Civil Procedure Outline
Civil Procedure Outline
Civil Procedure Outline
8:26 PM
d. Removal Jurisdiction
i. Was the case filed in state court?
1) Yes
a) Could the case have been filed in federal court?
i) Yes; case can be removed to federal court
2) No; case cannot be removed when already in federal court
* Citizenship determined at the time of filing the suit or at the time of removal
e. Remand
i. Was the case removed to federal court from state court?
1) Yes; is the plaintiff a citizen of a different state?
a) Yes; is there a lack of SMJ?
i) Yes; can be remanded back to state court
b) No; cannot be removed if plaintiff is a citizen of the state in which they filed
2) No; case cannot be remanded if originally filed in federal court
2. Personal Jurisdiction: power over parties of a suit
a. Pennoyer v Neff: States cannot exercise direct jurisdiction/authority over people/property outside its jurisdiction except under
particular circumstances (Power Theory); property must be attached at the outset of a suit for quasi in rem II
b. Predicates
i. In personam
1) Jurisdiction over an actual entity
2) Personal liability to the defendant for the full amount of the judgment
ii. In rem
1) Jurisdiction over the property in an action to determine the ownership of the property itself
iii. Quasi in rem
1) Jurisdiction over the property in an action to determine ownership of the property itself as between and among the
parties in the case
i. Direct attack:
1) Special/limited appearance: appearing in court only to dispute PJ, not to consent to PJ
a) Rule 12(b)(2)
Collateral attack
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ii. Collateral attack: not showing up to first suit, and then challenging the suit with another suit (e.g., filing a separate suit to
challenge PJ, or challenging PJ when a suit is brought to obtain damages)
d. Is there a state/federal law basis for exercising PJ? (Rule 4(k) or state law through Rule 4(k))
i) Natural persons
One. Consent to PJ
First. Has someone done something in another state which provides implied consent for PJ?
1. Yes
1. Hess v Pawlowski : driving a car on a highway in another state can constitute implicit
consent to being subject to that state's highway laws, even if the person is a
nonresident
Second. Has someone done something to provide express consent to PJ?
1. Yes; voluntarily appeared in the forum state for court
1. Exception: Special/limited appearance: appearing in court only to dispute PJ, not to
consent to PJ
2. Yes; Forum Selection Clause
1. Did someone sign a contract with a forum selection clause?
1. M/S Bremen v Zapata Offshore Co. : agreeing to a forum selection clause in a
contract is sufficient for consenting to PJ in the jurisdictions specified in the
clause, as well as consenting to preclude other jurisdictions not included in the
clause
2. Did someone purchase something which included a forum selection clause in its
terms?
1. Carnival Cruise Lines, Inc. v Shute: purchasing a product with a forum selection
clause requirement/agreeing to ToS with a forum clause is sufficient for
allowing the states specified in the clause to have PJ over the person, even if
the person didn't actively negotiate the clause
b) Specific (jurisdiction for claims arising out of specific contacts with the forum state)
i) Contacts must be related to the claims/the issues within the lawsuit
One. International Shoe Co. v Washington : minimum contacts test; activities carried on behalf of a company
in a state which are "neither irregular not casual," "systematic and continuous," result in "a large
volume of interstate business" from which the company receives "the benefits and protection of the
laws of the state" are sufficient to "establish sufficient contacts or ties with the state of the forum to
make it reasonable and just according to our traditional conception of fair play and substantial justice
to permit the state to enforce the obligations which appellant has incurred there"
Two. McGee v International Life Insurance Co.: a long-arm statute can be constitutional if the suit is based on
a contract which creates substantial connection with the forum state
Three. Shaffer v Heitner : minimum contacts apply to in rem predicates as well as in personal; having property
in a forum state does not establish sufficient contacts unless the property is the subject of the lawsuit
(e.g., in rem jurisdiction)
Four. Hansen v Denckla: unilateral activity of a plaintiff who claims some relationship with a non-resident
defendant who doesn't do business or have any offices in the forum state, won't satisfy minimum
contacts requirement
Five. World-Wide Volkswagen Corp v Woodson : "financial benefits from a collateral relation to the forum
State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with
that State" including closing sales/performing services in a state, availing selves of privileges of a state,
soliciting business in a state by salesmen or ads, or selling products to residents of the state directly or
indirectly
First. Aiming/targeting forum: specifically targeting customers in a forum state/aiming
advertisements/etc at the forum state
Second. Unilateral activity of PL: Def. doesn't have control over actions that PL takes, such as driving
to another state or moving to another state
Foreseeability:
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Third. Foreseeability: defendant's conduct and connection with the forum State are such that he
should reasonably anticipate being hauled into court there
Fourth. Purposeful Availment: defendant purposefully/voluntarily directs activities towards the
forum state such that he should expect, by virtue of the benefit he receives by taking advantage
of the laws of the forum state, to be subject to the court's jurisdiction
Fifth. Fairness factors
1. Litigation in forum state burdensome to defendant?
2. Forum state's interest in adjudicating the dispute?
3. Plaintiff's interest in obtaining convenient and effective relief
4. Interstate judicial system's interest in obtaining the most efficient resolution of
controversies
5. Shared interest of the states in furthering "fundamental substantive social policies"
Six. Burger King Corp. v Rudzwiez: signing and/or negotiating a contract in a forum state, and/or actively
seeking to form a contract with a resident of the forum state, can be sufficient for the state to have PJ
over the person; interstate travel within the U.S. to litigate a case is not very burdensome (fairness
factors)
Seven. Stream of Commerce
First. Gray v American Radiator : stream of commerce theory; "it is not unreasonable, where a cause of
action arises from alleged defects in his product, to say that the use of such products in the
ordinary course of commerce is sufficient contact with this State to justify a requirement that he
defend here"
Second. Asahi Metal Industry v Superior Court of CA :
1. "Stream of Commerce Plus": merely putting a product into the stream of commerce isn't
sufficient for min contact; also need additional conduct that indicates "an intent or purpose
to serve as the sales agent in the forum State" like advertising, marketing through a
distributor who agreed to be a sales agent and who the company controls, created, or
employed, etc
2. Stream of Commerce: foreseeability of the product reaching the forum state; "A defendant
who has placed goods in the stream of commerce benefits economically from the States'
laws that regulate and facilitate commercial activity accrue regardless of whether that
participant directly conducts business in the forum State"
Third. J. McIntyre Machinery Co v Nicastro :
1. Kennedy: stream of commerce plus theory holds
2. Ginsburg: selling something in the U.S. as a whole means one is liable to damages in any
states within the U.S. (stream of commerce theory)
3. Reasonableness factors can be used to determine min contacts and as separate fairness
check
3) Reasonable/fairness factors?
a)
b)
c)
d)
e)
4) Tag Jurisdiction
a) Burnham v Superior Court of California : tag jurisdiction
1. Scalia plurality: being in a forum state is sufficient for service of process/PJ over the Def., regardless of
fairness factors/min contact
2. Brennan plurality: being in a forum state in which one is "knowingly and voluntarily" in the forum state is
sufficient for service of process/PJ; must look at min contacts/fairness factors
3. exception : enticement using deception to the forum state ruins the service of process
3. Notice
a. Mullane v Central Hanover Bank & Trust Co. : PLs should provide notice which is reasonably calculated to reach/properly apprise
relevant parties; have to sufficiently reach enough parties such that they can properly represent themselves, to the fullest extent
possible without undue burden
4. Venue (1391); judicial district where case can be adjudicated
a. Did a substantial/meaningful portion of the events which give rise to the claim occur in a particular jurisdiction (1391(b)(2))?
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a. Did a substantial/meaningful portion of the events which give rise to the claim occur in a particular jurisdiction (1391(b)(2))?
i. Yes; venue is proper
b. Are the defendants residents of the same state? (1391(b)(1))
i. 1391(c)(1): Natural person : district where person is domiciled
ii. 1391(c)(2): Non-natural persons : districts which have PJ; districts where defendants have PPB
1) 1391(d): district with most significant contacts, or district with PJ, in a particular state with multiple districts
iii. 1391(c)(3): Aliens/non-residents : any district
iv. Yes; venue is proper
c. Is the defendant subject to PJ in the jurisdiction?
i. Yes: venue is proper
Third. Narrow reading: state/federal rules can coincide side-by-side; go to unguided Erie to see if state law should
apply
One. Walker: federal law can be read narrowly if it can exist with the state rule
Two. Gasperini v. Center for Humanities: standard of review = de novo review of whether award materially
deviates from reasonable compensation (state) versus standard of review = whether award shocks the
conscience (fed); state law prevails
e. Motions to Dismiss
i. Parties
1) Claimant: party presenting a claim
2) Claim opponent: party opposing the claim
3) Moving party: party making a motion
4) Non-moving party: party opposing the motion
ii. Failure to state a claim (12(b)(6)): Case must be legally and factually sufficient
1) Legally sufficient: is there a legal basis for the claimant's claim
2) Factually sufficient: has claimant alleged enough facts in order to have sufficiently pleaded claim
a) Bell Atlantic Corp. v. Twombly: claimants must assert sufficient facts in a complaint for the complaint to be
plausible (e.g., that it's more likely than not that the plaintiff is right); cannot merely allege that a harm was
committed/provide conclusory statements of law without providing reasons for alleging that the defendant caused
the harm
b) Ashcroft v. Iqbal
First. Separate factual allegations from merely conclusory statements; and
Second. Accept the factual allegations as true and determine whether they give rise to a plausible inference of
wrongdoing/plausible claim for relief
3)
4)
5)
6)
7)
8)
9)
10)
11)
d) (4): Include denials or factual contentions which are warranted by evidence or are reasonably based on belief or
lack of information
11(c)(1): if the certification is violated, sanctions may be ordered on the attorney, law firm, or party responsible
11(c)(2): sanctions can be imposed after a motion made by a party to do so; motion must be provided to the offending
party 21 days before it is filed with the court such that the offending party has a chance to correct or withdraw any
materials which violate the certification
11(c)(3): sanctions can be ordered sua sponte by pointing out a violation and requiring an attorney/party to show that
there is no violation
11(d): For any legal paper presented to the court except for discovery materials
Christian v. Mattel: Meritless claims and unreasonable investigation can form basis of chapter 11 sanctions; not enough
that a lawyer/party's conduct or inquiry is lacking or that the claim presented was simply meritless
Hickman v. Taylor: "Memoranda, statements and mental impressions fall outside the scope of attorney-client privilege";
cannot use discovery procedure to benefit from other's diligence; can seek production of documents/evidence that
others obtained if it would be extremely difficult to get the information (e.g., testimony of a witness since deceased), but
cannot ask for information that can be easily acquired
a) Attorney work product: materials prepared in anticipation of litigation; materials that are privileged
Grumman System Sup. Corp. v. Data Gen.: in jurisdictions with compulsory counterclaims, counterclaims using same
operative facts as originating claim must be brought at the proper time in the particular lawsuit, rather than in a separate
lawsuit
Guidry v. Marino: to join claims, claims must arise from the same set of facts/occurrences; as long as the parties'
questions/claims overlap, they can all be joined (same cause of action not necessary)
Republic of Philippines v. Pimentel: Courts can decide sua sponte to dismiss a case for nonjoinder of necessary parties
under Rule 19(b) if the necessary parties for some reason can't be joined to the case (e.g., lack of SMJ, PJ, or valid venue
objection) and if other substantial/procedural factors exist which encourage dismissing the case
f.
g.
h.
i.
j.
7. Prior Adjudication
a. Res Judicata/Claim Preclusion
i. Precluded from bringing same issue
ii. Same parties
1) Same plaintiff and same defendant?
a) Mitchell v. Federal Intermediate Credit Bank: PL and Def. can switch if in a jurisdiction with compulsory
counterclaims
b) Taylor v. Sturgell: Virtual representation overturned; exceptions which allow for non-party preclusion
i) Consent (agreeing to be bound by someone else's verdict/judgment)
ii) Pre-existing legal relationships (parties already bound together by a legal relationship relating to
property/etc; e.g., marriage)
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