Civil procedure I. Introductory Material

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I. Introductory Material

A. Opportunity to be Heard

1. Fuentes v. Shevin – Under FL law, Fuentes’s stove and stereo were seized by the sheriff when she defaulted after paying $400 on a $600 installment contract → Due process requires an opportunity for hearing before a deprivation of property can take place

  • A statute allowing a creditor to obtain repossession of goods before a hearing violates due process where it (1) allows repossession merely on the creditor’s conclusory statement that he owns the property (2) provides for a write of possession issued by a clerk rather than a judge (3) does not provide for an immediate post-repossession hearing

2. Mitchell v. W.T. Grant – court upheld a LA sequestration procedure that provided for dissolution of the writ upon the debtor’s request, unless the creditor could prove his grounds and post a bond

  • No one in the Fuentes majority voted for the result in Mitchell.

  • In LA the creditor at least needs to present reasonable evidence. In FL, a reasonable argument does not need to be put forward.

  • But a statute allowing repossession by a creditor will be valid if it requires presentation of specific facts about the claim, requires that the facts be presented to a judge rather than a clerk, and provides for an immediate post hearing at which the D can present the case

3. North Georgia Finishing, Inc. v. Di-Chem, Inc. – a GA garnishment procedure was struck down because there was no hearing, no notice, and the debtor could recover his property only by posting a bon for the debt amount

  • A D’s bank account may not be attached unless he is given the right to argue against the attachment either before it occurs or immediately after

  • Mitchell seems to be methodically superior because it recognizes interest on both sides. Gives significant protection and isn’t too costly against whom it operates.

<1. If feel in my heart this D should get a better deal (not intellectually satisfying).

2. How strong an interest does the P have in receiving this procedural benefit.

3. Is the D’s interest being protected?

4. How much good does this enhanced procedural ___ produce better results. >>
II. Getting the Defendant Into Court

A. Personal JurisdictionMinimum Contacts Test

1. Pennoyer v. Neff – Neff brought suit in federal court to recover possession of a parcel of land purchased at a sheriff’s sale by Pennoyer

  • (Old Rule) For a court to obtain valid personam jurisdiction over a D, it was absolutely necessary that the D be served with process with the state in which the court was sitting

2. Hess v. Pawloski – A former MA statute held that MA had jurisdiction over anyone who operated a motor vehicle within the state, on the grounds that such a person could be said to have impliedly consented to jurisdiction by the act of operating the vehicle

3. International Shoe, Inc. v. Washington – (minimum contacts test) – state of WA sought to collect unemployment taxes based on commissions paid by the firm to its WA-based salesmen

  • Minimum Contacts Standard – Jurisdiction is valid whenever a D’s contacts w/in the state are such as to make it “reasonable and just” and “not offensive to the traditional notions of fair play” that the D be forced to defends within the state

B. Long Arm Statute

1. Gray v. American Radiator Corp. (?) – Titan (an OH co) makes valves which it sells to another company which incorporates them into a boiler which it sells to P; the boiler explodes in IL, injuring a P who sues Titan in IL; the IL long arm allows suit in IL based upon a “tortuous act within the sate.” → “in law the place of the wrong is where the last event takes place which is necessary to render the actor liable.”

2. World-wide Volkswagen Corp. v. Woodson – VW manufactured in NY but fatal injury occurred in OK – P sue NY, but attempt to sue in OK court

  • Certainly the mere fact that a product made out of state has found its way into the forum state, and has caused injury there, is not sufficient for the assertion of jurisdiction under Volkswagen. However, the majority opinion in Volkswagen noted that jurisdiction in permissible over a corporation that “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.” If the defendant in Gray had reason to expect that IL customers would buy a product containing its valves, Gray may survive the Volkswagen decision.

  • Court distinguishes b/t a product being sold in the state (Gray) rather than just winding up there in this case D had done nothing

3. Keeton v. Hustler Magazine, Inc. – D’s contacts w/ the forum state (NH) consisted solely of the circulation there of from 10-15,000 copies per month of its mag; P who was not a resident of NH and had not other contacts with it, claimed that articles in Hustler injured her reputation in NH and elsewhere

  • The Court found that there was jurisdiction because the cause of action arose out of the very activity being conducted in part in NH.

  • Noted that D’s activities in the forum may no be so substantial as to support jurisdiction over a cause of action unrelated to those activities

<< Must satisfy:

1. Activity (some times referred to as minimum contacts test)

• Activity

• relation

• purposeful

2. Balancing (reasonableness test)

4. Kulko v. Superior Court – SC held that a father residing in NY does not acquire “minimum contacts” w/ CA merely by permitting his minor daughter to go there to live with her mother

  • Did not avail himself of the benefits of the state

  • Though CA state interest in making sure minors are provided for, legislation in place to allow wife to obtain NY adjudication

5. Burger King Corp. v. Rudzewicz – SC held that the courts of FL could constitutionally exercise jurisdiction over a MI resident who had signed a franchise contract with a FL franchiser, even though the franchise was operated in MI

  • Once min. contacts are established, it is presumed that the forum is fair unless D proves that the forum is fundamentally unfair (BK D failed to do so and had to defend in FL)

    • D was not unfairly surprised by being required to defend in FL against a suit; both contractual provisions and the course of dealing should have put D on notice that the franchise relationship would be supervised from FL

6. Asahi Metal Industry Co. v. Superior Court – Zurcher lost control of his motorcycle while riding in CA, and was seriously injured. He brought a products liability suit in CA state court, claiming that the cycle’s rear tire and tube were defective. Asahi made no direct sales in CA, had no offices or agents there, and did not control the system of distribution that carried its products into the state

  • Majority believed that Asahi had minimum contacts with CA because it put its goods into a stream of commerce that it knew would lead many of them to that state

  • Despite MC, it would be unreasonable and unfair for CA to hear the case because (1) the burden to A of defending in a foreign legal system (2) the slenderness of CA’s and Cheng Shin’s interest in having the indemnity claim heard in CA; and (3) the strong federal and state interest in not creating foreign relations problems by deciding an indemnity claim between two foreign Ds.

<1. Burden on the defendant

2. Interests of the forum state

3. Plaintiff’s interest in obtaining relief

4. Shared interest of the several States in furthering fundamental substantive social policies>>
C. General Jurisdiction and State Long-Arm Laws

1. Perkins v. Benguet Consolidated Mining Co. – D was out of state mining company in Philippines, during WWII the president returned home to OH, where he maintained an office and did business on behalf of the co, the P was suing for dividends she claimed the company owed her based on its profits from its Philippine operation (the cause of action did not involve the OH activities)

  • The court held that where the cause of action does not arise from business done within the forum state, Constitutional due process requires that the instate business actually conducted be so systematic and continuous as to make it not unjust that the corporation be forced to defend a suit there.

2. Helicopteros Nacionales de Coombia, S.A. v. Hall- Columbian corp in the business of providing helicopter transportation in South America for oil construction companies signed a contract to provide such services to Consorcio. Ps were estates of employees of Consorcio who were killed when a helicopter supplied by and piloted by D crashed in Peru

  • Single trip to negotiate was not a contact of a continuous and systematic nature

  • The Wrongful death claims did not arise out of the D’s in-TX activities; those activities were not of a continuous and systematic nature

  • Establishes that where the claim does not arise out of the d’s in-state activities, the mere fact that the purchases been made by the D in the forum state, even if they have occurred regularly will not be sufficient to establish the requisite mere contacts

  • Mere purchases even if occurring at regular intervals are not enough to warrant a State’s assertion of in personam jurisdiction over a non resident


D. Jurisdiction Based Upon Power Over Property

1. Tyler – P argued that a land registration proceeding which registered land in the name of a third person violated P’s due process rights, since he was not personally notified; the in rem proceedings in question provided for notification by mail to all persons known to claim an interest in the land, and for newspaper publication announcing the proceedings in the hopes of reaching known claimants

  • Constitutionally upheld b/c must get rid of unknown as well as known claims

2. Harris v. Balk – Harris (NC resident), owed money to Balk (also NC resident). Epstein (MD resident) claimed Balk owed him money. Epstein garnished Harris’ debt to Balk by serving Harris with process in MD. This furnished the MD court w/ quasi in rem jurisdiction to consider Balk’s debt to Epstein, and to satisfy a possible judgment in Epstein’s favor

  • Obligation of a debtor follows him, court may assert jurisdiction over debtor as long as it personally serves him

3. Shaffer v. Heitner – P owner of one share of stock in Greyhound, a DL corp w/ principal place of business in AZ, filed a shareholder’s derivative suit against Greyhound and 28 officers

  • Overturns Harris – requires min. contacts b/t debtor and state for jurisdiction to exist

  • Since P failed to allege any of the types of contacts required by constitutional minimum contacts standards, DL cannot exercise jurisdiction over the case

  • Full Faith and Credit Clause would allow P (in the event D moved assets to where no in personam jurisdiction) to bring an in personam suit where the D resides regardless of the presence of his assets and then after recovering judgment sue to enforce that judgment in the state where the assets are

E. Jurisdiction Based on Physical Presence

1. Burnham v. Superior Court – P brought suit for divorce in CA state court against her husband D from whom she had been sepatated for 18 months, D a resident of NJ, was served in CA while visiting on business

  • Presence in state is grounds for that state’s jurisdiction (b/c doesn’t violate traditional notions of fairness)

F. Expanding Personal Jurisdiction

1. Milliken v. Meyer – Meyer was domiciled in Wyoming and was served in CO, pursuant to a WY statute allowing out-of-state service on a resident defendant who has attempted either to escape his creditors or to avoid being served process


2. NOTE: The SC in Shaffer held it would be unfair to make the D personally liable in the forum state merely because he was domiciled there, if he has subsequently moved his residence somewhere else but has not established a new residence.
G. Jurisdiction Over Parties or Property (Consent)

1. M/S Bremen v. Zapata Off-Shore Co. – Zapata- London-American trae relationship, US can be brought before London jurisdiction as provided in a forum selection clause- jurisdiction by consent

  • It has always been permissible for P and D to consent to jurisdiction in a particular forum state in advance of litigation, provided that there is no overweening on the part of the stronger party.

2. Carnival Cruise Lines, Inc. v. Shute – P receive tickets issued by D state that any dispute in connection with the trip shall be litigated if at all in and before a Court located in the State of FL. Injury occurs in Mexico.

  • A dispute forum clause will be enforced when it is reasonable and satisfies requirements of fundamental fairness

H. Personal Jurisdiction in Federal Court

1. DeJames v. Magnificence – NJ citizen brought suit under the admiralty jurisdiction to recover damages for personal injures suffered while working abrad the vessel was moored at a pier in Camden, NJ

  • Usually fed. Court uses the LAS of the state Rule 4(k) however if ther is not state LAS, then Congress has enacted some statutes that allow nationwide service and effectively supercede R. 4K

  • Rule 4(k)(1) Authorizes the federal court to reach only as far as the forum state could under the Fourteenth Amendment and the state’s long-arm provisions.

<Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a D

(a) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located or >>
I. Challenging Personal Jurisdiction

1. FRCP 12 (b) – Lists the defenses that may be raised either in the answer, or by motion

  • Lack of jurisdiction over the subject matter

  • Lack of jurisdiction over the person

  • Improper venue

  • Insufficiency of processes

  • Insufficiency of service of process

  • Failure to state a claim upon which relief may be granted

  • Failure to join a necessary party under Rule 19

2. FRCP 12(g) – Consolidation of Defenses If a party makes a motion under this rule but omits there from any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2)

3. FRCP 12(h) sets out premise of time requirements for defenses; *consult rule but most must be made before trial except defense of a lack of subject matter jurisdiction which can be made after the trial

4. Special appearance = appear to contest jurisdiction only (if you argue merits, you waive right to contest jurisdiction)

  • No equivalent appearance in federal court, however similar to R. 12g-move for defect of jurisdiction as a defense (12b lists lack of jurisdiction as a defect); if fail to do so, you waive this defense R. 12h

J. Challenging a Court’s Exercise of Jurisdiction Over the Person or Property

1. Baldwin v. Iowa State Traveling Men’s Ass’n – D makes a special appearance in MO DC, loses on his jurisdictional objection, then declines to answer. A default judgment is entered against him. P then sues in IA DC to enforce the judgment. D raises the jurisdictional objection again.

  • Generally, if the D makes a special appearance contesting the jurisdiction of the first forum and he loses he may not later contest the same issue in a later suit.

  • Once you appear before court and contest jurisdiction-the ruling as to jur. is binding.

  • One can choose not to appear, but risk default judgment which will be binding OR appeal to SC and take chances there.

II. Notice and Service of Process

A. The Requirement of Reasonable Notice

1. Mullane v. Central Hanover Bank & Trust Co – Bank administered numerous small trust fund and wished to settle the year’s accounts for the funds, which it had pooled together for investment purposes; the court appointed Mullane to represent all those who had an interest in trust funds *the only notice given to the beneficiaries of the trust funds was through a newspaper announcement → where the names and address of those effected are known, notice by publication is unacceptable

  • Actual notice is not required: all that is required is “notice reasonable calculated under all circumstances, to apprise interested parties of the pendency of the action…”

  • Court used a balancing test and held that the expense of notification by mail, the availability of names and addresses of beneficiaries, were factors to be taken into account in determining whether publication was sufficient notice

2. Dusenbery v. United States – notice arrived at prison, FBI didn’t have to make sure inmate actually got it- the method was reasonably certain

  • the court says that actual receipt is not required

  • reasonable means to contact them is enough (even though it might not succeed)

3. FRCP 4 – Governs many of the technical aspects of federal court jurisdiction over the parties; note 4f: foreign service is made by whatever means is legal in that nation

D. Waiver of Service

1. Maryland State Firemen’s Association v. Chaves - Complaint was filed on Jan. 2, on March 4, MSFA filed a Motion for Judgment by Default. March 11,Clerk entered default judgment. They sent by 1st class mail to the Δ. There was no acknowledgement by the Δ, even though the lawyers spoke to each other, so service was not valid. → applies the strict rule; service was improper

  • Service of process must be effective under the Federal Rules of Civil Procedure before a default or a default judgment may be entered against a Δ.

  • A P must strictly comply w/ service provisions, even if D has actual notice of lawsuit

C. Service on a Person Residing n D’s Dwelling House or Usual place of Abode 1. Rovinski v. Rowe – service mailed to his mother’s house sufficient

  • Argued it wasn’t his dwelling according to FRCP Rule 4 (e)(2), but court’s construe the rule liberally.

  • Rule 4 (e)(2) – service can be made to the individuals dwelling house or usual place of abode and left w/ some person of suitable age and discretion then residing there

  • Policy R/L everyone must be “reachable” if you didn’t have a reliable address judgment wouldn’t be able to be rendered against you, no heroic efforts to contact you are required

D. Service on Artificial Entities: Corporation, Partnerships, and Unincorporated Associations

1. Insurance Co. of North America v. S/S “Hellenic Challenger” – US marshal deposited the summons and complain with a claims adjuster at the office of defendant who was not expressly authorized by D to accept process, agent forgot to give it to the appropriate person, but upheld

  • Court says that service was proper b/c 4h does not require rigid formalism, so as long as the individual is in a position to render the service fair and reliable and reasonably calculated to alert Δ to initiation of process, OK.

  • Rule 4(h): service on corporations and associations by delivery to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service

D. Etiquette of Service

1. Wyman v. Newhouse – P sued D to recover money loaned, money advance, and damages for seduction under promise of marriage; D was induced to enter the jurisdiction of the court by a letter from the P an old friend of D to the effect that P’s mother was dying in Ireland, that P was dropping all charged against D, and that P could not bear to leave the US w/o once more seeing D

  • Court said that inducing someone to enter jurisdiction by fraud is not justifiable and will not be upheld.

  • Note: Courts do not have reservations about the method of service when the D is already within the jurisdiction of the court but is hiding from suit.

III. Federal Subject-Matter Jurisdiction

A. Federal-question Jurisdiction (Types of Cases Court can Hear)

1. Rule 28 USC §1331 – DC has original jur. of all civil actions arising under Con. Laws or treaties of US

2. R. 28 USC §1337 – DC also over has jurisdiction over actions arising under any Congressional Act regulating commerce

3. 28 USC §1442 – against federal officers

4. Louisville & Nashville R. Co. v. Mottley – Ps claim in a federal suit that D breached its agreement to give the Ps free passes in return for their release of tort claims against it (federal statute recently passed which prohibites the giving of such passes), Ps anticipating that D will riase the federal statute as a defense, assert in their complain that the statute does not apply to their case, D raises federal statute as a defense

  • No federal question jurisdiction exited, because the federal statute was no essential to the P’s cause of action

  • It is not sufficient that the complaint mentions some anticipated defense and asserts that the validity of the defense is governed by federal law

5. Smith v. KC Title & Trust Co. → Federal jurisdiction relief from the state depends on the construction or application of the Con. Or laws of the US

6. Moore v. Chesapeake → Federal jurisdiction does not extist if the suit is brought under a state statute, requires construction or application of fed. Law, but does not have diverse parties (contradicts Smith, Moore)

7. Merrell Dow Pharmaceuticals Inc. v. Thompson → A state law action that also alleges a violation of a federal statute, comes under Fed. Jur. only if Congress intended to provide a federal remedy


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