UBE - Civil Procedure

Personal Jurisdiction

A courts power over the parties.

The court automatically has jurisdiction over the plaintiff.

Does the Court Have Personal Jurisdiction?

(1) State statute (long arm applicable)

(2) Constitutional compliance (due process)

Statutory Requirement for Personal Jurisdiction

Does the state have a statute that outlines when the court has personal jurisdiction>

If the statute reaches the same requirements of the constitution then the state statute will cover both the statute and constitutional requirement.

Constitutional Requirement for Personal Jurisdiction

Minimum contacts with the forum state so jurisdiction does not offend traditional notions of fair play and substantial justice.

(1) Contacts

(2) Relatedness

(3) Fairness

Sufficient Contacts

There must be a relevant contact between the defendant and the forum state

(1) purposeful availment of the benefits of the state (def. reaches out/target to the forum)

(2) foreseeable that def. could get sued in this forum

Purposeful Availment Not Present in the State

Can be satisfied by causing an effect to occur in the forum even though you never set foot in the forum.

Relatedness - Personal Jurisdiction

Is there relatedness between the contact with the state and the plaintiff's claim.

aka Does plaintiff's claim arise from def. contact with the forum? If yes, then the court may uphold PJ even if def. does not have contacts with the forum, if fair. (Specific PJ)

Specific Personal Jurisdiction

Plaintiff's claim arises from the def.'s contact with the forum.

General Personal Jurisdiction

(1) Def. is at home in the forum.

Contact not required to occur within the forum.

(2) Service of an out-of-state def. within the forum

Where is a defendant always at home?

Domicile

Corporation Contacts

Corporations are subject to the forum wherever their business is systematic and continuous

(1) Incorporated

(2) Principle Place of Business

Fairness of Personal Jurisdiction

Fairness is only addressed in specific personal jurisdiction cases.

(1) Burden on Def. and Witnesses

(2) State's interest in a remedy for its citizens

(3) Plaintiff's interest

Does not require most convenient forum

Burden on Defendant - Forum Convenience

Convenience is not in violation of due process unless the forum puts the def. at severe disadvantage

Wealth is not considered in the fairness analysis.

Notice of Suit - Process

Defendant is entitled to notice of suit

(1) Summons

(2) Complaint

Due Process Requirements for Notice of Process

(1) Reasonably calculated

(2) Under the circumstances

(3) to inform the defendant of the suit

Summons

Official govt document

Must present it to the clerk of court for signature and seal

Who can serve process?

Any non-party who is at least 18

When does service happen?

No more than 90 days after filing the complaint.

How is process served?

On and individual in the US

(1) Personal Services - anywhere

(2) Substituted Service - (at home)

(3) Agent - (if within the scope of agency)

(4) In compliance with state law - (mail)

No preference in Federal Court

Substituted Service

(1) Def.'s usual abode

(2) Person of suitable age and discretion who resides in the home

Who may accept service of process on behalf of a corporation?

An officer or manager of the corporation

Service on Minor or Incompetent Persons

In compliance with state law - where service will be made

Service in a Foreign Country

Any method permitted by an international agreement

(1) As directed by the American court

(2) Foreign country's law

(3) Foreign official's guidance

(4) Personal service in foreign country unless prohibited by country law

(5) Mail sent by the clerk of the American court, unless prohibited by country's law

Waiver of Service and Process

You mail a waiver to the defendant (two forms)

Effective once plaintiff files the waiver with the court

(1) If def. mails the waiver back to the court within 30 days then waiver is successful.

(2) Def. must pay the cost of service if they have no good cause for not waiving the service.

Affect of Waiver on Personal Jurisdiction

Waiver does not affect the def's ability to object to personal jurisdiction

How do we prove service of process?

Process server files a document with the court detailing how the service was made. (Affidavit for civilians).

The report is not required to be filed to have effective service

Geographic Reach of Service

(1) Inside the state

(2) Outside the state if state law allows

Immunity to Service

If you are in the state to appear as a party witness or attorney in a different case, you are immune from service of process.

Service of Other Documents

Other documents can be served by delivering or mailing the document to the attorney or a pro se party.

Email - only if the party agrees

When is service of documents effective?

When the service is in the mail

Respondent gets an extra 3 days if mailed

Subject Matter Jurisdiction

The courts power over the case

Federal courts have limited subject matter jurisdiction

State courts have general subject matter jurisdiction

Federal Court Subject Matter Jurisdiction

(1) Diversity of Citizenship

(2) Federal question

Diversity of Citizenship

Parties must be citizens of different states (based on domicile includes alienage) + claim > $75k

Complete diversity must exist. No plaintiff and no defendant can be from the same state.

Diversity must be satisfied when the case is filed.

Domicile

A person is domiciled wherever they are present and have intent to remain for the foreseeable future.

Corporate Domicile

(1) Every US state or country where incorporated and

(2) The one US state of principle place of business

Principle Place of Business

Where the managers direct coordinate and control the corporate activities

Unincorporated Entity's Domicile

The citizenship of all its members

Citizenship of Persons Acting Through a Representative

Must sue or be sued through a representative but the representatives citizenship is irrelevant

Amount in Controversy

The claim itself determines the amount in controversy. (punitive not included)

Whatever the plaintiff claims in good faith is sufficient, unless it is clear to a legal certainty that the plaintiff cannot recover more than $75K.

Aggregated Claims

Aggregation means adding two or more claims to meet the requirements.

We aggregate claims of any one plaintiff against any one defendant.

Joint Claims

For joint claims the total value of the claim is used to determine the amount in controversy

Cases Excluded from Federal Courts

(1) Divorce

(2) Alimony

(3) Child Custody

(4) Probate

Federal Question

The claim in the compliance arises under federal law

The claim must be well pleaded (Is the plaintiff enforcing a federal right?)

It is not sufficient that a federal law is referenced

Removal

Defendant may remove a case to federal court if:

(1)

When can a defendant move to remove?

No later than 30 days from receipt of a document that shows the case is removable.

Generally, 30 days after service of process

Who must join in the removal?

All defendants who have been served with process

How does the time for removal run?

The 30 days starts anew when another defendant is served with process.

But, all defendants must join in the removal.

Can a plaintiff remove a case?

No. Never.

What cases can be removed?

(1) A case that meets the requirements for diversity of jurisdiction or federal question.

Removal Based on Diversity of Citizenship

We cannot remove if:

(1) Any defendant is a citizen of the forum. (If the defendant is a citizen in the original forum No Removal)

(2) More than one year after the case was filed.

Which federal court can the def. remove to?

The federal court in the jurisdiction which embraces the state court.

Notice of removal filed in federal court and a copy goes to state court.

Plaintiff Challenge to Removal

If the defendant believes that removal was improper they may move for remand of removal.

Procedural Challenge: No later than 30 days of notice of removal

Substantive Challenge (lack of SMJ): May move for remand any time.

Supplemental Jurisdiction

Determines if claims not within subject matter jurisdiction can be heard by the federal court.

(1) A case in federal court that meets the SMJ requirements

(2) Additional claims (cross; interpleader; counter) if there is a common nucleus of operative fact between the case and original claim.

Common Nucleus of Operative Fact

(1) Always satisfied if the additional claim arises out of the same transaction or occurrence of the case.

General Rule for Supplemental Jurisdiction

Non Federal/Non-Diversity claim can be heard under supplemental jurisdiction if there is a CNOF.

Unless, asserted in a diversity case and claimed by plaintiff where there are multiple plaintiffs and one of their claims does not meet the amount in controversy.

Discretion to Decline Supplemental Jurisdiction

(1) If the state law claim is complex or will take up the majority of the case

(2) The federal claim was dismissed early in the case

What law applies in federal court?

Apply Eerie Doctrine

Eerie Doctrine

(1) Is some federal law on point that directly conflicts with state law? If yes - apply federal law (Supremacy)

(2) If no federal law on point - judge must apply state law if the issue is substantive

(3) If no federal law on point and not automatically substantive - then judge must determine if substantive.

Is the FRCP Valid?

Presumptively valid and if arguably procedural

None have ever been held invalid

Which issues are always substantive?

(1) Elements of a claim or defense

(2) Statute of Limitations

(3) Rules for Tolling the SOL

(4) Conflict or Choice of Law Rules

(5) Standard for granting a new trial because jury's damages were excessive or inadequate

Is an issue substantive?

(1) Outcome Determinative

(2) Balance the interest of the state and federal system

(3) Avoid forum shopping (if federal is applied will people be likely to flock to the federal jurisdiction?)

Federal Common Law

There is no general federal common law

Courts may create common law in the following areas:

(1) Intl

(2) Admiralty

(3) State v. State

(4) Suing State officers

Preclusive Effect of a Federal Judgment

A common law doctrine

Venue

The particular federal district in which a case may be brought

Where may a person lay venue?

(1) In any district where all defs. reside or where a substantial part of the claim arose

(2) If all defendant's reside in the same state (but different districts) the plaintiff may lay venue in any district in the forum state.

Product Defect and Venue

(1) Where the product was manufactured

(2) Where plaintiff was injured

Contract Performance Claim Venue

(1) Where contract entered into

(2) Where contract is to be performed

Non-US Resident and Venue

If a def does not reside in the US then any district is permissible.

Where do people reside for venue?

In the district where domiciled

Where do entities reside for venue?

All districts where the business is subject to personal jurisdiction for the case.

Transfer of Venue

Moving a case from one trial court to another trial court in the same judicial system (federal to federal)

Transferor: Original Court

Transferee: New Court

Transfer of Venue Requirements

The transferee must be a proper venue and have personal jurisdiction, generally without waiver.

Exp: Court can transfer if all parties consent and the court finds cause for the transfer.

Transfer Statute - Proper Venue of Original Court

App: Original Court is Proper Venue

The court can order transfer based on convenience and interest of justice

(1) Public and private factors showing

(2) Transferee is the center of gravity

Burden: Person seeking transfer

Public Factors

(1) What law applies

(2) What community should be burdened with service

(3) Interest in keeping a local incident local

Private Factors

(1) Where evidence and witnesses are

(2) Existence of a forum selection clause agreed among the partiesFo

What law applies in transfer of venue? - Transferor Proper Venue

The transferee will apply the law of the transferor.

Unless transfer is to enforce a forum selection clause.

Is a forum selection clause

Generally, yes if reasonable

Some state may not, but the federal court still may

Transfer Statute From Improper Venue

App: Transferor is improper

(1) May transfer or

(2) Dismiss

Transferee will apply their own law.

Forum Non Conveniens

App: The court does not transfer to the more convenient court because the other court is impossible to transfer to.

When the court decided to dismiss or stay the case due to more convenient venue.

Why? Because the more convenient court is in a different judicial system (foreign country)

Factors: Same as transfer

Forum Non Conveniens - Foreign Court Adequacy

The foreign court must be adequate

Foreign court is adequate, unless the plaintiff can get no remedy

Compliant

First pleading

Filing commences the action

Complaint Requirements

(1) Grounds for SMJ

(2) Short and plain statement showing entitlement to relief

(3) Demand for relief sought

Short and Plain Statement Standard

Must plead facts supporting a plausible claim.

Challenge to Complaint

Rule 12(b)(6) Motion to Dismiss

What matters must be plead with particularity?

(1) Fraud

(2) Mistake

(3) Special Damages

Defendant's Response Options

(1) Response by motion

(2) Response by answer

Timing: No later than 21 days after service of process, if waived service then 60 days from when plaintiff mailed waiver form.

Motion

(1) More definite statement (vagueness)

(2) Strike

(3) Dismiss

Not pleadings - Request for a court order

Motion to Strike

Asks the court to remove redundant material from the pleadings

Any party may move.

Rule 12(b) Motion to Dismiss

(1) Lack of Subject Matter Jurisdiction (none)

(2) Lack of Personal Jurisdiction (waivable)

(3) Improper Venue (waivable)

(4) Improper Process (the documents) (waivable)

(5) Improper Service of Process (waiveable)

(6) failure to State a Claim (anytime)

(7) Failure to Join and Indespensible party (anytime)

May be plead by motion or in the answer.

Waive-able Motion Timing to Raise

Must be included in the first response (either motion or answer)

Denial of Motion to Dismiss

Def. must then serve the answer within 14 days of notice of denial.

Answer Requirements

(1) Respond to the allegation

(2) Affirmative Defenses

Response Options

(1) Admit

(2) Deny (failure to deny = admit, exp-damages)

(3) Lack sufficient info to admit or deny

Lack Sufficient Info Effect

Effectively a denial

Does not apply if the answer is in your control. (e.g. look in your records)

Common Affirmative Defenses

(1) SOL

(2) Statute of Frauds

(3) Res Judicata

(4) All 12(b) Defenses

Plaintiff need not respond to answer - allegations deemed denied

Failure to Assert Affirmative Defense

If you fail to assert an affirmative defense you may waive it.

Is there a right to amend?

(1) Plaintiff has a right to amend the complaint once - no later than 21 days after def. serves the first rule 12 response.

(2) Def. has right to amend answer no later than 21 days after service of the answer.

Effect of an Amendment

If the party has a right to amend, then they may save the waive-able defenses.

No Right to Amend

(1) Must seek leave of court for permission to amned

When will the court permit amendment when there is no right to do so?

Will be granted if justice so requires

(1) Delay

(2) Prejudice

(3) Futility of amendment