Civil Procedure Professor Washington The Power of Procedure The Power of Procedure The Lottery (Fairness vs. Justice) The Lottery (Fairness vs. Justice) In Re: Bell South (Case of Good Result Making Bad Law?) In Re: Bell South (Case of Good Result Making Bad Law?)

The Structure of Federal Courts U.S. Supreme Court (court of last appeal) U.S. Supreme Court (court of last appeal) Courts of Appeal (the 13 Intermediate Appellate Courts) Courts of Appeal (the 13 Intermediate Appellate Courts) District Courts (federal trial court) District Courts (federal trial court)

GA State Court Structure GA Supreme Court GA Supreme Court GA Courts of Appeal (intermediate appellate court) GA Courts of Appeal (intermediate appellate court) GA Superior Court (trial court) GA Superior Court (trial court)

The Litigation Process Pleadings & Motions Pleadings & Motions Discovery Discovery Pre-trial Adjudication Pre-trial Adjudication Trial Trial Post-Trial Activity (e.g., appeals) Post-Trial Activity (e.g., appeals) Limits on Subsequent Litigation Limits on Subsequent Litigation

Pleadings: Initiating the Action Deciding whether to sue (A Civil Action) Deciding whether to sue (A Civil Action) Personal Jurisdiction (in which state / jurisdiction should we file the suit?) Personal Jurisdiction (in which state / jurisdiction should we file the suit?) Subject Matter Jurisdiction (should we file in state court or federal court?) Subject Matter Jurisdiction (should we file in state court or federal court?) Venue (which specific court within the jurisdiction should entertain the lawsuit?) Venue (which specific court within the jurisdiction should entertain the lawsuit?) Service of Process (did we properly notify the defendant of the claim against her?) Service of Process (did we properly notify the defendant of the claim against her?) Vertical Choice of Law Issues (i.e., Erie– should we apply state or federal law?) Vertical Choice of Law Issues (i.e., Erie– should we apply state or federal law?)

Hawkins v. Masters Farms Inc. Subject Matter Jurisdiction 28 USC 1331 (federal question jurisdiction) and 28 USC 1332 (complete diversity jurisdiction) Subject Matter Jurisdiction 28 USC 1331 (federal question jurisdiction) and 28 USC 1332 (complete diversity jurisdiction) Applicable Rule: a person is a citizen of the state in which he or she is domiciled; domicile is established by physical presence in a place accompanied by a manifest intent to remain there indefinitely (not permanently) Applicable Rule: a person is a citizen of the state in which he or she is domiciled; domicile is established by physical presence in a place accompanied by a manifest intent to remain there indefinitely (not permanently)

Practice Problem P a student at the University of Michigan spent his winter vacation at his parents’ home in Champaign, IL. While there, he was seriously injured in an auto accident with D, a lifelong resident of Champaign. P a student at the University of Michigan spent his winter vacation at his parents’ home in Champaign, IL. While there, he was seriously injured in an auto accident with D, a lifelong resident of Champaign. Can P sue in Federal Ct? Can P sue in Federal Ct? Which state can P initiate his suit in? Which state can P initiate his suit in?

Practice Question Assume that P files his case in federal court in IL, which is divided into 3 districts – the Northern District, the Central District (which contains Champaign), and the Southern District. On the facts where will venue be proper?

How the Constitution Shapes Litigation Personal Jurisdiction (which forum state) Personal Jurisdiction (which forum state) Subject Matter Jurisdiction (which court state or federal) Subject Matter Jurisdiction (which court state or federal) Choice of Law (state or federal jurisprudence) Choice of Law (state or federal jurisprudence)

Relevant Constitutional Provisions Subject Matter Jurisdiction Subject Matter Jurisdiction Art. III authorizes the establishment of the federal courts and in Sect. 2 of that article sets the limitations of federal judicial authority Art. III authorizes the establishment of the federal courts and in Sect. 2 of that article sets the limitations of federal judicial authority Personal Jurisdiction Personal Jurisdiction Art. IV Sect. 1 the Full Faith and Credit Clause requires that every state recognize and enforce judgments rendered by other state courts as long as said court had jurisdiction to decide the case Art. IV Sect. 1 the Full Faith and Credit Clause requires that every state recognize and enforce judgments rendered by other state courts as long as said court had jurisdiction to decide the case 14th A Section 1 (Due Process Clause) provides, “no state shall deprive any person of life, liberty or property without due process of law”; this provision of the Constitution forms the corner stone of personal jurisdiction 14th A Section 1 (Due Process Clause) provides, “no state shall deprive any person of life, liberty or property without due process of law”; this provision of the Constitution forms the corner stone of personal jurisdiction Choice of Law: Choice of Law: Art. VI (Supremacy Clause) makes federal law and the U.S. Constitution the supreme law of the land given priority over state laws and state constitutions Art. VI (Supremacy Clause) makes federal law and the U.S. Constitution the supreme law of the land given priority over state laws and state constitutions

Pennoyer Principles State sovereignty / autonomy / authority State interest in property and persons within its territory Comity Principle Anti-usurption Doctrine Reciprocity / Mutuality Doctrine (relationship b/t States and citizens of the State) Full Faith and Credit D’s Due Process Entitlements

Practice Q A (MN) sues B (ND) in MN where B owns some land. A serves B in ND. B moves to dismiss the MN action for lack of personal jurisdiction. What result? A (MN) sues B (ND) in MN where B owns some land. A serves B in ND. B moves to dismiss the MN action for lack of personal jurisdiction. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land. A serves B in ND. B defaults and the court enters judgment against her. A takes the judgment to ND to enforce. B appears at the enforcement proceeding and argues that the judgment is invalid and should not be enforced. What result? A (MN) sues B (ND) in MN where B owns some land. A serves B in ND. B defaults and the court enters judgment against her. A takes the judgment to ND to enforce. B appears at the enforcement proceeding and argues that the judgment is invalid and should not be enforced. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land. A serves B while B is traveling on business in MN. B moves to dismiss for lack of personal jurisdiction. What result? A (MN) sues B (ND) in MN where B owns some land. A serves B while B is traveling on business in MN. B moves to dismiss for lack of personal jurisdiction. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land. A serves B while B is traveling on business in MN. B defaults. A recovers a default judgment, which he then takes to ND to enforce. B appears at the enforcement proceeding and argues that the judgment is invalid and should not be enforced. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land. A attaches B’s land in MN and obtains a judgment against B. A then seeks to have the land sold to satisfy the judgment. B sues to enjoin the sale, arguing that the court lacked jurisdiction over her or her land b/c she was not personally served. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land. Without attaching B’s land, A serves B by publication, obtains a default judgment and sues to enforce that judgment in ND. B appears at the enforcement proceeding and objects. What result?

Practice Q A (MN) sues B (ND) in MN where B owns some land for divorce. A notifies B in ND. B’s lawyer moves to dismiss challenging personal jurisdiction. What result? A (MN) sues B (ND) in MN where B owns some land for divorce. A notifies B in ND. B’s lawyer moves to dismiss challenging personal jurisdiction. What result?

Practice Q A (MN) sues B (ND) in MN, where B owns some land, for divorce, child support, and alimony. A notifies B in ND. B’s lawyer moves to dismiss challenging personal jurisdiction. What result? A (MN) sues B (ND) in MN, where B owns some land, for divorce, child support, and alimony. A notifies B in ND. B’s lawyer moves to dismiss challenging personal jurisdiction. What result?

Practice Q A attempts to serve B while B is on a fishing trip on the MN-WI border. B moves to dismiss the MN suit, claiming she was served in WI. B loses the motion to dismiss. A then gets a judgment and sues on the judgment in ND. B appears at the enforcement proceeding and argues that the MN judgment should not be enforced b/c the MN court lacked subject matter jurisdiction. What result?

The Mechanics of Challenging Personal Jurisdiction Collateral Attack Collateral Attack Filing a pre-answer motion pursuant to 12(b)(2) Filing a pre-answer motion pursuant to 12(b)(2) Filing an answer containing a challenge to personal jurisdiction Filing an answer containing a challenge to personal jurisdiction Special Appearance Special Appearance

Practice Q P files a complaint and the D files a 12(b)(6) motion to dismiss. The motion is denied and D then files a 2 nd motion, this time pursuant to 12(b)(2). What result?

Practice Q P files a complaint and the D files a 12(b)(6) motion to dismiss. The motion is denied and D then files an answer containing both a defense on the merits and a 12(b)(2) challenge. What result? P files a complaint and the D files a 12(b)(6) motion to dismiss. The motion is denied and D then files an answer containing both a defense on the merits and a 12(b)(2) challenge. What result?

Practice Q P files a complaint and the D answers the complaint including in her answer a 12(b)(2) challenge. What result? P files a complaint and the D answers the complaint including in her answer a 12(b)(2) challenge. What result?

Practice Q P files a complaint and the D files a 12(b)(1) motion to dismiss. The motion is denied and D then files a 2 nd motion, this time pursuant to 12(b)(2). What result?

Practice Q P files a complaint and the D files a 12(f) motion to strike scandalous allegations from the complaint. The motion is denied and D then files a 2 nd motion, this time pursuant to 12(b)(2). What result? P files a complaint and the D files a 12(f) motion to strike scandalous allegations from the complaint. The motion is denied and D then files a 2 nd motion, this time pursuant to 12(b)(2). What result?

Practice Q P files a complaint and the D files a motion to transfer venue under 28 U.S.C The motion is denied and D then files a 2 nd motion, this time pursuant to 12(b)(2). What result?

4 Ways to Establish Personal Jurisdiction Specific Jurisdiction (Sovereign Power; Constitutional Basis) Specific Jurisdiction (Sovereign Power; Constitutional Basis) General Jurisdiction (Presence) General Jurisdiction (Presence) Consent (forum selection clauses) Consent (forum selection clauses) Notice (service of process) Notice (service of process)

The Evolution of Personal Jurisdiction Jurisprudence Hess v. Pawloski (1927) (echoes Pennoyer’s Reciprocity / Mutuality Doctrine) Hess v. Pawloski (1927) (echoes Pennoyer’s Reciprocity / Mutuality Doctrine) Milliken v. Meyer (1940) (emphasizes the concept of “responsibilities of state citizenship” and characterizes Due Process in terms of traditional notions of fair play and substantial justice) Milliken v. Meyer (1940) (emphasizes the concept of “responsibilities of state citizenship” and characterizes Due Process in terms of traditional notions of fair play and substantial justice)

The Modern Personal Jurisdiction Framework International Shoe (1945) changed the principle personal jurisdiction inquiry from, “is it there?” (Pennoyer) to “is it fair?” Personal Jurisdiction Standards / Considerations: consistent and systematic contacts; minimum contacts w/ the state; notions of fair play and substantial justice; reasonableness; state interests; state sovereignty; inconvenience to the D Personal Jurisdiction Standards / Considerations: consistent and systematic contacts; minimum contacts w/ the state; notions of fair play and substantial justice; reasonableness; state interests; state sovereignty; inconvenience to the D

General Jurisdiction (a broader grant of jurisdiction which allows D to be sued without regard to subject matter of the law suit) General Jurisdiction (a broader grant of jurisdiction which allows D to be sued without regard to subject matter of the law suit) Specific Jurisdiction (a narrower grant of jurisdiction which requires a nexus between D’s in state activities and subject matter of law suit) Specific Jurisdiction (a narrower grant of jurisdiction which requires a nexus between D’s in state activities and subject matter of law suit)

Practice Q A truck loaded with shoes, owned by Int’l Shoe and driven by a Shoe employee, traveled through WY on its way to Washington. While in WY, the truck collided with a truck driven by a rancher, who was injured in the accident. The rancher filed suit vs. Shoe in WY alleging negligence of the Shoe driver. Is personal jurisdiction satisfied?

Practice Q A truck loaded with shoes, owned by Int’l Shoe and driven by a Shoe employee, traveled through WY on its way to Washington. While in WY, the truck collided with a truck driven by a rancher, who was injured in the accident. A former Shoe employee residing in WY, who used to work at the Missouri headquarters files suit alleging wrongful discharge in WY court. Is personal jurisdiction satisfied?

Practice Q A truck loaded with shoes, owned by Int’l Shoe and driven by a Shoe employee, traveled through WY on its way to Washington. While in WY, the truck collided with a truck driven by a rancher, who was injured in the accident. A former Shoe employee residing in WY, who used to work at the Missouri headquarters files suit alleging wrongful discharge in Missouri court. Is personal jurisdiction satisfied? What if the suit was initiated in DE?

Practice Q A truck loaded with shoes, owned by Int’l Shoe and driven by a Shoe employee, traveled through WY on its way to Washington. While in WY, the truck collided with a truck driven by a rancher, who was injured in the accident. The rancher owns some shares of Shoe bonds on which the corporation has failed to pay interest when due. The rancher files suit vs. Shoe in WY alleging negligence of the Shoe driver and for the unpaid interest. Assume there is personal jurisdiction for the personal injury claim. Is there personal jurisdiction for the claim seeking the bond interest?

Review of Shoe General Jurisdiction General Jurisdiction Substantial Contacts (legal term) Substantial Contacts (legal term) Domicile of Individual Domicile of Individual State of Incorp or PPB for Corporations State of Incorp or PPB for Corporations Proper Notice Proper Notice

Review of Shoe Specific Jurisdiction Specific Jurisdiction Minimum contacts: Nature and Quality of Action (continuous, systematic, persistent, frequency, quantity etc...) Minimum contacts: Nature and Quality of Action (continuous, systematic, persistent, frequency, quantity etc...) Due Process Considerations (fairness, reasonableness, justice, inconvenience to D) Due Process Considerations (fairness, reasonableness, justice, inconvenience to D) State interest (protecting its citizens, governing certain industries and enterprises that affect the well being of its citizenry, sovereignty, providing its citizens with a forum w/in which to resolve disputes) State interest (protecting its citizens, governing certain industries and enterprises that affect the well being of its citizenry, sovereignty, providing its citizens with a forum w/in which to resolve disputes) Nexus Requirement: Substantive nexus b/t claims-and in state activity that satisfies minimum contacts test Nexus Requirement: Substantive nexus b/t claims-and in state activity that satisfies minimum contacts test Proper notice Proper notice

Does the Shoe Fit? McGee v. International Life Ins. Co (S. Ct. 1957) McGee v. International Life Ins. Co (S. Ct. 1957) What is the Shoe consideration that the court emphasizes in reaching its decision? What is the Shoe consideration that the court emphasizes in reaching its decision? Does this opinion expand or contract the jurisdictional authority of states? Does this opinion expand or contract the jurisdictional authority of states?

Does the Shoe Fit? Hanson v. Denckla (S. Ct. 1958) Hanson v. Denckla (S. Ct. 1958) What is the Shoe consideration that the court emphasizes in reaching its decision? What is the Shoe consideration that the court emphasizes in reaching its decision? Does this opinion expand or contract the jurisdictional authority of states? Does this opinion expand or contract the jurisdictional authority of states?

How Does Shoe Fit? Shoe left the following two inquiries unanswered: Shoe left the following two inquiries unanswered: 1) How does the minimum contacts / fair play and substantial justice framework apply to individuals? 1) How does the minimum contacts / fair play and substantial justice framework apply to individuals? 2) Does the Shoe framework apply to in- personam and in-rem actions? 2) Does the Shoe framework apply to in- personam and in-rem actions?

Pennoyer Persists Harris v. Balk (1905) Harris v. Balk (1905) Holding: a state can acquire jurisdiction over persons whenever their debtors were present in the state by “attaching” the debts. The result is to make creditors liable to the extent of amounts owed them in any state in which the debtors set foot. Holding: a state can acquire jurisdiction over persons whenever their debtors were present in the state by “attaching” the debts. The result is to make creditors liable to the extent of amounts owed them in any state in which the debtors set foot.

Does the Shoe Fit? Shaffer v. Heitner (S. Ct. 1977) Shaffer v. Heitner (S. Ct. 1977) What is the Shoe consideration that the court emphasizes in reaching its decision? What is the Shoe consideration that the court emphasizes in reaching its decision? Does this opinion expand or contract the jurisdictional authority of states? Does this opinion expand or contract the jurisdictional authority of states?

Overview of Personal Jurisdiction Landscape

Pennoyer (1877) Base line case: The actual holding in the case could be said to contract state jurisdictional authority, but the broad principles espoused in the case advocate for more expansive jurisdictional reach. Articulates a distinction b/t in rem and in personam cases Key inquiry: “Is it there?” Emphasizes state interest in persons and things found within a state’s territory and the protection the newly enacted Due Process Clause provides to defendants

Harris v. Balk (1905) expands forum state jurisdictional authority by applying the “Pennoyer property principle” to include debt as property expands forum state jurisdictional authority by applying the “Pennoyer property principle” to include debt as property

International Shoe (1945) expands state jurisdictional authority expands state jurisdictional authority Announces “Minimum Contacts Test” (nature, quality and character of contacts with the state) Announces “Minimum Contacts Test” (nature, quality and character of contacts with the state) Fair Play and Substantial Justice / Due Process Considerations (fairness, reasonableness, justice) Fair Play and Substantial Justice / Due Process Considerations (fairness, reasonableness, justice) Adopted Specific Jurisdiction / General Jurisdiction Framework Adopted Specific Jurisdiction / General Jurisdiction Framework Nexus requirement b/t claim and contacts Nexus requirement b/t claim and contacts Key inquiry: “Is it fair?” Key inquiry: “Is it fair?”

McGEE (1957) expands forum state jurisdictional authority expands forum state jurisdictional authority Uses Minimum Contacts test Uses Minimum Contacts test Broadens application of DP Considerations to consider changes in modern transportation, technology and communications Broadens application of DP Considerations to consider changes in modern transportation, technology and communications Emphasizes state interest Emphasizes state interest Considered to have established a high water mark for states’ jurisdictional reach Considered to have established a high water mark for states’ jurisdictional reach

HANSON (1958) contracts forum state jurisdictional authority contracts forum state jurisdictional authority Symbiotic / mutuality requirement to satisfy minimum contacts and Due Process; unilateral activity is not sufficient to satisfy the Minimum Contacts test Symbiotic / mutuality requirement to satisfy minimum contacts and Due Process; unilateral activity is not sufficient to satisfy the Minimum Contacts test Adds purposeful availment to framework which echoes the mutuality principle considered in Pennoyer Adds purposeful availment to framework which echoes the mutuality principle considered in Pennoyer

SHAFFER 1977 contracts forum state jurisdictional authority contracts forum state jurisdictional authority Announces that the Minimum Contacts Test applies to in-rem, quasi-in rem and in personam claims Announces that the Minimum Contacts Test applies to in-rem, quasi-in rem and in personam claims doesn’t make property within the forum state irrelevant but considers its relevance within the context of the minimum contacts framework as a contact with the forum state doesn’t make property within the forum state irrelevant but considers its relevance within the context of the minimum contacts framework as a contact with the forum state Considers plaintiff’s interest in obtaining convenient and effective relief (i.e., availability of a forum) Considers plaintiff’s interest in obtaining convenient and effective relief (i.e., availability of a forum)

World-Wide Volkswagen (1980)

World-Wide Volkswagen contracts forum state jurisdictional authority contracts forum state jurisdictional authority Distinguishes b/t forseeability and notice (i.e., reasonable expectation / reasonable anticipation) Distinguishes b/t forseeability and notice (i.e., reasonable expectation / reasonable anticipation) considers purposeful availment (intentionally directing one’s product into the stream of commerce) considers purposeful availment (intentionally directing one’s product into the stream of commerce) holding avoids an outcome inconsistent with a free market and that would have an adverse impact on interstate commerce holding avoids an outcome inconsistent with a free market and that would have an adverse impact on interstate commerce unilateral act of P’s not sufficient to est. minimum contacts (echoes Hanson) unilateral act of P’s not sufficient to est. minimum contacts (echoes Hanson)

Asahi (1987)

contracts forum state’s jurisdictional authority contracts forum state’s jurisdictional authority Seems to separate minimum contacts from considerations of fair play and substantial justice and balance them vs. each other Seems to separate minimum contacts from considerations of fair play and substantial justice and balance them vs. each other Purposeful availment Purposeful availment Mere awareness does not satisfy minimum contacts Mere awareness does not satisfy minimum contacts Considers P’s interest in resolving dispute Considers P’s interest in resolving dispute Considers State’s interest in resolving dispute Considers State’s interest in resolving dispute Considers Implications for international relations Considers Implications for international relations Unilateral action is not sufficient to establish minimum contacts Unilateral action is not sufficient to establish minimum contacts