Civil Procedure: Personal Jurisdiction and Discovery | Study notes Civil procedure

Civil Procedure Outline

Personal Jurisdiction

I. In personam jurisdiction exercised over the defendant himself because he has an

appropriate connection with the forum.

a. Resides and intends to remain (domicile).

b. Acts committed in state.

c. Committed an act which impacted the state

I. In rem and quasi-in-rem jurisdiction is when there is jurisdiction because the defendant’s

property is located in the forum and that property may give the court its jurisdiction.

a. Tangible-houses, buildings, boats, books

b. Intangible-stocks and bonds, accounts.

c. Real property

II. 5th and 14th Amendments are the outer limits of personal jurisdiction over the defendant.

III. Long arm statutes can restrict when a court can have jurisdiction over a defendant further.

IV. Personal jurisdiction is always proper when the defendant:

a. Is served process in the forum state.

b. Resides in the forum state.

c. Is a business which is incorporated or has its principal place of business in that

State.

V. Absence is not a defenses. If you are domiciled in a state that is sufficient to allow service.

VI. Domiciliary means that you have consented to State’s benefits and protections

VII. Black Letter Law:

a. Minimum contacts with it such that maintenance of the suit does not offend

traditional notions of fair play and substantial justice.

b. The exercise of that privilege may give rise to obligations, and, so far as those

obligations arise out of or are connected with the activities within the state, a

procedure which requires the corporation to respond…can hardly be said to be

undue.

c. The activities were systematic and continuous…to establish sufficient contacts or

ties with the state of the forum to make it reasonable and just, according to

our…conception of fair play and justice, to permit the state it enforce is obligations

which the appellant has incurred there.

VIII.

Activities of the non-

resident defendant give rise

to the cause of action

Causes of action are

unconnected with the forum

Contacts with the forum is

continuous and systematic.

Yes, Proper jurisdiction

Maybe, general jurisdiction

Contacts with the forum is

single or isolated.

Maybe, specific jurisdiction

No, improper jurisdiction

IX. Transient jurisdiction is serving a nonresident defendant in the jurisdiction.

X. Minimum contacts test

a. Minimum contacts (must be done before fairness test)

i. Relevant contacts to Forum State.

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Civil Procedure Outline Personal Jurisdiction I. In personam jurisdiction exercised over the defendant himself because he has an appropriate connection with the forum. a. Resides and intends to remain (domicile). b. Acts committed in state. c. Committed an act which impacted the state I. In rem and quasi-in-rem jurisdiction is when there is jurisdiction because the defendant’s property is located in the forum and that property may give the court its jurisdiction. a. Tangible-houses, buildings, boats, books b. Intangible-stocks and bonds, accounts. c. Real property II. 5 th^ and 14th^ Amendments are the outer limits of personal jurisdiction over the defendant. III. Long arm statutes can restrict when a court can have jurisdiction over a defendant further. IV. Personal jurisdiction is always proper when the defendant: a. Is served process in the forum state. b. Resides in the forum state. c. Is a business which is incorporated or has its principal place of business in that State. V. Absence is not a defenses. If you are domiciled in a state that is sufficient to allow service. VI. Domiciliary means that you have consented to State’s benefits and protections VII. Black Letter Law: a. Minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. b. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond…can hardly be said to be undue. c. The activities were systematic and continuous… to establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our…conception of fair play and justice, to permit the state it enforce is obligations which the appellant has incurred there. VIII. Activities of the non- resident defendant give rise to the cause of action Causes of action are unconnected with the forum Contacts with the forum is continuous and systematic. Yes, Proper jurisdiction Maybe, general jurisdiction Contacts with the forum is single or isolated. Maybe, specific jurisdiction No, improper jurisdiction IX. Transient jurisdiction is serving a nonresident defendant in the jurisdiction. X. Minimum contacts test a. Minimum contacts (must be done before fairness test) i. Relevant contacts to Forum State.

ii. Relatedness to the cause of action b. Fairness factors i. Burden on the defendant. ii. Foreign State’s interest. iii. Plaintiff’s convenience iv. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies. v. The shared interest of the several States in furnishing fundamental substantive social policies. c. Purposefully availed themselves so that they could reasonably anticipate being haled into court. XI. Contract provisions alone are not sufficient to establish personal jurisdiction. XII. A unilateral act by the plaintiff is not sufficient to establish personal jurisdiction. XIII. In product liability cases, stream of commerce, it is the defendant’s purposeful availment that makes jurisdiction consistent with traditional notions of fair play and substantial justice. Notice I. Notice is a full opportunity to appear and be heard. II. Black Letter Law: a. Notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. III. Rule 4 a. Process is a summons and a complaint. b. Plaintiff has 120 days to serve after filing a complaint or the complaint will be dismissed without prejudice. c. Rule 4(e) allows service at: i. According to State law. ii. Personal service iii. At their abode(substitute) iv. By an authorized agent. d. “Actual” Notice (telling them without a summons and complaint) not proper service. e. Waiver of service: i. Defendant has an advantage of more time to respond to the complaint. ii. Defendant could incur the costs if not waived. iii. Plaintiff can proceed with other service when there is no defendant response. f. Statute of limitations ends when the complaint is filed. If the defendant is not served and the claim is dismissed after, it is done so without prejudice. The plaintiff might be barred from bringing a second suit, though, unless they can show good cause. Venue I. § (b)(1) Any district where a defendant resides, if all are residents of the same state.

a. Every single claim (not just plaintiff’s claim) must assert subject matter jurisdiction. b. Supplemental not available when there is an original basis of Federal subject matter jurisdiction. c. The general rule for supplemental jurisdiction is that claims which form part of the same cases. d. Supplemental jurisdiction under 1367 (a) Requires the same common nucleus of operative facts and must be met no matter what. (b) When the original cause of action is based solely on diversity jurisdiction and arises from the common nucleus of operative facts, prohibits the plaintiff attempting to bring claims or parties in under Rules 14, 19, 20 or 24. Pleading I. Have to state a cognizable claim; one in which relief can be granted. II. If the defendant fails to answer, there will be a default judgment against the defendant. III. Rule 8 requirements for pleading a. Establish jurisdictions b. Short and plain statement of claim showing that plaintiff is entitled to relief c. A demand for judgment being sought. IV. 2 kinds of sufficiency to satisfy Rule 12(b)(6): a. Legal sufficient: if plaintiff proved everything, would they win? b. Factual sufficiency: i. BLL:

First, the tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions.
Second, only a claim that states a plausible claim for relief survives motion to dismiss. [This is a] context specific task…But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown that the pleader is entitled to relief. V. Rule 8(d) allows a party to plead alternative claims or defenses and consistency does not matter. Rule 11 I. Special requirements a. By signing a document, the lawyer assures that he has made an inquiry reasonable under the circumstances and that all the statements are true. b. Not being presented for an improper purpose. (b)(1). c. Warranted by law or to modify, extend, or reverse existing law or strong argument to establish new law. (b)(2). d. Factual contentions have evidentiary support. (b)(3). II. 2 ways to bring forth violations: a. Sua sponte-Court brings it up from the bench. b. Opposing party brings it up.

Response/Answer I. No answer leads to a default judgment. II. Answers require due diligence. III. 12(b)(1) can be brought at any time. IV. 12(b)(2)-(5) must be presented in first defensive response, whether in a motion or an answer. If they are not presented then, they will be waived. V. 12(b)(6) & (7) can be presented as late as at trial before the judgment. VI. Rule 12(e) motion for a more definitive statement: a. Complaint cannot be understood. b. Must be made in a pre-answer motion. c. Will be provided with 14 days to amend the complaint. VII. Rule 12(f) motion to strike a. Must be made before answer within 21 days. VIII. Rule 12(b)(c) motion for a judgment on the pleadings. a. Similar to a 12(b)(6) motion. IX. Response to claims and affirmative defenses (Rule 8(c)(1)). a. Admit allegations. b. Deny allegations c. Lack sufficient knowledge; an effective denial. Rule 8(b)(5). X. You must admit what is true and use specificity when you deny. A general denial is not enough. XI. BLL: a. When a pleader intends in good faith to deny only a part…he shall specify so much as is true and material and shall deny only the remainder. b. The doctrine of equitable estoppel will be applied to prevent a party from taking advantage of the statute of limitations where the plaintiff has been misled by the conduct of such party. XII. All allegations not properly denied are deemed to be admitted. XIII. Nonresponse is treated as an admission. XIV. Affirmative defenses (Rule 8(c)(1)): a. Have to put in facts to support why the defendant is not liable, even if he actually did the act. b. Parties or court can raise affirmative defense. c. Must come in answer and defendant has the burden. Reply I. Only if required by the court, the plaintiff will respond to defendant’s answer. II. If not required, an allegation is considered denied or avoided. Discovery I. Scope of Discovery (Rule 26(b)): a. All information which is relevant to a claim or defense of a party. b. With court’s permission, can gather information related to the subject matter of the litigation. c. Relevant information need not be admissible at trial if is reasonably calculated to lead to admissible evidence.

c. Requesting party must demonstrate good cause to justify the examination. i. The examined party may request a copy of the report and party requesting may get copies of any reports arising from any similar examination. VI. Interrogatories (Rule 33): a. A party may send written questions to the opposing party. b. Limited to 25 interrogatories unless the court otherwise orders. c. Allows for the questioning party to view the respondent’s business records to figure out the answers themselves. VII. Admissions (Rule 36): a. Matter is admitted unless a written answer or objection is served. b. A party may qualify an answer when good faith requires it. VIII. Deposition (Rule 30): a. Any person with testimony can be called; need not be a party. b. Objection-confusing question, privilege, confidential, and relevance. c. May instruct a client not to answer when preserving a privilege. d. Limited to 1 day of 7 hours. IX. Privileges [Rule 26(b)(3)]: a. Work Product-Materials assembled in the ordinary course of business or pursuant to a litigation or other no litigation purposes. i. If requested, claim a privilege under 26(b)(5) and ask for a protective order under Rule (26)(c)(1). b. Attorney-client privilege i. Assert the holder is or is seeking to be a client. ii. Person to whom the communication was made

A member of the bar or his/her subordinate.
Is communicating as a lawyer. iii. Communication relates to a fact for the purpose of securing either an opinion of law or legal services. c. Protects communications rather than information or facts. d. BLL: i. This work is reflected…in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-“work product of a lawyer.” Joinder I. Is there a joinder provision which allows assertion of this claim? If yes, move on to establishing subject matter jurisdiction. II. Rule 18(a) abolishes prohibition against bringing unrelated claims against defendant. a. It is permissive and does not require a claim be brought. b. The rule does not stop you from bringing a later claim, but if it is transactionally related, you may be barred from later bringing it (claim preclusion). c. There must be an initial claim, counterclaim, or crossclaim before Rule 18 can join any claims. i. Common nucleus of operative facts ii. Solely diverse iii. Supplemental and joinder exceptions.

III. Rule 13: a. Compulsory counterclaim [Rule 13(a)] is a claim asserted by a defendant that arises out of the same transaction or occurrences. If a defendant fails to assert, cannot be asserted later due to claim preclusion. b. Permissive counterclaims [Rule 13(b)] is a claim not related to the same transaction or occurrence and which must have its own independent basis. c. Rule 13(c) allows the counterclaim to exceed the plaintiff’s claim and to be of a different type. d. Rule 13(e) allows defendant to assert later claims. e. Crossclaims (Rule 13(g)): i. Permissive ii. Claims against a co-party iii. Must arise from the same transaction or occurrence. iv. May include that co-party is or may be liable. f. Party against whom a crossclaim or counterclaim is brought must respond as the defendant or risk default judgment. g. In crossclaims and counterclaims, we assume the court has jurisdiction over the defendant. IV. Rule 20: Joiner of parties a. Trial court has discretion to deny joinder of a party when it might produce jury confusion or misjoinder. b. BLL: i. The purpose of the rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. ii. The rule imposes two specific requisites…: (1) a right to relief must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence … (2) Some question of law or fact in common. c. Misjoinder severs but does not dismiss a claim. V. Rule 14: Third party a. Defendant may implead a third party who is or who may be partly or wholly liable. b. Third party defenses: i. Rule 12 defenses ii. Defenses that defendant has to plaintiff’s claim iii. Third party may assert claims against plaintiff, defendant, or 4th^ party defendant. c. Procedure: Defendant impleads within 14 day window or seeks court’s permission d. Plaintiff can seek claims against 3rd^ party. e. Impleading is for contribution or indemnification f. BLL: i. Under 14(a), a defendant may assert a claim against anyone not a party to the original action if that party’s liability is in some way dependent on the outcome of the original action. ii. The third party liability must in some way be derivative of the original claim; a third party may be impleaded only when the original defendant is trying to pass all or part of the liability onto that third party.

ii. Defendant

Presents evidence
Rests
Plaintiff moves for judgment as a matter of law. iii. Rebuttal→close evidence
plaintiff/defendant moves for judgment as a matter of law iv. Verdict
Plaintiff/defendant moves for a renewed judgment as a matter of law (judgment notwithstanding the verdict) a. Must have put fourth an earlier motion or it is waived.

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