Civil Procedure Outline Misc 3

8/9/2019 Civil Procedure Outline Misc 3

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CIVIL PROCEDURE OUTLINE

I. PERSONAL JURISDICTION

A. Definedthe power of a court to issue a judgment against the personally. cantake judgment into any state and get enforcement under full faith and credit clause.

B. Types1. Generalcourt has power to hear any controversy !c "s contacts w! state

are so e#tensive.

$. Specificcourt can hear controversy concerningonly where it relates to orarises under his contacts w! the forum state.

%. Transient &tag'court has power to hear any controversy concerning a who is served in the forum state.

(. Traditional Approach

1. Traditional ases for PJa. presenceconfers general jurisdiction) even if only temporary.

(ertain types of presence will e immune for underlying policyreasons.

. do!icilecurrent dwelling with intent to remain there. A person is adomiciliary of only one state at a time. *sually dispositive ofjurisdiction under modern tests as well.

c. citi"enshipwhere you vote) have a license. A person is a citi+en ofonly one state at a time. ,ot dispositive of jurisdiction under moderntests) only a factor.

d. residencewhere a person maintains a living place. A person mayea resident of more than one state at a time. ,ot dispositive ofjurisdiction under modern tests) only a factor.

$. -ennoyer v. ,eff in order for a court to adjudicate a dispute) it must e aleto assert power over the person or thing which is the suject of the dispute.There must e a asis for power &statute) presence' and that power must easserted in a formal way &service of process'.

a. /tatute&1' Is there a long0arm statute that grants the court power over

the non0resident

&$' Is the statute constitutional under the 12 thamendment&%' Is the application of the statute to the facts of the case

constitutional

. 3n what ases may a state assert its power&1' serve a citi+en&$' service nonresident w!in the state&%' property in the state) and it is attached at the eginning of the

suit.

c. Territorial theory of personal jurisdiction&1' every state has absolutesovereignty over the persons and

property within its orders.

1


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&$' every state has exclusivecontrol over the persons andproperty within its orders.

d. 4#ceptions to strict territoriality theory&1' stat#scourt is not e#ercising -5 over one party) ut in rem

jurisdiction over the status &e.g.) marriage'

&$' e$traterritorial effects of %#d&!entsfull faith and creditre6uires states to recogni+e) respect) and enforce theadjudicatory authority of other states.

&%' contin#in& %#risdictionjurisdiction of the forum statecontinues even after who has een properly served leaves

the state. */ is too moile a territory to tolerate theostruction of justice through evasion.

&2' corporationslegally constructed entities that cannot ephysically present. 7ust designate agents for service ofprocess.

&8' do!icilemay or may not e considered an e#ception. 7aynot e considered appropriate under strict territoriality theory)ut consistent w! idea the idea of sovereignty that motivates

territoriality. /tate should e ale to control its residents evenif they are not present in the state at time in 6uestion.

e. Territoriality theory made sense as a way of solving conflicts !wstates that functioned as independent nations. But it does not make asmuch sense under a federalist scheme) where the 89 states havecommon interests and commerce may e adversely affected.

%. Presencea. :race v. 7acArthurA person flying in the regular navigale

airspace aove the state is within the territorial limits of the state andis amenale to service.

. ;adic v. ;arad+ic-resence provides a asis for jurisdiction even if

it is only temporary &transient jurisdiction'.c. (ertain types of presence are immune from -5

&1' (ooper v.


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>. Local Acts and Conse'#encesa. =ess v. -alowskiA person who travels on a state highway gives his

implied consent &legal fiction' to participation in proceedings arisingfrom the travel. =e accepts service on a designated state official)provided that he receives notice of such service. /tatute gives rise tojurisdiction in limited cases that arise from the nonresidents activities

within the state.. ' -resence is no longer re6uired. /ervice of process serves

function of notice) no longer asis for power.

. ong Arm statutes&1' 4numerated actslists particular circumstances or sujects

over which the state can e#ercise jurisdiction

&$' (onstitutional ma#e#tends jurisdiction as far as dueprocess will allow. -olicy concerns ?

&a' not always desirale in federalist regime&' prolems of full faith and credit&c' makes it hard for to structure their affairs

$. General J#risdiction-erkins v. Benguet (onsolidated 7ining

%


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&2' interstate judicial systems" interests in resolution &competinginterests of the states'

&8' shared interest of the state in furthering social policy

f. Burger ;ing v. @udewic+&1' Choice of lawprovision is does not automatically confer -5)

ut is one factor that goes to the showing of purposefulavailment.

&$' Purposeful availment = fair warningto allow nonresident opportunity to change primary conduct.

&%' Brennans sliding scale? a high showing of reasonaleness&in light of the


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8. Contract#al J#risdiction5urisdiction is ased on the consent of parties whohave contractually waived their ojection to -5.


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&$' DissentDue process should provide an independent review.-arties never assented to a waiver of their rights !c thewaiver was printed in minute type on a ticket that they didn"treceive until after they made the purchase. . Transient J#risdiction .Penno/er re(isited0Burnham v. /uperior (ourt5urisdiction that is ased on physical presence alone comports with dueprocess !c it is one of the continuing traditions of our legal system that definethe due process standard of Gtraditional notions of fair play and sustantialjustice.H


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&%' Brennan"s dissent ? D4 is the most reasonale forum)and has a great state interest in regulating the affairs ofits corporation despite what the statute might say.

. In rem and I@ I actions) where the claims relates to the property inthe state) are unaffected in the application of the International /hoestandard. The ownership of property will usually e indicative of

minimum contacts w! the state. /tate interests in adjudicating thedispute are strong

&1' assuring the marketaility of property w!in its orders&$' providing a forum for the resolution of disputes.

c. I@ II actions are the ones that are affected. -resence of property isno longer dispositive.

d.


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%. /tate long arm statutes might e manipulated y the federal courts to getjurisdiction over matters that the state did not intend to adjudicate. eads to

unpredictaility for "s.

&1' &' 199 mile ulge ruleparties can e served anywhere within 199 miles of the federal court)regardless if the court sits in another state.

&1' &c' Interpleader partynationwide service

&1' &d' Cederal long arm statutes &enumerated'(ongress will sometimes include a long armwithin a statute if the matter is of significant federal interest &e.g.) antitrust cases'. Thereauthori+e nationwide jurisdiction and service of process.

&$' 3nly used in federal 6uestion cases. (annot e used for diversity issues.


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. NOTICE

A. 7ullane v. (entral =anover Bank M Trusttrust company settled common trust

fund. 3nly notice re6uired and given to eneficiaries was y pulication in thenewspaper) listing name of trust) date of its estalishment) and names of eneficiaries.

1. (onstructive notice was insufficient for eneficiaries) who could e easilyidentified and located) and who received regular payments from the fund.

$. (onstructive notice was sufficient for the remainder and contingenteneficiaries) who were difficult to identify and locate.

a. notice might e impossile. where possile) e#pensivec. interests in trust were smalld. interests of contingents) some of whom may not have even een orn)

were often represented y other parties who could read the pulishednotice.

B. 7ulane re6uirement ? in order for a statute to e constitutional) it must sufficiently

provide for reasonaly calculated notice to all those affected y an action) under allcircumstances.1. fact specific) fact sensitive test$. actual notice should e the goal of the statute) ut is not re6uired

%. Gall circumstancesH refers to whether it is possile to notify ) and the e#pense

that it would take to notify .

2. giving notice is duty

(. Different factual permutations1. party is known

a. receives notice from . receives notice from %rdsource

$. party is unknown) ut reasonale to finda. receives notice. does not receive notice

%. party is unknownconstructive service 3;


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/niadach v. Camily Cinance (orp.(ourt found that a prejudgment garnishmentprocedure without notice or a prior hearing violated due process.

Cuentes v. /hevinstopped making payments on stove !c of servicing dispute)

property was sei+ed w!o notice) opportunity for hearing only after the sei+ure. If right ofnotice is to serve its full purpose) then it must e granted at a time when its deprivation can

still e prevented. ,o later hearing or no damage award can undo the fact that thearitrary taking that was suject to the right of procedural due process has alreadyoccurred. Cact that deprivation may only e temporary is irrelevantthe 12thamendmentdraws no right line around three0day) 190day) or 890day deprivations of property. ook at

interests

1. possessor/ interests? right to continued enjoyment of goods) even if noownership title

$. di&nit/ interests? preservation of sanctity of home and private life%. efficienc/ interest? easier to let her tell her side of the story efore the state

starts its process) easier to prevent an action from starting than to undo harm2. participator/ interests? only fair to let party affected y a judgment tell her

side of the story) she didn"t pay the notes for a reason

(onnecticut v. Doehrtort action) attached house y right of (T statute) efore

even received complaint.1. ,o prior notice) no hearing) no ond re6uired. 3nly proale cause to sustain

the validity of the claim of action) ased on sujective likelihood that case

will succeed.$. (ourt adopts the test set forth in 7atthews v. 4ldridge) where the government

terminated welfare disaility payments efore the recipient had an opportunity

for a hearing. Issue here was !w two private parties) ut enlisted the

power of the state through the use of a prejudgment remedy. /ufficient stateaction to call due process into play.

%. /ometimes more skeptical when individual) as opposed to government) seeks

prejudgment remedy) !c government will not usually intervene w!o strongfactual asis.

,orth :eorgia Cishing v. Di0(hemfiled complaint and writ of garnishment naming

ank as garnishee. -rocess re6uired affidavit efore court clerk to show proale cause)and ond doule in value of amount sought in judgment.

1. 7ust provide notice and hearing in connection w! garnishment action.$. Distinguishes from 7itchell v.


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The test for 4hether is &i(en a s#fficient opport#nit/ to 5e heard

A. Is there a property or lierty interest at stake1. created under state law or regulation$. legitimate set of e#pectations under that law

B. Is there a state action


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%. Interest in of see6in& pre%#d&!ent re!ed/7 48 re&ard for an/ ancillar/

interest the &o(ern!ent !a/ ha(e in pro(idin& the proced#re or for&oin&the 5#rden of pro(idin& &reater protections+

a. =ow related is the interest to the property attached

&1' If property is unrelated to the action) it is less likely that

prejudgment deprivation will comport w! due process.&$' 4#ample ? Doehr) house attached in tort action.

. Is there a large risk that the property will e moved or will vanish

c. Does the already have a clear interest in the property &Is part0

owner) for e#ample'

d.


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VII+ VENUE7 2ORU) NON CONVENIENS7 AND TRANS2ER

A. I!portant sections of 9: USC

;< Ven#e &enerall/ ;


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. in venue) look at residence ? issue is convenience) not law.

D. Transfer 584 (en#es

1. 3n the state side) transfer is accomplished solely y common law with for#!non con(eniens .2NC0 ) which developed when convenience was not a strong

consideration in the determination of I-5. ,ow I-5 considers conveniencecan still make C,( claim if due process re6uirements of convenience are

satisfied. will not have to dismiss claim) just ring it elsewhere.

$. ;


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a. ,eed convenience to parties and witnesses N interests of justice Nwhere action might have een rought.

. Basis for motion&1' -iper is a -A company&$' Important for state to resolve disputes involving its

corporations

&%' Action could have een rought in -A !c -A would havegeneral jurisdiction over -iper under ;


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&2' Cact specific 6uestionsdoes the action involve local issuesand local sentiment

e. Standard of re(ie4 in 2NC cases&1' egregious misuse of discretionrarely will appellate court

overturn a lower court"s C,( ruling unless lower court really

aused discretion.&$' *nfavorale change of law is a factor only if it deprives of

any forum at all &i.e.) no remedy) very iased'.

3o4 to approach a (en#e '#estion on the e$a!F

/tart w! state court1.


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VIII+ SUJECT )ATTER JURISDICTION

A. General1. /uject matter jurisdiction ? the power of the court to adjudicate particular kinds of

disputes.$. 4ssential element of sovereignty

B. In State Co#rts1. /ince state courts are courts of general jurisdiction) they can usually hear any type of

dispute that comes in.$. Article IIIplaces two limits on state court"s jurisdiction) reserving original jurisdiction

for the federal courtsa. admiralty cases. disputes !w cases

%. (ongress also has the power to grant e#clusive jurisdiction to the federal courts)typically in cases where there is a desire for heightened uniformity.

2. In most cases) states and federal courts have concurrent jurisdiction.

(. In 2ederal Co#rts

1. :enerala. limited federal jurisdiction. federalismc. separation of powersy omission) tells us what powers (ongress and the

president haved. /75 is non0waivale) unlike I-5. -rocedural conse6uences

&1' party wanting to invoke jurisdiction in federal court has urden ofproving jurisdiction

&$' sua sponteojectioncourt can raise ojection to jurisdiction at anytime in proceeding) at any level of court.

&%' dismissal of action for lack of suject matter jurisdiction is not a

dismissal on the merits) it has no res judicataconse6uence.e. Article IIIis not self0e#ecutingit confers on (ongress the power to create

district courts.

$. Di(ersit/ J#risdiction

a. Article III does not confer diversity jurisdiction on federal courts) ut merelysets the outer ounds for jurisdiction. ;


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&1' 4very must e diverse from every when the interests are joint.

&$' Article III does not mandate the rule of complete diversity. 7arshallgrounded the decision in the 5udiciary Act of 1KL.

&%' /upport complete diversity !c it promotes the interests underlyingdiversity jurisdiction &which today) is mainly to limit it'.

&2' Is it a good rule

&a' 4ven in cases of joint liaility) the jury can differentiateamong "s and award different verdicts.

&' eads to a great deal of strategic ehavior y "s. If

wants to stay out of federal court) she can add on "s or

assign claims.

d. hat constit#tes citi"enship #nder


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&iii' usually count susidiary domicile for parentcompany as well

f. D#al citi"enship and aliena&e %#risdiction/adat v. 7ertes&1' (iti+enship under ;


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&$' Barer precedentcourt enforced an alimony decision alreadydecided in state court.) ut noted in dicta that federal court would notgovern a case involving an initial granting of alimony. ooked toTaney"s reasoning in the dissent) analogous to his reasoning in Dred/cott) where he stated that wives were not accorded citi+enship statusat the drafting of the constitution. (ourts can never have power over

these cases. (ourt says that they are not endorsing history) merelyfollowing it. -rolem ? neither dictum nor dissenting opinion wasinding precedent.

&%' (ongressional intent(ongress acts against a ackground of/upreme (ourt decisions and knows the way that those decisions areinterpreted. Through its statutory silence) congress ratifies thedomestic relations e#ception.

&2' -olicy reasons in support&a' state courts are more efficient vehicles for deciding family

issues) which often need ongoing judicial supervision.&' state courts have e#pertise in family law) they have een

deciding these cases for a long time and are etter at it.&c' comity ? strong state interest in governing family disputes.

&8' -olicy reasons against&a' congress should create e#ceptions) not the courts&' no greater link to state sovereignty than other diversity

jurisdiction cases) as they are generally adjudicated understate law anyway.

&c' domestic ause is linked to tort claims&d' national policy

j. A!o#nt in Contro(ers/

:eneral points

&a' @ationale ? in old days) to protect from having to travel

long distances to settle a petty dispute. Today) to limit federaljurisdiction

&' ,ot constitutionally re6uired) statutory&c' Cederal 6uestion cases have no amount in controversy

re6uirement) as it is difficult to place a monetary value onrights.

Cactors to consider

&1' Incl#sion? what are the elements of claim

&$' (al#ation? how do we put a dollar amount on the claim

&a' alue is the value of the injury on the date the claim is filed

&' claim usually determines the amount) e#cept where there is

clear overvaluation

$1


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Deutsch v. =ewes /treet @ealtystued her toe and

is suing in federal court for P$8)999) primarily in form ofopportunity loss &won"t e ale to stand on her feet as aeautician'. (ourt allowed claim to go forwardwhenunli6uidated damages are rought) court should allowcase to proceed rather than decide the jurisdictional issue

in a way that may deprive the claimant of the ordinaryincidents of a trial. Amount in controversy is tied up w!merits of the caselet the jury decide.

&c' Test for motion to dismiss ased on amount in controversy ?

&1' must have made a good faith claim

&$' legal certainty standardto get m!d) must e legalcertainty that claim is less than the stated amount.

&d' Deterrence to overvaluing claims&1' ;


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&%' (ross0fertili+ation of ideascourts are in communication w! oneanother aout issues that may have remained politically invisile ifconfined to the state level.

&2' ,ational agenda of federal courts remains e#posed to a large varietyof issues that otherwise might e e#cluded.

&8' /tate courts are too slow and crowded

&>' (onvenience &Tashire'&' Includes alienage jurisdiction) which encourages foreign investment

%. 2ederal H#estion

a. -olicies ehind C5&1' federal courts have e#pertise hearing certain issues&$' sympathetic forumno guarantee states will uphold federal policies&%' uniformity in interpretation and application of federal law&2' federal judges more insulated from local pressures than state judges

. Test ?&1' (onstitutional test&$' O1%%1 &7ottley'&%' 7errel0Dow

c. )arshalls in&redient theor/3sorn v. Bank of the */Ta# auditor of 3= takes P from Bank to pay state ta#. Bank says ta#ationis unconstitutional !c of 7c(ullogh v. 7aryland) ruling that states couldnot ta# federal instrumentalities. /tate law claim) ut state law inviolation of 7c(ullogh.

Broad 'ingredient( reading of rticle !!! =)$* over any claim inwhich the federal issue is an ingredient of original cause

&1' @ationale ? 7c(ullogh was an easy precedent) ut 7arshall wasworried aout those cases where there was a purely state action) utwhere the state law could use its own law in a prejudicial way. If(ongress has power under Article I to create Bank) then courts musthave power to adjudicate disputes concerning itmust have powercoterminous w! congressional power or Bank suits would e litigatedin state court and get unfair treatment.

&$' 5ohnson"s dissent ? wait until the federal issue comes up) and thenremove to federal court. -rolems

&a' removal is time0limited&' state law prejudice against federal interest

d. ;


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'#ellpleaded complaint( rule = )$* only where the federal issueappears on the face of the wellpleaded complaint

&1' ,ot sufficient for federal issue to come up y way of defense. 4ither&a' federal law creates cause of action) or

&' right to relief depends on resolution of federal issue&7errel Dow'

&%' =ow the sovereign court defines the cause of action will determinewhether and when the federal issue will arise

&2' -rolem here is that case still makes it up to /upreme (ourt !c issuecomes up in answer) and /upreme (ourt will have appellatejurisdiction.


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&%' 7oore as compared to /mith ?injured in ;Q) and sues under a ;Q

statute that incorporates federal standards. But no C5. =ow do youreconcile the two

&a' (ould say that federal issue appeared on face of well0pleaded

complaint in /mith) ut not in 7oore. But neither court evercited 7ottley.

&' /tevens attempt ? distinguish !w the importance of thefederal issue at stake. (onstitutionality of federal statute atissue in former) while only concerned w! negation of a defenseto a state cause of action in latter. -rolems

suggesting a alancing test to determine the

importance of the federal issue. In completeopposition to the logic underlying 7ottley) wherecourt adopted right0line test) easy to administer.

7errel Dow falls in the middlestate is

misinterpreting CD(A. ,ot 6uestion ofconstitutionality) ut more important than defense tostate cause of action. Balancing test is useless

&c' Brennan"s easy way out ? the two cases are irreconcilale) weshould follow /mith. =ere) if congress included a privatecause of action) good indication of federal interest. But thereis also a good indication of federal interest y looking at thepolicies underlying O1%%1) even where a private right ofaction is asent. ,ot concerned w! efficiency. Ane#amination of those policies reveals a need for jurisdiction in7errel Dow. /hould not confuse the availaility of a remedywith the availaility of jurisdiction

Civil Procedure Outline Misc 3

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