Civ Pro Test Outline
Civil Procedure: Cases and Materials 6th Edition
John C. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton
Rush v. City of Maple Heights
Res Judicata--final & binding dec.
Issue of Preclusion
Claim of Preclusion
Stare Decis 4 lower cts
Leg. v. Jud
1) Leg.
1. Det. the jxn. of cts
2. Can overrule any C/L
2) Jud.
1. Follow statutes as long as Const.
2. Dec. Const.
3. Defer D in C/L 2 leg. usually
Pennoyer v. Neff
Terr. sov. of state & ct.
In Personam Jxn--FF&CC, Res Judicata, Preclusions (issue & claim)
In Rem--No Res Judicata, & Preclusions (issue & claim)
Quasi In Rem--No Res Judicata
Dir. Appeal
Collateral Appeal
Grace v. MacArthur
P. 74 Nt 4
Served notice in plane which is valid b/c terr. land up
Milliken v. Meyer
P. 73 Nt 5
Cant take irreconciliable difs collaterally
Persons Home is basis 4 jxn
Gen Jxn
Domicile (Milliken v. Meyer)
Presence (Grace v. MacArthur)
Sys & Cont. (Int. Shoe)
Specif. Jxn
Specif. issue like car (Hess) / tax (Int. Shoe)
Hess v. Pawloski
Specif. Jxn
Spec. Appearance
Appeal both jxn & merit
Implied consent 2 reach jxn 2 non-residents (agent 4 serv. w/in state)
Statutory construction issue--Statute giving rise 2 C/A
PA statute giving jxn over auto accident
Int. Shoe Co. v. Wash.
Statutory construction issue--statute giving rise 2 C/A
Const. Issue--due process
Jud. Jxn
1. Jxn 2 adjudicate
2. Rendering binding dec
Leg. Jxn
Subst. law jxn
L-A Statute--only need 14th amend. arg. 2 go as far as Const. permits
Min Contact
1. Trad. notions of fair play & subst. justice
2. Rsblness 2 subj. D & notice
3. Basis 4 specif. jxn but eventually 4 gen
4. Purposefully comes in contact w/the state
Facts
1. Salesmen resided in Wash.
2. Their activities in state where commissioned
3. Supplied them w/line of samples 2 display 2 purchasers
4. Rented perm sample rooms
5. Merchandise shipped into Wash.
6. Systematic solicitation of orders
McGee v. International Life Insurance Co.
Statute 4 C/A
No need 4 serving in state
Rsbl stand. b/c subst. dealing in state CA although just 1 busi.
Purposeful Availment
Options of D
1. Default
2. Spec. Appearance--preserve jxn pt in dir. appeal
Facts of Contacts
1. One policy w/McGee in CA
2. K delivered in CA, premiums mailed there
3. Resident of CA
4. CAs int.
Hanson v. Denckla
Collateral Attack
NO prop., min. contact, / purposeful availment so no jxn by FL
Limit the reach of states
Facts
1. Trust in DL
2. Moved 2 FL
3. Ded beneficiaries in FL
4. DL Co. not present in FL
World-Wide Volkswagen Corp. v. Woodson
No jxn. b/c no purposeful availment, no min. contact
1. Fair play & subst. justice 2 D
2. Terr.
Manufacturers should anticipate but Distributors dont 4 prod. liability
Specif. Jxn
1. Arise out of the contacts 2 purposefully avail or related 2 the
contacts / axns
2. Axns/contacts R dired @ the forum state
Brennans Dissent that look @ all parties, choice of law relev.
Unilateral activity by P isnt enough 2 find jxn over D
Facts
1. Bought in NY
2. Accident in OK
3. No contacts of sales, servs,advertise, /purposefully avail
themselves 2 the law
Keeton Case
Statute gave rise 2 C/A
Multi-state jxn b/c arise out of more than 1 state
Potential of Specif. Jxn.
Hussler & megazines
Burger King Corp. v. Rudzewicz
Fed. Ct. proceedings
Choice of law provision which is dif. from selection of forum
Purposefully Avil 2 the law b/c contractually agree 2 the law of FL
Sliding Scale of Brennan
1. Purposeful availment & Min. Contact v. Fairness,
Subst. Justice,
Rsblness
2. If really fair, not need as much of purposeful availment &
min. contact
3. If really unfair, doesnt matter if lots of min. contact ested
5 factors of fairness
1. The burden on the D
2. Forum states int. in adjudicating the dispute
3. Ps int. in obtaining convenient & effective relief
4. Interstate jud. syss int. in efficient resolution of controversies
5. Shared int. of the several states in furthering fund.
subst. soc. policies
Burdens of Proof
1. P has burden 2 prove jxn & contact
2. D has burden 2 prove a compelling case of unfairness
Accomodation of unfairness by D of venue
Facts
1. BK in FL while franchisee in Mich.
2. Choice of law, benefit, K of subst cnxn w/FL, reached deliberately
beyond Mich., negotiations, vol. acceptance, mail & telephone
Asahi Metal Ind Co. v. Superior Ct.
Stream of Commerce
1. Manufacturer & Importer put the prod dirly into stream of commerce
2. Five justices said its enough & should anticipate b/c purposeful
availment
3. Four justices said need more
Additional activities D dired purposefully @ the forum state 2 stream of
commerce 2 est. jxn
1. Designing the prod. 4 the mkt in the forum state
2. Advertising in the forum state
3. Esting channels 4 providing regular advice 2 customers in the
forum state
4. Mkting the prod. through a distributor who has agreed 2 serve as
the sale agent in the forum state
Brennans Sliding Scale
1. Compelling case of unfairness
2. Foreign element
Consistency in indemnification
Facts
1. Asahi manufactures 2 Cheng Shin
2. Aware that valve sold 2 Cheng Shin will B sold 2 US
Perkins v. Benguet Consolidated Mining Co.
Gen. Jxn--unrel. 2 cause of axn / not arising out of that state
1. Pres maintained an office on behalf of the Co.
2. Office files maintained
3. Correspondence reling 2 the busi. of the Co.
4. Drew & distributed salary checks
5. Used banks in OH 4 balancing Co. funds
6. Meetings held @ home
7. Supervised policies of the Co.
Cont. & Sys
Helicopteros Nacionales de Colombia v. Hall
Gen. Jxn not enough
Foreign element
4 pts failing gen jxn
1. No place of busi. in TX
2. One trip by chief executive officer 2 Houston
3. Acceptance from Consorcio/WSH of checks drawn on a TX bank
4. Purchases & the reled training trips of helicopter
Jxn over Prop.
No limited appearance
In personam immly upon enter
Issue preclusion
Prop incls movables like horses & debtors
Harris v. Balk
Respect FF&CC so debtors can B seized
Ontario & Vermont
Attached the obligation 2 defend by ins. co.
Shaffer v. Heitner
Overrule quasi-in-rem
Subst. law application doesnt translate into jud. jxn
Est. Min. Contact of Int. Shoe requirement
Due Process Clause used 2 overturn whats been accepted b/c not follow
w/the notions of modern socs view
Del. stocks were attached 2 get the directors
Burnham v. Superior Ct.
Due Process
1. Scalia claims that wont thrown out historically feasible things
2. Brennan claims that evolves w/the era so the stands can D so apply
Int. Shoe stand w/Ding X
Physical Presence still good 4 jxn
Accidental/Transitory Presence
1. Scalia--o.k.
2. Brennan--no P.A. b/c no choie & unilateral activity of someone not
connected 2 D so no jxn.
Facts
1. Busi. trip then visit children for the weekend where served
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee
Consent by D that ct. in PA will have jxn 2 det. if have jxn
Discovery Issue
M/S Bremen v. Zapata Off-Shore Co.
Consent in K 2 use London Ct.
Admiralty isnt binding on state ct.
Amer. cts cant B 2 parochial in international law
Carnival Cruise Lines v. Shute
K w/selected forum
1. FL has int.
2. Cost lowered=AF by it
Admiralty isnt binding on state ct.
Omni Capital international, Ltd. v. Rudolf Wolff & Co.
Const Issue
1. Fifth Amend.
2. Contact w/entire US
Statute
Need it 4 the ability 2 serve process
Rule 4(k)
1. Lec. 16
2. Serv. of summons effective
3. Jxn of gen jx of state ct--meet state statute req.
4. Impleader Rule of 100 miles
5. Authed by fed. law
6. Sub 2 addresses contact, pers. jxn, fed law, & not subj. 2 gen
jxn of state
Fairness
1. Change in venue
2. Not pertinent 2 5th Amend. so less imp in fed. law
Facts
1. CEA act used
Rule 12
Lec. 17
Mullane v. Central Hanover Bank & Trust Co.
Const.
1. Suff of Notice under 14th Amend.
2. Test--Rsbly calculated under all circs 2 afford them theopp. 2
present objs
Binding req. 4 min. notice 4 all states
Subj. Matter Jxn
Dismiss any X ct lacks subj. matter jxn Rule 12)h)3
Imp. 2 systemic rts of fed. govt & jud. pwr cant B waived by indiv.
Diversity
1. Art. III Sec. 2
2. Suits btwn cit of dif. states, btwn cit. of state & alien
3. Cong. Act of 1789--min. jxnal amt
4. No incompl. diversity by Strawbridge v. Curtiss--=A71332
Removal
By =A71441 must have had orig. jxn
Manufacturing Fed. Jxn
Not allowed by =A71359--no improper collusive 2 manufacture
Defeating Fed. Jxn--o.k.
Cit of Fictitious names R disregarded by =A71441(a)
Corporation
By =A71332 c)1), its a cit. of any state where incorp & where it has
princ. place of busi.
Limited Partnership
All cit. of partners count
Mas v. Perry
Domicile
Orig. b/c no intent 2 stay in LA
Supplemental Jxn
1. By =A71367 take other cases & sweep in
2. Common nucleus of fact
3. One person must @ least have orig. jxn
Last paragraph of =A71332a--alien perm res., cit of the state
Det of cit.--@ filing
Burden of Proof--person who brings suit
Min. Jxnal Amt
1. Appear 2 a legal certainty that the claim is really 4 less than
the jxnal amt 2 justify a dismissal
2. By =A71332b, Ct can deny costs 2 P & impose costs if P gets less
than jxnal amt
AFA Tours Inc v. Whitchurch
Test 2 det. min. jxnal amt--unless legal certainty its less
Ct. takes the active role in subj. matter jxn
Injunction
Both P & Ds values taken into acct
Backgrounds 2 Osborn
Art III =A71--inferior cts
Art III=A72--jud pwr 2 extend 2 law & equity arise under Const. laws, &
treaties
Specif. Jxnal Statutes--open up Dist. Cts
28 USC =A71331--Gen Fed Quest Jxn; same lang. of Const
28 USC =A71441--Removal Statute
Osborn v. Bank of the US
Statute--gave C/A
Const Issue--arise under meaning of Art III
Orig. Ingredient 2 form a creature of fed. govt
Louisville & Nashville Co. v. Mottley
28 USC =A71331--1875 gen fed.
Well Pleaded
1. Not really about Art III
2. K case injecting fed. issues
Sep. Statute--review states decs on fed. quests
Restrictive Reading of =A71331
Skelly & Franchise Tax Case
Declaratory Judgment Act of 1935--no good against well pleaded cases