Civil Procedure

Front 1

Talk about MCs and general jx

Back 1

"Dispute Blind" exists where the D's contacts (number and quality) with the forum state are sufficiently substantial that one may litigate any dispute in the court or forum Though corp was incorporated in Phillipines, it conducted all of its business from OH, but claim actually occurred during the tim it was still doing business in the Phillipines. Must be able to treat it like OH resident. If it walks like a duck, looks like a duck, quacks like a duck, it's a duck

Front 2

Talk about Perkins case, where does this fall

Back 2

MC test and General jx: Though corp was incorporated in Phillipines, it conducted all of its business from OH, but claim actually occurred during the tim it was still doing business in the Phillipines. Must be able to treat it like OH resident. If it walks like a duck, looks like a duck, quacks like a duck, it's a duck

Front 3

Talk about general jx and service of process

Back 3

A resident of state can be served process, it does not matter where the claim arose, another state or another country

Front 4

General jx definition:

Back 4

Can be sued in the state of residence no matter where the use arose

Front 5

Talk about Mcs and specific jx
What case?

Back 5

"Dispute specific."
McGee v. Int'l Life: Reasonable to foresee suit out of one activity that they intended to continue systematic and purposeful contact=C/a arose specifically from those substantial and purposeful acts

Front 6

Things that limit specific jx

Back 6

Unilateral decisions: Not going to hold someone liable for unilateral decision of another party. Foreseeability alone is not enough
Hanson v. Denkla: no specific jx: Trust originated in Delaware, and Mrs. Donnder chose to solicit the trust company (not vice versa), and then decided to move to FL. Therefore, court is not going to hold Deleware corp. liable for Donner's unilateral decision to move to FL.

Front 7

Specific vs. General Jx, talk about Helicopteros

Back 7

More difficult to prove general jx.
a. Helicopertos: Court "denied" specific jx by limiting specific jx to those causes of action "arising specifically out of contacts." NOT taking into account c/a's thatmay be "related to contacts." Forced to decide on general jx. Also, this case arose outside of the US--which may have been a deterrent to international transactions with US had it gone through

Front 8

What did Worldwide teach us?

Back 8

Foreseeability alone is not enough. Must also look to the reaosnableness by weighing the P and D's inconveniences. Court recognizes that it would be of little consequence to the Ps if they denied jx over the NY companies. Because there are still others would be responsible for any damages awarded.

Front 9

What did Burger King teach us?

Back 9

Once mcs are found, 5 "other factors" may be considered--determining whether the exercise of in personam jx is reasonable." (Burden on the D**, the forum state's interst in adjudicating, the P's interest in obtaining convenient and efficient relief, judicial efficiency in resolution, advancement of social policies). These relate to weighing traditional notions of fair play and substantial justice

Front 10

What else did BK teach us about choice of law clause?

Back 10

The choice of law clause in the franchise contract (FL) = Rudzewicz purposesly availed himself to the FL forum- mcs?

Front 11

What did BK show about Rule 4(k):

Back 11

4k: Territorial Limits on Effective Service: Service of summons or filing a waiver of service is effective to establish jx over the person of a D:
i. Under general jx
ii. Who is a party joined under Rule 14 or Rule 19
iii. Who is subject to federal interpleader jx
iv. When authorized by a statute of the U.S.

Front 12

What is Title 28 1338?

Back 12

Patents and Copyrights: Confers original jx to district courts over any questions involving patents and copyrights

Front 13

What did Asahi Metal show?

Back 13

In personam jx requires more than a "mere awareness." Where just because a co. is aware that another international co. it does business with, also does business in the U.S., does not mean that it is purposefully availing itself to that jx also, by doing business with that company. Speaks to "reasonableness."

Front 14

Talk about Rule 14a in Asahi

Back 14

Asahi impleaded by Rule 14a, but the cause of action under which it was impleaded was under Taiwanese or Japanese law. CA plaintiff had already been settled=CA interests have already been settled as well. i. CA might have deterrent interest
ii. Ultimately the contacts with CA are not sufficient, and CA has no real interest
iii. Don't cite Asahi for the proposition of stream of commerce argument-just O'Connor's view

Front 15

What does Rule 14a say? 14b?

Back 15

Impleader: When a defendant may bring in a third party. (14b: When a plaintiff may bring in a third party). The original D becomes the third party P, and may cause summons and complaint to be served upon a person not part to the action who is or may be liable to the third party P for all or part of the P's claim against the 3rd party P

Front 16

Talk about MCs and general jx

Back 16

"Dispute Blind" exists where the D's contacts (number and quality) with the forum state are sufficiently substantial that one may litigate any dispute in the court or forum Though corp was incorporated in Phillipines, it conducted all of its business from OH, but claim actually occurred during the tim it was still doing business in the Phillipines. Must be able to treat it like OH resident. If it walks like a duck, looks like a duck, quacks like a duck, it's a duck

Front 17

Talk about Perkins case, where does this fall

Back 17

MC test and General jx: Though corp was incorporated in Phillipines, it conducted all of its business from OH, but claim actually occurred during the tim it was still doing business in the Phillipines. Must be able to treat it like OH resident. If it walks like a duck, looks like a duck, quacks like a duck, it's a duck

Front 18

Talk about general jx and service of process

Back 18

A resident of state can be served process, it does not matter where the claim arose, another state or another country

Front 19

General jx definition:

Back 19

Can be sued in the state of residence no matter where the use arose

Front 20

Talk about Mcs and specific jx
What case?

Back 20

"Dispute specific."
McGee v. Int'l Life: Reasonable to foresee suit out of one activity that they intended to continue systematic and purposeful contact=C/a arose specifically from those substantial and purposeful acts

Front 21

Things that limit specific jx

Back 21

Unilateral decisions: Not going to hold someone liable for unilateral decision of another party. Foreseeability alone is not enough
Hanson v. Denkla: no specific jx: Trust originated in Delaware, and Mrs. Donnder chose to solicit the trust company (not vice versa), and then decided to move to FL. Therefore, court is not going to hold Deleware corp. liable for Donner's unilateral decision to move to FL.

Front 22

Specific vs. General Jx, talk about Helicopteros

Back 22

More difficult to prove general jx.
a. Helicopertos: Court "denied" specific jx by limiting specific jx to those causes of action "arising specifically out of contacts." NOT taking into account c/a's thatmay be "related to contacts." Forced to decide on general jx. Also, this case arose outside of the US--which may have been a deterrent to international transactions with US had it gone through

Front 23

What did Worldwide teach us?

Back 23

Foreseeability alone is not enough. Must also look to the reaosnableness by weighing the P and D's inconveniences. Court recognizes that it would be of little consequence to the Ps if they denied jx over the NY companies. Because there are still others would be responsible for any damages awarded.

Front 24

What did Burger King teach us?

Back 24

Once mcs are found, 5 "other factors" may be considered--determining whether the exercise of in personam jx is reasonable." (Burden on the D**, the forum state's interst in adjudicating, the P's interest in obtaining convenient and efficient relief, judicial efficiency in resolution, advancement of social policies). These relate to weighing traditional notions of fair play and substantial justice

Front 25

What else did BK teach us about choice of law clause?

Back 25

The choice of law clause in the franchise contract (FL) = Rudzewicz purposesly availed himself to the FL forum- mcs?

Front 26

What did BK show about Rule 4(k):

Back 26

4k: Territorial Limits on Effective Service: Service of summons or filing a waiver of service is effective to establish jx over the person of a D:
i. Under general jx
ii. Who is a party joined under Rule 14 or Rule 19
iii. Who is subject to federal interpleader jx
iv. When authorized by a statute of the U.S.

Front 27

What is Title 28 1338?

Back 27

Patents and Copyrights: Confers original jx to district courts over any questions involving patents and copyrights

Front 28

What did Asahi Metal show?

Back 28

In personam jx requires more than a "mere awareness." Where just because a co. is aware that another international co. it does business with, also does business in the U.S., does not mean that it is purposefully availing itself to that jx also, by doing business with that company. Speaks to "reasonableness."

Front 29

Talk about Rule 14a in Asahi

Back 29

Asahi impleaded by Rule 14a, but the cause of action under which it was impleaded was under Taiwanese or Japanese law. CA plaintiff had already been settled=CA interests have already been settled as well. i. CA might have deterrent interest
ii. Ultimately the contacts with CA are not sufficient, and CA has no real interest
iii. Don't cite Asahi for the proposition of stream of commerce argument-just O'Connor's view

Front 30

What does Rule 14a say? 14b?

Back 30

Impleader: When a defendant may bring in a third party. (14b: When a plaintiff may bring in a third party). The original D becomes the third party P, and may cause summons and complaint to be served upon a person not part to the action who is or may be liable to the third party P for all or part of the P's claim against the 3rd party P

Front 31

What does Title 28 Sec 1332 do

Back 31

Diversity of Citizenship: Allows CS to confer jx upon inferior courts (courts of inferior jx) as in lower courts to hear cases between states and non-residents

Front 32

Talk about 1332c1

Back 32

Definition of corporation for use in 1332 and 1441

Front 33

Talk about Rule 18a (also saw this in Asahi)

Back 33

A party asserting a claim to relief may join either as independent or alternate claims, as many claims, as the party has against the opposing party

Front 34

Talk about Rule 13g (saw this in Asahi)

Back 34

Cross-Claim against a 3rd party: A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurence that is the subject matter of either the original action or of a counter claim therein or relating to any property that is subject matter of the original action.

Front 35

What does Title 28 1331 do (saw this in Asahi)

Back 35

Gives the P the option to file in state or federal court

Front 36

Talk about the effects test

Back 36

Calder v. Jones and Pugh v. Socialist People's Libyan Arab Jamah:
A foreign act that is both aimed and has the effect in the forum state satisfies PA prong of specific jx analysis. 3-pronged test.
Saw it where Ps were executors of American citizens killed with a bomb planted by Ds destroyed a French airliner en route b/t Congo and Paris. C'lly subject to jx in US b/c they knew it was International flight, foreseeable that citizens from man nations on board, and b/c U.S has strong interest in preventing and punishing international terrorism

Front 37

Long Arm statutes, generally

Back 37

A court will not find in pers jx unless there is statutory authorization for the exercise of that jx. Remember, this determination can be made only after mcs have been established

Front 38

Long arm statutes(LAS), what do they do?

Back 38

Reach across state lines and assert state's authority to reach into another particular state or country, and thereby subject a person or corp to its jx

Front 39

First of 3 forms that LAS can take:

Back 39

CA: A court can authorize jx through the C in a very broad manner. See I'l Shoe. "A court of this state may exercise jx on any basis no inconsistent with the C of this state or of the U.S."

Front 40

lAS 2nd form:

Back 40

NY: The statute can also be detailed, setting out particular circumstances under which the state intends to exercise jx, usually these statutes do not exceed jx to the full extent permitted by the DP clause hence the gap Jiminez has discussed

Front 41

LAS 3rd form:

Back 41

Blend: A state can also blend both approaches allowing specific details of applicability to prevent any confusion re: application of the broad statute

Front 42

What did Bensusan Restaurant Corp. v. King show

Back 42

The federal courts follow the long-arm statute of the state n which they sit (Rule 4k). In NY in personam jx requires that the tortious act to have taken place in NY. This was not the case, decided in favor of D

Front 43

Internet notes on long-arm statutes page 233

Back 43

No answer yet

Front 44

WWhat specific question did Omni Capital v. Rudolf Wolff Co (foreign Ds) involve?

Back 44

Rule 4k2, which allows the aggregation of all contacts between the D and the US as a whole as a basis for jx over foreign Ds. However, does that enlarge the scope of substantive federal law under which the D is being sued?--Going against the Federal Rules Enabling Act, "shall not abridge, enlarge or modify any substantive right."

Front 45

Talk some more about Rule 4k in Omni, this part is subsection a for last flashcard

Back 45

Rule 4k2: If the exercise of jx is consistent with C and laws of US service a summons or filing a waive of service is also effective, with respect to claims arising under federal law, to establish personal jx over the person of any D who is not subject to the jx of the courts of general jx of any state.

Front 46

Talk more about Rule 4k and Omni, this is subsection b

Back 46

4k1 is a basic framework for exercising territorial jx over a D found within US

Front 47

Talk more, this is subsection c

Back 47

nothing

Front 48

subsection d

Back 48

4k1a: provides that each of the state's territorial jx governs in the absence of a federal rule

Front 49

subsection e

Back 49

4k1b: provides that third-party Ds impleaded are subject to in per jx in federal court, provided they can be served wih process within 100 miles of the federal courthouse, "bulge" jx...available in federal question cases, diversity cases, and cases of subject matter jx.

Front 50

subsection f

Back 50

4k1c&d indicate that a federal interpleader statute, authorizes in personam jx

Front 51

ssubsection g

Back 51

4k2 provides for territorial jx over Ds found outside US...restritcted by allowing nationwide aggregation of contacts for purposes of assertion of jx of a foreign D, but only in cases where the claim arise under federal law, and only where there is not state that D. Then some of Colin's blue notes

Front 52

subsection h

Back 52

Rule 4f (pre 1993) describes where process may be served, authorizing service in the State, or anywhere else authorized by a federal statute or by the Rule

Front 53

ssubsection i

Back 53

Rule 4e: a federal court normally looks either to a federal statute or to the long-arm statute of the State in absence of a foreign statute

Front 54

subsection j

Back 54

Rule 82: You can't view the Rules as permitting jx in themselves
i. If you can implead, you sill need to determine jx, and the question becomes...whose rule you look to--usually the federal court looks to the jx of the state in which they are sitting.

Front 55

subsection k

Back 55

1391: Assures convenience to Ps and Ds...an alien can be sued in any jx

Front 56

Talk about presence of property in a state

Back 56

does not automatically confer jx over the owner's interet in the property where presence of the propery alone does not support jx if other mcs with state do not exist.

Front 57

Talk about Shaffer

Back 57

It is determined that the standards of fairness and substantial justice and mcs set forth in Int'l Shoe should be held to govern action in rem and quirem. Ownership of stock not enough

Front 58

Talk about Rule 20a in Shaffer

Back 58

Permissive Joinder of Parties: All persons may join in one action as ps if they assert a right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction.

Front 59

What happened in Burnham?

Back 59

Divorce case: F served D with process while he was visiting the kids to settle claims of property. Had F just wanted to dissolve marriage there would be no reason to obtain jx over her husband, however, jx over the person is requred to deprive one of their property. The court determined that presence, for all intensive purposes, was alone, still enough to establish in per jx (ie mcs not needed). Although-the concurring justices determined that there were mcs

Front 60

Talk about presence and domicile generally:

Back 60

"Domicile in the state is alone sufficient to bring an absent D within the reach of the state's jx for purposes of a personal judgment by means of personal or appropriate substituted service."
a. For most issues your place of residence is the same as your domicile--however, your domicile can be defined as being the place where you intend to stay for an indefinite amount of time

Front 61

Talk about Fraudently induced presence:

Back 61

Service of process on someone who has been fraudulently enticed into the state will not confer in personam jx

Front 62

Talk about 1391a, a3:

Back 62

A civil action based on diversity of citizenship may be brought only in (3) a judicial district in which any D is subject to personal jx at the time the action commenced, if there is no district in which the actoin may otherwise be brought

Front 63

Talk about Rule 12b3:

Back 63

A defense of improper venue--a motion made before pleading

Front 64

Talk about notice

Back 64

(Rule 4(c): Service of process required delivery of both a “summons” and a copy of the complaint.
(Rule 4(c)(2): Service can be made by a non-party over the age of 18.
Rule 4(d)(2): Service can also be made by mail.
Rule 4(e)(2): A person may leave the summons and complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discreten then residing therein.
Rule 4(h): Service upon Corporations and Associations.
a.Service on corporations and unincorporated associations may be made by obtaining a waiver of service under Rule 4(d); by service in accordance with the state law 4(e); or by delivery of a copy of the summons and the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service or process.

Front 65

Talk about consent by appearance, first consent to general appearance

Back 65

a. D may have plausibly jx'l defense, but all things considered by decide that it is in his best interest simpl to litigate the merits and forgo contesting
b. May also be inadvertent if the D fails to make a timely objection

Front 66

Talk about consent by filing suit:

Back 66

A P is deemed to have consented to jx, at least for certain purposes, in a forum in which she has filed suit
a. Filing a cross-claim (Rule 13-a counter-claim in Federal Rules). The SC did not distinguish between compulsory and permissive cross claims. It did not insist that the subject matter of the cross claim be related to the subject matter of the original complaint.
b. In some class action cases over member of the class

Front 67

Talk about Consent by K case:

Back 67

Carnival Cruise Lines v. Shute: A forum clause on the back of a cruise ticket may be enforced. Based on the recognition of the need of certainty of a specific body of law, and a specific form. And recognizing costs if the cruise line was to have to defend itself all over the U.S.--saving which are passed down to passengers.
a. but consider--the clause was not freely bargained for, and the inconvenience for the WA residents to litigate in FL...also a powerful force in convincing parry to abandon ts claims

Front 68

Talk about 1404a with respect to consent:

Back 68

1404a: Motions to transfer: "For the convenience of parties and witnesses, in the interest of justice a district court may transfer any civil action to any other district or division where it might have been brought.--A forum selection clause has some wieght, but is not dispositive in all cases

Front 69

GTalk about 1338 and consent

Back 69

Patents

Front 70

What about 1441 and consent:

Back 70

Any case over which the fed courts might have jx, may be removed from federal to state court. THERE'S NO WAY THIS IS RIGHT!!!

Front 71

How do we object to jx?

Back 71

Speical Appearance: : Special appearance subjects the defendant to the decision of the court in which the appearance is made. A defendant who makes a special appearance for the purpose of contesting territorial jurisdiction, and loses, can only challenge the correctness of the jurisdiction by appealing within the court system that has asserted jurisdiction

Front 72

What did Insurance Corp of Ireland v. some Del. Corp tell us about objecting to jx?

Back 72

The Insurance Co. kept delaying the discovery of the files that the plaintiff requested. The court finds that by delaying discovery under Rule 37(b)(2)(A), the defendant is deemed to have waived any objection to jurisdiction, and therefore personal jurisdiction has been established.
a.Where a party raises the question of a defense, the court has jx to determine if there is jx, and has the authority to make requests/orders to determining that question – i.e. require discovery of some evidence.

Front 73

Talk about Rule 37b2A and objecting to jx

Back 73

Failure to comply with order: Sanctions by court in which action is pending. If a party fails to obey an order to provide or permit discovery, the court may make such orders in regard to the failure as are just… such as (A): An order that the matters regarding which the order was made shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

Front 74

Talk about Hypo with respect to objecting to personal jx

Back 74

A sues B in forum 1.
a. B challenges, special appearance, exercise of personal jx in forum 1.
i. Court finds jx
b. B goes home to forum 2--what happens?
i. The court will only have initial complaint from A. Until B denies, there is not litigation....
c. Anything that is not effectively denied is essentially an admission.
i. =Default judgment against B in forum 1
ii. A asks forum 2 to enforce judgment, and forum 2 must give full faith and credit, so long as there is competent jx: The court in forum 2 should say that jx was already decided in forum 1.
subsection 1 under last sentence: The judgment sought to be enforced must be competent jx
d. =B should have taken up the issue of jx on appeal in forum one=by leaving=too bad
e. If you had never shown up for special appearance, you could allow the court to make a default judgment, then contest the judgment in forum 2.