Civil ProcedureOutline

Week One:

“Don’t just see the trees, see the forest.”

Chapter 1:

Criminal Procedure

Guilt “by a preponderance of the evidence” more process is due the criminal defendant than the civil defendant. The civil defendant is not read their Miranda rights; they are not offered pro bono representation, etc.

“Neglecting the terrain of procedure is, as it always has been, a mistake. Fundamentally, that is because procedure is power, whether in the hands of lawyers or judges. Smart lawyers and judges recognize the power of procedure. Substantive rights, including constitutional rights, are worth no more than the procedural mechanisms available for their realization and protection.” (Pg. 3, Stephen Burbank)

Federalism

The reach of the equal protection clause is a federal question, as to which the Supreme Court is the ultimate arbiter.

English Common Law

o The hypertechnicality of royal court procedure, coupled with this limitation on remedies, led to pressure to reform the English practice.

o By the middle of the fourteenth century, Chancery (for the Chancellor) was recognized as a separate court.

o “Equity is into behavior modification”- The late Professor Fyroo The Seventh Amendment preserves federal court litigants a jury trial in civil suits

at common law.

Tripartite Model

o Trial Courtso Intermediate Appellate Courts

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o Supreme Court

Six Topics

Selecting a forumThe court must have personal jurisdiction over the defendants.Service of processSubject matter jurisdiction

Learning about the opponents casePleadings ComplaintAnswerReplyDiscovery

Adjudication with or without a jury Preclusion, joinder, and supplemental jurisdiction

Preclusion doctrines- prohibit parties from relitigating some issues already decided. Appeal Litigation alternatives

Chapter 2

Personal Jurisdiction Time Line

Discovery- generally occurs after the complaint has been filed

Informal Fact Complaint Filed Formal Discovery Trial Investigation

Settlement falls anywhere along this time line

Federal Court System

o State 51+ o Federal Court Systemoo Federal Courts generally do not sit for state appeals- but this is a broad rule. o The Federal jurisdiction is limited. Picking a court encompasses subject matter

and personal jurisdiction. o Most often settlements occurs between discovery and trial. (On eve of trial) o We like liberal discovery.o Civil procedure only about civil cases.

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o Get criminal out of your minds. o The goal of civil litigation is usually to compensate rather than punish.

Briefs:

Pennoyer v. Neff

Hall v. Powloski

International Shoe Co. v Washington

Definitions

Quasi in rem - adjudicate ownership as between the litigants

Capius ad respndendum: “That you take the answer” A writ commanding the sheriff to take the defendant into custody to ensure that the defendant will appear in court.

Coram non judice: “Not before a judge” 1.) Outside the presence of a judge 2.) Before a judge or court, that is not the proper one or that cannot take legal cognizance of that matter.

Comity: 1) A practice among political entities (as nations, states, or courts of different jurisdictions) involving esp. mutual recognition or legislative, executive, and judicial acts- Also termed comita gentium, courtoisie internationale.

“Comity”. In the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its law.

Pecuniary: of or relating to money; monetary

Plenary: Full; complete; entire 2.) (of an assembly) intended to have the attendance of all members or participants.

Stare Decisis : the legal principle that the law should be somewhat predictable

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Week Two:

Pennoyer v. Neff

o Neff is a classic example of Quasi in rem type two.oo Mitchell v. Neff – Forum is Oregon o Oregon statute about publicationo Read publications to get familiar with it.o Neff was served by publicationo Court entered a default judgment (maybe rule 55 or 56) o Writ of execution or attachment (like a lien) against property o When this occurs—legitimate authority over defendant’s property something will

be physically put on property and a note will be put on the title or deed. o Forced a Sheriff’s sale. o Mitchell buys property himself. o Is the value of the property ever pertinent?o Determine material and immaterial facts?o Don’t need to know.

Personal Jurisdiction

In Oregon Statue—indicates ways to get jurisdiction over the person

1.) Appear in court (consents to court’s jurisdiction)2.) Found within state: (Found and served while in state)3.) Resident: (Or domiciled in the state, either one)4.) Property

1-3 examples of in personum jurisdiction4- in rem

In Personum

o Over the person

In Rem

o Against Property

Territorial Jurisdiction

Territorial jurisdiction is a.k.a. Pennoyer jurisdiction

1.) Agent in state—all corporations must have an agent in a state for purpose of serving.Neff—not present

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Not found within the state Not a resident nor domiciled

Property was not attached at time of trial. Basic holding is—the property was attached too lateMust have been attached at commencement!!!Attaching is what gives notice—property owners are expected to now what is going on with the property.

Neff v. Pennoyer Lousy affidavitNo quasi in rem jurisdiction—original trial invalidCan’t sell what you don’t own Timing of attachment is critical

P.24As a general principle states have power over people within their boundaries and vice versa--must respect sovereign rights in state—Not without boundaries

Hypotheticals

a.) An International Shoe Delivery truck carrying shoes from Missouri to Washington drives through Colorado, where it hits a Colorado, where it hits Colorado pedestrian. Can Pedestrian sue International Shoe in Colorado? Would it matter if the truck driver had not planned to go through Colorado but got lost and ended up there?

a. Yes, Pedestrian could sue International Shoe in Colorado, because International Shoe was participating in an official capacity at the time. I don’t believe that it would make a difference if International Shoe Company got lost.

b.) Could Pedestrian sue International Shoe in Washington?a. Yes, Pedestrian could sue International Shoe in Washington, because

International Shoe performs business in Washington.c.) Could Pedestrian sue International Shoe in Missouri, where the defendant’s headquarters

were located?a. Yes, Missouri has personal jurisdiction over International Shoe because their

office is headquartered there.d.) International Shoe’s headquarters were located in St. Louis, Missouri, very close to

Illinois. Suppose Pedestrian has a vacation home in Illinois and hence thinks it would be very convenient to litigate in Illinois. Can Pedestrian sue International Shoe in Illinois?

a. No, Illinois has no personal jurisdiction in this matter. The law cannot be altered simply as a matter of convenience for the plaintiff.

e.) Suppose International Shoe operates retail shoe outlets in Washington. A customer buys a pair of shoes there, but the shoes are defective. Can the customer sue International Shoe in Washington.

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a. Yes, customer may sue International Shoe in Washington since they obviously do business there?

f.) International Shoe operates retail outlets in Washington but not in Oregon. An Oregon citizen visits the Washington store and buys a pair of defective shoes which takes back to Oregon. Can she sue International Shoe in Oregon>

a. No, if International Shoe does not do business in Oregon; Oregon has no jurisdiction. Citizen will have to sue in Washington.

g.) Suppose that the Oregonian had seen the shoes at the Washington store but had returned home. She then contacted them directly and ordered a pair of shoes. The shoes were sent by International Shoe to the customer in Oregon. Could she sue International Shoe in Oregon?

a. I’m not really sure. I would believe that direct contact would constitute minimal contacts—this would affirm that Oregonian could sue in Oregon… but that concept feel inherently wrong to me.

h.) Suppose that instead of having the shoes shipped to Oregon, the customer picked them up in Missouri while she was vacationing in St. Louis. At the time she picks up the shoes, the customer makes it very clear she is going to take the shoes back to Oregon. Can she sue in Oregon?No, International Shoe has had absolutely no contact with Oregon in this instance. She would have to sue in Missouri, where the contact occurred.

i) Suppose International Shoe makes shoe components such as heels and soles. International Shoe sells its heels to a Pennsylvania Company. The Pennsylvania company incorporates the heels into its shoes which it then sells in Oregon. Can a person who buys the shoes in Oregon and is injured by a defective heel sue International Shoe in Oregon?a. No, in this situation Oregon has no personal jurisdiction over International

Shoe. Customer could wither sue the company she purchased the shoes from in Oregon or sue International Shoe Co. at a Federal level. This is reminiscent of the choosing a venue issue in Buffalo Creek.

Week Three

Consent

ConsentResidentAgentPropertyPresence

Personal jurisdiction

Pennoyer International ShoeC.R.A.P.P.

---Expands to---

Certain min. contacts that maintenance of suit does not offend traditional notions of fair play& subt. Justice

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Pennoyer – International Shoe

Not limitless—not fair to sue one who has no contactNew minimum contacts test--- has two steps embedded:

1.) Minimum contacts2.) Fair play and subst. justice

Fairness factors.. Two stop process

Washington against Intl Shoe in Missouri Personal service of notice to a salesman in Washington (summons &

complaint) Also sent service by certified mail to the home office in St. Louis—did

apply with the statuteDisjunctive (or)OrConjunctive (and)

Claimed the statute was unconstitutionalCourt created the new minimum contacts test

How can a statute be unconstitutional?

Hierarchy of laws/authority Hierarchy of laws/authority

1.) Constitution 2.) Statute Treatises3.) Rules4.) Ordinance/ Regulation

The Constitution is the supreme authorityAny lesser authority can be struck down by a higher authority

Shoe argued about Constitutionality and min contactsCorporate presence (not individual people) Begin a list of minimum contacts words and phrases:Continuous systematic activity Casual sporadic activity Quality and natureQuantity- rather than looking at it in numerical sense, we look at quality and natureThe relationship of the non-resident contacts in the law suitRelatedRises out of

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If parties are related, less contact is required

Minimum Contacts

o Words and phrases

One contact can equal minimum contacts in some circumstances Third parties unilateral activity Only analyze the defendant’s contacts with the forum state The defendant purposefully avails herself—subject to being held

responsible

Gray

Stream of commerceMere awareness/knowledge

After this Supreme Court does nothing for 20 years concerning personal jurisdiction until VW

Week Four

“When a fragmented court decides a case and no single rationale explaining the result enjoys the

assent of five justices, ‘the holding of the court may be viewed as that position taken by those

members who concurred in the judgments on the narrowest grounds.”

General Jurisdiction

The phrase ‘general jurisdiction’ is used when the claim does not arise from or relate to

the defendant’s activity in the forum.

Min. Contacts- enough contacts, fairplay and subst. justice

2 Steps

1.) Contacts

2.) Fairness

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Purposeful Availment

Purposeful availment connected with forseeability

FIND FAIRNESS FACTORS!!!!

1.) Defendant’s burden

2.) Plaintiff’s interest

3.) Interstate judicial system interest

4.) State’s interest (the forum state)

5.) Shared interest of state’s economy

2 and 4 are the most important.

Consent and forum selection provisions

“The right to object to a court’s lack of personal jurisdiction is a personal right that can

be waived at any time by the defendant. It is well established that a person may consent to

jurisdiction even long in advance of litigation. Consent to jurisdiction even long in advance of

litigation. Consent to jurisdiction is sometimes manifested by appointing an agent for service of

process within the state. The court has upheld this kind of consent.”

“Quasi-in-rem jurisdiction allows a plaintiff to acquire jurisdiction over the defendant wherever

the defendant has property in the forum simply by attaching it. Quasi-in-rem jurisdiction was

recognized even before Pennoyer v. Neff, and subsequent cases specifically upheld its

constitutionality.”

Burger King v. Rudzewicz

Who sued whom and where?

Burger King sued Rudy and Mr. MC

Figuring out jurisdiction in a breech of contract case is the same type of analysis as

figuring out the fiery crash suit

Were there minimum contacts?

Physical presence

Choice of law provision

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Mail to and from by defendants

Decision making authority in Miami

Corporate headquarters in Michigan

Rudy went to Michigan to negotiate the important parts of the contract, rather than

Florida

Defendant’s mailed rent to Florida suggest purposeful availment

Lower courts are split on whether a contract constitutes a contact

How does the court handle the issue of requiring personal jurisdiction?

You do NOT need the physical presence of defendant to establish personal jurisdiction.

There are other factors that are far more pertinent.

Choice of law provision does NOT change the law, but it may assist in providing minimum

contacts

All relevant, but none dictate on their own

Unilateral: actions by someone other than the defendant

Move on to fair play and substantial justice

“And has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally

unfair, we conclude, that the district court’s exercise of jurisdiction…” (pg. 74)

“Burden on the Defendant is a high one.”

Asahi v. Superior Court of California

Zurcher sues Cheng-Shin (tire tube) Taiwanese

Asahi (valve) Japanese

Justices were unanimous that there was no personal jurisdiction but they were split on the

rationale to get there.

O’Connor (4) mere awareness of the possible inclusion of your product in a random state is not

enough. One must have purposeful availment. (mere awareness plus)

O’Connor uses purposeful direction.

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Brennan (4) mere awareness is enough but no fair play and substantial justice

Note: You may utilize only one step in the two step process (min. contacts/substantial justice)

What Asahi means and what disagreeing Justices mean—

One and only one pronouncement on stream of commerce and minimum contacts by the

Supreme Court.

Doesn’t give us anything.

No majority ca tell us that one contact or stream of commerce.

BE AWARE OF THIS CASE FOR EXAM!!!!!

Most Senior Judge usually gets to write decisions others will join depending on wording.

Plurality—write you joins

Week Five

“Historically, corporations were thought to exist only within the state of incorporation and could

be sued only there. Today a corporation can be sued in any state with which it has purposeful

contacts, though the state of incorporation continues to have significance. Just as an individual

can be sued in his or her state of domicile, a corporation can be sued in its state of

incorporation.” (pg.126)

Four possible Categories:

1.) Continuous and systematic related yes

2.) Continuous and systematic unrelated maybe

3.) Sporadic and casual related maybe

4.) Sporadic and casual unrelated No

How is the statement issue different in Helicol than others?

Activities did not arise out of contacts… contacts of the defendant were NOT related to

the lawsuit.

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Related to specific jurisdiction

Not related general jurisdiction

IT IS UNCONSTITUTIONAL TO BRING AN UNRELATED CASE INTO COURT IF

THE CONTACTS ARE NOT CONTINUOUS AND SYSTEMATIC.

Related and unrelated should be considered before fairness.

Fairness factors can (but rarely) trump a continuous and systematic AND related.

Hypotheticals

Hypos Pg. 110

(a) Fred, a California citizen, owns real estate in Delaware. Fred doesn’t make his mortgage

payments. The bank which holds the mortgage wants to foreclose on the property, Is

there personal jurisdiction for the bank to foreclose in Delaware?

a. Yes, the property is in Delaware.

(b) Fred owns property in Delaware. Someone trips and falls on his property. The injured

person sues Fred in Delaware. Is there personal jurisdiction?

a. Yes, the property is in Delaware and it would be fair.

(c ) Sally (A citizen of California) has a contract with Fred (also a citizen of California). The

deal goes bad, and Sally sues Fred in California and wins. Fred refuses to pay the judgment.

Sally goes to Delaware and enforces the judgment by attaching Fred’s Delaware estate. Is this

permitted after Shaffer?

No, this doesn’t meet fair play and substantial justice standards.

(c) In Shaffer, the property attached was stock. Suppose the directors had owned real estate

in Delaware, and Heitner had attached that instead of the stock.

a. Steven’s would hold that it was not fair.

b. Powell would hold that it was fair.

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The more interaction the more purposeful availment

The more active, the more likely there will be minimum contacts. The court did not find Zippo

adequate because the website fell into the greyzone of the scale. Then we move on to the target

and effects test.

Week Six

In order to have personal jurisdiction both Constitutional AND statutory guidelines must be

followed.

Pg.141 example of Georgia Statute one of two kinds of statutes. (P.J. specifically)

Generally gives a laundry list of wrong that could possibly be committed.

There is no exact matching among the states as to what is contained in the list.

California law provides, “A court of this state may exercise jurisdiction on any basis not

inconsistent with the Constitution of this state or the United States.” (CAL. CODE OF

CIV.PROC.) 40% of states have this form of statute.

States either use the laundry list statute or the Constitutional statute. 40% use the const. stat.

Mass. Uses the laundry list format.

Don’t cut yourself off with a statute on an exam still consider Constitutionality!!!

Notice may meet the Mullane standard even if it does not achieve actual service. But the

attempt to serve must be adequate.

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