Civ Pro - Johns - S08B - Outline | Pleading | Service Of Process

Civil Procedure Outline (Spring 2008 JOHNS) Basics of Civil Procedure US Common Law

• • •

Civil Law
• • •

Case Law is binding Parties control

Comprehensive codes are

precedent Litigation Judges are lawyers with political connections Parties control • investigation and discovery Trial is a single event • at the end of the investigation Parties have a right to • a jury trial in civil cases Parties bear their own • legal fees

enforced Judges control litigation Judging is a separate career path; merit selection Judges control • investigation and discovery Judges evaluate the • dispute episodically Parties have no right to a • jury trial in civil cases Loser pays winner's legal • fees

There is no right to representation in civil cases; about 50% of parties in CA are pro-se In 1938, the FRCP merged the courts of Law and Equity The Structure of the Federal Judiciary 1. The Supreme Court of the United States 1. Circuit courts of appeal 1. District courts (Trial level) a. Have Jx to determine questions of law and fact for cases arising out of Federal Questions or Diversity (+75K) The Underlying principles of the rules of Civil Procedure 1. Justice on the merits of the case 2. Speed 3. Economic efficiency Because these are not always compatible, they are in tension; the circumstances of each case point to higher or lower weights for each For example, we may be willing to accept lower standards of substantive justice in exchange for speed and efficiency in the adjudication of parking tickets, but we might weigh justice more heavily in suits for wrongful death (procedural due process) How the rules are made; how they are changed o Congress appoints national experts to the Rules Advisory Committee, which then deliberate any proposed changes to address deficiencies or new problems o The RAC then submits the changes to the Supreme Court, which can adopt them as-is, reject them, or modify them (and then submit the rules to congress for approval

Civil Procedure Outline (Spring 2008 JOHNS) Congress has the final word on changes. 8e. may be some changes to the substance o o • PLEADING The 1938 Rules greatly simplified pleading in order to reach judgment on the merits. states of mind may be alleged generally) See form 11 (p. which may include relief in the alternative or different types of relief (Damages. 526) 1 The Complaint Swierkiewicz v. not judgment through pleading technicalities and blunders o Why have a pleading stage? 1 To acquaint the court and the parties with the facts in dispute 2 To serve as a formal basis for the judgment to be entered 3 To separate issues of fact from questions of law 4 To allow the defendant to assert res judicata if applicable 5 To notify adversaries of the other's claims. and crossdemands o 1 1 Notice Pleading The spirit of the rules is that a complaint only needs to contain a short and plain statement of the claim showing that the pleader is entitled to relief Rule 8(a) . plaintiff must state with particularity the circumstances.A pleading that states a claim for relief must contain: 2 A short and plain statement of the grounds for the court's jurisdiction. and deletions. 3 A short and plain statement of the claim showing that the pleader is entitled to relief. 9 [to allege fraud or mistake. injunction. 4 A demand for the relief sought. The 2007 RAC promulgated wide-sweeping changes. intended to modernize the language." etc. additions. can be persuasive to parallel circuits Formal Sufficiency of the complaint: "Has the complaint said enough to notify the other side of the claim?" (rules 8a. defenses. 5 Case law: Supreme court decisions on rule interpretation are binding over all lower courts 1 Circuit Appellate court decisions are binding in-circuit. declaratory) Sources for interpreting the rules as applied to a case: 1 The text of the rules themselves 2 Context: The rules must always be read in context with all of the other rules and the underlying spirit 3 Purpose: Advisory committee notes and comments might illuminate why a change was made 4 Canons of construction: "Expressio unius est exclusio alterius. unless the court already has jurisdiction and the claim needs no new jurisdictional support. Sorema (2002) .

Congress is totally empowered to change pleading requirements." • It is unclear whether the "retirement" of the "no set of facts" standard will apply only to antitrust cases. not the • courts. Gibson (1957. wield the proper power to modify the FRCP o While Twombley was a surprise. the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" o But.. it doesn't get past pleading. but it did not specify a heightened standard in Sherman act cases The dissent in Twombley argues that the legislature.. these 3 procedure cases in 2007 were predictable. Unanimous) "In appraising the sufficiency of the complaint we follow. one circuit ruled that a complaint needed to allege each element of the cause of action. and wanted to impose additional hurdles to prevent frivolous claims. "The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" The purpose of the pleading rules is to allow cases to  move on to discovery if the pleading sufficiently notifies the defendant of the suit and its subject It is important to distinguish between the stages of  litigation. court upholds the notice-only pleading model. o . (likely to be limited to Antitrust) • The majority was likely concerned about the cost of antitrust pleading. Bell Atlantic "The complaint warranted dismissal because it failed in  toto to render plaintiff's entitlement to relief plausible. or course. but that is not the correct question at this stage. while others ruled that the complaint only needed to put the defendant on notice of the action Supreme Court rules in favor of notice-only standard They say that it may even appear on the face that the pleader will fail on the merits. Is the defendant's alleged behavior a violation of the law?" o This is an area of the Federal Rules that may be in some transition Two different takes on Substantive Sufficiency • Conley v. or if the "plausibility/possibility" division outlined in Twombley will be more pervasive than that. in 2007: Twombley v. the standard required to get from pleading to discovery (to survive Rule 12(b) motions to dismiss) is lower than that required to get from discovery to trial (to survive Rule 56 Summary Judgment) Substantive sufficiency of the complaint: "Can the Plaintiff recover for this alleged wrong? In other words. even though a jury could find for the plaintiff on the basis of parallel conduct alone.Civil Procedure Outline (Spring 2008 JOHNS) Resolved a circuit split.

which must state any supporting facts peculiarly within the party's knowledge 2 Fraud or Mistake 1 To allege fraud or mistake. Bock: PLRA (Prison litigation reform act) has exhaustion requirement. exhaustion is usually treated as an affirmative defense (to be plead by defendant). courts should not require P to plead exhaustion in the complaint o Erickson v. Inc. intent. Makor Issues& Rights : PSLRA explicitly requires higher pleading for class action complaints alleging securities fraud. and other conditions of a person's mind may be alleged generally 3 Conditions Precedent 1 It suffices to allege generally that all conditions precedent have been satisfied. 5 Judgment 1 No need to plead the judgment or decision with a showing that the issuing body (foreign or domestic court. 4 Official Document or Act 1 It suffices to allege that the document was legally issued or legally done. a party must do so with particularity. a party must allege with particularity the circumstances constituting fraud or mistake. Malice.Pleading Special Matters 1 Capacity or authority to sue. tribunal. a pleading need not allege: 1 A Party's capacity to sue or be sued 2 A party's authority to sue or be sued in a representative capacity 3 The legal existence of an organized association of persons that is made a party 2 To raise any of those issues. or it is waived 1 Service of Process o Rule 4 . this kind of pleading is imposed anyways (because • it involves fraud) o o Rule 9 . a party must do so by a specific denial. In order to deny that a condition precedent has been satisfied.Civil Procedure Outline (Spring 2008 JOHNS) Jones v. board or officer) had jurisdiction to render it 6 Time and Place 1 An allegation of time or place is Material to the sufficiency of a pleading 7 Special Damages 1 Must be specifically stated. heightened pleading requirement OK because of fraud allegation Under rule 9. knowledge. Legal Existence 1 Except when required to show that the court has jurisdiction. Pardus: Prisoner's allegations of deliberate indifference provided sufficient notice where he alleged he was denied hepatitis C treatment o Tellabs.

to waive formal service of process (No waiver of service by defendants who are minors. 3. and allow reasonable time (at least 30 days for US. and the court MUST appoint such a special process server for cases in which plaintiff is proceeding in forma pauperis (an indigent. or association Must also name the court where the action was filed.Civil Procedure Outline (Spring 2008 JOHNS) 1 Plaintiff prepares a summons. the  complaint will be dismissed without prejudice unless the plaintiff can show good cause for the delay (and court must then grant an appropriate extension) 3 Who may serve process Any person who is at least 18 years old and not a party  But. or the government (or its officers. partnerships. Individuals in Foreign countries. 2. sued in their official capacity or as individuals)) Waiver request must be initiated by the plaintiff. • Individuals in US judicial districts. the plaintiff may request the special appointment of  a marshal or other person to serve process. seal. mentally incompetent. partnership. 60 days for International defendants) for response • Failure to waive Courts will impose the costs of formal service on the defendants  • Time to answer after a waiver Defendants get 60 days from sending of waiver request to file an answer.  include a copy of the complaint and two copies of the waiver form + prepaid return envelope Must be sent by first class mail (or other reliable means)  Give defendant notice of consequences of waiving or not  waiving service. and issue if "properly completed" . or associations. which the court clerk signs and stamps with the official seal (Clerk must sign. Corporations. within 120 days of filing the complaint (Form 5) If the plaintiff fails to serve the defendant in this time.  addressed to the defendant or someone authorized to accept service on behalf of a corporation. whose court filing fees are waived)or as a seaman (an employee below the rank of officer who is attached to a navigating vessel and contributes to the accomplishment of its mission) o Waiver of service (Form 6) Rule 4(d)(1) imposes a duty on defendants who are 1. if they choose to waive formal service (90 days if outside the US)  .no discretion) A summons will name (A) the Court and Parties (B) be  directed to the defendant C) state the name and address of the plaintiff's attorney or the plaintiff if pro se (D) state the time within which the defendant must appear and defend (E) notify defendant that failure to appear will result in default judgment 2 Plaintiff then serves the summons and a copy of the complaint to the defendant.

The methods described in Rule 4 are equal. RIO International Interlink Issue: Before a court authorizes alternative service of process. Admit or deny the allegations asserted against it by an opposing party 2. Otherwise. and the 1 district court has discretion to authorize alternative service if the circumstances of the case so require. Lack of knowledge or information . and b. General and Specific Denials . 2 Leaving a copy of each at D's home with someone of suitable age and discretion 3 Delivering a copy of each to an agent authorized to receive service on behalf of D. Denying part of an allegation .A party must admit the part that is true and deny the rest. or generally deny all except those specifically admitted.A denial must fairly respond to the substance of the allegation 3. o 2 The Answer • Rule 8(b) Defenses.including the jurisdictional grounds may do so by a general denial. Alternative service of process: RIO properties v. State in short and plain terms its defenses to each claim asserted against it. may be 1 served in a US judicial district by Following service of summons procedure for the state 1 where the federal court sits OR 1 1 Personally delivering a copy of the summons and complaint. 0 such as by Email. 4. In responding to a pleading. a party must specifically deny or admit each allegation.if a party lacks knowledge or information sufficient to form a belief about the truth of an allegation. Admissions and Denials 1.Civil Procedure Outline (Spring 2008 JOHNS) an extension of time (compared to the normal 20 days) as an incentive to waive service  Waiver of service does not operate to waive defendant's objections to personal jurisdiction and venue (what about subject matter jurisdiction?) • o If the Defendant does NOT waive service: An individual. other than a minor or an incompetent. the party must say so and the statement has the effect of a denial . must the plaintiff first exhaust the list of methods in rule 4(f)? NO. 5. Denials .A party that intends in good faith to deny all the allegations of a pleading . a party must: a.

but Did include a catch-all provision o The New Rule 8C does not have such a catch-all phrase. King Vision v. which included a catch-all provision to include "any other matter constituting an avoidance or affirmative defense. so he ordered each of the • allegations of the complaint admitted 2 Rule 8© 0 Pleading affirmative defenses Carter v. Plaintiff appealed that the government had failed to assert this as an "affirmative defense" in its answer This case was decided under the old rules. 2. if all may be denied in objective and subjective good faith 3." The new rule 8 does not include such a catch-all phrase. or. State a disclaimer (lack of knowledge or information) 1. or that she . which did NOT include statutory caps on damage awards. Admitting allegations of the complaint 2. Effect of failing to deny . on amendment • Difference between the new Rule 8(b) and the old Rule 8(b) o The old rule 8(b) contained enumeration of possible affirmative allegation (other than one relating to damages) is admitted if a responsive pleading is required and one is not submitted.Civil Procedure Outline (Spring 2008 JOHNS) 6. Plaintiff does not argue here that she would have classified some damages as economic instead of noneconomic. 15. Dimitri's Restaurant o Defendants may answer by 1. the allegation is considered denied or avoided. Specifically.5 million noneconomic Maryland law had a damages cap at $530. J. Denying allegations 1. US (2003) Damages were calculated to be $3.4 million in economic damages." Judge got upset at their answer. • Erroneous Admissions and denials: o Usually reversible through amendment (if the error was made in good- faith) o See Rule 15.000. Generally. Has the effect of a denial o Defendant answered 30 of the complaint's 35 paragraphs by saying "neither admit nor deny the allegations.C. enumerates 19 affirmative defenses (is that intended to be exhaustive. ruled that failure to plead an affirmative defense works a forfeiture only if the plaintiff is harmed by the delay in asserting it. but demand strict proof thereof. If no responsive pleading is required. or explicative?) The court in Carter didn't take sides.

and tightens the standard of pre-filing investigation from mere "good faith" to "reasonable under the circumstances" 2 However. whether the paper's claims were based on a plausible view of the law. under what standard should the court issue sanctions? 1 Objective unreasonableness (which is used for sanction proceedings initiated by motion) . 5th circuit say objective across the board. motions. motion. sanctions 4 The Implications of rule 11 0 Generally: Applicability . or whether he depended on forwarding counsel or another member of the bar. Relevant factors in determining reasonableness at the time may • be: The time for investigation available to the signer. the rule does NOT intend to chill the creativity or enthusiasm of an advocate.Civil Procedure Outline (Spring 2008 JOHNS) would have devoted less to proving economic damages. so no harm to reverse. and the challenged party has no opportunity to withdraw the challenged paper. but should inquire as to what was reasonable to believe at the time of the paper's submission.Any pleading. there is a circuit split as to whether these • should be distinguished (1st. the challenged party • has 21 days after service of the motion to withdraw the challenged document before the challenger may submit the motion to the court 2 Patsy's Brand v. IOB Realty (Inaccurate factual assertion) 0 When the possibility of Rule 11 sanctions is raised sua sponte. whether he had to rely on a client for facts underlying the paper's claims. not discovery Standards • Party-initiated: Objective unreasonableness  Court-initiated: Subjective bad faith  But. A party trying to show cause is not compelled to divulge • privileged information or work product. rule 26C protections apply 1 3 Safe Harbor Period For motions brought by opposing counsel. the court should not judge a pleading with the wisdom of hindsight.Signing pleadings. 7th imposes bad-faith standard when there is no safe-harbor provision) Procedure • Party-initiated: Service on opposing counsel. (affm'd trial court's imposition of the damage cap) 3 Rule 11 . and other papers. 21 day "safe harbor" period Judge-initiated: Order to show cause why rule 11 was not  violated The 2007 amendments broaden the scope of papers to which the signature certification applies. or other paper submitted or • advocated in court. representations to the court.

unless the order specifies a different time. Extra time to answer=incentive to waive service A party must serve an answer to a counter or cross claim within 20 days after being served with a pleading that asserts the counter or cross claim o A party must serve a reply to an answer within 20 days after being served with an order to reply. US Officers and employees sued in an INDIVIDUAL capacity 1. The appellate court reversed. Within 20 days of being served with the summons and complaint. The US and its officers. c. If service has been timely waived. If the complaint is for an act or omission occurring in connection with duties performed on the United State's . or employees sued in an Official Capacity 1. or non-frivolous arguments for extending. Such defendants must serve an answer to a complaint. legal contentions must be warranted by • existing law. Defenses and Objections (when and how presented) o and Motions for JUDGMENT ON THE PLEADINGS Time to serve a responsive pleading Generally • 1. agencies. within 60 days of the sending of the request for waiver was sent. or b. ruling that in order for a court to order sanctions sua sponte.Civil Procedure Outline (Spring 2008 JOHNS) 2 Subjective Bad faith (for sanction proceedings initiated by the court) The district court found that the firm should face sanctions because its assertions were objectively unreasonable. there must be a showing of subjective bad faith. Under Rule 11(B)(2). distinguishing. 1 Frantz v. and so the complaint was frivolous because it was filed without prior competent research. US Powerlifting Federation 0 The complaint alleges that a Corporate Officer conspired with his corporation. even if the lawyers acted in "blind" good-faith. o 2. counterclaim. or reversing existing law (or establishing new law) • Rule 12. or crossclaim within 60 days after service on the US Attorney 3. Prior cases have held that this is not possible as a matter of law. Unless otherwise proscribed by Law. the defendant shall answer a. or within 90 days if the defendant was addressed outside of a US Judicial district.

on a motion under rule 12(b)(6) or 12C matters outside the pleadings are presented to and not excluded by the court. Insufficient service of process 6.but early enough not to delay trial . Motion for Judgment on the pleadings. and 7. On its own. Failure to join a party under rule 19 3. On motion made by a party either before responding to the pleading. the Officer or Employee must serve and answer within 60 days of service on the officer or employee or service on the US attorney. Lack of subject matter jurisdiction 2. Failure to state a claim upon which relief can be granted. 4. the standard is "no genuine issue of material fact" 2. Lack of personal jurisdiction 3. within 20 days after being served with the pleading 7. or 5) may not make another motion under rule 12 that was available to the party but omitted from its earlier motion 8. 6. the responsive pleading is due within 10 days after service of the more definite statement. This is a motion for "judgment on the pleadings" 5.Civil Procedure Outline (Spring 2008 JOHNS) behalf. 3. and must point out the defects complained of. or 2. The court may act: 1.Must be made before filing a responsive pleading. A party that makes a motion under rule 12 (b)(2. or 2. Every defense to a claim for relief must be asserted in the responsive pleading if one is required. If. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order (or within the time the court sets) the court may strike the pleading or issue any other appropriate order. or. Improper Venue 4. If the court grants a motion for a more definite statement. 4. After the pleadings are closed . Insufficient Process 5. the motion must be treated as on for summary judgment under rule 56 1. If the court denies the motion or postpones its disposition until trial. A party waives any defense listed in rule 12(b)(2-5) by: .a party may move for judgment on the pleadings. immaterial. Waiving and preserving certain defenses 1. Effect of a Motion (Those outlined in 12(b)(1-7) 1. Motion to Strike. if a response is not allowed. The Court may strike from a pleading an insufficient defense or redundant. But the following defenses may be asserted by motion before filing a responsive pleading 1. impertinent. A motion under rule 12 may be joined with any other motion allowed under rule 12 2. whichever is later 4. So. Joining motions 1. or scandalous matter. Motion for a more definite statement . the responsive pleading must be served within 10 days after notice of the court's action. 2.

or to state a legal defense to a claim may be raised: 1. to join a person required by rule 19 [12(b)(7). Davis In the absence of (1)undue delay. Sappington Defendant moved for SJ after discovery. Plaintiff appealed the granting of leave to amend. Omitting it from a motion in the circumstances described in rule 12(g)(2). (2)bad faith or dilatory motive. If the court determines at any time that it lacks subject matter jurisdiction.with the other party's written consent or leave from the court (should be freely granted when justice so requires) 1. (4) undue prejudice to the non-moving party. There . In any pleading allowed or ordered under rule 7(a) 2. judgment on the merits) • Amendment as a matter of Course 1. Failing to either a. the court must dismiss the action 9. Make it by motion under this rule. Failure to state a claim upon which relief can be granted [12(b) (6)]. or 2. Court ruled that the plaintiff was on-notice of the affirmative defense because it had been the focus of Defendant's discovery inquiry. and then granted the MSJ. At trial Lack of subject-matter Jurisdiction 1. unless the court orders a deferral until trial. Hearing before trial 1. A rule 12(b) motion must be filed before or concurrently with 3. (3)repeated failure to cure deficiencies by amendment. When does justice require amendment? 1.Civil Procedure Outline (Spring 2008 JOHNS) 1. Include it in a responsive pleading or in an amendment allowed by rule 15(a)(1) 2. Amending the Pleadings Rule 15 Leave to amend should be granted liberally (consistent with the rules' spirit. Before being served with a responsive pleading. or (5) futility. The Court granted leave to amend the answer to allow the assertion of the defense. or 2. or b. any defense listed in Rule 12(b)(1-7) whether raised by motion or in a pleading. and any motion under 12C must be heard and decided before trial. the court should grant a motion for leave to amend Robinson v. Foman v. Within 20 days of serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar • Other amendments . asserting an affirmative defense not raised in its answer. By a motion for judgment on the pleadings (rule 12C) 3. If a party so moves.

District Judges must file a scheduling order which will impose a strict deadline for amending pleadings.Civil Procedure Outline (Spring 2008 JOHNS) was no harm to the plaintiff in allowing the assertion of the defense at Summary Judgment. o Seems like this case may have been decided wrongly.) 2 When might an advocate reasonably oppose amendment? o The "injustices" outlined in Foman. The RICO SOL had run. but the district court allowed amendment by finding that the RICO claim "relates back" to the date of the original pleading. which was granted. also. other circumstances could reasonably call for opposition to amendment 3 Jurisdiction Personal Jurisdiction: Is it fair for this court to adjudicate the rights of this defendant? o In Rem jurisdiction: Action is against property itself to determine entitlements o Quasi In-Rem Jurisdiction: Action where property is attached in order to pay judgment on a dispute which does not involve that property itself Recovery is limited to the value of the attached property • o In Personam: No specific property is attached. and. finding that the trial court abused its discretion by finding that the RICO claim relates back. May a party amend a pleading to include a new claim. and the suit is against a person individually o . the appeals court should affirm the trial judge's exercise of discretion. if it could go either way. to amend after the deadline. if in the interim between filing and amendment the SOL for the new claim has expired? • In this case. Appeals court reversed. should have allowed the relation back.Relation back of amendments Tran v. Alphonse Hotel Corp. Amendment and Case Management Under case management. Filed for leave to amend to include RICO claim. and so it was not an abuse of discretion. must satisfy both rule 15 and rule 16 in order to get amendment Rule 15© . the moving party must show good cause (R. after the deadline. because the RICO claim "does not arise out of the conduct set forth in the original complaint" (which did not mention fraud or bribery). in the name of justice(because the RICO claim pertained to the overarching conspiracy that resulted in the underpayment complained of in the FLSA complaint.16(b)) Tension between liberal amendment under rule 15 and the strict timetable of rule 16 Courts usually apply the rule 15 standards within the deadline. the plaintiff discovered bribery (a claim under RICO) while investigating his FLSA claims.

Every state has a long-arm statute. if in-state property is attached. suit against the absent property owner satisfies due process (In Rem. However. however. Constitutional authority: What are "Minimum contacts?" 1. Neff (1877) No state may exercise In-personam Jx over the citizens of another state even if the out-of-stater has substantial connections to the state (such as owning property). Denckla (1958) Florida could not exercise Personal Jx over Delaware Defendant because the contacts of the Florida Plaintiff with . because the contract was the subject of the suit (Specific Jx) 2. Hanson v. The AZ company was then taken over by a TX company.Civil Procedure Outline (Spring 2008 JOHNS) • Recovery (theoretically) could be much higher More on In Personam Jx: Pennoyer v. 2 different responses a. sacrificing justice for efficiency by avoiding the Jx question is too high a price. In Rem. The court found this single contract was enough. which often intend to reach the furthest extent permitted by constitutional due process 2. Can a single act in a forum render it subject to Personal Jurisdiction 1. which offered to reinsure the policy holder. the Supreme Court rules that Due Process over absent defendants is satisfied if the defendant has "certain minimum contacts with the forum state such that the maintenance of suit does not offend "traditional notions of fair play and substantial justice. Quasi in-Rem) Int'l Shoe v." As applied to Int'l shoe: Shoe sold shoes in Wash. and when the existence of Jx under Int'l Shoe is unclear. Holder accepted. Washington (1945) In Personam Jx: To get out of the Pennoyer hole. Int'l Life (1957) CA resident claims life insurance benefits under a policy purchased by another CA resident from an AZ company.Specific Jurisdiction EVERY exercise of Personal Jurisdiction must comply with statutory and constitutional limits 1 Statutory Authority 1. and employed sales representatives in Wash. because the property is related to the suit (Specific Jurisdiction) For Quasi In Rem cases: Applying minimum contacts might • seriously affect jurisdiction. the court reasons that the Int'l Shoe test can be easily applied in most cases. APPLYING MINIMUM CONTACTS . and sent payment to the TX company. McGee v. Heitner ( 1977) For In Rem cases: Applying minimum contacts would not affect • jurisdiction in most cases. Quasi In Rem: Did Int'l Shoe change the rules for suits involving in-forum property? Shaffer v.

World-Wide Volkswagen v. Court ruled that Hustler "deliberately exploited the NH market and must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine. However. because it was the consumer who unilaterally brought the product into the forum state. 4. CA is the focal point of the story. P's unilateral act cannot subject the D to Jx in another state. purposefully directed toward residents of another state (negotiations. 6. "The substantial connection  between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state. contemplated future consequences). even if there were minimum contacts. neither party (of the indemnity suit) is a CA resident. etc. This contact.Civil Procedure Outline (Spring 2008 JOHNS) the Delaware defendant happened before the Plaintiff moved to Florida. Hustler Libel suit against Hustler. establishes jurisdiction. "a manufacturer that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state" is subject to jurisdiction. 5. Asahi Metal Co. . Jones CA resident sued author of an article for libel (in CA). Defendants lived in Florida. Rudzewicz BK sued R in FL court for breach of contract. Jx would  be unreasonable because the forum's interest in the suit is minimal." (See Asahi Metal Co." Without more. v. there was no "purposeful availment" on the part of the Delaware defendant. does due process require the defendant's action to be more purposefully directed at the forum state? Plurality rules for the latter. The "more" could be (1) specific design for the forum market. mere placement of a product into the stream of commerce will not subject the company to Jx wherever that product ends up. ) 3. and the brunt of the harm was focused there. Superior Court Going back to the "stream of commerce" language from World Wide. H's only contact with forum state was the circulation of 10-15K of its magazines (a very small number). in FL. R had solicited a franchise agreement with BK. Keeton v. 2. Woodson NY car dealer objected to exercise of personal Jx over it in suit in OK. Burger King v. Court agrees that there were insufficient contacts to warrant Jx. Calder v. and the D cannot get out of it by arguing physical absence. the transaction didn't happen in CA. is it sufficient that a company simple "place its products in the stream of commerce?" Or. (2)advertising in-forum. Further. the authors' act thus purposefully availed them of CA Jx. Author wrote the story in FL based on research done in FL.

• General Jx exists when contacts are so extensive. Bird v. systematic. Parsons For purposes of General Jurisdiction. v. would the suit have happened? Shute who is a CA corporation. suing . The court distinguishes between passive web sites and active sites (measured along a sliding scale -not a bright line between the two).Com's contacts with PA occur almost exclusively over the Mfg.  Summary: The Modern test for Specific Jurisdiction Specific Personal Jurisdiction is established when the defendant establishes "certain minimum contacts with the forum state such that the maintenance of suit does not offend 'traditional notions of fair play and substantial justice. Carnival Cruise lines 2. Beyond Minimum Contacts: General Jurisdiction • Specific Jx exists when D has sufficient minimum contacts that it's fair to require the D to defend lawsuits in the jurisdiction that arose out of the D's activities in the Jx. Bird v. 9th circuit asks "but for" the contacts.Civil Procedure Outline (Spring 2008 JOHNS) Because the part of the opinion requiring more than simply placing the product in the stream of commerce was a plurality opinion. 6th circuit asks merely if the suit is "related" to the contacts with the forum. Zippo. the degree of contact is evaluated on a sliding scale: . Evidence of availment in this case consisted of agreements with ISPs in PA. some lower courts still apply the World Wide standard. active solicitation or interactivity with in-forum consumers = purposeful availment. Parsons Is the exercise of jurisdiction reasonable?  Personal Jurisdiction in the Virtual World Zippo Mfg. Co. is a PA corporation. and actual contracts for services with 3k PA residents. and continuous that it's fair to require the D to defend lawsuits in the jurisdiction that did not arise out of activities in the jurisdiction. Circuit split: 1.'" Did the defendant purposefully avail himself of the privilege of doing  business in the forum state? Does the claim arise out of the Defendant's forum-related activities?  1. . it does not have the full precedential weight of a majority opinion.

Sign up to vote on this title
UsefulNot useful