CIVIL PROCEDURE CLASS 26

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CIVIL PROCEDURE CLASS 26

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• November 20, 2001

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ANNOUNCEMENTS

• IPLSA (Intellectual Property Law Students
  Association Meeting be rescheduled to November
  27 at 500 p.m. in the Slowinski courtroom.

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WRAP-UP OF LAST CLASS

• We continued our study of subject matter
  jurisdiction by learning about diversity
  jurisdiction and supplemental jurisdiction

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WHAT WILL WE DO TODAY?

• Learn about the final subject matter jurisdiction
  topic on the syllabus removal
• Continue our unit on jurisdiction by learning
  about personal jurisdictionl

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PRACTICE EXERCISE 31

• CB p. 839
• Plaintiff Nancy Carpenter (NH)
• Ds Dee (MA), Ultimate (MA)
• 3d Party Ds McGills Garage (MA), Dale McGill
  (NH)
• Motion to dismiss for lack of subject-matter
  jurisdiction
• Motion to sever impleader

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REMOVAL

• What is removal? Why is it said to be an
  exception to the general rule that the plaintiff
  is master of his claim?
• What is the policy justification for removal
• a. For diversity cases?
• b. For federal question cases?

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LEGAL SOURCES FOR REMOVAL PROCEDURE

• NOT IN U.S. CONSTITUTION
• So, removal is purely statutory.
• There have been federal removal statutes since
  1789. These have consistently been upheld as
  constitutional by the courts.
• What is the current general removal statute?

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LIMITS ON REMOVAL

• Can a plaintiff remove?
• Can a plaintiff remove if there is a
  counterclaim?
• Can a case be removed to a state court in a
  different state? To a federal court in the same
  state? To a federal court in a different state?
  From federal to state court?
• Are any types of actions non-removable? Please
  see 28 U.S.C. sect. 1441(b), 1445

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HYPO

• Sophie (NY) sues Nicole (MD) in state court in
  Maryland for negligence. Can Nicole remove?
  Sophie (NY) sues Nicole (MD) and Erik (NJ) in
  state court in Maryland for negligence. Can
  Nicole and Erik remove?

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WHEN IS A CASE REMOVABLE?

• There must be original subject-matter
  jurisdiction in federal court
• Basic rules of federal question and
  diversity/alienage apply
• Well-pleaded complaint rule applies
• Artful pleading rule

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WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION?

• P brings action in state court
• Can D remove?
• See 28 U.S.C. section 1441(e)

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REMOVABLE CLAIM JOINED WITH NON-REMOVABLE CLAIM

• What is the effect of 28 U.S.C. 1441 ( c)?
• separate and independent test

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PROCEDURE FOR REMOVAL

• How does a defendant remove ? (see 28 U.S.C.
  section 1446)
• Can a defendant waive her right to remove?
• How many defendants must agree to remove a case?
  
• Can a defendant remove if the case only becomes
  removable after the plaintiff amends the
  complaint?

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NOTICE OF REMOVAL

• What must be in a notice of removal?
• Filing requirements what provision of 1441 for
  civil actions?
• Notice requirements what provision of 1441 for
  civil actions?

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NOTICE OF REMOVAL

• What must be in a notice of removal?
• Filing requirements what provision of 1441 for
  civil actions? 1441(b)
• Notice requirements what provision of 1441 for
  civil actions? 1441(d)

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CHALLENGING REMOVAL

• How does a plaintiff challenge removal?
• Can a plaintiff waive her right to challenge
  removal?
• Are there any applicable time limits? If so what?

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PROCEDURE AFTER REMOVAL

• What happens after removal?

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Burnett v. Birmingham Board of Education (N.D.
Ala. 1994)

• What is Ps cause(s) of action? Federal or state?
• What is the procedural issue for the court to
  decide on the motion at issue?
• What are the grounds for the motion?
• How does the court rule on the motion?
• What is the courts reasoning?

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PERSONAL JURISDICTION

• What is personal jurisdiction?
• What constitutional limitations exist on
  personal jurisdiction

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PERSONAL JURISDICTION

• Due process clause of the 14th amendment is
  outer limits of power to exercise jurisdictional
  power
• State legislatures can only authorize courts to
  exercise jurisdiction up to borders of due
  process clause, but they can also confer only
  part of the constitutionally permissible
  jurisdiction

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LONG-ARM STATUTES

• State statutes granting power to courts to
  exercise personal jurisdiction
• Some states have statutes that give courts the
  power to exercise personal jurisdiction to limits
  of due process clause (e.g. California)
• Others have narrower provisions (enumerated
  long-arm statutes permitting jurisdiction over
  defendants based only on certain specific types
  of contact with the forum state)
• Remember that long-arm must comport with
  constitutional due process requirements

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PENNOYER v. NEFF (1877)

• Supreme Court made clear that due process
  clause set limits on courts power to hear cases
  over non-resident defendants
• Pennoyer appliked a traditional concept of
  jurisdiction, which required the physical
  presence of the defendant or his property within
  the forum state

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BREAKDOWN OF PENNOYER

• Pennoyer proved too confining as the nations
  economy expanded and, in particular, interstate
  trade grew
• Courts began to resort to legal fictions to
  permit personal jurisdiction over non-resident
  defendants who were not physically present in the
  forum state, such as implied consent or
  constructive presence

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INTERNATIONAL SHOE Co. v. WASHINGTON (1945)

• LEADING MODERN CASE ON PERSONAL JURISDICTION
• IF YOU REMEMBER ONLY ONE CASE NAME FROM THIS
  COURSE, PLEASE REMEMBER INTERNATIONAL SHOE
• THE SUPREME COURT FINALLY DOES AWAY WITH
  FICTIONS LIKE IMPLIED CONSENT
• Why does the Supreme Court discard such legal
  fictions?

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INTERNATIONAL SHOE

• Why did Washington State sue the International
  Shoe company?
• What is the issue for decision?
• Describe International Shoes argument on this
  issue?

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INTERNATIONAL SHOE

• Describe International Shoes contacts with
  Washington.
• How do the Washington state courts rule on the
  jurisdiction issue?
• How does the U.S. Supreme Court rule on this
  issue?

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THE SUPREME COURT MODERN STANDARD FOR PERSONAL
JURISDICTION

• According to Chief Justice Stone, what is the
  modern standard for a states assertion of
  personal jurisdiction over a non-resident
  defendant?

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P. 664CB

• But now that the capias ad respondendum has
  given way to personal service of summons or other
  form of notice, due process requires only that in
  order to subject a defenant to a judgment in
  personam, if he be not present within the
  territory of the forum, he have certain minimum
  contacts with it such that the maintenance of the
  suit does not offend traditional notions of fair
  play and substantial justice

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MINIMUM CONTACTS

• Does Stone articulate any criteria for assessing
  a corporations contacts or activities in the
  forum state?

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FAIR PLAY AND SUBSTANTIAL JUSTICE

• Second prong of 2 prong test in International Shoe

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CONTACTS Can a state validly assert personal
jurisdiction over a nonresident defendant if

• Such D has no contacts with the forum state?
• There is a single act or contact by D with the
  forum state?
• There are systematic and continuous business
  activities within the state

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SPECIFIC JURISDICTIONGENERAL JURISDICTION

• What is general jurisdiction? (see, e.g.
  ,Perkins v. Benguet Consolidated Mining Co. CB p.
  671)
• What is specific jurisdiction? (see,e.g., McGee
  v. International Life Insurance Co. CB p. 671)

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PURPOSEFUL AVAILMENT

• What is purposeful availment? (See Hanson v.
  Denckla CB pp. 674-75)

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APPLICATION OF LAW TO THE FACTS

• Why does Stone find that there was personal
  jurisdiction over International Shoe?
• Why does Justice Black disagree?

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IMPORTANT NOTE PERSONAL JURISDICTION IN FEDERAL
COURT

• The 14th Amendment due process clause only limits
  state power.
• Although there are no CONSTITUTIONAL constraints
  on a federal courts exercise of jurisdiction
  over a defendant not resident in the state where
  the court sits, Congress has limited the
  jurisdiction of federal courts
• See FRCP 4(k). NB 100 mile bulge rule.

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WORLD-WIDE VOLKSWAGEN V. WOODSON

• Who are the plaintiffs? Where are plaintiffs
  resident?
• Who are the defendants? Which challenge personal
  jurisdiction? Where is each defendant who
  contests jurisdiction incorporated ? Where does
  each such defendant have its principal place of
  business?

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WORLD-WIDE VOLKSWAGEN PLAINTIFFS CLAIMS

• Where do plaintiffs file their action against
  defendants?
• What claim(s) do plaintiffs make against
  defendants?

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WORLD-WIDE VOLKSWAGEN CLAIMED BASIS FOR
JURISDICTION

• What is the legal basis for plaintiffs claimed
  assertion of jurisdiction over defendants?

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LONG-ARM STATUTES

• After International Shoe, many states enacted
  such statutes
• Long-arm statutes authorize states to exercise
  personal jurisdiction over non-resident
  defendants in certain enumerated situations
• Look at NY CPLR section 302 (at CB 669). What
  acts give rise to jurisdiction under this
  long-arm statute?

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CAN A COURT EXERCISE JURISDICTION OVER A
NON-RESIDENT DEFENDANT UNDER A LONG-ARM STATUTE?

• 2 step test
• 1. DOES THE STATUTE APPLY TO THE FACTS OF THIS
  CASE?
• 2. IS THE STATUTE CONSTITUTIONAL UNDER
  International Shoes minimum contacts test?
• SOME LONG-ARM STATUTES, e.g. CA, permit courts to
  exercise jurisdiction to the full extent
  permissible under the U.S./CA Constitutions

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BACK TO WORLD-WIDE VOLKSWAGEN

• How do the NY defendants challenge the courts
  personal jurisdiction in this case?
• How does the trial court rule on this challenge?
• How does the Oklahoma Supreme Court rule?
• What is the legal issue for decision in the U.S.
  Supreme Court?
• How does the U.S. Supreme Court rule?

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REASONING OF U.S. SUPREME COURT IN WORLD-WIDE
VOLKSWAGEN

• The U.S. Supreme Court endorses the minimum
  contacts test set out in International Shoe
• According to Justice White, what are the two
  functions of the minimum contacts test?
• Which prong of the International Shoe test should
  be examined first?

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APPLYING THE MINIMUM CONTACTS TEST TO THE NY Ds

• How does Justice White apply the International
  Shoe test to the facts of World--Wide Volkswagen?
• Is it relevant that the NY defendants arguably
  could foresee that the Audi would enter Oklahoma?
• Is the concept of purposeful availment
  important to Whites decision? Why or why not?

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HYPO ON STREAM OF COMMERCE

• Change the facts of World-Wide. What if the
  Robinsons were from Oklahoma but were temporarily
  in New York, where they purchased an Audi from
  Seaway, informing Seaway that they planned to
  return to Oklahoma. Should Seaway have foreseen
  being sued in Oklahoma and thus be subject to
  suit there?
• What if the facts were basically the same as the
  real case except that the Robinsons were from NY
  and had their accident in NJ?

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ANOTHER HYPO

• Assume the driver of the car that hit the
  Robinsons Audi was from Texas. Could an
  Oklahoma court have exercised personal
  jurisdiction over the driver for a claim in
  negligence brought by the Robinsons?
• Why do you think the Robinsons might choose not
  to sue the driver of the car?

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WORLD-WIDE DISSENTS

• Please explain the basis for Justice Brennans
  dissent.
• Please explain the basis for Justice Marshalls
  dissent.
• Please explain the basis for Justice Blackmuns
  dissent.
• Do you agree with the majority or any of the
  dissents? Why or why not?