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