CIVPROIFreerFall2003

CIVPROIFreerFall2003 - PJ Analysis 1. Statutory 2....

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Unformatted text preview: PJ Analysis 1. Statutory 2. Constitutional a. Pennoyer Traditional b. Minimum Contacts c. Fairness • o relevant contact • • o Relatedness Convenience States’ Interest Π’s Interest Judicial efficiency Interstate Interest in shared substantive policy: o o QIR Personal Jurisdiction: Can the Π sue the ∆ in this state? Constitutional Limits on PJ what state same inquiry in Federal and State court Three types of PJ Three types of PJ In personam In rem Quasi-in-rem PJ Jurisdictional Predicate: (power exercised over) Effect Qualifications Dispute In personam personal obligation General jurisdiction Specific Jurisdiction In rem everyone in the world Quasi-in-rem: 2 types QIR1 interest of particular individuals QIR2 personal complaint against the defendant Enforcing a valid judgment Faith & Credit In personam enforced in another state (FFC) (note: does not apply to corporations!) personal debt in personam sue on the judgment QIR Only good to the extent of the value of the property seized QIR sue on the claim Federal courts are courts of limited jurisdiction State courts are courts of general jurisdiction Full not All states have the following statutes: If given more than one statute, flag all that might apply. Presence (in personam, gen. jur.) Domiciled (in personam, gen. jur.) Incorporated (in personam, gen. jur.) Service on agents (in personam, gen. jur.) Attachment (in rem/QIR) NRMA (in personam, spec. jur.) When dealing with a NRMA, be careful of the wording. “arise out of” Long-Arm (in personam, spec. jur.) When dealing with a long-arm statute, does the statute give the state jurisdiction to the full extent of its constitutional right? For a laundry-list statute, be very careful about the wording. For example (look for everything, not just these): What is the claim provided for? “individual” “act” “any business” Gray “entity” “act or omission” “substantial business” “tortious act or omission” in the state act becomes tortious when the injury occurs. Feathers where the tortious act or omission that led to the injury occurred, due process Summary of PJ Cases Pennoyer: Shoe: Hanson: WWV: BK: Asahi: Burnham Is it one of the four traditional bases of jurisdiction? Pennoyer v. Neff, US Supreme Court, 1878. Pennoyer Ca se Summary Facts: Issue: Holding: Pennoyer Pow er Principle: Pennoyer Consent Agent Domicile Presence flag it Consent Hess v. Pawloski, US Supreme Court, 1927 Hess Ca se Summary Facts: Issue: Holding: Burger King (choice of law is not strong on its own) 12(b) motions Agent Corporations Human Beings may Shoe Hess Domicile: Milliken Also, Presence: Shoe Burnham v. Superior Court of California, 1990 Burnham Facts: Issue: Holding: By visiting the forum state, you availed yourself of personal benefits of that state Side note: involuntary presence any states minimum contacts with the forum “traditional notions of fair play and substantial justice?” International Shoe Co. v. Washington, US Supreme Court, 1945. Shoe does not overrule Pennoyer, just gives us a basis for jurisdiction if the ∆ is not present. Sometimes, a lot of reasonableness and not a lot of purposeful availment will be okay for contact. Burger King Shoe Case Summary : you n eed conta ct and fairness (not clea r what th ese a re) Facts: Issue Holding relevant contact Purposeful availment Hanson reach out directed at forum state Hanson YES Purposeful Availment: availed himself Hess substantial contact McGee v. International Life Ins., US Supreme Court, 1957 substantial contact Burger King v. Rudzewicz, 1985 NO Purposeful Availment Unilateral act is insufficient contact: Hanson v. Denckla, US Supreme Court, 1958; World Wide Volkswagen v. Woodson, US Supreme Court, 1980 Hanson Case Summary : DE Bank only has contact w ith FLA b ecause Π moved th ere. Facts: Issue: Holding: WWV Case Summary : WWV only has conta ct with OK because Π drove it th ere Facts: Issue: Holding: Brennan’s D issen t: Foreseeability: foreseeable haled into court WWV We don’t know about contacts: no law Stream of Commerce: Asahi v. Superior Court of CA, 1987 Asahi Case Sum mary Facts: Issue: Holding: Stream of Commerce DOES NOT give contact: purposely directed purposeful availment foreseeable Stream of Commerce DOES give contact: is reasonably anticipate or aware Presence: see Burnham above. Fairness Factors Fairness Factors BK McGee Ku lk o McGee Relatedness: General v. Specific Jurisdiction: General Jurisdiction: Specific Jurisdiction: Activity Casual Contacts Related to lawsuit Unrelated to lawsuit Continuous/ Systematic Contacts Shaffer v. Heitner, 1977 Shaffer Case Summary Facts: Issue: Holding: FRCP Rule 4 4e1 4e2 WHAT is service of process? 4b Rule 4a WHO can serve process? Rule 4c2 Rule 4 (c)(2) Service with Complaint; by Whom Made Service may be effected by any person who is not a party and who is at least 18 years of age. HOW do we serve process? Rule 4 (e)(2) Service Upon Individuals Within a Judicial District of the US Service may be effected . . . (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Personal service: Serve an Agent Substitutive service NDC v. Triad Holding Corp. 4e1 Rule 4 (e)(1) Service Upon Individuals Within a Judicial District of the US Service may be effected . . . (1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the ∆ in an action brought in the courts of general jurisdiction of the State Example: How do you serve process on Corporations? Rule 4h 4e1 Rule 4 (h) Service Upon Corporations and Associations (1) Judicial district of the US in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the ∆ , or (2) In a place not within any judicial district of the US in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in (2)(c)(i) Rule 4m Rule 4 (m) Time Limit for Service If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the Π, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. Rule 4d Rule 4 (d)(2) . . . To avoid costs, the Π may notify such a ∆ of the commencement of the action and request that the ∆ waive service of summons. The notice and request (A) shall be in writing and shall be addressed directly to the ∆. (B) Shall be dispatched through first-class mail or other reliable means (C) Shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed (D) Shall inform the ∆, by means of a text . . . (E) Shall set forth the date on which the request is sent (F) Shall allow the ∆ a reasonable amount of time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the ∆ is outside the US (G) Shall provide the ∆ with an extra copy of the notice and request and prepaid means of compliance in writing (3) A ∆ that, before being served with process, timely returns a waiver does not have to serve answer to the complaint until 60 days [instead of 20 days] after the date on which waiver of service was sent or 90 days after the date if ∆ was out of US. Rule 4k1a Rule 4 (k)(1) (A) Who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district is located Who is a party joined under Rule 14 or Rule 19 and is served at a place within a judicial district of the US and not more than 100 miles from the place from which the summons issues original ∆. (Bulge rule) Does not apply to Rule 4k1b Notice and Opportunity to be Heard/Constitutional Standard Mullane v. Central Hanover Bank & Trust, 1950 Notice by publication Constructive Notice): Pleading: Rule 8(a)(1): Non-Waivable: Rule 12(h)(3): SMJ: Diversity of Citizenship ( ) 28 USC § 1332 (a)(1) Diversity of Citizenship (a) the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between (1) citizens of different states (2) citizens of a state and citizens or subjects of a foreign state (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties Amount in Controversy § 1332(a) Citizenship Diversity: How to determine Citizenship of individuals? § 1332 (a)(1) DOMICILED. [ § 1332 d ] Strawbridge Mas v. Perry Citizenship Diversity: How to determine Citizenship of Aliens? (§ 1332 (a)(2)) Citizenship Diversity: How to determine Citizenship of Corporations? (§ 1332 c1) 28 USC § 1332 (c)(1) Diversity of Citizenship A corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. incorporated. PPB Nerve Center Muscle Center Total Activities Test Olson. Factors to look for in PPB: Citizenship Diversity: How to determine Citizenship of Unincorporated Partnerships and associations? Citizenship Diversity: How to determine Citizenship of Representative Suits (1332 c2) 28 USC § 1332 (c)(2) Diversity of Citizenship The legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. Piper: “I am not sure what the rules are in this particular state, but in the meantim e I will answer this question to th e best of m y knowledge b y applying the Gilbert factors” • o o o o • o o o o o Rule 12(a): 2 ways to challenge in federal court (most states have adopted version of Rule 12, except CA and NY): motion/answer within 20 days (or 60/90 if waived) of service of process Rule 12(b) motion answer Rule 12(g) 12 (h) 12(b)(2-5) Rule 12 12(b)(6) & (7) 12(b)(6) 12(h)(2) 12(b)(1) A ∆ has two ways by which he can challenge ju risdiction in state court. cannot Baldwin Some common scenarios in Challenging Personal Jurisdiction (pg.47) 12(b)(2) motion 12(b)(2) motion Chicot County What if Case 1 went to judgment based on default? FRCP: Notice Pleadings: see below FRCP Notice Pleadings What are pleadings? Rule 7(a) What are motions? Rule 7(b) Rule 7(b)(1) Rule 11 What goes in the complaint? Rule 8(a)(1-3) Rule 8(a)(1) Rule 8(a)(2) Rule 8(a)(3) Rule 54(c) Why do we have the complaint? Dioguardi v. Durning Conley v. Gibson Two important hurdles Π must meet under Rule 8(a)(2) Legal Sufficiency Factual (formal) Sufficiency Rule 8(a)(2) Heightened Pleading Standard (EXCEPTIONS Rule 9 Express exceptions to liberal pleading: Leatherman v. Tarrant County Capacity Rule 9(a) Fraud Rule 9(b) Conditions precedent Rule 9(c) Special Damages Rule 9(g) Rule 9 Inconsistent facts, Alternative Theories Rule 8(e)(2) reasonable basis Rule 11 Example: McCormick v. Kopmann • • Rule 12(a)(1) Rule 12(a)(4) Rule 12(b)(6) Example: 12(b)(6) 12(e) 12(f) Example: 12(c) Rule 12(a) Rule 12(a)(4)(A) Rule 8(b) Rule 8(c) Rule 8(b) Admit the allegation Deny the allegation (whatever you don’t deny, you admit Rule 8(d) Rule 11 Example Not enough information to deny or admit Example???: Example???: Rule 8(c) Burdens on ∆s and Πs: whoever brings a claim must provide evidence for it. Example: UNLESS EXCEPTIONS: Repayment of a loan Defamation IF Dismissals (Voluntary and Involuntary) Rule 41(a) Voluntary Rule 41(a): Rule 41(b) Rule 41(a)(1) Rule 41(a)(1) Rule 41(a)(2) Example: Grover v. Eli Lilly Involuntary Rule 41(b): Usually dismissed with prejudice EXCEPTIONS Example: Link v. Wabash Rule 15 Rule 15(a) Rule 15(b) Rule 15(c) accrues. Marsh v. Coleman Company Rule 15(c) Rule 15(c)(1) Rule 15(c)(2) Example: Marsh v. Coleman Company Rule 15(c)(3) Professional Responsibility Rule 11 Summary (a) Signature: (b) Representations to the Court (c) Sanctions: certifying may ...
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