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Civil Procedure Fall Outline

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This is an extract of our Civil Procedure Fall document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Creel_CivProI_Fall_2009 Civil Procedure Outline Acquiring Jurisdiction Over the Parties To A Lawsuit

1. Traditional Bases of Jurisdiction A. Personal Jurisdiction (in personam jurisdiction)

-This judgment may be enforced against any property the defendant owned or later came to own. (open box, can be used to get to other property)

-Can be taken to other states under the Full Faith and Credit Clause.

In personam jurisdiction can be established by statute that allows be established by DOMICILE, Physical Presence in Forum and personally served within forum, Voluntary Appearance in Court (consents to jurisdiction) Consent to Service, or Long-Arm jurisdiction either Tailored Specific Act or Due Process

B. In Rem and Quasi in Rem Jurisdiction In rem proceedings are against the whole world

In rem judgment awards plaintiff the specific property that was attached as the basis for jurisdiction. (sealed box, cannot be used to reach other property).

Quasi in Rem- is binding only to the parties of the lawsuit. Valid only to the extent of the value of that particular parties property. Cannot be used to get to other property.

2. Long-Arm Jurisdiction A. Minimum Contacts Test (International Shoe, activities were systematic and continuous, and they enjoyed benefits of doing business there) "Due process Clause of 14th Amendment- requires only that in order to subject a defendant to a judgment in personam, must fall under the Long-Arm statute and satisfy 3 prong test: 1) Has defendant purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking benefits and protection of state's laws?
2) Does the Lawsuit arise out of or relate to the defendants purposeful contacts with forum, or if not, are defendants forum contacts so extensive that no relationship is necessary?
3) Would the exercise of jurisdiction be unfair and unreasonable, taking into account interests of defendant, state, plaintiff, and other states?
Must have 1 and 2, then defendant can argue that 3 defeats jurisdiction.

B. Statutory Limits on the Assertion of Long-Arm Jurisdiction Tailored or Specific-Act Statutes (only reach certain types of behavior like torts, or transaction of business and action arises out of that, ownership of property) or Due Process Statutes (go to the limits of the due process clause of 14th Amend)

C. "Minimum Contacts": The "Purposeful Availment" Requirement To Establish "Purposeful Availment" 4 Categories: 1) Defendant or Employee's entered the state and conducted activity there (International Shoe, or Hess v. Pawloski, driving in the forum, or Hanson v. Denkla, trust and inheritance issue) 2) Defendant entered into contractual relationship with forum resident (Burger King or suit against ins. agent refusing to pay resident of forum)

3) Defendant whose products enter the forum through the ordinary "stream of commerce"(Volkswagen, product liability suit for item purchased in forum or flowing into forum) 4) Defendant whose out-of-state conduct caused an injurious "effect in the forum state. (defamation felt mostly in forum and directed at forum)

D. "Minimum Contacts": The Relatedness Requirment Courts look to whether the claim arises from the defendant's contacts w/the forum. If claim is related to these contacts, a court is more likely to find jurisdiction is fair and reasonable. (Specific Jurisdiction, example case Nowak v. Tak How where woman on vacation drowns in pool). Courts will look at these factors to determine if is related to or not: (1) "but for" this is the least restrictive, but for...claim would not have occurred (2) "substantial connection" or "lie in the wake of commercial activities" (3) "proximate cause" the most restrictive and is about foreseeablility which helps defendant better anticipate which conduct is likely to hale them to the forum.

General Jurisdiction-If not arising from the contacts, but the defendants activities in the forum are systematic and continuous, a court could find sufficient basis for exercising jurisdiction based on any cause of action but pretty high threshold (general jurisdiction, example cases Perkins v. Benguet where CEO of Japanese Corp. working out of Ohio while shut down overseas and failed to pay stocks, not related but contacts systematic and continuous so allow suit)

E. The Reasonableness Requirement Looked at after find minimum contacts and relatedness. Is now burden of defendant to make a compelling case that jurisdiction would be unreasonable and unfair so as to offend Due Process Clause of the 14th Amendment. Courts will also look at if the exercise of jurisdiction is reasonable and will look at Gestalt Factors such as:

Burden on the Defendant- (must be special, unique, significant) Forum States Interest in Adjudicating Dispute Plaintiff's interest in Obtaining Convenient & Effective Relief Interstate (international) Judicial Systems Interest in Resolution of Controversies Interests of Other States in Furthering Their Substantive Social Policies Example Cases (Asahi II, not reasonable, and Nowak II reasonable)

3. Minimum Contacts and the Traditional Bases of Jurisdiction A. In Rem and Quasi In Rem Jurisdiction- usually for in rem, the presence of property in the state is enough for exercising in rem jurisdiction over said property. But after Shaffer and Burnham, some courts hold that will still need to look to minimum contacts before asserting jurisdiction for quasi in-rem jurisdiction for suits that relate to the attached property (personal injury) and in suits where seek to use the property of the other to satisfy some purpose. NOW MUST USE MINIMUM CONTACTS TEST TO DETERMINE IF JURISDICTION BY FORUM IS PROPER FOR ALL LONG ARM STATUTES IN REM AND IN PERSONAM. (Shaffer v. Heitner, defendant whose stock held in Delaware but not business there did not have minimum contacts for jurisdiction purposes in quasi in rem suit)

B. Physical Presence Unless brought there under duress, the physical presence is usually sufficient for finding jurisdiction. Sometime transient or involuntary presence will defeat the service or jurisdiction.

4. Exercising Jurisdiction Under Federal Long-Arm Provisions A. Federal Long-Arm Provisions Fed courts usually borrow the long-arm statutes of the state in which they sit. FRPC 4(k)(1)(A)

But, 4(k)(1)(c) allows federal court to exercise personal jurisdiction 'when authorized by a federal statute". Examples are Federal Interpleader Statute, Securities and Exchange Act SS27, or Clayton Anti-trust Act. FRCP Rule 4(K)(2) allows federal courts to obtain personal jurisdiction through worldwide service of process on claims brought on federal law claims if plaintiff can show that defendant is not subject to jurisdiction under any laws of any state and that is constitutional.

B. "Minimum Contacts" at the National Level When fed court under 4(k)(1)(a) borrows state long arm statute look to if defendant had minimum contacts with that particular state. When fed court under 4(k)(2) then look at if minimum contacts with whole nation is met. (national contacts test) 5th Amendment Due Process not 14th. Still must have relatedness and then must still look to the reasonableness prong. (easier here than in state court cause foreign alien may have more prejudice against them and foreign nation obviously interest in protecting their citizens rights.).

C. Service Within the United States When served in United States under a federal long-arm statute, physical presence not enough and must still look at minimum contacts with US as a whole but not necessarily forum state. (distinguish from Burnham where presence negates need for minimum contacts if voluntary). Must still show that forum is severely unfair to defeat jurisdiction for the reasonableness prong.

D. The 100-Mile-Bulge Rule (4)(K)(1)(B) "short arm" rather than long arm provision. Allows parties who are added to a suit under Rule 14 or 19 to be served within a 100-mile radius of the federal courthouse, even if it is outside the state where the court sits, as long as is within the US.

Can't be invoked by the plaintiff as means of getting jurisdiction over an original defendant to the suit. Usually must still have 'minimum contacts' either with the state where court sits or with the bulge area.

5. Challenging lack of Jurisdiction over the Defendant A. The Burden of Proof Plaintiff must ultimately show a prima facie case, by preponderance of evidence, that court has jurisdiction since he is one invoking the assistance of the court. Federal District Courts will "assist" the plaintiff by allowing jurisdictional discovery unless p's claim is "clearly frivolous". (must present sufficient factual assertions) In deciding if prima facie case exists, all conflicts are resolved in favor of plaintiff. But may still have prove existence later at trial or at hearing.

B. Direct Attack 12(b)(2) motion to dismiss for lack of personal jurisdiction Direct attack on Court's jurisdiction over defendant may be made by motion to dismiss, a motion to quash service, or may be included in the complaint. Sometime must be done through "special appearance" where comes to court solely to object and does not then waive jurisdiction defense.

Waiver most often can occur (must be careful) if D fails to raise the objection as part of her 1st filing or appearance in court. Sometimes is waived if not raised alone and is lumped with other motions or defenses. If not objected to properly is considered waived and then cant have direct attack or a later collateral attack on the judgment based on an alleged lack of jurisdiction.

Under 12(g) is proper to combine a 12(b)(2) objection with other objections under the rule such as subject matter jurisdiction 12(b)(1) or venue 12(b)(3) without waiving the jurisdictional objection.

But under 12(g)(2) if raise any 12(b) defenses, cannot later file a 12(b)(2) jurisdictional objection.

Under 12(h)(1) if omit jurisdictional objection form a 12(b) motion to dismiss, defendant cannot raise it later in the answer to the complaint.

A defendant who is sued in fed court must challenge the courts jurisdiction over her through a motion to dismiss under Rule 12(b) or in her answer, whichever is filed first, or the objection to jurisdiction is waived.

If make the motion to dismiss under Rule 12(b) and is denied, the defendant may proceed to trial and still keep her jurisdictional objection for appellate review after a final judgment has been rendered. Other option is to not appear in the trial so not object to jurisdiction, and then allow a judgment to be rendered. Then can attack the judgment as void under Rule 60(b)(4) requesting the judgment be set aside. Burden on defendant to show jurisdiction lacking.

C. Collateral Attack
-Usually comes into play when plaintiff gets a default judgment and is trying to enforce it in a new proceeding in another state.
-In the previous proceeding, the defendant actually participated in, or made a 12(b) motion but lost and did not further participate.
-Because of res judicata, the issue has already been decided.
-This will only work where the defendant never participated at all so the issue never came up for decision.
-This is also the only defense that can be raised, lack of personal jurisdiction, all others are considered waived.
-If successful in this defense, then the judgment will not be enforced and the plaintiff will not be able to seek further enforcement in other states.
-But if the judgment was rendered by a federal court, the defendant does not need to wait till plaintiff seeks to enforce the judgment.

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