procedure i/civil procedurweb viewtable of contents. introduction. personal jurisdiction

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Table of Contents


Personal Jurisdiction.3

Service of Process..12

Subject Matter Jurisdiction.14

Multiple Claims and Parties Joinder & Jurisdiction...16

Removal and Venue..23


Class Actions..31


Authority of Court to Proceed with Action

Illustrative Cases:

Capron v. Van Noorden SCOTUS 1804

Facts: Van Noorden trespassed on Caprons property. Capron filed suit. NC Circuit court fount against Capron. Capron appeals to SCOTUS stating that court record did not clarify that there was diversity jurisdiction. SCOTUS overturned saying Subject Matter Jurisdiction cannot be waived and fed. Court should not have heard.

Takeaway: SMJ cannot be waived. PJ and Venue can be waived.

Why does diversity jurisdiction exist?

Federal judges less biased appointed for life, no election.

There is significant overlap between federal and state courts.

Limits on federal court exist so the state courts can retain a piece of the pie. (Spirit of Article III).

Article III of the Constitution (relevant portions).

SECTION 1 - The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

SECTION 2 - The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;-- to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjectsThe trial shall be by jury; held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Tickle v. Barton, S.Ct. WV 1956

Facts: Coleman, Bartons agent (VA), caused an automobile injury to Tickle. Attorney for Tickle wrongfully and deceitfully tricked Barton into coming to WV and sheriff served him at an event (Alias process- second attempt to serve). filed Plea in Abatement * and filed demurrer*. won.

Takeaway: A plaintiff cannot effect service of process by tricking a by entering the jurisdiction.

Notes and definitions:

1. Plea in Abatement: (Motion to dismiss) - In Common-Law Pleading, a response by the defendant that does not dispute the plaintiff's claim but objects to its form or the time or place where it is asserted time, place, manner or mode where the claim has been asserted.

2. Demurrer: Motion to dismiss for failure to state a claim upon which relief can be granted. Legal way of saying So What?! Lawyer doesnt deny actions the process is still valid.

3. Interlocutory hearings: Hearing in the middle of a lawsuit on a particular judgment. Not allowed in federal court. Allowed in some state courts.

The Right to Due Process

14th Amendment of the US Constitution: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process; not deny to any person within its jurisdiction the equal protection of the laws. (Due Process in both 5th and 14th Amendment. 5th for Federal only, 14th covers states too).

Illustrative Cases:

Goldberg v. Kelly SCOTUS 1970

Facts: NYS welfare recipients brought suit due to having their welfare payments terminated before due process was awarded to them, i.e. the right to appear in person, for an oral presentation, to plead their case. Held. Cannot take away welfare from destitute person in brutal need, unconscionable and takes precedence over govt.s need to protect tax revenue. Condemns them to suffer grievous loss. Welfare fosters dignity within borders, prevent social malaise, and promote general welfare. Pre-termination hearing does not have to be a judicial hearing; just fair with oral presentations allowed and must state reasons for ruling. Dissent: Slippery slope to overwhelm the govt. Govt. will put less people on welfare, new experiments should not be frozen into const. law.

Takeaway: Right to in person hearing before taking away of brutal need (life and property 14th Amendment).

Mathews v. Eldridge SCOTUS 1976

Facts: Eldrigde lost social security disability benefits as state determined he was no longer disabled. Claimed had right to pre-termination hearing under 14th amendment and Goldberg. Held. SSA does not need pre-termination hearings to terminate disability benefits due to its elaborate procedural safeguards. Potential deprivation not as high as Goldberg. Complete information reviewed, medical professionals reviewed sharply focused and easily documented evidence. Dissent: Limited deprivation is speculation.

Takeaway: Dont always have right to an in person hearing if the procedural safeguards are enough to provide fair and unbiased hearing.

Des Moines Navigation v. Iowa Homestead, SCOTUS 1887

Facts: Old case- Iowa sued Des Moines in state court. moved to federal court (some were from NY), partial diversity only. Nobody challenged diversity. Des Moines wins. SCOTUS affirms on merits and impliedly recognizes the circuit courts authority to take the suit. Current case- 14 years later, Iowa sues Des Moines to recover taxes for land. Des Moines Collaterally attacks old suit saying no SMJ. IA S.Ct agrees. Held. The federal court has the power to decide whether a case is properly before it. The Circuit Court and the Supreme Court of the United States impliedly recognized subject matter jurisdiction of the previous case when it evaluated the case on its merits.

Takeaway: Jurisdiction can be implied. When a case is removed to federal court, the federal court has the power to determine subject matter jurisdiction. It should be noted that federal courts have subsequently required complete diversity in analogous situation.

Things to consider before filing suit:

1. Subject Matter Jurisdiction (Article 3)

2. Personal Jurisdiction (1. Long arm statutes 2. Due Process)

3. Notice (Due Process)

4. Has service of process been properly served and elated to above- was manner of notice done properly? (Federal Rule 4)

5. Venue

6. Removal (Ds can veto Ps choice of court)

7. Waiver when can the 6 issues above be waived?


Pennoyer v. Neff, SCOTUS 1878

Facts: Neff buys land under land donation. Mitchell brings suit against Neff for unpaid legal fees. Mitchell publishes summons in OR newspaper. Neff no show and default judgment. Writ of execution for sale. Mitchell buys land at auction and assigns to Pennoyer. Neff suing Pennoyer to recover possession. Earlier decision invalid due to lack of PJ over him and land. Held. Property is still Neffs.

Takeaway: A court may enter a judgment against a non-resident only if the party 1) is personally served with process while within the state, or 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction).

1. In Personam

Page 83, exercises authority over person served process in its borders, citizen of the state, or voluntarily agrees to the jurisdiction of the state.

2. In Rem

Court can determine the status of a property in the state. Exists just for property many claimants one property.

It is acceptable to use publication as a noticeas seizure of property:

a. More likely to give the notice

b. The state can legally exercise jurisdiction on property.

3. Quasi in Rem

Exercises authority over person not in its borders, but who owns property in the state. The value of the judgment cannot exceed the value of the property. No QIR jurisdiction in M v. N because Mitchell didnt attach the property at the beginning of the law school. Mechanism for court to assert control over property (court can seize it if its physical, if its land its an Order of Attachment (cant sell or buy), court secured control over property only after.

As a formal matter the jurisdiction should be est. at the outset and without property you cant have jurisdiction.

Actual act of attachment at the beginning of the suit is better means of notice at the beginning of the suit.

Attachment of property can work either as a jurisdictional device or a means of recovery.

Pennoyer Bright Line Rules:

Below are only ways in which court can assert jurisdiction on a non-resident:

1. Presence In personam, within states borders.

2. Domicile

3. Express consent waiver of personal jurisdiction, or agents.

4. Implied consent

Jurisdiction over Individuals

1. Presence/Domicile/Residence:

Jurisdiction may be exercised over an individual by virtue of his presence within the forum state. That is, even if the individual is an out of state resident who comes into the forum only briefly, PJ on him may be gotten as long as service was made on him while he was in the forum state. Jurisdiction may also be exercised over somebody who is domiciled within the forum state, even if the person is temporarily absent from the state. A person is considered domiciled in the place where he has his current d


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