Outline - Civil Procedure - IV - Venue

Civil Procedure (2005-2006)

IV. VENUE

Venue is not constitutionally mandated or designated. It is a tool within the federal system for allocating the business of the federal courts. Thus, it is waivable.

1. Generally [28 U.S.C. §§ 1391(a)-(d), 1446(a)]
   1. If all defendants "reside" in the same State, where any defendant "resides" [§ 1391(a)]; or
   2. Where substantial part of events/omissions creating the case occurred, or substantial part of property that is subject of case is located [§ 1391(b)]; or
   3. If neither (1) nor (2) exists in the U.S. [§ 1391(c)]:
      1. In diversity cases, any district with PJ over any defendant
      2. In federal question or "other" cases, any district where any defendant is "found".
   4. An alien may be sued in any district. [§ 1391(d)]
   5. For removed actions, federal court in district and division embracing state court case came from. [§ 1446(a)]
2. Residence
   1. Individuals – Where domiciled, place intends to permanently live. (Some courts include place currently lives even if not permanent.)
   2. Corporations – All districts where, treating districts as states, district court would have PJ over the corporation.
   3. Do not confuse the following:
      1. "Dwelling or place of abode" (service of process)
      2. "Citizenship" (diversity SMJ)
      3. "Residence" (venue)
3. Dismissing for Improper Venue
   1. Defendant must use it or lose it [Rule 12(b)(3)]; and/or
   2. Court may dismiss or transfer to any proper venue. [28 U.S.C. § 1406]
4. Changing Venue
   1. By motion or sua sponte, transfer to any proper and better venue [§ 1406(a)]
      1. Bolivia - Sua sponte transfer to more appropriate venue.
      2. Goldlawr v. Heiman – Transfer under § 1406(a) saves claims from statues of limitations.
   2. Transfer to any division within district by consent motion of all parties.
5. Forum Non Conveniens [Piper v. Reyno]

Outline - Civil Procedure - III - Subject Matter Jurisdiction

Civil Procedure (2005-2006)

III. SUBJECT MATTER JURISDICTION

SMJ is not waivable.

1. State Courts - General Jurisdiction vs. Limited Jurisdiction
   1. State - General Jurisdiction (criminal, civil/tort, family/probate)
   2. Federal - Limited Jurisdiction
2. Federal Question
   1. Subjects
      1. U.S. Constitution, Article III, Section 2
         1. Admiralty
         2. U.S. is a party
         3. Treaties
      2. Federal laws (e.g., anti-trust, patent, copyright, bankruptcy)
   2. Created by U.S.C. § 1331
   3. Well-pleaded complaint - Plaintiff may not anticipate federal question in defense or counterclaim. [Mottley – Anticipating federal question defense from defendant railroad corrupted complaint.]
3. Diversity
   1. Complete Diversity
      1. All plaintiffs diverse from all defendants unless statutory or decisional exception.
      2. Citizenship
         1. U.S. citizen – Primary permanent domicile, with intent to return [Mas v. Perry, Tanzymore]
         2. Permanent Resident alien – State where domiciled [Mas v. Perry]
         3. Corporation – Where incorporated and principal place of business
         4. Partnership/LLC – Where partners/members are citizens [Belleville]
         5. Normal class action – Where class representative plaintiffs are citizens
         6. Mass class action – Where any member is citizen (minimal diversity)
         7. Executor – Where deceased was citizen
         8. Insurer – If insured not defendant, where insured is citizen, and where insurer incorporated and principal place of business

         Cannot change citizenship after filing by moving or by changes in membership for partnership [Dataflux]

   2. Amount in Controversy > $75,000
      1. "Exclusive of interests and costs" [28 U.S.C. §§ 1332(a), 1332(d)(6)]
         1. American rule – Each side pays its own costs
         2. Civil rights exceptions
         3. Winners awarded costs (but not attorney’s fees)
      2. "Legal certainty" at time filed/removed [Red Cab - Subsequent events reducing amount below statutory limit do not oust jurisdiction]
         1. Plaintiff cannot reduce amount to take away right of defendant to remove to federal court
         2. Good faith representation
      3. Injunctive Relief
         1. Value to plaintiff;
         2. Value to defendant; or
         3. Either viewpoint [McCarty v. Amoco]
      4. Aggregation
         1. One plaintiff can sum all claims against one defendant
         2. One plaintiff cannot sum claims against separate defendants
         3. Multiple plaintiffs cannot sum separate and distinct individual claims
         4. Exception for mass class action (>$5 million) [§ 1332(d)]
4. Supplemental Jurisdiction
   1. Facts that would be presented would be the same on both the state and federal levels.
   2. State law to be applied.
   3. Federal court can decline to have jurisdiction over a novel state claim.
5. Removal
   1. What - Notice of removal automatically removes entire case; in federal question case, court may remand claims in state law [§ 1441(c)]
   2. Where - Federal District and Division embracing state court [§ 1441(a)]
   3. Who - All defendants must join unless separate federal question; except for federal question, may remove only if no defendant resides in state [§ 1441(b)]
   4. When [§ 1446(b)]
      1. Within 30 days of formal receipt of complaint or of first later paper showing removability; and
      2. No later than 1 year after action for diversity SMJ begins
   5. Why - Federal questions, diversity, or other SMJ exists in federal court.
   6. Improper removal not fatal if jurisdictional requirements satisfied at time of judgment [Caterpillar]
   7. Artful pleading - Plaintiff may not avoid SMJ by omitting federal questions from plea.
6. Remand
   1. Where - Back to state court case came from [§ 1447(d)]
   2. Who - Any party or sua sponte
   3. When [§ 1447(c)]
      1. Lack of SMJ
      2. Upon joinder of nondiverse defendants
      3. Within 30 days of removal for any other reason
   4. Why
   5. Joinder of nondiverse defendants granted [§ 1447(e)];
   6. State law predominates (discretionary);
   7. Error in removal; or
   8. No SMJ in federal court

Outline - Civil Procedure - II - Personal Jurisdiction

Civil Procedure (2005-2006)

II. PERSONAL JURISDICTION

Jurisdiction over the person (body and all property); court can only seize defendant’s property over which the court has jurisdiction, but in personam judgment is valid in jurisdiction where the property is located, and enforceable through Full Faith and Credit Clause.

1. Waiver
   1. Procedural
      1. Direct attack - Raise lack of jurisdiction at the outset to prevent court from proceeding to judgment.
         1. Federal - Rule 12(b) (denial of motion can appealed after trial with certification)
         2. California - Motion to quash (immediate appeal available through writ of mandamus)
      2. Collateral attack - Raise lack of jurisdiction after case is tried on merits; risky because no way to re-try merits.
   2. Contractual - forum selection
      1. Burger King - Defendant who negotiated contract with choice of law clause has purposefully availed himself of the forum’s laws.
      2. Carnival Cruise - Forum selection clause on cruise ticket enforceable.
      3. Szukhent - Prompt acceptance and transmittal of summons to purchaser, pursuant to contract, sufficient to validate agency in stranger.
   3. If PJ not waived, apply Rule 4(k) for federal court, long-arm statute for state court.
2. Rule 4(k) - Territorial Limits (federal court only)
   1. Defendants over which PJ can be established:
      1. Those subject to state court jurisdiction
      2. Third parties within 100 miles of court (bulge rule)
      3. Those under federal interpleader
      4. By federal statute
   2. Federal question cases have PJ over:
      1. Those not subject to PJ in any state court (aliens)
      2. Those with minimum contacts with entire US
   3. Analysis
      1. If (1)(B), (C), (D), or (2), apply constitutional analysis
      2. If (1)(A), apply statutory analysis
   4. Aerogroup v. Marlboro - Plaintiff claimed that under Rule 4(k), defendant not subject to jurisdiction of any one state but with contact with entire US subject to federal jurisdiction; court ruled minimum contacts too weak.
3. Long-Arm Statute
   1. McGee - PJ exists over insurance company with no other contact with state besides beneficiary due to knowledge.
   2. Gray - PJ exists over seller of defective valves to maker of heaters due to stream of commerce.
   3. Asahi - California’s long-arm statute is so expansive, may skip to constitutional analysis.
4. Constitution
   1. General PJ
      1. Service - If defendant not served in forum, apply nature of contacts test. [Burnham – Defendant tagged out of state while visiting children and ex-wife]
      2. Nature of contacts - If contacts with forum are substantial or systematic and continuous, and purposeful, apply reasonableness test; otherwise, apply specific PJ test.
         1. International Shoe - Employment of salesmen in forum state sufficient for minimum contacts.
         2. Aerogroup v. Marlboro - Foreign manufacturer distributing through US group has minimum contacts with entire US.
         3. Kulko - Father who let child move to California with ex-wife had no purposeful availment.
   2. Specific PJ - If cause of action arises from contacts with forum, apply purposeful contacts test.
      1. In rem - Case arises from property; jurisdiction over property to determine ownership and control rights.
      2. Quasi in rem - Case unrelated to property; jurisdiction only to determine right to property; outdated legal concept.
         1. Harris v. Balk - Harris owed Balk who owed Epstein. Harris paid Epstein. Debt is intangible property. Epstein arrested Harris’ debt to Balk when Harris paid Epstein.
         2. Shaffer - Even if court attaches stock of foreign defendant, no PJ over defendant.
      3. Relatedness - “But for” or “proximate cause” test
         1. Nowak v. Tak How - Defendant’s solicitation of forum state customers increased likelihood one would respond favorably.
         2. Carnival Cruise - Customer would not have been hurt but for Carnival Cruise doing business in forum state.
         3. Cornelison v. Chaney - Accident with forum state resident would not have occurred but for defendant being en route to forum state.
   3. Purposeful contacts - If minimum contacts, apply reasonableness test.
   4. Reasonableness
      1. Burden on defendant
      2. Forum State’s interest
      3. Plaintiff’s interest in convenience and effective relief
      4. Interstate interest in efficiency
      5. Interstate interest in substantive social policies

   Stream of commerce alone and reasonableness alone aren’t enough; they must both exist.

5. Another View [Wikipedia]
   1. Presence
      1. Territorial formalism (outdated) - Pennoyer
      2. Minimum contacts sufficient - International Shoe
      3. Modern interpretation - Burnham
         1. Scalia - Tradition upholds PJ over tagged defendant
         2. Brennan - Purpose availment upholds PJ over defendant tagged out-of-state
   2. Commercial Activities
      1. Placing products in “stream of commerce” helps establish minimum contacts [Gray]
      2. No PJ where extent of stream of commerce unforeseeable [World-Wide Volkswagen]
      3. Mere awareness of “stream of commerce” not enough without more [Asahi]
   3. Internet Activities
      1. Passive sites not subject to PJ unless a source of slander or defamation aimed at forum.
      2. Interactive sites may be subject to PJ depending on amount of contacts established as result of presence.
      3. Commercial sites subject to PJ.
   4. Property
      1. Ownership of property alone not sufficient minimum contacts for PJ in cases unrelated to property. [Shaffer]
      2. Property is sufficient contact for court having geographic jurisdiction to adjudicate case related to ownership of property, or arising from events occurring there. [Pennoyer]

Outline - Civil Procedure - I - Due Process

Civil Procedure (2005-2006)

I. DUE PROCESS

1. Consitution
   1. U.S. Constitution, Amendment V – “No person shall be … deprived of life, liberty, or property, without due process of law.”
   2. U.S. Constitution, Amendment XIV – “[N]or shall any State deprive any person of life, liberty, or property without due process of law.”
   3. California Constitution, Article I, Section 7 – “A person may not be deprived of life, liberty, or property without due process of law.”
2. Mathews Test - Weigh:
   1. Private interest that will be affected by government action
   2. Risk of erroneous deprivation (including probable value if any of additional safeguards)
   3. Government interest that would be impaired by additional safeguards
3. Notice
   1. Rule 3 - Action commences with filing of complaint.
   2. Rule 4 - Summons
      1. Service
         1. Summons with copy of complaint
         2. Disinterested party at least 18; at request of plaintiff, may direct service by US marshal
      2. Waiver of service
         1. Waiving service does not waive other objections
         2. Duty to avoid unnecessary costs; notice and request must be/include:
            1. Addressed directly to defendant, or an officer or agent of a corporation
            2. First-class mail
            3. Copy of complaint
            4. Consequences of compliance and failure to comply
            5. Date of request
            6. Allow 30/60 days to respond
            7. Extra copy for defendant
         3. Waiver extends response time to 60/90 days
      3. Defendants in the U.S.:
         1. Personally at individual’s “dwelling house or usual place of abode” with some person of suitable age and discretion living there, or
         2. By delivering copies of summons and complaint to authorized agent
   3. Mullane Test - 3 kinds of beneficiaries:
      1. Known beneficiaries – entitled to notice by mail
      2. Known beneficiaries that are hard to find – notice by publication sufficient
      3. Unknown beneficiaries (e.g., future generations)
   4. Cases
      1. Greene v. Lindsey - Posting alone not sufficient for actual notice; service by mail may complement.
      2. Khashoggi - Defendant who has multiple homes had notice when served at a home that has indicia of permanency.
      3. Mid-Continent - Knowledge of existence of suit does not obviate need for service and actual notice.
      4. Wyman v. Newhouse - Notice may not be served on someone induced to enter a jurisdiction through fraud.
4. Opportunity to be Heard
   1. Tenured public employees - Loudermill majority recognized these rights:
      1. Oral or written notice of charges
      2. Explanation of employer’s evidence; and
      3. Some opportunity to be heard to respond to charges and evidence
   2. Gilbert exceptions to Loudermill - Tenured public employees do not have right to pre-termination notice and opportunity to be heard when:
      1. Risk of erroneous deprivation is low (e.g., 3rd party determination, such as by arrest)
      2. State interest is high (e.g., employee in position of high public trust)
      3. Private interest is outweighed by state interest (e.g., suspension vs. termination)
5. Right to an Attorney
   1. Apply the Mathews test, except where physical liberty is at risk.
   2. Lassiter - In child welfare case, the interests of the state and the individual are the same, and the risk of error is low because the issue wasn’t that complicated.
   3. Walters - In non-adversarial proceedings such as VA benefits, no right to attorney.
6. Injunctions
   1. Types
      1. Temporary restraining orders (TRO)
      2. Preliminary injunctions (PI)
      3. Final/permanent injunctions
   2. Substantive requirements [Sullivan – homeless shelters]
      1. Applicant likely to be successful on the merits
      2. Applicant will suffer irreparable harm without injunction
      3. Harm to enjoined party from injunction outweighed by harm to applicant in absence of injunction
      4. Public interest favors injunction
   3. Procedural requirements – Rule 65 [Microsoft]
      1. For PI
         1. must give notice
         2. can consolidate with trial, or use evidence from PI hearing at trial
      2. For TRO
         1. affidavit or verified complaint must clearly show immediate and irreparable injury will result to applicant before adverse party can receive notice
         2. applicant must certify in writing efforts to give notice, or why notice should not be required; expires after no more than 10 days unless extended
         3. adverse party may move for dissolution or modification on 2 days’ notice to applicant
      3. Security (court's discretion)
      4. Proposed order
         1. reasons for issuance
         2. specific terms
         3. reasonable detail without self-reference
         4. binding only on parties to the action, agents

Outline - Civil Procedure

Civil Procedure (2005-2006)

1. DUE PROCESS
2. PERSONAL JURISDICTION
3. SUBJECT MATTER JURISDICTION
4. VENUE
5. CHOICE OF LAW
6. PLEADINGS
7. JOINDER
8. SUPPLEMENTAL JURISDICTION – 28 U.S.C. § 1367
9. DISCOVERY
10. TRIAL PROCESS