Civil Procedure Outline

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Civil Procedure Activity Diagram

Personal Jurisdiction

Jurisdiction has to conform to "traditional notions of fair play and substantial justice" (International Shoe Co. v. Washington).
A state has in personam jurisdiction over an individual if they are in the state where a suit is sought, even if the individual is there only briefly ("transient jurisdiction", Grace v. MacArthur, see Pennoyer v. Neff). This only works for individuals—one cannot get jurisdiction over a corporation just because one of its officers are traveling through the state (Glannon, 309).
If one appears to contest the merits of a case, one submits to the jurisdiction of the state and implicitly grants jurisdiction (Adam v. Saenger, Neihaus v. Superior Court).
A state has jurisdiction over a defendant if the defendant has "minimum contacts" with the state based upon their "quality and nature". Sometimes a single contact will do, but not "casual" or "isolated" contacts (International Shoe Co. v. Washington, Glannon, 4). In general, the claim must "arise out of" those contacts (Helicopteros Nacionales De Colombia, S.A. v. Hall)
Contacts must be "purposeful" in that the defendant "purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws (Hanson v. Denckle, see Kulko v. Superior Court, Glannon, 8, 21). (Compare Keeton v. Hustler Magazine with World-Wide Volkswagon Corp. v. Woodson.)
General nationwide sales promotion is not sufficient to create in personam jurisdiction (Fisher Governor Company v. Superior Court).
Sometimes a single contact will allow jurisdiction, if for example a contract was solicited in the state (McGee v. International Life Insurance Company, Glannon, 5). The contacts cannot be "casual" or "isolated" (International Shoe Co. v. Washington, Glannon, 4). It must be a single, purposeful act and the suit must be related to the consequences that predictably ensue from it (Glannon, 15).
There must be a balance among the plaintiff's interests in suing, the state's interest in having jurisdiction, and the defendant's inconvenience in appearing (Buckeye Boiler Company v. Superior Court).
It is important whether the defedant, the forum, and the litigation have a relationship (Keeton v. Hustler Magazine).
Personal jurisdiction rules are defendant-oriented (Glannon, 14). It is irrelevant whether plaintiff has any relationship to jurisdiction (Keeton v. Hustler Magazine). A unilateral contact of the plaintiff is not sufficient to give jurisdiction over the defendant. The court focuses on the scope of the activity of the seller, not the predictable area of use of the product by the buyer. (Glannon, 16).
A unilateral transfer of a good by a customer does not grant jurisdiction over the seller (World-Wide Volkswagon Corp. v. Woodson). Similarly, mere foreseeability or awareness that a component will, in a "stream of commerce" reach a particular forum state does not without additional purposeful conduct subject the seller to the jurisdiction of the target state (Asahi Metal Industry Co. v. Superior Court).

forum non conveniens

Federal District Court: (28 USC § 1404(a): "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."
State Court: Gulf Oil Corp. v. Gilbert
"Unless the balance weighs strongly in favor of the defendant, the plaintiffs choice of a forum will rarely be disturbed" (Great Northern Railway Company v. Superior Court).
For a successful motion of forum non conveniens, a defendant must show:
1. An adequate alternate forum is available (Shreve, 161). A plaintiff cannot defeat this motion solely because the substantive law in the alternative forum would be less favorable to the plaintiff (Piper Aircraft Co. v. Reyno).
2. Considerations of party and forum convenience override the plaintiff's choice (Glannon, 162).

Factors (Piper Aircraft Co. v. Reyno, citing Gulf Oil Corp. v. Gilbert):

relative ease of access to sources of proof
availability of compulsory process for attendance of unwilling witnesses
the cost of obtaining attendance of willing witnesses
possibility of view of of premises, if view would be appropriate to the action
all other practical problems that make trial of a case easy, expeditious, and inexpensive.

Subject Matter Jurisdiction

Most actions can be brought in state courst. Actions can only be brought in federal district courts as allowed by the Constitution Article III § 2 and as allowed by Congress:

Subject Matter Activity Diagram

Individual residence: domicile—where the defendant subjectively intends to permanently live.
Corporate residence: The state of incorportation, or the principal place of business. The latter, depending on which line of court cases is followed, can be (Glannon, 87):
- "brain" model: Where the headquarters are.
- "brawn" model: Where most of the business takes place—the "nerve center".

Law under Diversity Jurisdiction

Swift v. Tyson is just a bad memory—under Erie Railroad Co. v. Tompkins courts must apply the law that would be applied by the courts of the state in which they sit.
The judge is free to make an educated guess as to what a state supreme court would say today on an issue, not just "parrot" what the state supreme court has said in the past (Glannon, 173).
"outcome-determinative:" If a state procedure might "significantly affect the result of a litigation," that procedure must be followed, too (Guaranty Trust Co. v. New York). This can't be used for forum shopping, however (Hanna v. Plumer).
Constitutional law, substantive or procedural, always wins (Glannon, 193).
Federal statue also also trumps state law (Stewart Organization, Inc., v. Ricoh Corporation, Glannon, 194).
The Federal Rules of Civil Procedure usually win over state laws (Hanna v. Plumer, Glannon, 194).

Removal by Defendant (28 U.S.C. § 1446)

All the defendants must join in the request.
Removal must be within 30 days of receiving the complaint (28 U.S.C. § 1446(b), Glannon, 119).
It must be that the original complaint would have had federal jurisdiction (28 U.S.C. § 1441(a), Glannon, 114).
In a diversity case, none of the defendants is a citizen of the state in which the action is brought (28 U.S.C. § 1441(b), Glannon, 114).

Venue

Federal venue under 28 U.S.C. § 1391:

Federal Venue Activity Diagram

Individual residence: weight of authority equates residence with domicile.
Corporate residence: any district in which the corporation is subject to personal jurisdiction (28 U.S.C. § 1391(c)), Glannon, 136).
Defendant may waive venue rights by failing to raise an objection (Glannon, 133).
Some types of federal claims (such as patent infringements) have special statutes regarding venue (Glannon, 134).
"Local actions" (such as land actions) must be brought in the county or district in which the land is located (Glannon, 134).

Asserting Claim

Service of Process

Besides complying to the rules, service must meet the constitutional requirement of being "reasonably calculated ... to apprise interested parties of the pendency of the action ...." (Mullane v. Central Hanover Bank & Trust, Glannon, 309-310).

	California Civil Procedure	Federal Rules of Civil Procedure
Who	"... any person who is at least 18 years of age and not a party to the action." (CCP § 414.10).	"...any person who is not a party and who is at least 18 years of age ... [or] a United States marshall, deputy United States marshall, or other person or officer specifically appointed by the court for that purpose." (FRCP Rule 4(c)(2)).
How (Individual Defendant)	by "... delivery ... to the person to be served" (CCP § 415.10), or by "leaving a copy ... during usual office hours in his or her office with the person who is apparently in charge thereof, and by thereafter mailing a copy ... to the person to be served at the place where a copy of the summons and of the complaint were left" (CCP § 415.20(a)), or if it "cannot with reasonable diligence be personally delivered to the person to be served ..., a summons may be served by leaving a copy ... at such person's dwelling place, usual place of abode, usual place of business, or usual mailing address ..., in the presence of a competent member of the household or a person apparently in charge ..., at least 18 years of age ..., and by thereafter mailing a copy ... to the person to be served at the place where a copy of the summons and of the complaint were left." (CCP § 415.20(b))	"pursuant to the law of the state in which the district court is located, or in which service is effected ..." (FRCP Rule 4(e)(1)), or "by delivering a copy ... to the individual personally ..." (FRCP Rule 4(e)(2)), or "by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein ..." (FRCP Rule 4(e)(2)), or "by delivering a copy ... to an agent authorized by appointment or by law to receive service of process" (FRCP Rule 4(e)(2))
How (Corporate Defendant)	"... delivering a copy ... to the person designated as agent for service of process ..." (CCP § 416.10(a)), or "... delivering a copy ... to the president ..., vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process" (CCP § 416.10(b)), or if the corporation is a bank, delivering a copy "to a cashier or assistant cashier ..." (CCP § 416.10(c)), or	"... in the manner prescribed for individuals ..." (FRCP Rule 4(h)(1)), or "by delivering a copy ... to an officer, a managing or general agent, or to any agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant" (FRCP Rule 4(h)(1)), or

Responses

In response: file an answer rule 12(a), motion to dismiss 12(b), Glannon 313.

Rule 12. Defenses and Objections

(a) When Presented.
(b) How Presented.
- (1) lack of jurisdiction over the subject matter
- (2) lack of jurisdiction over 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
(c) Motion for Judgment on the Pleadings
(d) Preliminary Hearings
(e) Motion for More Definite Statement
(f) Motion to Strike
(g) Consolidation of Defenses in Motion
(h) Waiver or Preservation of Certain Defenses

There are four "disfavored" 12(b) defenses that must be raised in the pre-answer motion or (if a pre-answer motion is not made) in the answer: 12(b)(2) personal jurisdiction, 12(b)(3) venue, 12(b)(4) the form of the process, 12(b)(5) and the method of service of process (Glannon, 315).

Works Cited

Glannon, Joseph W. Civil Procedure: Examples and Explanations, Fourth Edition. Gaithersburg: Apsen Publishers, 2001.
Shreve, Gene R. and Peter Raven-Hansen. Understanding Civil Procedure, Third Edition. Newark: LexisNexis, 2002.

Version 20021210