barton civpro fall 2012

8/9/2019 Barton CivPro Fall 2012

1/17

Civ Pro 1 Outline

I. Jurisdiction - Power to declare the law. To render a legitimate decision, the court must have thepower to issue.

A. Must have OT! Territorial and "MJ to ma#e legitimate decisions.

1. Territorial or sometimes simpl$personal %urisdiction&a' In Personam- imposing personal lia(ilit$ over one person in )avor o) another

*1' +hen a court has in personam %urisdicition over a de)endant, the

de)endant (ecomes personall$ lia(le )or an$ %udgement rendered.

*' I) de)endants assets within the )orum state are inadeuate, an inpersonam%udgment can (e ta#en to another state )or en)orcement against other

assets.

*a' Full Faith and Credit- A decision made ($ the courts o) onestate must (e ac#nowledged ($ other states. Conversel$, i) there is a lac# o)

either personal or su(%ect matter %urisdiction, then it is not legitimate.em

- A))ecting interests o) all persons in designated propert$. Ad%udicates the

rights in the land. All people in the world must a(ide therights o) the landeven though the idea that the land itsel) has rights is a complete )iction.

*/' In rem %urisdiction does not )ocus directl$ on people, (ut more on things.

0reuentl$, in rem %urisdiction determines ownership o) real propert$ within thestate in which the court sits. Even persons who are not in the state, or do notparticipate in the proceedings,may have their rights affected in the res

acted on by the court.

(' uasi-in-em - A))ecting the interests o) particularpersons in designated

propert$, and historicall$ used as an alternative wa$ to secure %urisdiction where in

personam %urisdiction was unavaila(le. *much o) this is irrelevant in contemporar$law'

*1' ac#ground on uasi-in-em %urisdiction2*a' !arris v al# *1345'

i' uasi-in-rem %urisdiction was approved where 6pstein, a Mar$landplainti)), wanted to sue al# on a de(t. al#, however, lived in 7orth

Carolina and personal %urisdiction could not (e o(tained over al# in

Mar$land.ii' !owever, !arris owed al#. !arris traveled to Mar$land, and

while there 6pstein attached !arrisde(t to al#. The de(t was al#s

intangi(le propert$.

(1) ttachment - the process ($ which a sheri)) (rings an item

o) propert$ into the control o) the court.

(!) The propert$ over which Mar$land had control was

conceptuali8ed as the (asis o) %urisdiction. An$ %udgment renderedwas limited to the value o) that propert$.

"". ule 9


2/17


3/17

4(d) (1) Requesting a Waiver. An individual, corporation, or

association that is subject to service underRule 4(e),(f), or(h)

has a duty to avoid unnecessary expenses of serving the

summons. The plaintiff may notify such a defendant that an

action has been commenced and request that the defendant

waive service of a summons. The notice and request must:

(A)be in writing and be addressed:

(i)to the individual defendant; or

(ii)For a defendant subject to service under Rule 4(h), to

an officer, a managing or general agent, or any other

agent authorized by appointment or by law to receive

service of process;

(B)name the court where the complaint was filed;

(C)Be accompanied by a copy of the complaint, 2 copies of

a waiver form, and a prepaid means for returning the

form;

(D)Inform the defendant, using text prescribed in Form 5,

of the consequences of waiving and not waiving

service;

(E)State the date when the request is sent;

(F)Give the defendant a reasonable time of at least 30

days after the request was sent -- or at least 60 days if

sent to the defendant outside any judicial district of the

United States -- to return the waiver; and

(G)Be sent by first-class mail or other reliable means.

(2)Failure to Waive. If a defendant located within the United

States fails, without good cause, to sign and return a waiver

requested by a plaintiff located within the United States, the

court must impose on the defendant:

(A)the expenses later incurred in making service; and

(B)The reasonable expenses, including attorneys fees, of

any motion required to collect those service expenses.

(3)Time to Answer After a Waiver.A defendant who, before

being served with process, timely returns a waiver need not

serve an answer to the complaint until 60 days after the

request was sent -- or 90 days after it was sent to the
http://www.law.cornell.edu/rules/frcp/rule_4#rule_4_ehttp://www.law.cornell.edu/rules/frcp/rule_4#rule_4_fhttp://www.law.cornell.edu/rules/frcp/rule_4#rule_4_hhttp://www.law.cornell.edu/rules/frcp/rule_4#rule_4_ehttp://www.law.cornell.edu/rules/frcp/rule_4#rule_4_fhttp://www.law.cornell.edu/rules/frcp/rule_4#rule_4_h


4/17

defendant outside any judicial district of the United States.

(4)Results of Filing a Waiver.When the plaintiff files a waiver,

proof of service is not required and these rules apply as if a

summons and complaint had been served at the time of

filing the waiver.

(5)Jurisdiction and Venue Not Waived.Waiving service of a

summons does not waive any objection to personal

jurisdiction or to venue


5/17

4(e) Serving an individual Within a Judicial District of the United

States. Unless federal law provides otherwise, an individual --

other than a minor, an incompetent person, or a person whose

waiver has been filed -- may be served in a judicial district of

the United States by:

(1)following state law for serving a summons in an

action brought in courts of general jurisdiction in the

state where the district court is located or where

service is made; or

(2)Doing any of the following:

(a)delivering a copy of the summons and of the

complaint to the individual personally;

(b)Leaving a copy of each at the individuals

dwelling or usual place of abode with

someone of suitable age and discretion who

resides there; or

(c)Delivering a copy of each to an agent

authorized by appointment or by law to receive

service of process.


6/17

4(f) Serving an Individual in a Foreign Country. Unless federal law

provides otherwise, an individual -- other than a minor, an

incompetent person, or a person whose waiver has been filed --

may be served at a place not within any judicial district of the

United States:

(1)by any internationally agreed means of service that is

reasonably calculated to give notice, such as those

authorized by the Hague Convention on the Service

Abroad of Judicial and Extrajudicial Documents;

(2)If there is no internationally agreed means, or if an

international agreement allows but does not specify

other means, by a method that is reasonably

calculated to give notice:

(A)as prescribed by the foreign countrys law for

service in that country in an action in its

courts of general jurisdiction;

(B)As the foreign authority directs in response to

a letter rogatory or letter of request; or

(C)Unless prohibited by the foreign countrys law

by:

(i)delivering a copy of the summons and of

the complaint to the individual and that

requires a signed receipt; or

(3) by other means not prohibited by international

agreement, as the court orders.

4(g) Serving a Minor or Incompetent Person. A minor or an

incompetent person in a judicial district of the United States

must be served by following state law for serving a summons or

like process on such a defendant in an action brought in the

courts of general Jx of the state where service is made. A

minor or an incompetent person sho is not within any judicial

district of the United States must be served in the manner

prescribed by Rule 4(f)(2)(A),(f)(2)(B) or (f)(3)


7/17

4(h) Serving a Corporation, Partnership, or Association. Unless

federal law provides otherwise or the defendants waiver has

been filed, a domestic or foreign corporation, or a partnership

or other unincorporated association that is subject to suit under

a common name must be served:

(1) In a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for

serving an individual; or

(B)By delivering a copy of the summons and of

the complaint to an officer, a managing or

general agent, or any other agent authorized

by appointment or by any other agent

authorized by appointment or by law to

receive service of process and -- if the agent

is one authorized by statute and the statute so

requires -- also mailing a copy of each to the

defendant; or

(2) at a place not within any judicial district of the United

States, in any manner prescribed by Rule 4(f) for serving

an individual, except personal delivery under (f)(2)(C)(i)


8/17

4(i) Serving the United States and Its Agencies, Corporations,

Officers, or Employees.

(1)United States. To serve the United States, a party

must:

(A)(i) deliver a copy of the summons and the

complaint to the United States attorney for the

district where the action is brought -- or to an

assistant United States attorney or clerical

employee whom the United States attorney

designates in a writing filed with the court clerk --

or

(ii)send a copy of each by registered or certified

mail to the civil-process clerk at the United

States attorneys office;

(B)send a copy of each by registered or certified

mail to the Attorney General of the United

States at Washington, D.C.; and

(C)If the action challenges an order of a nonparty

agency or officer of the United States, send a

copy of each by registered or certified mail to

the agency or officer.

(2)Agency; Corporation; Officer or Employee Sues in an

Official Capacity. To serve a United States Agency or

corporation, or a United States officer or employee

sued only in an official capacity, a party must serve

the United States and also send a copy of the

summons and of the complaint by registered or

certified mail to the agency, corporation, officer, or

employee.

(3)Officer or Employee Sued Individually. To serve a

United States Officer or employee sued in an

individual capacity for an act or omission occurring in

connection with the duties performed on the United

States behalf (whether or not the officer or employee

is also sued in an official capacity), a party must

serve the United States and also serve the officer or


9/17

employee under Rule 4(e), (f), or (g)

(4)Extending Time. The court must allow a party a

reasonable time to cure its failure to:

(A)serve a person required to be served under

Rule 4(i)(2), if the party has served either the

United States attorney or the Attorney General

of the United States.

(B)Serve the United States under Rule 4(i)(3) if

the party has served the United States officer

or employee.


10/17


11/17

(a) 0CP 9*#'*e:cerpted and paraphrased' erritorial limits of Effectiveervice*

i' "ervice o) a summons is e))ective to esta(lish %urisdiction over the

person o) a de)endant who could (e su(%ected to the %urisdiction o)

a court o) general %urisdiction in the state in which the district court is

located.ii' +ithout this rule, )ederal courts would (e )antasticall$ more

appealing )or plainti))s. "ince the plainti)) has the option o) which

court to sue in, where there is concurrent %urisdiction. Plainti))s would

all end up per suing their cases in the )ederal s$stem, and the statecourse would (ecome irrelevant.

*' Jurisdiction over )amil$ status

(a) Another e:ception stated in the Penno$er decision was the states

unuali)ied authorit$ todetermine the status o) one o) its citi8ens towards

a non-resident even without service o) process or personal notice to the

non-resident2 this is the domestic relations e+clusion.

*/' aiving %ersonal urisdiction*a' ule2 i) a de)endant does not raise an argument against personal

%urisdiction either in his pre-answer motion under 1*('*' or in his answer

under rule ;, he will have waivedthis de)ense*9'


12/17

i' Peno$er the e:ception is )irst mentioned that the state had the

authorit$ to determine its citi8ens status towards a non-citi8en even

without the regular reuirement o) proper service o) process orpersonal notice o) the non-citi8en.

. !ow to Challenge PJB when a =e)endant does not thin# its legit *loo# to rule 1

)or some issues the$ might (ring up'a' A de)endant can %ust not appear at the scheduled time.

*1' The$ issue a de)ault %udgment (ecause the de)endant wasnt there to argue

an$thing.

*' Then the de)endant ma$ collaterall$ attac# the de)ault %udgement.*a' !owever, remem(er es Judicata, the decision has (een made. The

onl$ part that the de)endant can later collaterall$ attac# is the Courts J: to

ma#e such a decision.*(' Accordingl$, the de)endant cannot (ring up whatever their de)ense

might (e in the case (ecause once the court has made its decision, *even

when its a de)ault %udgement' the case can no longer (e argued on itsmerits.(' A de)endant might ma#e a special appearance.

*1' This puts the de)endant under a magical protection, where their presence

in the J: is )or the ver$ purpose o) arguing that the court has no PJ:, the$ will

not (epresentas is sometimes su))icient )or PJ: to (e esta(lished.

*a' This is onl$ availa(le in state courts

*(' The$ will not waive an$ claims the de)endant might ma#e

regarding the courts J:.*c' As long as the = is in the state with that magical protection, the$

cannot (e served, (ecause he is 7OT the right #ind o) presentto (e

served at that time.*d' A = with this protection ma$ O7


13/17

(' Then he has waived the de)ense. The line where this happens is at the answer

stage, once $ouve answered $ou cant go (ac# and raise the issue later.

9. International "hoe stu)) to #now2a' There is a shi)t here )rom one uestion that used to answer PJ: issues to another

uestion that will (e the (inding one )rom international shoe carr$ing all the wa$ on

to toda$ *though there have (een a lot o) uali)ications and )urther ela(orations inthe )orm o) new tests and reuirements )or application'

*1' O


14/17

)iguring out where a person lives. One, the$ have to actuall$ live there, and two,

it must (e without an$ plans to leave.

*a' "o, a person in school )or a )ew $ears is domiciled there, even i)

the$ might have some intention o) leaving at some point. A persons

domicile is the last place where (oth prongs o) the anal$sis where (oth

simultaneousl$ met. Dntil a person intending to leave the state has actuall$come to reside in another state without the intention to leave that second

state, the$ will (e domiciled in the )irst state. In that audi case, the$ were

even in transit to another state, (ut the )act remained that the$ had not $et

gotten there.F. "peci)ic J:

a' This is the other )lavor o) personal J:. One o) the two must give the court PJ:

over the de)endant i) it is going to get PJ: at all.(' The cause o) the action is related to acts within the )orum state.

*1' "o i) the plainti)) alleges there were in%uries at some other time outside the

)orum, he cannot point to other actions ($ the de)endant within the )orum as

giving rise to speci)ic J:. The action must (e regarding the ver$ same actionsthat were the actions giving the court J:. Otherwise the claim ma$ have J: in

some other court (ut not this one.

c' ou must consider the relationship (etween the de)endants contacts and the claim

in the plainti))s suit.

*1' The de)endant can raise the issue that the minimum contacts are there, (ut

that the action does not arise )rom those same minimum contacts. I) the contactswere so (road as to (e continual and s$stematic, then it would (e general J:

the$ might have.

d' uestion Gwhere did the activities that give rise to the action occur

*1' I) the action regards activities somewhere outside the )orum, then the

de)endant must ($ su(%ect to the courts general %urisdiction. The$ cannot arise

)rom activities outside the )orum state that are not the same as those developing

minimum contacts within the )orum state.;. Minimum contacts

a' A de)endant must haveminimum contactswith that state in which the$ are sued

to (e su(%ect to their PJ:*1' +hat is meant ($ minimum contacts -- )ew things to #eep in mind

*a'


15/17

have impliedl$ consented to the principal that $ou ma$ get sued on

those same contacts with the )orum. This whole issue o) minimum

contacts is never meant to step outside o) what a reasona(le personmight thin# were their commitments to the state. And to not o))end

Traditional notions o) )air pla$ and su(stantial %ustice.

3. Traditional 7otions o) 0air Pla$ and "u(stantial Justice.a' O(viousl$ points to long-standing notions o) what #ind o) (ehavior should and

should not ma#e $ou eligi(le )or suits in a given )orum state. A person who has

made ever$ e))ort to sta$ out o) a given state, and not su(%ect themselves to that J:,should not (e unduly surprised($ the suit.

*1' A suit ma$ never o))end T70P"J

*a' The )airness is %udged ($ a com(ination o)2

i' The (urden o) the de)endants appearing in that states court.*1' This is relative, and set o)) against the other part$. I) the

de)endant is a large corporation that either has the resources, or

even the agents in that state that the$ can hear the case closer to

the individual part$, then that is where it will (e heard. Individualsshould not (e called across the countr$ where the other part$ is

well within its own means to come across to the other part$s side

o) the continent.ii' The regulator$ interests o) the state in en)orcing its laws or

protecting its citi8ens.

*1' Again, this concern is set o)) against all the other

considerations )or T70P"J. I) its the case, however, that a states

citi8en has (een harmed ver$ (adl$, then that state has an even

greater interest in calling the de)endant (ac# into the territor$ )orthe trial. An e:ample would (e some personal in%ur$. The state has

a ver$ strong interest in protecting the ph$sical persons o) itsciti8ens, and that will li#el$ override an$ concerns a(out whether

its hard )or the other part$ to come )or the trial.iii' The convenience to the plainti)) in (rining the action to the )orum

state.

*1' The states that are )urthest )rom individual plainti))s aregoing to (e hard to get to. The courts are allowed to )actor in the

relative ease that someone that has sa$, a (ro#en leg, might (e a(le

to travel across the countr$ and have the case over there. The$should (e allowed, since the$ are the one in%ured, to have the case

heard more closel$ to them.

14. The shoe spectrum


16/17

11. "u(%ect Matter Jurisdiction

a' The )ocus o) su(%ect matter J: is to consider whether the court was ena(led ($ theconstitution and su(seuent acts o) congress to hear cases o) the #ind proposed.

*1' It ma$ (e that the court would have PJ: over the de)endant, (ut would not

have "MJ: to hear cases o) that #ind.*' The court must alwa$s have (oth #inds o) J:,

*/' Dnli#e personal J: that can onl$ (e contested earl$ in the trial, su(%ect

matter J: can (e contested at an$ time, even

(' =iversit$ -- A )ederal court can onl$ hear certain cases.*1' The purpose o) =iversit$ J: is to provide plainti))s and de)endants a

neutral court to hold the proceedings where otherwise there might (e some

concern over the state court possi(l$ (eing (iased towards out o) state citi8ens.*' The purpose o) man$ o) the limitations on diversit$ J: is to #eep cases out

o) the )ederal court s$stem. The %udges o) the )ederal courts are e:perts on

)ederal law, and are disadvantaged when interpreting state laws.

*/' In diversit$ cases, the court will appl$ the su(stantive law o) the state inwhich the district court sits.

*a' Thelawphrase comes )rom the =ecisions 6mpowering act and

was thought, )rom T$ler to 6rie, to onl$ mean that the )ederal courts had to

appl$ state statutes, and could su(stitute their own, general )ederal

common law)or the legal precedents o) the state.

*(' !owever, with the 6rie decision that thin#ing changed. 6ver sincethe )ederal courts have had to appl$ the state common law as well as the

state statutes.

*c' 0ederal courts are still ena(led to use their own procedural rules.

"o long as those procedures do not change the outcome o) the case as itwould have (een in state court.

i' This is pro(lematic (ecause almost an$ di))erence in )ederal procedure

could have a su(stantial e))ect on the outcome o) the case.ii' "everal tests have (een proposed in attempts to resolve the issue o)

whether a di))erence in the )ederal rules is so di))erent that it cannot (e

)ollowed.*1' r$d test

*' !annah test


17/17

iii'

*9' 1// *a' The courts will have original J: over certain controversies that

meet certain reuirements.c' 0ederal uestion

*1' A )ederal uestion arises )rom thewell pleadedcomplaint, and not an$

o) the possi(le de)enses.*a' 0or instance, a claim o) de)amation would (e an issue o) state law.

And simpl$ (ecause the de)endant can raise the second amendment as a

possi(le uestion at trial it does not give the )ederal court the J: to hear the

case (ecause it was not included in thewell-pleadedcomplaint.*' arton sa$s to assume on the e:am that an$ )act patter concerning a

contract, tort, or propert$ matter is state law. And that an$ )act pattern that deals

with an aspect o) the D" constitution, or )ederal statute, is )ederal law.*/'

d' *Other "MJ e:ists that will not reall$ concern us'

. Challenge and +aiver o) Personal Jurisdiction

1.C. @eneral and "peci)ic Jurisdiction

1. @eneral J:

a' 0or corporations, this is generall$ states *dual citi8enship'*1' The state where the corporation was incorporated

*' The state where the corporation has its Principal Place o) usiness or

!eaduarters

*a' "u(%ect to thenerve-centertest

(' 0or a person, this is where the person lives.

=. ule 11