October 5, 2013


- Civ Pro is dealing w/ fundamental fairness and due process
- civ lit is cush that is allows judgement creditor (P) to go after the judgement debtor (D)
- this is called a writ of execution
- civ lit could be taking property to clear the way to meet a    judgement
- it all relates to due process

- usually coercive means are needed by the P to bring the D; 
  in aka, service of process - complaint and summons handed to D
- the D gets address, name of court, and 30 days notice to         respond or if not lose by default

I. Territorial Jurisdiction

     - you can sue a person anywhere you can find them
     - "full, faith, and credit" in the Constitution requires        that rulings in one state be honored in another
     - 3 types of jurisdiction

          1. in personam - court acquires jurisdiction over the            person as basis for adjudication
          2. in rem - the court uses its power over property as                 the basis for adjudication
          3. quasi in rem - court uses its power over the                        property to adjudicate decision not involving the                  property

             (when using quasi in rem you have not established             the liability of the , you are also limiting the             amount of $ that can be recovered)

     A. Historical Formulae

              Pennoyer v. Neff - physical presence is the legal              and necessary basis for in persona

              Harris v. Balk - quasi in rem established            liability of the property not the person

              Hess v. Pawloski - person can make a "special             appearance" which is a time when they can't be            served process

     B. Twentieth Century Syntheses
              International Shoe v. Washington - a state can            have jurisdiction over a business if that business            has made "minimum contacts" within the state

          2 General Minimum Contact Tests:

              1) minimum contacts between state and the person                  or thing over which jurisdiction is asserted

               2) long-arm statutes; statute or court authorizes                 exercise of personal jurisdiction

          Mcgee v. International Life - contact should be           "continuous and systematic"

          Hanson v. Danckla - the contact must be         "purposeful activity" on the part of the business

          World-Wide VW v. Woodson - foreseeability does not        constitute minimum contacts
     C. General versus Specific Jurisdiction:

              1) specific jurisdiction - the cause of action               must arise from the activity alleged to satisfy                  minimum contact

              2) general jurisdiction - can be sued wherever the                cause of action is found

     Kulko v. Superior Court - must purposefully avail oneself to the benefits of the state for jurisdiction to exist

     Note: indication that the defendant's contacts w/ the state   must be reasonably foreseen and that the activities engaged in outside the forum states could be litigated in the state

     Helicopteros v. Hall - cause of action must arise in the state wanting jurisdiction

     D. Reformulation of Minumum Contacts

          Burger King v. Rudzewicz - deliberate affiliation w/           forum state and contract indicated the foreseeability

          Asahi v. Superior Court - must further evaluate contact        and fairness in terms of interests of the parties (CA         had a small interest and burden on Asahi was large)

     E. Notice - legal notification required by law or agreement;              a written or printed announcement

          Mullane v. Hanover - in personam needs notice and         service; in rem and quasi in rem needs only notice

     D. Long-Arm Statutes

          2 types:  1) laundry lists

                   2) general kind such as CA where jurisdiction                     is alright as long as it is constitutional

          1. State long-arm statutes

              American Eutectic v. Dytron - cause of action must             result from issue covered by the long-arm statute

          2. Federal long-arm statutes

              Omni Capital v. Rudolf Wolf - federal court must               use law of state unless there is a federal rule

              - process can ber served anywhere if state of               federal law provides for it (Rule 4E)

     E. Presence

          1. Property

              Shaffer v. Heitner - required same standards    for            quasi and in rem as for in personam

          2. Person

              Burnham v. Superior Court -

          3. Immunity Doctrines - cannot be served w/ process if           your main purpose of entering the state is to                     participate in another litigation matter

             - but, if you could be served by a long-arm statute             it probably would not matter anyway

     F. Consent to Jurisdiction

          1. Consent by Appearing

              - simply by appearing in court you are subject to                jurisdiction, unless it is a special appearance

          2. Consent by Contract

              Carnival Cruise Lines v. Shutes - forum-selection              clauses not created through a bargain are valid

     G. Objecting to Jurisdiction

          Insurance Corp. of Ireland v. CBG - court has        jurisdiction to decide if it has jurisdiction

II. Subject Matter Jurisdiction

     A. Federal Question Jurisdiction

          - the Constitution tells us what the federal government         can do (is the area of human behavior the legislation           affects allowed to do that under the Constitution?)

          - so far we've dealt with legislative and executive         branches and now we turn to judicial jurisdiction

              1) original jurisdiction under $1331

              2) controversys arising from $1367

          - for federal question jurisdiction to apply the                      following two points must exist:

              1) is the question of federal law substantial?

              2) is question of federal law a necessary element                 of the state claim at issue in the suit?

          - federal jurisdiction must attach at the time                   complaint is commenced (Rule 3)

          Louisville v. Mottley - to be in federal court cause of        action must arise under consitution not anticipated       defense

     - $1331 - the district courts shall have original                jurisdiction of all civil actions arising under the             Constitution, laws, or treaties of the United States

     Rule 12 - Defenses and Objections - when and how presented -            by pleading or motion, etc.

          12b - defenses which may be made by motion by the              pleader

              1 - lack of jurisdiction over subject matter
              2 - lack of jurisdiction of the person
              3 - improper venue
              4 - insufficiency of process
              5 - insufficiency of service of process
              6 - failure to state a claim upon which relief can                 be granted
              7 - failure to join a party under Rule 19

          12g - consolidation of defenses in motion

          12h - waiver or preservation of certain defenses

              1 - waives 2-5 unless motioned together at               beginning

              2 - preserves 6-7 to be raised at any time

              3 - preserves 1 to be raised at any time

          Merrel Dow v. Thompson - can't incorporate a federal           standard for a state-law private cause of action when          Congress intended there not be a federal private action       for violations; case was improperly removed to federal        court

          - $1441 - actions removable generally

          - $1338 - topics which are exclusive to federal                    jurisdiction

     B. Diversity Jurisdiction

     C. Supplemental Jurisdiction $1367

          - whole idea based on considerations of efficiency and          fairness

          - recognizes that there are instances where it makes            sense for a federal court to have jurisdiction over a           claim even though it couldn't be filed in federal            court by itself

              1) a situation where the event gives rise to                 federal and state claims

              2) allows federal court to take it even though if                 claim was filed alone federal court could not                 touch it - "piggy-backing claims"

          Ancillary Jurisdiction - situations where P, D, or 3rd         party attempted to assert countercliam, cross-claim, or       3rd-party claim which lacked an independent basis for         federal subject matter jurisdiction

          Pendent Jurisdiction - situations where:

              a) P asserted claim based on federal question                against nondiverse party and then sought to                  join a claim (13a, g, h; or 14a, b) lacking an                  independent basis for federal jurisdiction

              b) P asserted claim based on federal jurisdiction                 against one nondiverse party and them attempted               to bring a jurisdictionally insufficient claim                  against a different nondiverse party

     - congress combined ancillary and pendent to make                supplemental jurisdiction (when claims are so related to        the claims forming the basis for the original action that   they form part of the same case or controversy undre           Article 3)

     Mas v. Perry - diversity is determined by federal law

     UMW v. Gibbs - if the federal claim is substaintial enough    to be heard in federal court than the state claim need not      arise from the same cause of action - court considers     judicial economy, convenience, and fairness

     - Rule 24a a court uses to let you in and Rule 24b a court           uses to keep you out

     D. Removal - a device by which defendants may move actions                 brought in state court to federal court;                  $1441(a)

               - $1441(b) if it is a federal question diversity                 doesn't matter; otherwise none of the                defendants can be citizens of the state in              which the action is being brought

          - generally a case can only be removed if the federal           court would have had subject matter jurisdiction at         the time the action was initially filed

          Caterpillar v. Williams - plaintiff is master of his           own complaint

          - challenges to federal subject matter jurisdiction:
            defects in subject matter are never waived; the           objection may be raised for the first time on appeal            or by a motion to set aside the judgment; a judgment           rendered by a court that lacks subject matter           jurisdiction to decide a case is usually void

     E. Venue $1391

     - if jurisdiction is founded on diversity venue is               proper in the federal district court in a judicial               district which:
          a) an D resides if all Ds reside in the same state
          b) a substantial part of the cause of action is                         situatied
          c) the Ds are subject to personal jurisdiction are the           time the action is commenced if the action may not           be brought in another district

     - if jurisdiction is founded on a federal question, venue is   proper in federal district court in a judicial district in      which:

          a)any D resides if all Ds reside in the same state
          b) a subtantial part of the cause of action is situated
          c) any D may be found if there is no other district in           which the action may be brought ($1391b)

          Ferens v. John Deere - choice of law in the transferor         court will prevail in the transferee court

     F. Forum non Conveniens

          - state to federal removed under $1441
          - transfer must be to district where action could have          been brought - $1404(a)

     Piper v. Reyno - possibility of unfavorable change in law     should not be the overriding cosideration in a forum non    conveniens inquiry

III. The Erie Problem

     - the basis of the Eire problem is the interplay between the   substantive and procedural law in federal and state courts

     Major Rule -  federal law governs on federal issues, but federal courts should apply state law on other issues in     diversity actions

     A. Erie

     Erie v. Tompkins - when there is no federal law on point then you have to apply the law of the state and furthermore   if there can be no federal law regarding the issue then the   law of the state must be applied

     general law - a set of rules that is all encompassing; any                  dispute of human endeavor could be answered by                general law

     Guaranty Trust v. York - 3 points:
     1) state law should determine the outcome in diversity cases
     2) federal diversity court must apply state statutue of           limitations to a state-created cause of action
     3) state procedural rules should be applied whenever the         procedure followed would be outcome-determinative

     Byrd v. Blue Ridge - state procedural law should be applied   if following federal law would be outcome-determinative;     however if 1) the state procedural rule was not an integral part of the substantive rights created by the statute involved in the action and 2) there was a strong federal   interests, the court can apply the federal procedure

     Hanna v. Plummer - expands Byrd by saying you need to also    look at case in terms of forum-shopping and inequitable      administration ofo the laws

     - procedural answers "how" and substantive answers "what"

     Walker v. Armco - there is not a direct-collision between     the federal and state law so state law should apply

     The Rules Enabling Act - provides that federal rules adopted under the Act shall not "abridge, enlarge, or modify any   substantive right."

     B. Reverse Erie

     Dice v. Akron - an action raising a federal question should   be determined by federal rather than state law

     C. Ascertaining State Law

          - federal court has a situation where it must find what         the state would do
          - this is creating state common law but Erie prohibits          federal courts from making federal common law
          - whatever the federal court decides it will use as         state law, that said law will have no precedence in          the state

          DeWeerth v. Baldinger - a federal court attempting to          forecast state law must consider relevant state           precedents, analogous decisions, considered dicta,          scholarly works, and any other reliable data to show       how the highest court in the state would decide the         issue at hand

     - abstention is when the court decides not to decide on an      issue of state law
     - it is based on the possibility of the issue being decided     in state courts and then not needing federal court to          decide the federal question

     - in diversity cases the courts are stringent on using           abstention b/c it would:

          1) defeat the purpose of diversity jurisdiction

          2) create unfairness in supposedly "fair-non-biased"             court dealing with state issues

     D. Federal Common Law

          - federal comon law is judge-made federal law

          - there is authority to promulgate federal common law           if that issue is specifically a federal issue under         the Constitution

          - for example, if the issue deals with foreign                   relations that is the exclusive jurisdiction of the             federal government

          Clearfield Trust v. U.S. - there is such a thing as           federal common law

IV. Res Judicata and Collateral Estoppel

     Res Judicata:
     - res judicata prevents relitigations of the same cause of           action or claim that was litigated in a former proceeding
     - two parts:
          1) if you lose claim is barred
          2) if you win your cause of action merges with claim

     - in resjudicata the cause of action is the event that gives   rise to the claim

     A. Preclusion Between the Same Parties

     Two types of attack:

     1) collateral attack is when you relitigate the issue before    the court
     2) direct attack is when you attack the judgement on appeal

     Federated Dept. Stores v. Moitie - needed to attack on    direct appeal and not collaterally

     Rule 13(a) - compulsory counterclaim - is barred by res   judicata if not filed

     - the doctrine of bar and merger is if the plaintiff                  prevails the cause of action is merged into the judgment        and that judgment becomes the plaintiff's right
     - because of bar and merger you must file all claims arising   out of the casue of action; must raise those issues under       Rule 12 and only waive in context of present lawsuit not      future suits

     - res judicata does not compel you to file all defenses; it     is offensive by nature so only those under Rule 12 are        required and will not be waived in future suits

     - however, because of the doctrine of bar and merger you        must file all claims arising out of the cause of action

     Collateral Estoppel:
     - the companinon doctrine to res judicata is collateral          estoppel
     - resjudicata prohibits claims while coolateral estoppel is     issue preclusion

     California test for collateral estoppel:

          1) has there been a final judgment on the merits?
          2) identity of issue is the same?
          3) identity of the parties the same; is the person           against whom the collateral estoppel is asserted a           party to the prior action? (privity?)

          Sawyer v. First City - pursuit or lose when you split a        cause of action

     B. Preclusion as Against Other Parties

     Mutuality - neither party could use a prior judgment as an      estoppel against the other unless both parties were bound by the judgment; a third party would not be allowed to use that judgment in a subsequent action against a party in the first case

          Parklane Hoisery v. Shore - the federal approach to      collateral estoppel does not require mutuality

          - prevailing view is mutuality is not required

     Offensive Nonmutual Collateral Estoppel
     - collateral estoppel = issue preclusion
     - offensive use is when a claimant can use previously                 litigated issues against the defendant, against the             defendant
     - defensive use is when the defendant uses decisions that            went against the plaintiff in prior litigation

     - nonmutual is the prevailing view
     - for mutuality to be asserted the person against whom the           plea is being asserted must be a party to the prior action
     - if mutuality of estoppel is required both parties have to     be bound by the decision
     - you could be in privity if you control the litigation but     are not a party to it
     - you have a right to be heard unless bounded by party or            privity

     Claims v. Defenses
     - claims are offensive
     - defenses are defensive

     C. Precluding Non-Parties

     Martin v. Wilks - law does not impose burden of voluntary      intervention in a suit to which one is not a party

     Antrium v. Davis - similar to Wilks; individual litigation      generally does not preclude litigation by the government

     - Rule 19(a) describes necessary party to join if feasible
     - Rule 19(b) is if you cannot join them then dismiss but        consider 4 factors to see if that party is indispensable

     - if defendant does not have the ability to bring in                  "necessary parties" then he could raise a 12(b)(7) defense      in accordance with Rule 19(a)(1)