CivPro1_Duru_2008Spring[1]

CivPro1_Duru_2008Spring[1] - CIVIL PROCEDURE OUTLINE(DURU 1...

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CIVIL PROCEDURE OUTLINE (DURU) 1. Introduction to Civil Procedure 1. Things to consider: a. Cost of litigation (time, money, emotions, Pyrrhic victory) i. Is it worth it? b. Adversarial system - parties drive the action (money, motivations) 2. Opportunity to be Heard a. Parties have a right to be heard before the government effects deprivation of property or liberty b. A party must have: i. A proper hearing ii. A full trial iii. Or something in between c. Fuentes v. Shevin (p. 221) : Need meaningful time between notice and deprivation, unless there are extraordinary exceptions i. Important government interest or general public interest ii. Special need for prompt action iii. States have strict control over its monopoly of legitimate force and action is brought by a government official under a narrow statute d. Mitchell v. WT Grant (p. 229) : OK if debtor can immediately seek dissolution of the writ of replevin e. North Georgia Fishing, Inc v. Di -Chem, Inc. (p. 232) : bank account = property; need notice before garnishment 2. Jurisdiction Over the Parties/Property 1. Section A: The Traditional Bases for Jurisdiction a. 14 th DP sets the outer limits of PJ b. PJ = the price Ds pay for deliberate efforts to derive benefits from or conduct business in a state c. Pennoyer v. Neff (p. 63) : Strict Boundaries (Legal Formalism) i. PJ if D is a resident of the state, has property in the state, or is served in the state ii. Substituted service by publication is sufficient only when P is already under the court’s control iii. Negatives: P has to find D, In state bias, May be cost prohibitive d. 3 PJ Theories - Property Based Theories (parts are later overruled by contacts based analysis) i. In Personam Jurisdiction 1. Dispute re personal rights and obligations of D ii. In Rem Jurisdiction 1. Dispute re rights of land or property of D iii. Quasi In Rem Jurisdiction 1. Dispute re personal rights and obligations of D and D has property in the state 2. Section B: Expanding the Bases of Personal Jurisdiction (Change: Automobiles) a. Kane v. NJ (p. 73) : Express Consent i. A driver appointed someone to accept his service in NJ 1. Constructive service through an agent ii. Negatives: hard to keep track, Inefficient b. Hess v. Pawloski (p. 73) : Implied Consent i. Notice = sufficient if sent to D with return receipt and P receives the return receipt ii. Implied consent in exchange for highway use 1. Burden on D for Benefit for D from P iii. MA statute is limited to “motor vehicles” 1. Specific Jurisdiction statute: PJ only for matters related to the contact 1
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a. NOT General Jurisdiction Statute: one contact is enough for PJ of all matters related and unrelated 3. Section C: A New Theory of Jurisdiction (Change: Business Model) a. Consent Theory : foreign corp. can only do business with the state’s consent (express or implied) b. Presence Theory : PJ was business done in the state warrants the inference of “presence” i. Measured by actual activities c. International Shoe, Co. v. Washington (p. 76)
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CivPro1_Duru_2008Spring[1] - CIVIL PROCEDURE OUTLINE(DURU 1...

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