Due Process Right to Notice 3 Right to Counsel 3 Personal Jurisdiction

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Civil Procedure

Chase Fall 2005

Table of Contents

Due Process

  1. Right to Notice 3

  2. Right to Counsel 3

Personal Jurisdiction

  1. Basic for district court jurisdiction 3

  2. General Jurisdiction 3

  3. Specific jurisdiction 4

    1. Minimum Contacts 4

    2. Reasonableness 5

    3. Internet Cases 5

  4. 3 types of personal jurisdiction 6

  5. Motions 6

Venue 6

Forum Non Conveniens 7

Subject Matter Jurisdiction

  1. Basics 8

  2. Diversity 9

  3. Federal Questions 9

Removal 10

The Pleadings

  1. Pleadings Permitted 11

  2. The Initial Complaint 11

  3. Responding to the Complaint 12

    1. General 12

    2. Pre-answer Motions 12

    3. Answer 12

    4. Amending the Pleading 13

  4. Counterclaims 14

  5. Policing the Pleadings 15


  1. General 15

  2. Initial Mandatory Discovery 15

  3. Discovery Scope and Limits 16

    1. General 16

    2. Limitations 16

    3. Privilege 16

    4. Trial Preparation Materials 17

    5. Methods to Discover by Additional Matter 18

  4. Experts 18

Managerial Judging

  1. Promoting Settlement 18

  2. Summary judgment 19

The Trial

  1. Right to a Jury 21

  2. Choosing a Jury 22

  3. Managing the Jury 23

    1. Jury Instruction 23

    2. Special Verdict 23

    3. Interrogatories 23

    4. JMOL 23

    5. New Trial 24

    6. Additur/Remitittur 24

Ending Disputes

  1. Vacating the Judgment (Direct Attacks) 24

  2. Res judicata: Claim Preclusion 25

  3. Issue Preclusion 27

  4. Preclusion in a federal system 29

  5. Preclusion Policy Concerns 30


  1. Joinder of Claims 30

  2. Permissive Joinder 31

  3. Mandatory Joinder 31

  4. Impleader (Third-Party Practice) 32

  5. Interpleader 32

  6. Intervention 33

Supplemental Jurisdiction 34

Class Actions

  1. Initial Prerequisites 35

  2. 23b 36

  3. Notice 37

  4. Settlement 38

  5. Class Action Fairness Act 38

Erie 39

Alternative Dispute Resolution

  1. Arbitration 41

  2. Mediation 42

Due Process

  1. Right to Notice: Greene v. Lindsey (SC 1982) [eviction notices nailed to doors, never received them in building where notice were frequently torn down. If posted notice does not work, mail should be used instead]. Holding: Fundamental requisite of due process is the opportunity to be heard. Without proper notice, there is no opportunity to be heard.

    1. By not affording appellees adequate notice, appellees were deprived of property without due process as prescribed by the 14th Amendment. Court held in Mullane that an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections

  1. Right to Counsel: Lassiter v. Dept. of Social Services (SC 1981) [NC revokes parental rights of indigent mother without presence of counsel at hearing]. Holding: there was no right to counsel. Termination hearing is simple procedure with no technical questions of evidentiary or substantive law. Social services often represented by social workers, not attorneys.

    1. Court applies Matthews v. Eldridge 3-part balancing test to determine what process is due (test applies best when government is being asked to do something)

      1. Interest of claimant

      2. Government’s interest

      3. Risk of error in proceedings

  1. Motions

    1. 12(b)(4) motion—insufficiency of process

    2. 12(b)(5) motion—insufficiency of service of process

Personal Jurisdiction

  1. Basis for district court jurisdiction: FRCP 4(k)(1)(A) grants district courts with the power to serve summons on a defendant “who could be subject to the jurisdiction of a court of general jurisdiction in the state in which the district court is located”

    1. Long-arm statutes provide the basis for exercising this jurisdiction for people out of state.

  1. General jurisdiction: D subject to general jurisdiction when his activities in a state are so substantial and continuous that he would expect to be hailed into court there on any claim even if that claim is unrelated to that state and would suffer no inconvenience defending there

    1. Individual: jurisdiction over a person domiciled within the forum state, even if temporarily absent from the state. Domicile is the place where he has his current dwelling place, an intention to remain for an indefinite period, or an intention to return to. Pennoyer holding: each state limited to jurisdiction over person present within its borders.

      1. Tag jurisdiction: Burnham v. Superior Court (SC 1990): in-state service of a non-resident when present within the state. Physical presence is sufficient to establish minimum contacts, even if D had no contact w/state at time of the events giving rise to the suit

    1. Corporation: corporation is incorporated in that state OR systematic and continuous activities such that it expects to be hailed into court there. Enjoyed benefits and privileges of doing business in the state.

  1. Specific jurisdiction: 2-part test: are there minimum contacts, and does exercising jurisdiction offend notions of fair play and substantial justice?

    1. Minimum contacts

      1. International Shoe v. Washington (SC 1945): D or property not essential to jurisdiction. D will be subject to suit in another state if he has certain minimum contacts with that state and the claim in question arises out of those contacts. Specific jurisdiction limited to cases arising out of D’s relation with that state.

        1. Only appropriate where D has minimum contacts with the forum state such that exercising jurisdiction doesn’t offend traditional notions of fair play and substantial justice.

        1. Where D has enjoyed the privileges and protections of doing business in a state, it is not fundamentally unfair to subject him to suit there for claims arising out of those contacts.

        1. Casual or isolated contacts not sufficient to establish specific jurisdiction.

      1. McGee v. Int’l Life Insurance (SC 1957): No substantial contacts but cause of action related to modest activities in the state; fair and reasonable under notions of justice and fair play.

      1. Purposeful availment test: D must have voluntarily established a relation with the forum state and purposefully availed himself of doing business in the state to be subject to jurisdiction there

        1. Hanson v. Denckla (SC 1958): in analyzing minimum contacts, have to analyze what D does; unilateral activities of P never enough to subject D to jurisdiction in forum. D didn’t purposefully avail himself of privilege of conducting activities within the forum state.

        1. WWV v. Woodson (SC 1980): D car dealer never purposefully availed himself of OK; no advertising, sales, agents in the state, or shipping of car there. D’s contact with forum state must be such that he should reasonably anticipate being hailed into court there. P’s driving to OK was a unilateral act that should not subject D to suit there.

          1. Foreseeable that product will be taken into state does not equal purposeful availment. Key is whether it’s foreseeable that D would be haled to court there.

        1. Burger King (SC 1985): First case to break down the International Shoe gestalt into 2 part-analysis: 1) are there minimum contacts and 2) is it reasonable to assert jurisdiction given the 5 factors? Minimum contacts need not necessarily be physical entry; when K with someone in another state you have purposeful contact with another state.

    1. Reasonableness

      1. Asahi v. Superior Court (SC 1987): Forcing foreign D to litigate in CA once the CA plaintiff was out of the case is substantially unfair. Traditional notions of fair play and substantial justice are not met. 5 factors

        1. Fairness factors (first seen in WWV, then BK, then Asahi)

          1. Burden on defendant

            1. Burger King says the burden is on the defendant to prove inconvenience if the defendant has purposefully directed activities to the forum state. Wealth of the parties is not a consideration.

          1. P’s interest in obtaining relief, interest in choosing his own forum, and the burden of litigating elsewhere

          1. Forum state’s interest in regulating the activity involved

            1. In Asahi P had already dropped out, so minimum interest. In Burger King FL had interest in protecting its corporate citizens.

          1. Shared interest of several states in furthering substantive social policies

          1. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies; preventing conflicting judgments

        1. Stream of commerce. Asahi court splits over whether entering products into a state is sufficient for minimum contacts if its foreseeable that products will end up on the state. O’Connor: mere awareness in not enough. Brennan: sending goods into the stream of commerce constitutes purposeful availment.

    1. Internet cases

      1. Digital Equipment Corp v. Altavista (D. Mass 1997): Personal jurisdiction and the internet: Evaluated jurisdiction by traditional approaches in this case: minimum contacts analysis. Sales and advertising (related to K signed with Mass. company) on website. Comparable to telex, mail, telephonic transmission directed at Mass. ATI knows its website reaches residents of Mass and intended to market in Mass. Plainly solicits business in Mass. Continuing contacts w/state b/c sells advertising space and software through the website to Mass. residents

      1. Zippo (W.D. Penn. 1997): Sliding scale: likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.

      1. D clearly does business over the Internet; enters into Ks w/residents of another jurisdiction that involves knowing and repeated transmission of computer files over the Internet (jurisdiction) --> interactive websites where a user can exchange info w/the host computer (jurisdiction determined by level of interactivity and commercial nature of the exchange of info) --> D has simply posted info on Internet website accessible to users in other jurisdictions (no jurisdiction)

  1. 3 types of personal jurisdiction

    1. In personam jurisdiction: court’s jurisdiction over the D himself

    1. In rem jurisdiction: court’s power over property under dispute

    1. Quasi in rem jurisdiction: court’s power over unrelated property

      1. Shaffer v. Heitner (SC 1997): applies Int’l Shoe to property-based jurisdiction. All assertions of jurisdiction to be evaluated by Int’l Shoe standards. (Overruled Pennoyer). Extended the due process analysis of Shoe to quasi in rem jurisdiction. First time minimum contacts provided the basis for limiting, rather than expanding, jurisdiction. When property is “completely unrelated to P’s cause of action,” its presence alone will not suffice to support jurisdiction. Minimum contacts test must be applied to attachment of property.

  1. Motions

    1. 12(b)(2) motion can be made to argue lack of jurisdiction over the person.

    1. If motion is not made in D’s first answer or pleading, the right is waived. So court can acquire jurisdiction over a silent defendant where it might not have otherwise had it.

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