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Civ Pro Freer Outline

Civ Pro Freer Outline

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Published by Danielle D'Ambrosio

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Published by: Danielle D'Ambrosio on Apr 22, 2011
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12/13/2013

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Civil ProcedureLaw School Legends
Professor Richard D. Freer
I. Personal Jurisdiction
!
A. In Personam Jurisdiction
!!
1. Constitutional Standard – Due Process Analysis
!!!
a. Pennoyer v. Neff – The state has power, and therefore jurisdiction, over
!!!
people and things within its boundaries – Four traditional bases of in
!!!
personam jurisdiction
!!!!
i. Defendant was served with process in the forum – general
!!!!
 jurisdiction (presence as the basis of jurisdiction)
!!!!
ii. Defendant’s agent was served while in the forum
!!!!
iii. Defendant is domiciled in the forum
!!!!
iv. Defendant consents to personal jurisdiction
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b. Hess v. Pawloski – Supreme Court expanded personal jurisdiction by
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expanding traditional bases
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c. International Shoe Co. v. Washington – The court has jurisdiction if the
!!!
defendant has such minimum contacts with the forum so that exercise of 
!!!
 jurisdiction does not offend traditional notions of fair play and substantial
!!!
 justice.
!!!
d. Hanson v. Denckla – Purposeful availment. To be a contact, it must result
!!!
from the defendant’s purposeful availment of the forum.
!!!
e. World-Wide Volkswagen v. Woodson – It must be foreseeable that the
!!!
defendant could get sued in the forum.
!!!
f. Burger King Corp. v. Rudzewicz – International Shoe consists of two parts.
!!!
(1) contact, and (2) fairness. To show jurisdiction is unfair, D must show that
!!!
defending the case is so gravely difficult and inconvenient that you are at a
!!!
severe disadvantage in the litigation. However, the relative wealth of the
!!!
parties is irrelevant.
!!!
g. Asahi Metal Industry v. Superior Court – Stream of commerce case.
!!
2. Statutory Inquiry
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a. Every state claims general jurisdiction over a defendant who is served with
!!!
process in the forum.
!!!
b. Every state has a statute that gives general jurisdiction over a defendant
!!!
who is domiciled in the forum.
!!!
c. Every state has a non-resident motorist act.
!!!
d. Long-Arm Statute – Every state has one, to allow jurisdiction over
!!!
non-residents. Two types:
!!!!
i. California statute – Statute reaches to the full extent of due process
!!!!
ii. Laundry list statute – A non-resident defendant can be sued in the
!!!!
state on a claim that arises from the defendant doing something
!!!!
specific in the forum.
 
!
B. In Rem and Quasi-in-Rem Jurisdiction
!!
1. Definitions. Here, the jurisdiction is over the defendant’s real or personal property.
!!!
a. In Rem Jurisdiction – The case is about ownership of the property itself.
!!!
b. Quasi-In-Rem Jurisdiction – Lawsuit has nothing to do with ownership of 
!!!
the property, but property is used for a jurisdictional basis.
!!
2. Attachment.
!!!
a. We can attach the property if it is something a non-resident defendant owns
!!!
or claims to own.
!!!
b. Constitutional Requirement – Property must be attached at the outset of the
!!!
case. And under Shaffer v. Heitner, D must meet the International Shoe test.
!
C. Full Faith and Credit
!!!
a. In Personam Jurisdiction – If there is a valid judgment, it is valid where it
!!!
was rendered, and it is entitled to full faith and credit in other states.
!!!
b. In Rem and Quasi-in-Rem – Valid to the extent of jurisdiction, so the
!!!
 judgment is only good up to the value of that property.II. Notice and the Opportunity to Be Heard
!
A. Service of Process
!!
1. Process – Process consists of a summons and a copy of the complaint.
!!
2. Rule 4(c)(2) – Service can be effected by any non-party who is at least eighteen
!!
years old.
!!
3. Process must be served within 120 days after filing the complaint. If you do not,
!!
the court will dismiss the case without prejudice, unless you can show good cause for
!!
that delay. Rule 4(m).
!!
4. Service of process on an individual. There are 3 alternative methods for service of 
!!
process:
!!!
a. Personal Service – Deliver the papers directly to the defendant – can be
!!!
done anywhere in the forum state.
!!!
b. Substituted Service – This is OK only at the defendant’s dwelling or usual
!!!
abode, AND you must serve someone of suitable age and discretion who
!!!
resides there.
!!!
c. Agent Service – Serve the defendant’s agent.
!!!
d. Rule 4(e)(1) – The court may also use any method for service of process
!!!
that is allowed by state law of the state where the federal court sits OR in
!!!
which service was effected.
!!
5. Service of process on a corporation. You must serve an officer or managing or
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general agent of that corporation. Also, Rule 4(e)(1) applies.
!!
6. Waiver of service – Method for waiving formal service of process. Send process
!!
and waiver form to defendant with a self-addressed stamped envelope. If she returns
!!
it, then she waives service of process. If she does not waive formal
!!
service, then the plaintiff will have to have service affected formally. Then, though,
!!
the defendant will have to pay for the service.
!!
7. Rule 4(k)(1) – Can serve process throughout the state in which the federal court
!!
sits. We can serve process out of the state only if a state court could have served the
!!
process there, as well.
!!!
a. Exceptions:
 
!!!!
i. Rule 4(k)(1)(B) – We can serve process from a federal court out of 
!!!!
state as long as it is within 100 miles of a federal courthouse.
!!!!
However, this does not apply to service of process on an original
!!!!
defendant. It only applies to parties who are joined later under Rules
!!!!
14 or 19.
!!!!
ii. Rule 4(k)(1)(C) – Federal statutes may allow for more service of 
!!!!
process outside of the state.
!
B. Constitutional Standard for Notice
!!
1. Mullane v. Central Hanover Bank – Notice must be reasonably calculated under
!!
the circumstances to apprise the defendant of the suit.
!!!
a. Jones v. Flowers – usually it is not required that D actually receive the
!!!
service; but if P is aware that D has not, due process may require that P make
!!!
further effort to ensure notice.
!!
2. Notice by publication – Usually in the newspaper. This type of notice might be
!!
okay. Last resort.
!
C. Opportunity to Be Heard
!!
1. Major factors to protect the defendant:
!!!
a. Defendant gets a hearing on the merits at some point.
!!!
b. Plaintiff must give an affidavit of its claim.
!!!
c. May require that the plaintiff’s affidavit state the facts in specificity.
!!!
d. Get a writ of possession from a judge, not a sheriff.
!!!
e. Plaintiff may be required to post a bond.
!!!
f. Defendant gets the property back pending litigation by posting a bond.III. Subject Matter Jurisdiction – What court do we go to: state court or federal court?
!
A. Diversity of Citizenship
!!
1. § 1332(a)(1) – Requirements for a diversity of citizenship case. Two requirements:
!!!
a. Case must be between citizens of different states.
!!!!
i. Complete diversity rule for invoking diversity jurisdiction – there is
!!!!
no diversity if any plaintiff is a citizen of the same state as any
!!!!
defendant. (Strawbridge v. Curtiss
 
)
!!!!
ii. Test for diversity when the case is filed. A subsequent change in
!!!!
citizenship is irrelevant.
!!!!
iii. An American is a citizen of the state in which she is domiciled.
!!!!
Domicile is established by two concurrent factors:
!!!!!
(1) you must be present in the state, and
!!!!!
(2) you must form the intent to make it your permanent home.
!!!!
iv. The citizenship of a corporation. For a corporation, citizenship is
!!!!
defined by §1332(c)(1). Corporation is a citizen of all states where
!!!!
incorporated, and the one state where it has its principal place of 
!!!!
business.
!!!!
v. Citizenship of an unincorporated business, such as partnerships or
!!!!
limited liability companies (LLCs). Look to the citizenship of all
!!!!
members.
!!!!
vi. What happens when representatives sue on behalf of others?
!!!!!
(1) §1332(c)(2) – Suits on behalf of decedents, minors, and
!!!!!
incompetents – In those cases, you look to the citizenship of 

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