Civil Procedure Flashcards
Personal Jurisdiction
Rule: Personal jurisdiction is about the court’s power over the parties
i.e. Because P filed the case, the court automatically has
power over P. The big Q is PJ over Defendant. PJ involves one question: can P sue D in this state?
Personal Jurisdiction: 2-Step Analysis
Test:
- Satisfy a state statute AND
- Satisfy the Constitution (Due Process)
Note: **On the UBE/MEE, just mention that you need a state statute and move to the constitutional analysis
Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis**
Rule: Does D have “such
minimum contacts with the forum so jurisdiction
does not offend traditional notions of fair play
and substantial justice”?
To determine whether this is met, we assess a set of
factors under these headings: (must go in this order)
(i) CONTACT
(ii) RELATEDNESS
(iii) FAIRNESS
Note: Can get PJ if waived or by consent
Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Contact
Rule: There must be a relevant contact between D and the forum state. There are two factors to be addressed here.
(a) Purposeful Availment**(targeting) The contact must result from purposeful availment: D’s voluntary act. This means D must reach out to the forum.
* *(1) Marketing a product in the forum; (2) using the roads in the forum; (3) establishing domicile in the forum; (4) traveling in the forum; (5) sending a tortious e-mail into the forum
Can D purposefully avail without setting foot in the
forum? - Yes, by causing an effect in the forum
(b) Foreseeability: It must be foreseeable that D can get sued in this forum
Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Relatedness - (Humans)
Rule: Between this contact and P’s claim. Once we arguably have a contact between D and the forum, ask does P’s claim arise from D’s contact with the forum i.e. Does the contact include the very thing that harmed the P
If Yes: the court might uphold PJ even if
D does not have much contact with the forum (depending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called SPECIFIC PERSONAL JURISDICTION
If No: Jurisdiction is OK ONLY IF the court has general PJ. If so, D can be sued there for a claim
that arose anywhere in the world.
- To have General PJ, D must be at home in the jx
- A human is always at home where they are domiciled
- Or may have PJ with”tag jurisdiction” if voluntarily present in state when served with process
Note: Can get PJ if waived or by consent
Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Relatedness (Corporations)
Rule: To be subject to PJ, a company’s activity must be so systematic and continuous that the company is “at home” in the forum.
A corporation is “at home”
(1) where incorporated
(2) where it has it’s principal place of business (PPB)
Note: Can get PJ if waived or by consent
Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Fairness
Rule: Now we assess whether jurisdiction would be fair (or reasonable) under the circumstances.
However, the fairness factors are addressed only in cases of specific PJ ONLY
- Not in general
Specific Jurisdiction: 3 Fairness Factors
(a) Burden on D and witnesses. Does due process guarantee that the suit will be in the most convenient forum for D?
- So even if it’s hard for D to travel to the forum and
to get her witnesses to the forum, the forum is constitutionally OK unless D can show that it puts her
at a severe disadvantage in the litigation
(b) State’s interest. The forum state may want to
provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters
Note: Always true if P is a citizen of the forum
(c) Plaintiff’s interest. Maybe injured and wants to
sue at home
Summary of the Constitutional Test
- Contact: Purposeful Availment and
Foreseeability - Relatedness: General v. Specific
- Fairness (Specific Only): Burden/Convenience,
State’s Interest, and Plaintiff’s Interest
Notice/ Service of Process (Generally)
Rule: In addition to PJ, D is entitled to notice that she has been sued. As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
Test: In a regular lawsuit, notice consists of two documents:
(1) a summons (formal court notice of suit and time for
response) ; and
(2) a copy of the complaint.
Together, these two documents are called Process
Process
Rule: In a regular lawsuit, process is the combination of two documents, (1) a summons (formal court notice of suit and time for response), and (2) a copy of the complaint.
Once you present a summons to the clerk of court for signature and seal, it is now a government document
Who Can Serve Process
Rule: Any nonparty who is at least 18 years old can serve process, and the process server does not have to be appointed by a court
When is Process Served
Rule: If D is served in the US, service is to take place within 90 days after filing the complaint
How is Process Served: Individuals
Rule: In the US, individuals are served process by
(1) Personal Service - Papers are given to D personally anywhere
(2) Substituted Service - Substituted Service may be given on a D (i) if it’s D’s usual abode (where he is living now)
or (ii) served someone of suitable age and discretion who resides there
- Note: Does not have to be a relative
(3) Service on D’s Agent - Process can be delivered to
D’s agent if receiving service is in scope of agency, e.g., appointment by contract
Note: No preference, can use any
(4) State Law Methods - Process can also be served by any method permitted by state law of the state (i) where the federal court sits or (ii) where service is made
ex. service of process by mail or social media
How is Process Served: Business or Organization
Rule: Process can be served on a business or organization by
(1) Officer, Managing or General Agent: Deliver a
copy of the summons and of the complaint to such
a person
(2) State Law Methods: Can use methods for serving
process permitted by state law of the state (1) where the federal court sits or (2) where service is made
How is Process Served: Minors or Incompetent Persons
Rule: To serve process on minors or incompetent persons, P may use any method permitted by state law, in the state where service is to be made
How is Process Served: In a Foreign Country
Rule: To serve process on D in a foreign country, you may use a method allowed by international agreement
(e.g., Hague Convention).
- If there’s no such agreement on point, options:
(1) As directed by the American court;
(2) If reasonably calculated to give notice:
• Method allowed by the foreign country’s law
• Method directed by foreign official in response
to a letter of request (letter rogatory) from the
American court
• Personal service in the foreign country (unless
prohibited by its law) or
• ***Mail sent by the clerk of the American court,
requiring signed receipt (unless prohibited by
the foreign country’s law)
Waiver of Formal Service of Process
Rule: P may mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
(e.g., stamped envelope for sending it back to P). If D
executes and mails waiver form to P within 30 days (60
days if D is outside the U.S.), D waives formal service of
process.
Note: Can be used for individuals and entities
Note: If D waives formal service of process, D does NOT waive any defense (ex. lack of PJ)
Note: When D signs and mails the waiver form back to P, P then files it in court and it is effective then
- For timing purposes, we act as though
D was served with process on the day P filed the waiver form in court
Waiver of Formal Service of Process: D’s Failure to Return Waiver Form
Rule: If D fails to return the waiver form, P then has
D served personally or by substituted service.
Note: If D did not have good cause for failing to return the waiver form, D must pay the cost of service
Proving Service of Process
Rule: Unless service is waived, the process server files a report with the court detailing how service was made
Civilian Server - If the server was a civilian, the report is by affidavit (sworn statement, under oath)
- If the process server fails to file this report, the validity of service is not affected
Geographic Reach of Service
Rule: Process may be served within the state in which the federal court sits, and it may be served outside that state if
state law allows
Service Immunity
Rule: If D is present in State X to appear as a party, witness, or attorney in a different civil case in State X, D CANNOT be served with process for a civil case in federal court in State X, because they are immune from service of process
Service of OTHER Documents
Rule: Other documents (e.g., answer, other pleadings,
motions, discovery) get served, but we don’t need
a summons or to do it so formally.
We serve these documents (1) by delivering or mailing the document to the
party’s attorney, or
(2) pro se party (a party without a lawyer)
Note: Documents can be served by email of the other party agrees
Mailbox Rule: For discovery requests sent to the other party, service is deemed complete when they are mailed, and the other party has 30 days in which to respond to the requests
- Note: Parties get an extra 3 days (from 30) if they are mailed
Subject Matter Jurisdiction (SMJ) - Generally
General: SMJ is about the court’s power over the case (not over the parties).
Federal courts can only hear certain kinds
of cases. What about state courts? As a general rule,
state courts can hear any kind of case. They have “general” SMJ
Exception: (Narrow) State courts cannot hear cases by a few federal matters (i.e. patent infringement, federal securities, bankruptcy)
Note: Parties cannot consent to SMJ
Federal Courts’ SMJ
Rule: Federal courts have “limited” SMJ.
(1) Diversity of Citizenship
- Alienage: Controversy is between a citizen of a U.S. state and a citizen of a foreign country
(2) Federal Question
Diversity of Citizenship Cases
Rule: There are two requirements for diversity of citizenship cases:
(1) The case is either:
(a) between citizens of different U.S. states (diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); AND
(2) The amount in controversy exceeds $75,000
Diversity of Citizenship Cases: First Requirement - Type of Litigants
Rule: Under the Complete Diversity Rule, a case is no good if any P is a citizen of the same state as any D
Citizenship of a Natural Person (Human)
Rule: For a human, who is a U.S. citizen, the U.S. state of citizenship is the state where the human is domiciled (only one domicile at a time)
How can one change domicile:
(1) Physical presence in the state
(2) Intent to make a location your home for the foreseeable future
For intent, courts look to all relevant factors—like taking a job, buying a house, joining civic organizations,
registering to vote, qualifying for in-state tuition
Note: Check for diversity when the case is filed
Citizenship of a Corporations (Incorporated and Unincorporated)
Rule: For a corporation, its citizenship is:
(1) Every US state or country where incorporated; AND
(1) The one U.S. state or country of its PPB
If Incorporated:
PPB: (i) where managers direct, coordinate and control its activities
If Unincorporated:
The citizenship of all its Members
Citizenship of Decedents, Minors, or Incompetents
Rule: In determining citizenship of Decedents, Minors, or Incompetents, such persons must sue or be sued through a representative. However, the representative’s citizenship
is irrelevant. Use the citizenship of the decedent,
minor, or incompetent.
Second Requirement: Amount in Controversy
Rule: In addition to complete diversity or alienage, P’s claim
must meet amount in controversy and exceed $75,000 (even if by a penny)
Exception: Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she
cannot recover more than $75,000
Note: What P wins is irrelevant to SMJ
Second Requirement: Amount in Controversy - Aggregation**
Rule: Aggregation means adding two or more claims to meet the amount requirement
Note: We aggregate claims of any one P against any one D, and factually unrelated claims CAN be aggregated, with no limit to the number of claims