valid service of process on the indv or attachment of property  Methods by which JD can be obtained have broadened since

-NEW THEORY OF PERSONAL JD: MIN. CONTACTS & FAIR PLAY AND SUBSTAINTIAL JUSTICE -INTERNATIONAL SHOE CO. V. WASHINGTON: the court upheld in personam JD over a non-resident corporation based on MINIMUM contacts with the forum state. Needs to conform to TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE. ***New basis of Per JD from Intl Shoe -Minimum contacts  General JD: continuous and systematic activities and contacts in state  Specific JD : the activity that gives rise to the claim occurs in the JD. D has at least one contact with state, related to the claim, it needs to be purposeful -Fair and substantial justice

SPECIFIC JD AND STATE LONG ARM LAWS:

 Generally: following international show, state legislatures passed long arm statutes that predicate JD over non-residents upon the Ds general activity within the JD or in some cases, the commission of a certain act outside the JD causing consequences within it. o *specifically JD requires a connection between the cause of action and the forum state. With specific JD, D can only be sued for the specific act that is the basis for specific JD

 Min contacts requirement

o Looks to a voluntary action by D that established a relationship with the forum, P does not need to have Min Contacts o D should reasonably be able to anticipate being hauled into court in the forum state -Nature of contacts : the act giving rise to the suit must have a substantial connection to the forum state. Dont actually have to so the act in the state if the act is substantially connected to the state. y Putting a product into stream of commerce is suffiecient to establish min contacts if it is FORSEEABLE that the product , if defective could cause harm elsewhere

GRAY V. AMERICAN RADIOATOR: JD upheld over a component supplier whose product was sent into the forum state as part of a product manufactured by its customer -Extent of Contacts : y A single act is all that is required as long as that act is what gave rise to the claim and the act was DIRECTED toward the state. o McGEE V. INTERNATIONAL LIFE INSURANCE CO.: single business transaction is sufficient to satisfy min. contacts. Court note that there was a scope toward expanding that there was a trend toward expanding the permissible scope of state JD, based on a fundamental change in the national economy to a more national economy to a more nationalized form of commerce. y The act must be DELIBERATE and PURPOSEFUL in order to warrant personal JD o HANSON V. DENCKLA: A state may not exercise personal JD over a D if Ds contacts are negligible and non-deliberate, and the claim doesnt arise from those contacts. Also sets forth rule of purposeful availment y A single contract may be enough to be minimal contact o BURGER KING V. RUDZEWITZ: Court found that the Ds would anticipate being sued in FL because the franchisor was there, even though they have very minimum contacts with the franchisor directly y

-Purposeful Availment (soley on activities of d not interest of P)

o there must be some deliberate or voluntart act by which the D PURPOSELY AVAILS himself of the priviledge of conducting activities with in the forum state, thus invoking the benefits and protections of its laws (Hanson) o Fairness is not enough for personal JD; also need min contacts through purposeful availment to get specific JD o KEETON V. HUSTLER MAGAZINE: P sued in NH after her first suit in Ohio was dismissed because the statute of limitatoions had run. She had no prior contact with NH, but it was the only stateute where the statute of limitations hadnt run. The court found that there were minimum contacts because the D sold 10,000 magazines in the state because D purposely availed itself of the protections and laws of NH. o WORLD WIDE VOLKSWAGEN V. WOODSON: Court finds that a corporation must have purposely availed itself of a form in order to be subject to JD there. Mere foreseeability that a product could cause injury

in a distant state is NOT SUFFICIENT to satisfy due process requirements.

Stream of commerce : not clear whether simply placing a

product into the stream of commerce is enough to satisfy the min contacts requirementof due process.  ASAHI METAL V. SUPERIOR COURT: All that is left of the original suit for a motorcycle injury is a claim by a Taiwanese tire tube maker against Asahi, a Japanese company. The court found that it is unfair for a foreign P to sue a forgein D in a US court when the forum state has no interest. All the justices ultimately agree that JD is unfair in this case but dont agree as to why. 4 justices say need more than mere awareness, 4 say mere awareness is enough but no JD for other reasons, 1 says lack of fair play and substantial justice  BELLINO V. SIMON: P brought suit in LA against D Simon and D Smith for defamantion . P had tried to sell baseballs on ebay; Ds told potential buyer they were fakes. Court found LA had no JD over Smith because he only spoke with buyer once. JD found over Simon , who made phone calls to the buyer in LA and there were back and forth communications that went on . Court also found not unfair for Simon to defend in LA.

Jurisdiction based on Physical Presence - Service of process in the forum state is sufficient to establish personal JD even without minimum contacts

CHALLENGING PERSONAL JURISDICTION

FEDERAL COURTS: o Rule 12(b) motion or contest JD in the answer o If you lose JD issue and the case proceeds, can argue the merits and raise the JD issue on appeal later STATE courts o Go to that state and fight JD need to know the state law  Go in and say that there is no JD. In some states you MUST go in and challenge JD. If you do anything else its treated as a waiver in those states that require a SPECIAL APPEARANCE.  See if state follows rule 12 (b) o Do nothing  Result will be default judgment against you dont do this if you have property in that state. Would need to bring judgment to a state where there is JD over the person to

enforce it. When action to enforce is brought , person is bound on the merits but can say the first case is void because the court never had proper JD. BIG RISK- if the first court had JD, cant argue it on merits and the judgment will be enforced. Motion to dismiss for lack of JD o It is decided by the judge in a vast majority of cases- will look at the evidence to determine contacts.

CHAPTER 4 JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION

SUBJECT MATTER JURISDICTION: -The courts power to hear a case because of the nature of the dispute as distinct from its power to enter judgment against a particular D. - - SMJ in the state courts is determined by the state constitution , state statutes and judicial decisions in the federal system it is governed by Article 3 of the fed const, fed statutes and fed judicial decisions o State amd fed courts have overlapping jurisd in certain areas and this concurrent authority allows P when commencing a lawsuit to choose among courts of different systems o Removal jurisd allows the D a limited right to transfer a case from state to fed court, creates additional possibilities. -**Can THIS type of case be taken by THIS court?** - Fed courts have LIMITED JD - Unless there is exclusive JD (i.e. patents) there is concurrent JD with the state courts - SM JD can not be waived it is important that it is the duty of the court to raise the issue at any point from trial court to highest appeal - If P brings the case in state D can remove it to the fed court IF the fed court will have JD can not do so if the case is brought in his home state if it is diversity JD case - Once case is finalized and all the appeals are taken there is NO COLLATERAL ATTACK , except in VERY rare cases -POWER OF STATE COURTS - State courts can generally take any case that is not reserved exclusively for the fed. Courts under the supremacy clause o LACKS V. LACKS: ugly divorce case, and ultimately all appeals are exhausted. Two years later the wife (P) moved to vacate the judgement on the grounds that there had not been subject matter JD. Court found that in

state cases residency requirements go to the merits of the case and do not involve the issues of SM JD. -POWER OF FEDERAL COURTS **TWO MAJOR WAYS TO GET FEDERAL JD ** 1) Diversity of citizenship a. Amount in controversy MUST be more than $75,000 2) Federal Question Court may not entertain a case because of the SUNSTANTIAL REQUIRMENT of a particular type of claim (i.e. if a person did not live in a certain place for enough time, then the court WONT entertain the claim, not that it CANT) Court always has the power to determine whether it has JD . P must have a statement as to the JD of the court in the complaint under FEDERAL RULE 8 (a)

o DIVERSITY OF CITIZENSHIP S 1332  Generally y 1. Power given to federal courts under 28 U.S.C. S1332 y 2. Complete diversity: all Ps must be from different state than all Ds y 3. Amount in controversy must be greater than $75,000  Determining Citizenship o 1) U.S Citizens  A citizenship is determined by the domicile of the person at the TIME THE SUIT IS BROUGHT  Domicile is determined by a persons place of residence where the person intends to return  MAS V. PERRY: citizenship determined on the basis of domicile. D argues on appeal there is no SM JD because he is from LA and so are the Ps. Ps were renting a house in LA but were students; wife was from Mississippi husband from abroad, and court found their domicile in Misssissippi. Might has been different if issue had come up at trial court but court didnt want to throw the whole case out and stretch things a bit. TO CHANGE DOMICILE, NEED TO INTEND TO REMAIN IN NEW STATE. o 2) Corporations (S1332)  Used to be considered as a citizen where it was incorporated this was thought to be unfair  Now they are considered to be citizen of where they are incorporated and ALSO where the principal place of business is  Principal Place of Business can ONLy be 1 place:

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One possibility is the nerve center (where decisions are made) Another is where the work is done (manufacturing) Generally, it is up to the court to decide but the nerve center generally used there is NO definitive SC case on this issue.

o 3) Partnership  it is a citizen where each indv partner is located  need to treat everyone ad indvs i. Methods to Create/Destroy Diversity 1. Tell to move the crucial date for determining diversity is the date the case is filed 2. 1359: can t create diversity of citizenship by fraudulent means i.e. can t assign your claim to someone else just to get diversity 3. To destroy diversity, can add someone who is not diverse (i.e. Volkswagen) 4. can t use fictional s or nominal parties to destroy diversity. 5. Ross v. Giametti: tried to name other s in order to destroy diversity citizenship other s were dismissed as being nominal, and was able to remove the case to federal court. ii. can bring two cases; one in fed. ct. against diverse parties, and one in state court against non-diverse parties B. Amount in Controversy j needs to be in excess of $75,000 i. Aggregation 1. can aggregate all the claims that he may have against 2. except in rare cases, s can t going together against (i.e. if two s each have a $45,000 against a , they do not meet the amount in controversy) 3. each must have enough against each 4. A.F.A. Tours v. Whitchurch: Dist. Ct. dismissed s claim on the grounds that it would not be possible for to prove damages amounting to more than the amount in controversy ($50,000 at the time). Ct. of Appeals reversed and remanded on the grounds that was not able to make an evidentiary showing that it could meet the amount in controversy.

C . FEDERAL QUESTION JURISDICTION S 1331 y 1331: the district courts shall have original JD of all civil actions arising under the Constitution, law or treaties of the United States. y If P brings a case under federal law in state court , D has the right to remove it to federal court REGARDLESS of diversity. o OSBOURNE V. BANK OF U.S : Congress gave the bank the right to sue or be sued in federal court- didn t matter what the case was. It was a broad interpretation of arising under anything that had an ingredient of federal law was found to be arising under o LOUISVILLE & NASHVILLE RR V. MOTTLEY: The supreme court never even dealt with the breach of contract issue because it determined that the lower courts has SMJD. There was no diversity of citizenship and no federal question because federal claim would have to be the source of Ps complaint, which in this case it was not

Why have statutes if we have 1331? o At first , had an amount in controversy requirements that was the same as those in diversity cases and historically 1331 was very limited which made additional statutes needed o Need a special statute to bring certain cases in general

Supplemental Jurisdiction -Pendant JD : If P sues D and has 2 claims on under state law one under federal both can be brought in the same lawsuit. It is not fair fo D to have to defend twice Federal Rule 18 under this, P may join all the claims he has against D in one action.

REMOVAL

When can a case brought in state court be removed to federal court ? 1. Diversity of citizenship : P sues D an it exceeds the amount in controversy , but he brings the case in state court. State court has JD and it can remain there. D CAN REMOVE THE CASE TO FEDERAL COURT AS LONG AS NO D IS FROM THE STATE WHERE THE CASE IS BROUGHT. 2. Federal Question: if it arises that P could have brought the case in federal court but chose not to do so the D can remove it . Can NOT remove it on the basis of federal defense need to look at Ps case and see if it could have been brought in federal court on a federal claim. 3. P can remove on the bases of a counterclaim only a D can remove. -