Civil Procedure Outline Week One:

Dont 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 Fyr o o The Seventh Amendment preserves federal court litigants a jury trial in civil suits at common law. Tripartite Model o Trial Courts o Intermediate Appellate Courts o Supreme Court 1

Six Topics Selecting a forum The court must have personal jurisdiction over the defendants. Service of process Subject matter jurisdiction Learning about the opponents case Pleadings Complaint Answer Reply Discovery 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 Investigation

Complaint Filed

Formal Discovery

Trial

Settlement falls anywhere along this time line Federal Court System o o o o o o o o o o State 51+ Federal Court System Federal Courts generally do not sit for state appeals- but this is a broad rule. The Federal jurisdiction is limited. Picking a court encompasses subject matter and personal jurisdiction. Most often settlements occurs between discovery and trial. (On eve of trial) We like liberal discovery. Civil procedure only about civil cases. Get criminal out of your minds. The goal of civil litigation is usually to compensate rather than punish. 2

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

Week Two:
Pennoyer v. Neff o o o o o o o o o o o o o o Neff is a classic example of Quasi in rem type two. Mitchell v. Neff Forum is Oregon Oregon statute about publication Read publications to get familiar with it. Neff was served by publication Court entered a default judgment (maybe rule 55 or 56) Writ of execution or attachment (like a lien) against property When this occurslegitimate authority over defendants property something will be physically put on property and a note will be put on the title or deed. Forced a Sheriffs sale. Mitchell buys property himself. Is the value of the property ever pertinent? Determine material and immaterial facts? Dont need to know.

Personal Jurisdiction In Oregon Statueindicates ways to get jurisdiction over the person 1.) Appear in court (consents to courts 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 jurisdiction 4- 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 stateall corporations must have an agent in a state for purpose of serving. Neffnot present Not found within the state Not a resident nor domiciled

Property was not attached at time of trial. Basic holding isthe property was attached too late Must have been attached at commencement!!! Attaching is what gives noticeproperty owners are expected to now what is going on with the property. Neff v. Pennoyer Lousy affidavit No quasi in rem jurisdictionoriginal trial invalid Cant sell what you dont own Timing of attachment is critical P.24 As a general principle states have power over people within their boundaries and vice versa --must respect sovereign rights in stateNot 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 dont 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 defendants headquarters were located? a. Yes, Missouri has personal jurisdiction over International Shoe because their office is headquartered there. d.) International Shoes 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. 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. Im not really sure. I would believe that direct contact would constitute minimal contactsthis 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 Consent Resident Agent Property Presence Personal jurisdiction Pennoyer C.R.A.P.P. International Shoe Certain min. contacts that maintenance of suit does not offend traditional notions of fair play& subt. Justice

---Expands to---

 Pennoyer International Shoe Not limitlessnot fair to sue one who has no contact New minimum contacts test--- has two steps embedded: 1.) Minimum contacts 2.) 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. Louisdid apply with the statute Disjunctive (or) Or Conjunctive (and) Claimed the statute was unconstitutional Court created the new minimum contacts test How can a statute be unconstitutional?

Hierarchy of laws/authority
Hierarchy of laws/authority 1.) Constitution 2.) Statute Treatises 3.) Rules 4.) Ordinance/ Regulation The Constitution is the supreme authority Any lesser authority can be struck down by a higher authority Shoe argued about Constitutionality and min contacts Corporate presence (not individual people) Begin a list of minimum contacts words and phrases: Continuous systematic activity Casual sporadic activity Quality and nature Quantity- rather than looking at it in numerical sense, we look at quality and nature The relationship of the non-resident contacts in the law suit Related Rises out of 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 defendants contacts with the forum state The defendant purposefully avails herselfsubject to being held responsible

Gray Stream of commerce Mere 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 defendants activity in the forum.

Min. Contacts- enough contacts, fairplay and subst. justice 2 Steps 1.) Contacts 2.) Fairness

Purposeful Availment

Purposeful availment connected with forseeability FIND FAIRNESS FACTORS!!!! 1.) Defendants burden 2.) Plaintiffs interest 3.) Interstate judicial system interest 4.) States interest (the forum state) 5.) Shared interest of states economy 2 and 4 are the most important. Consent and forum selection provisions The right to object to a courts 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 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 Defendants 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 courts 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. OConnor (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) OConnor 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. Doesnt 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.

Pluralitywrite 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 doesnt 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 Freds Delaware estate. Is this permitted after Shaffer? No, this doesnt 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. Stevens 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. Dont 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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