Civil Procedure Outline:

6, 10, 54, 65, 68, 1631, and 42-1988-b are not in the outline

 

    We have the most complicated legal system in the world. We try to balance speed vs. autonomy and truth vs. dispute resolution

    Criminal cases tend to be out quicker… they must be tried in 180 days unless a lawyer requests and is granted an extension)… this makes sure that peoples’ right to a speedy trial is met   

    Most states have adopted the FED. Rules into their own procedure and the FED rules reach to the FED court in every state.

    Jurisdiction= who has it= the state or the FED

    Generally=

    A ∏ does not have to bring all possible defendants in a case

    Trial types=

1.      general jurisdiction= “every topic”

2.      Limited jurisdiction= “only certain things” The FED can only hear certain types of cases.  Congress has not expanded this to the full extent that the Constitution will allow as is their right to do. Diversity of Citizenship “and the amount in dispute must exceed 75,000 (1332) and disputes arising under the federal question invoke FED jurisdiction (1331) and 1367 matters (supplemental jurisdiction

    Most disputes will not end up in court.  In fact only 2.2% of FED cases will ever actually go to trial.

    Pro Se= (or im pro persona) “on his own behalf” (not with a lawyer).

    Suing for malpractice= the old way did not allow for this and the client was just stuck with the mistakes of the lawyer. 

    Most jurisdictions have different levels of judicial power=

1.      the lowest being the trial court, a little higher being

2.      an intermediate appeals court, and

3.      the highest being a Supreme Court (generally except in New York)

There are 3 things that must be present before a particular court can hear a case legitimately= 

1.      first it must have subject matter jurisdiction (the power to hear that type of case),

2.      it must have personal jurisdiction (to make a judgment valid against someone) (note that it would be a against Due Process and thus unconstitutional to subject someone to proceedings if there was no personal jurisdiction over that person), and

3.      proper venue

4.      Note that rule 37 is limited by rule 82 stating that FRCP are not to be used to increase jurisdiction… this can come into conflict when the courts make someone subject to jurisdiction as a sanction when they did not follow all of the rules

 

Challenging Personal Jurisdiction=

1.      The easiest thing for an out of state ∆ to do is nothing. Then when judgment is sought in her state to settle the claim…declare a collateral attack…if she loses the collateral attack argument… she is screwed because her case will not be heard on the merits… but the second court will have to inspect the jurisdictional contacts and make a determination

2.      It is recommended that if you have a case on the merits but disagree with the jurisdiction… you can go through the case (while appealing the jurisdiction)… lose on the merits and then later challenge the jurisdiction to try and get out from under the judgment. 

3.      She could raise the lack of personal jurisdiction defense right away…there are two ways of going about this… you can do a pre-answer motion or a complaint… the pre-answer motion is easier because you don’t to answer everything like in the complaint.  Note that if you do not object to personal jurisdiction in your pre-answer motion or answer you waive your right to do so… if you don’t object to it on your first piece of paper… your right to object to it is waived.  The same is true for all other defenses besides subject matter jurisdiction.  

4.      You can enter a special appearance to challenge personal jurisdiction… this will allow you to challenge personal jurisdiction without consenting to the jurisdiction…This type of defense is not available in Federal Courts

 

1335= Interpleader

 

1332 Diversity of Citizenship:

1.      (and amt in controversy must exceed 75,000 + Diversity)= the place where you are living at the time you file suit counts for this. This is considered your domicile… Without Diversity and the amount… there is Subject Matter Jurisdiction and the court would have to dismiss

2.      Information on the amount in controversy:

      The amount on the complaint to a legal certainty is the standard

      When the thing being sued for is an injunction…the value of the injunction to the ∏ is used, the cost for the ∆ to comply with the injunction is used, or the costs to invoking the injunction is used

      Aggregation of the amounts= if the claims are separate and district then no aggregation is allowed… if the claims are not distinct and separable they might be allowed to aggregate to make the amount requirement…if the claims are separate and distinct and one of the claims makes the amount level while the other does not… the one that makes it goes to FED court and the one that did not does not go to FED court

      In class actions (1367)… only the representative party needs to meet the amount in controversy.  Also 1367 allows for the use of supplemental jurisdiction if it is the same case or controversy.

      There is a graph as to claims and counter claims regarding whether compulsory ones are different than permissive ones for the purposes of 1332 jurisdiction

3.      Information on diversity of citizenship:

      The key to this qualification is intent “animo menendi” = the intent to remain.  This intent needs to be backed by some evidence proving that this is the place were you intend to remain for an indefinite period of time.  Signs that you are going to leave may play against you when the court tries to determine your intent for diversity purposes. Signs or indicators of intent would be a driver’s license of that state, an apartment,…It should be noted that intent to stay does not mean that it is not possible that you live, it only means that you intend to be there for an indefinite time.

      For 1332 to apply… it can’t be alien vs. alien… this would be against article 3… although it is not really unconstitutional, it is still not allowed

      2 foreigners against a state citizen= yes

      1 state citizen and 1 foreigner vs. a foreigner= no (1332-a-2 and 1332-a-3)

      Once you have two diverse states against each other, you can have as many foreigners on both sides of the fence that you want… (California + foreigner) vs. (Colorado + foreigner)

      US citizens living outside the US (residing) don’t fit into the 1332 reasoning.

      Rule 21 allows for parties to be dismissed if they are going to destroy diversity… this allows parties to keep the case in FED court

      The citizenship of a partnership is the citizenship of all of the purposes for the sake of 1332

      The principle place of business… is determined by two tests for the sake of 1332:

o       Nerve center test

o       Muscle test…where the bulk of the activities take place… this is where most contact with the public will take place…this test is the one that is most commonly used

      Rules= 14, 19, 20, 24 all affect diversity

      Foreign corporations in the US also fall under 1332… they will also have a citizenship

      An interesting fact is that when an insurance company gets into the game… it maintains its own citizenship while taking on the citizenship of the person insured when it is being sued… when the insurance company is the ∏, the only citizenship that applies is its own and not the policy holders

      There are certain things that the FED will not touch…child support, alimony, divorce, and child custody… these are state matters and so there is not anything on diversity for these topics

      When a minor or incapacitated person is represented… their citizenship applies and not that of the representative

      From DC to Guam… you are treated as if you are from a state for diversity purposes

      Citizenship counts at the commencement of the action

 

 

Jurisdiction:

    Jurisdiction is limited by the Constitution “Due Process”

 

Subject matter Jurisdiction=

1.      Dismissal of a case based on the lack of this is to dismiss a case not based on its merits.  Another example of dismissing a case not on the merits is the statute of limitation dismissal. 

2.      This can’t be waived as the power of the FED to hear the cases depends on it “Article 3”… anything out it can’t be heard. 

3.      If a FED court dismissed for lack of Subject Matter Jurisdiction, there is no ban on bringing the matter up again in a state court

4.      this is not the same thing as personal jurisdiction… a court simply can’t hear a case without it

5.      FED courts are of limited SMJ by article 3… Article 3 spells out what FED courts can hear in addition to statutes that complement the constitution

6.      Some exclusive FED matter are admiralty, bankruptcy, and patent

7.      Concurrent jurisdictional matters are those that can be heard by both state and FED courts

8.      Raising objection to subject matter jurisdiction= you can go 2 ways… 12-b-1 or a 12-b-6 motions. 

 

1331 The Federal Question:

      1331 general fed question statute= arising under the laws and treaties of the US… what does this mean… in a well pleaded complaint there has to be a federal question… otherwise the case will be dismissed in accord with lack of subject matter jurisdiction. At the pleadings you must state a case that arises out of the laws and treaties of the US.  If the federal question is not raised on the complaint…then the case will be dismissed for lack of subject matter jurisdiction. This does not mean anticipated defenses.

      It is entirely possible that a case may fail the Mottley test and still get into federal court because the federal matter is the central issue… The Mottley test is the well pleaded complaint rule.  These kinds of cases…the facts are so important that the FED will be willing to hear the case.  Note that the quick dirty rule to follow is the well pleaded case rule.  Make the right type of complaint.

      1331 has been interpreted more narrowly than article 3

      A well pleaded complaint is the bare bones allegation required to survive dismissal.

      An artfully pleaded complaint…you have a federal question but you hide it… it is the opposite of a well pleaded complaint

       

      The declaratory judgment is a way to raise the FED question without a well pleaded complaint… this is where one party asks the court to declare its rights in a given situation… it should be noted that this thing does not expand the jurisdiction of the FED court. A declaratory judgment comes from the Declaratory Judgment Act

      There are times when you can lose your ability to be in FED court… this usually happens when you change your case or continue under a different type of complaint.  Another time is when you deiced to settle a matter… you can lose your status in FED court… a remedy for this is to enforce a consent decree…. What this will do is keep the matter open and able to be in FED court until the settlement actually occurs

 

Personal Jurisdiction=

1.      you can consent to it, it can be served on you in the state “tag jurisdiction/transient presence”, and it can be subjected to you when you are a citizen of the state

2.      It can served on you if you have property in that state

3.      There are two types of contacts that will give you personal jurisdiction over someone… Specific contacts and General contacts. When there are enough specific contacts there will be Specific Jurisdiction and when there are enough general contacts there will General Jurisdiction

4.      Via specific jurisdiction= if a claim arises or relates to the contacts

5.      Via General Jurisdiction= the claim need not arise or relate out of the contacts if the connection to the state is so persuasive that it has to be allowed.  It should be noted that you are going to need a lot more contacts when the dispute does not arise/relate to the connection with that jurisdiction.  These are the continuous and systematic contacts.

6.      You can waive personal jurisdiction voluntarily or involuntarily “by sanction”

7.      Normally a FED court will adopt the state where they reside’s long arm rule unless a rule 14 or 19 situation arises… another exception involves the 100 mile bulge rule… Another type of exception is when there is a statute stating that the FED court is to dominate… like in a situation calling for a nation-wide service of process “1335” or the enforcement of a civil contempt order arising from litigation involving a federal question (rule 4.1)… the last exception is to aliens that don’t have sufficient contacts to any state to create personal jurisdiction rule 4-k-2

8.      International Service (Hague Service Convention)=  you can serve process on a ∆ in any manner specified by receiving nation for its own civil litigation, in a manner specified by the plaintiff so long as that manner does not violate the receiving nation’s laws, or by the ∆’s voluntarily accepting service.

9.      If the ∆ claims that he did not get service it will not affect the validity of the service… Rule 4-l handles this… it requires that there be a response to service

10. The age suitability is 18 but if the person is old enough to understand what is going on then it would probably be ok but that is not the rule

11. State long arm statutes can go as far as the constitution will allow them or they can just be to certain specific things (but those things must be constitutional)… States may decide to stay well within the bounds of the Constitution to avoid having to answer those really tricky Constitutional questions… When FED court is using the long arm provision of a state as it must under rule 4 then if the state can’t reach then neither can the FED court

12. When you file a claim in one jurisdiction you open yourself up for being subjected to that jurisdiction if there is a counter-claim

13. IF a FED court dismissed for lack of personal jurisdiction… the matter can’t be brought in a state court (the same state). This is not the same if the case dismissed for lack of Subject Matter Jurisdiction in a FED court

 

 

 

 

Minimum Contacts (reasonably expecting to haled into court) =

1.      Minimal contact arguments are used when someone is not located in the jurisdiction.  According to the findings in international shoe= there must be minimum contacts sufficient enough to subject someone to jurisdiction… without minimum contacts subjecting someone to jurisdiction would offend due process as it would not coincide with notions of fairplay and substantial justice. International shoe found that continuous and systematic ties to the area was enough of a minimal contact to allow for jurisdiction.

2.      Continuous and systematic… purposeful and not accidental. Claim arises out of these contacts= a clear meeting of the minimum contacts requirement…If the claim does not arise out of the contacts with the jurisdiction and the contact is single and isolated= this is clearly not enough to satisfy the requirement and it would violate due process.

3.      Purposeful Availment of the laws of that state can be enough to satisfy minimal contacts. A unilateral act of one party in going to another state will not mean jurisdiction to that other party unless he purposefully availed himself of the laws of that state.

4.      This is an evolving part of the law and what is sufficient minimal contacts keeps being redetermined.

5.      For “In REM” cases over property in a state, it is ok for the state to seize the property to prevent the ∆ from hiding it without having minimal contacts but if you are going to assert jurisdiction over him then there needs to be minimal contacts over him

6.      Simply putting something in the stream of commerce is not enough to bring out minimal contacts… there needs to be something more like advertising which would show that someone purposefully injected something into the stream of commerce… another thing that could make the minimal contacts thing happen is if you catered your product for a certain area.

7.      Selling a product in an area will likely increase the minimal contacts and might increase the state’s interest in the case.

8.      Deriving benefits from the state will increase your chance as being seen to have minimal contacts.

9.      A modest purchase will not subject you to a jurisdiction but the purchase of a home would and so would having a lease in some cases

10. According to rule 4-K-1= FED courts should follow the state’s long-arm statute… this rule states that FED courts borrow the laws of the states that they reside in

11. web pages= if you can transact business on that page then you can be haled into court wherever that page reaches… if you don’t want to be haled into court in a certain area then you should make it so that the page can’t do business in that certain area… because if it is a page that just advertises…being subject to every jurisdiction that it reaches would be unacceptable.

 

Consideration Factors for the fairness of minimal contacts (fair play and substantial justice), These are balancing factors to consider=

1.      Burden of the ∆

2.      ∏’s interests= what is the reason for the ∏ wanting to litigate this case there

3.      State’s Interests= does the state care about it… states are concerned about the affairs of their citizens

4.      Judicial Efficiency Interests

5.      Advancement of Fundamental Social Policy Interests= this interest certainly increases when there is no other forum for relief for all practical purposes.

6.      Note that the more attenuated the interests are…the less they are going to count for making minimal contacts reasonable

7.      Another factor to look at when evaluating these factors is how reasonable is it for a ∆ to expect to be haled into court in that jurisdiction “forseeability”… one example of this is looking to a contract… things like prior negotiations, where the parties are, who the parties are, contemplated future consequences, terms of the contract, and the parties’ actual course of dealings… Courts give great deference to who brought suit first in trying to determine where a case is going to be heard… note that this won’t stop the other side from starting a suit somewhere else and the court may decide to hear the case where the other party filed but it is in your favor to start the first where you would like to have it because of the deference that the courts give to it

8.      note that if a case is found to be reasonable under these circumstances then it will require less minimal contacts to be heard in that jurisdiction

9.      The trend for the FED court is not to find jurisdiction and the trend for the state court is to find jurisdiction

10. Note that minimal contacts and the 5 factors are used together in a balance to determine whether someone should be subjected to a jurisdiction.

 

Pendant Jurisdiction= This is one claim clearly meets the contact requirement and another claim against the same ∆ can be brought. Both of these can be heard in a FED court via Pendant Jurisdiction if they arise out of the same nucleus of common fact (to the point of claim preclusion)… This applies to jurisdictional reach as well… It should be noted that being from the same nucleus of common fact it is totally justified to be in the FED court but if the matters are totally unrelated… then it just won’t stand as much of a chance… but there have not really been any cases like this. As for the claim preclusion qualification… when there are two matters like this… one that belongs in FED and one that belongs in state… there won’t be a problem with claim preclusion.

 

General Jurisdiction=forcing this on someone with contacts in a state when those contacts are not the cause of the dispute is unconstitutional

 

Transient Jurisdiction= this is a well established facet of law.  This is where someone is subject to jurisdiction because they are in the state but justice Brennan does not agree with it because without minimal contacts with the state or having a controversy arise from state contacts… it is unconstitutional to subject someone to jurisdiction in that state. Along this line of thinking, being tricked into a state or kidnapped and brought into the state is not constitutional… Along these lines, a person who turns themselves in gets immunity from being subjected automatically to jurisdiction 3, however a person who does not turn themselves in and has to be extradited does not enjoy immunity from being subject to jurisdiction.  

 

 

Diversity Jurisdiction=

1.      marrying a foreigner does not make you lose your US citizenship

2.      Permanent resident aliens take on the citizenship of the state where they reside (a student probably won’t qualify for this) for Diversity Purposes.

3.      Spouses may be domiciled in different states and children have the domicile of their custodial parent   

4.      Complete diversity= not having parties from the same state on both sides of the fence. Complete diversity is not required by the Constitution… The Federal Interpleader allows for FED jurisdiction with minimal diversity… meaning that there needs to be someone from a different state on the other side of the fence even if not all of the parties can do this… just one person from a different state

 

Bringing in different laws into a Jurisdiction… Rule 44.1, you have to give notice and bring the law to the court.

 

Impleader= Derivative Liability is the proper basis for this… “If I am liable to them then you are liable to me.

 

 

Venue= USC 28 1391 takes care of this for you…

1.      You need to have personal jurisdiction over someone and proper venue over someone in order to bring someone to a particular court… This has an affect on suing an alien because they are subject to venue anywhere in the US… but they can only go to court where there is personal jurisdiction over them… so this limits the places where an alien could be sued. 

2.      Venue really makes a difference when it comes to states that have more than one FED district but it really does not make a difference where there is only one because of the personal jurisdiction requirements.

3.      local= can only be heard in one place… this usually happens when trying a case about land matters… the venue is where the land is… 1392= if you have land that is in multiple jurisdictions… then venue is proper in any of those districts

4.      transitory/transient= can be heard anywhere

5.      Forum Non-Conveines=  

o        You can’t transfer to another system, you have to dismiss before it can be heard in another system…

o        The fact that another venue is less favorable to a ∏ is not enough to deny dismissal but if ∏ would have no remedy otherwise… the court might consider that enough…

o        this really is a judge/court made rule… there is no statutory backing on the public/private factors listed in the Piper case

o        Forum Non-Conveniens is dead in state courts… you have to remove to FED courts and then move for Forum Non Conveniens

 

 

 

 

Service of Process=

1.      This kicks off a case but it must be properly done.

2.      Serving in the state is no longer relevant due to “Long Arm Statutes”. A citizen is said to benefit from their citizen status in that state and thus has responsibilities as well.

3.      Just because a registered agent of a corporation is served, does not mean that the corporation is subject to personal jurisdiction (especially when the corporation has no contacts)

4.      Giving notice must be of such as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearances.  It must be reasonable in way that it is reasonably calculated (under all of the circumstances to apprise those interested of the pendency of the action and afford them an opportunity to present their case. I