Civil Procedure Outline

POLICY OF FRCP: 1) Just, 2) Speedy, and 3) Inexpensive determination of every action and proceeding.

EVERY CLAIM NEEDS

1) NOTICE AND OPPORTUNITY TO BE HEARD

-Opportunity to be heard: Mathews Test

-Notice: Mullane Test; FRCP 4

2) PERSONAL JURISDICTION

1) Exceptions: (waived by appearance, forum selection, personal service; etc.)

2) Long arm

3) Due Process

-General Jurisdiction

-Specific Jurisdiction

1) Purposeful availment

2) “Reasonableness”

3) SUBJECT MATTER JURISDICTION

-Federal Question Jurisdiction

-Creation Test

-Substantial Federal Interest Test

-Diversity Jurisdiction

1) Amnt in controversy

2) Complete Diversity

-Supplemental Jurisdiction (§1367(a-c))

-Removal Jurisdiction

4) VENUE

*Transfer/Dismissal + FNC

-CHOICE OF LAW

1) Hana

2) Erie

-REMEDIES+FINAL RELIEF

-Punitive Damages: Oberg Test

-Injunctions (test)

-Attorney’s Fees

-ADR

LIFE OF A LAWSUIT

1) Complaint

-MTD?

2) Answer

-Rule 11?

*Joinder of Claims + Parties

3) Discovery: Relevant?

-Privileged

-Work Product

4) MSJ

5) POST-TRIAL

-JMOL

-New trial

-Appeal

6) PRECLUSION

-Issue and Claim Preclusion

*Class Actions

1. OPPORTUNITY TO BE HEARD

ATTACHMENT?=> THEN THE INJUNCTION ANALYSIS MUST BE APPLIED AS WELL

Mathews Test: BALANCE

1) Private interest that will be affected by the official action

2) Risk of an erroneous deprivation of such interest through the procedures at issue

AND the probable value, if any, of additional or substitute procedural safeguards

-possible safeguards: plf shows entitlement, bond

-Procedural Due Process: notice opportunity to be heard, neutral decision-maker,

-Due process is flexible, calls for procedural safeguards that particular situation demands (Morrissey)

3) Interest of party seeking the prejudgment remedy (if gov. consider function inv.) AND the ancillary interest of the government (fiscal and administrative burdens that additional or substitute procedural requirements would entail)

-there must be some government involvement

-sometimes pre-hearing deprivations needed since def may get rid of assets to avoid judgment

-“exigent circumstances” required for pre-judgment seizure of property (Doehr)

-Hamdi v Rumsfeld: Both private and gov’t interests substantial. Citizen “enemy combatant” entitled to notice of facts, fair opportunity to rebut them before neutral tribunal, right to counsel. To protect gov interests, can use hearsay, can shift burden of proof to defendant.

-CT v Doehr: plf assertion of probable cause in lawsuit not enough to seize property without exigent circumstances. Attachment significantly harms def. plf/gov interest minimal. (4 justices thought that plf should have been required to put down bond)

-Mathews v Eldridge: All factors were against Matthews. Pre-hearing discontinuation of SSA benefits does not violate due process.

2. NOTICE (Service)

*FRCP 4(c)-(f); 5(b)(2)(E)

-Only proper method matters, actual achievement of notice doesn’t (irrelevant if actual notice was given)

*MUST BE RAISED INITIALLY OR IT IS WAIVED

Mullane Test:

-Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. REQUIRES

1) Content: sufficient information to notify party of how and by when it should respond

2) Timeliness: allows reasonable time to appear

3) Method: that one desirous of actually informing the party might reasonably adopt

-best method that is reasonably practical under the circumstances

-Constructive notice by posting or publication?

-in personam: not allowed

-in rem/quasi in rem: allowed IF

1) accompanied by attachment

AND 2) names and addresses unkown and not reasonably ascertainable.

Mullane: notice by newspaper publication insufficient for parties that could be found

FRCP 4 Requirements

-Compliance w/ FRCP 4 = Compliance w/ Mullane

-Service = summons and complaint

-Served by 18 yo who is not a party, OR court appointee

-By email IF party consents in writing. Service complete upon transmission, unless serving party learns that it did not reach the person to be served. (FRCP 5(b)(2)(E))

-Method (Foreign)=> see 4f

-Method (within US) (4e)

1) Process rules of state where Federal Court is located

2) Process rules of state where service is made

3) Personal delivery (remember, not by plaintiff)

4) Leaving a copy of process at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.

5) Delivery to agent authorized or appointed by law to receive service of process for defendant (Ex: defendant’s lawyer)

-Waiver (4d)

-Defendant may wave formal summons requirement. Plf sends def request to waive, request has many requirements, like formal summons.

2) Failure to Waive:

If defendant fails without good cause, to sign and return a waiver, the court must impose expenses incurred in making service

-Waiver does not mean that jurisdictional objections have been waived.

3. PERSONAL JURISDICTION

Analysis is based on when the defendant acted, not when the lawsuit is filed.

FIRST: IS THERE AN EXCEPTION?

-Objection to PJ not raised in initial response=> WAIVED (FRCP 12)

-HOWEVER, filing of a notice of removal does not operate as a waiver of right to challenge PJ

-FRCP 4(k) Exceptions

-100-Mile Bulge Rule: if party was 1) joined under FRCP 14 (claim by plf/def against 3rd party) or 19 (required joinder), and 2) served w/in a judicial district less than 100 miles from place where the summons issued THEN PJ

-Federal statutory provision: Is there a federal statute involved here with its own service provisions for establishing PJ? If yes, then compliance w/ statute = PJ

-Alien provision: is 1) claim arising under federal law against 2) a person who is not subject to PJ in any state?

Then proceed w/ “minimum contacts” analysis with reference to US as a whole rather than a particular state.

-Voluntary appearance and defense w/out challenging PJ? Then PJ exercised.

-Individual resident of forum state?

-Forum...

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