Civil Procedure – Law School Outline 1L

I. STATUTORY AUTHORIZATION—IS IT AUTHORIZED?
A. Long Arm Statutes

YES, bc the “last
tortious act” of the radiator valve exploding occurred in IL.
(Gray vs. American Radiator)
NO, the breach of
fiduciary duty (last tortious act) occurred in TX and the connection
to the diminution of funds was “too remote” (Green
v. Advance Ross)

differences–Gray:
suit against Corporation; Green: suit against individual
site of tort is where
the “last tortious act” occurred, not where it began”

YES, If statute says,
“to the full extent of the Constitution, then yes—it is
authorized

B. Federal Rule 4(k): Territorial Limits of Effective Service
1. Rule 4(k)(1)(A): general service rule which says that the Fed. Ct. may piggy-back
off state long-arm statute MC test still applies!

Rule4(k)(1)(B):
applies to parties joined under Rules 14 and 19 which allows for

service of
process “100 miles from the place from which the summons issues.

Rule 4(k)(1)(C):
special service rule that applies to a D who is part of a federal

interpleader JD
which allows for nationwide service of process.
4. Rule 4(k)(1)(D): when a federal statute authorizes JD
5. Rule 4(k)(2): federal long-arm provision that applies to Ds against whom “claims
arising under federal law” are asserted when there is no applicable federal process
provision, and who are not amenable to suit in any one of the fifty states. Created
partly in response to Omni. (Applies to foreigners who do not have sufficient MCs
in any state to make them amenable to suit.): a. Omni Capital
International v Rudolf Wolff & Co. (1987): During an
action; against them,
Omni, a NY corporation impleaded
Rudolf Wolff & Co., a British; corporation
employed by Omni to handle trades in London and James Gourlay,; a
British citizen, who, as Wolff’s representative, solicited Omni’s
business.; Wolff
and Gourlay were not present in LA and were not reached by the LA; long-arm
statute. The Supreme Ct. upheld the both lower federal court
finings; that
JD was unobtainable over the Ds. This instigated the creation of
Rule; 4(k)(2).

QUESTION: How can the
Federal Cts. authorize JD with Rules 4(k)(1)(B),(C), and (D) when
there is no applicable statute? HOW

IS THIS CONSTITUTIONAL????

ANSWER:
In Stafford v. Briggs,
Justice Stewart dissented and said: 1) if the test for state JD is
MCs, then the test for federal JD is “national contacts.” The
issue is not whether it is unfair for the D to have to litigate in
an inconvenient forum, but whether the court of a particular
sovereign has power to exercicse PJ over a named D. A US resident
is subject to the cts. of the US. DP is satisfied.
ANSWER:
In Oxford First Corp. v. PNC
Liquidating Corp: Judge Bekcer
stated that extra-district service of process is not constrained by
MC of Shoe, but 5 factor fairness test should still apply.
However, most cts. dismiss this opinion and hold that the national
contacts test is applicable.


II. JURISDICTION OVER PARTIES OR PROPERTY-IS IT CONSTITUTIONAL?
A. Three Kinds of PJ: 1. In Personam
a. Residence

even if not present in
state when served-(Blackmer v. US)

b. Tackled within the forum state
i.
Grace v. MacArthur-tackled while in airplane
ii.
Burnham-tackling still constitutional in case where
husband is served
while visiting children in CA.

Scaliatransient
presence okay bc tradition says so.
BrennanInternational
Shoe MC test necessary. Remember Shaffer that said
“all assertions of state-court jd must be evaluated to the
standards set forth in International Shoe and its progeny.”
MC, yes bc of PA for 3 days doing business and sight seeing. Fair,
yes bc he had notice that service is good when tacked in FS.
What if Grace
were retried after Burnham?
- Scalia 4: Yes, bc service
  in state good.
- Scalia 4: No, bc the
  legislature could not have contemplated airplanes at time of
  creation of statute
- Brennan 4: Yes, there was
  PA of laws, air-traffic control, etc. even if only for a few
  minutes
- Brennan 4: No, 3 minutes
  of air from Grace ≠ 3 days Burnham, not PA, not
  enough notice.

iii. Quill Corp v. North Dakota-non-resident corporate mail contacts with resident customers= JD

Physical
presence at any point not necessary for imposition of duty to
collect use tax.

c. Consent to JD

i. express
consent—Constitutional to order drivers to file a formal

instrument
to drive in the state (Kane v. NJ)

implied consent—driving
through state is deemed equivalent to

consent to PJ
(Hess v. Pawlowski)

if you sue someone in the
forum state, counter-suit is okay even if your

suit is only
connection to FS (Adam v. Saenger)

Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee–

the
D (Insurance Corp) tried to object to the JD but then refused to

furnish
documentation to discover MCs stating that the ct. had no JD.

The
ct. held that the D had to submit to JD at least to decide whether
or

not
the ct. had JD.

M/S
Bremen v. Zapata-Forum
selection clauses will be honored

“unless
enforcement is shown by the resisting parties to be

‘unreasonable’
under these circumstances.”

Carnival
Cruise Lines, Inc. v. Shute-Forum
selection clause on a cruise ticket is Constitutional bc it is
beneficial to both the corporation and the customers.

Cruise
line has special interest in limiting fora
Establishes the forum ex
ante so there is no confusion over place of litigation—no expense
of pre-trial motions, etc.
Customers benefit from
lower priced tix.

vii. waiver (to objections of PJ)

Rule
12(h)(1): a D who fails to raise an objection to PJ in the answer or
in an initial motion under Rule 12 cannot later object to JD.

d. Minimum Contacts
i. Is it Constitutional? (Allowed by the 14^th Amendment)
 Are there MC?

YES, PURPOSEFUL
AVAILMENT (International Shoe)
YES, Alchemie
International v. Metal World said that telephone calls and
mail communication to solicit 1 sales K are sufficient btw. two
corps, but this is left to state’s determination.
NO, PA (Kulko v.
Superior Court said that father’s purchase of daughter’s
one-way ticket to see mother was not PA)
No, PA in WWV
because of unilateral act by the P to drive car into the FS. D did
not solicit or advertise in FS.

Yes, PA with (K) and
bilateral subsequent communication in McGee when
insurance K was delivered in FS, insured was resident of FS, despite
no solicitation, or other policy holders in FS.
Yes,
PA with K and limited and continuous, bilateral
subsequent communication in Burger
King ADD MORE ON BK!!!
No, PA in Hanson v.
Denckla (BUT REALLY A GENERAL JD CASE bc suit did not arise
out of the deceased’s communication with the DE trustee. Facts: FL
court judgment did not have JD over DE trustee)

Yes, FORSEEABILITY
that you could be subject to suit in the FS (rule from WWV)
Yes, forseeability of suit
in Keeton v. Hustler bc of repeated sales of thousands
of magazines led to PA
No, WWV
forseeability that product might enter FS not enough.
**Asahi:
motorcyclist was in accident, killing his wife, after defective tube
valve was found to be the cause. No, PJ bc no forseeability of suit
even though he knew his product was going there and no PA.

Stream of Commerce
Test: Brennan 4 in Asahi, SoC enough (Asahi
dissent)
Additional Conduct
Test: O’Connor 4 in Asahi—D must have knowledge
+“purposefully direct” product toward FS (examples: 1)
designating the product for market in the FS, 2) advertising in the
FS, 3) establishing channels for providing regular advice to
customers in the FS, marketing the product through a distributor who
has agreed to serve as sales agent in FS (majority in Asahi)
Get Stevens!!:
100,000 dangerous units annually over a period of several years=PA
(analogize your case to Steven’s test in Asahi to see if
you can get Stevens)
Remember, Asahi: Stream
of Commerce, Additional conduct, Fairness factors + Burden on
foreign D, get Stevens!

Parry v. Ernst
Home Center Corp: Ct. applied the O’Connor “additional
conduct” test to say that knowledge that product is going to the
US is not enough bc D did not “purposefully direct” the maul
towards UT.
YES, FORSEEABILITY with
the EFFECTS TEST: The D commits an intentional act; expressly
aimed at the FS, causing harm, the brunt of which is suffered, and
which the D knows is likely to be suffered, in the FS. (Calder
v. Jones: Grace Jones libeled in National Enquirer sues the
writer, editor, (both resident of FL and magazine in FL) Also, Sup.
Ct. stated that free speech 1^st Amendment does not effect
PJ)
NO, misapplication of
the Effects Test (Kulko, when P argued that father
reaped financial effect/benefit from sending daughter to stay with
mother—father did not gain $)

YES, TECHNOLOGICAL
CONTACTS okay in Bellino v. Simon several e-mails and
telephone conversations, plus initiated defamatory contact from D =
MC.
NO, Technological
Contacts not sufficient in Bellino v. Simon when Mr.
Aubert called Mr. Spence and he sent a written report in response
and allegedly defamed Bellino, there was no initiated communication.

Bellino v. Simon
focus on who “iniates” contact.

YES, Brown v.
Flowers Ind: one long distance defamatory phone call
initiated by D to a 3^rd party led to specific JD bc the D
could have easily forseen that the injurious effect of the
statements would be felt in FS.
YES, Inset Systems, Inc.
v. Instruction Set, Inc: website advertisement not directed at FS =
PA
NO, Cybersell, Inc.
v. Cybersell, Inc.: maintenance of a website ≠ PA
Zippo Mfg. Co. v.
Zippo Dot Com, Inc: SLIDING SCALE TEST-the likelihood
that PJ can be constitutionally exercised is directly proportionate
to the nature and quality of commercial activity that an entity
conducts over the Internet. Active websites=PJ, Passive
websites=not enough. Interactive websites (middle ground) = ?

Does the sliding scale
test imply MC and fairness tests or does it not even matter anymore?
Does CoA arise out of contact?

Hy Cite Corp
v. Badbusinessbureau.com: Sliding Scale test sucks bc:
- it is
  not clear why a website’s level of interactivity should be
  determinative on the issue of PJ
- regardless
  of how interactive a website is, it cannot form the basis for PJ
  unless a nexuz exists btw. the website and the cause of action or
  unless the contacts through the website are so substantial that
  they may be considered "systematic and continuous" for
  the purpose of general jurisdiction
- The Supreme Ct. has
  never held that courts should apply different standards for PJ
  depending on the type of contact involved.

Zidon
v. Pickerell: Effects test from Calder
v. Jones is used as an alternative to the
sliding scale test
Millenium:
deliberate action directed at FS should=PJ for interactive websites
GTE
New Media Serv. Inc. v. Bell South:
suggests that use of the Internet in this case is no different than
making a telephone call or looking up something in the yellow pages.
- How do telephone
  calls, faxes, and e-mails fit into the sliding scale test?

ii. Is it
Fair? (If MC, D must “crush” on fairness factors)

1. Actual
burden on D

2. FS
interest in providing redress for its citizens

3. the P’s
interest in a speedy trial

4. the P’s
interest in a speedy trial

5. the
interstate judicial system’s interest in obtaining the most

efficient
resolution of controversies

6. shared
interests of the several States in furthering fundamental

substantive
social policies

MC test is meant to
imply standard of “fairness” as to insure the D’s are not
subject to suit in a distant or inconvenient state (WWV)

Brennan’s
dissent in WWV: MCs must exist btw. the
parties, the contested transaction, and the FS in order to
comport w/ “traditional notions of fair play and substantial
justice” and says that WWV has MC and is FAIR
YES, Burger
King: Brennan writes majority and says, there was MC and
fairness
NO, Asahi:
additional fairness factors when considering the heavy
burden on foreign D.

7. the similarity
of the legal systems

8. actual distance to
the FS

YES, Theunissen
v. Matthews: burdens on D are slight when D is from
Ontario and P is from Detroit. Ontario is only 10 miles from
Detroit and legal systems have same common law tradition.

e. General Jurisdiction (GJ)
i. CoA does not arise out of contacts with the FS
ii.
YES, GJ in Perkins v. Benguet, a Phillipine
corporation who was
temporarily stationed in OH was subject to GJ because of the D’s
systematic and continuous acts within the FS. The D was practically
sued in it’s home state.
iii.
NO,GJ in Helicopteros v. Hall: majority says that
there was a lot of
contact, but still not “systematic and continuous” enough because it was
just
one package deal. Helicol was not there enough to say
that TX was
practically its domicile.

Brennan’s dissent:
there should be a 3^rd classification for CoAs which
relate to contacts within the FS.
Helicol
rule: there is no hard and fast rule on determination on GJ.
Basically, if
there’s a ton of contact, then yes, but if

iv. NO, GJ over a non-resident corporation when act is done by independent,
non-exclusive agent.” More contacts than sales and sales promotion are
required
within the state are required for the assumption of JD.” (Fisher
Governor Co. v. Superior Court)
v. YES, GJ when a foreign corporation is connected to a FS corporation
through a parent corporation. P sued London Hilton through NY Hilton
after injury occurred in NY. “The interlocking ownership of the two
corps. led to the conclusion that an agency relationship existed between
them.
(Frummer v. Hilton Hotels International, Inc.)
vi. NO, GJ when Ds are shown to be forum shopping if product (defective drugs in this case) are not manufactured, purchased or consumed in that
FS, P is not a resident, and the CoA did not arise out of D’s conduct in
FS. Even of the D has some contact w/ the FS, the court will not uphold
JD if the tort, nor the P, have no contact with the FS. (Ratliff v. Cooper
Laboratories)
2. In Rem and Quasi In Rem
a. YES, PJ in Tyler v. Judges of the of the Court of Registration: Petitioners
interest in land claim denied when he argued insufficient notice. In Rem
judgments are against the world as they are meant to get rid of known and
unknown claims. Service by publication is the appropriate instrument for
notice.
b. YES, PJ in Pennington v. Fourth National Bank: Res within borders
(whether tangible or intangible), seizure at commencement of proceedings,
and an opportunity to be heard = Constitutional JD, no violation of Due
Process
c.
YES, PJ in Harris v. Balk:
The obligation of the debtor to pay his debt clings
to him wherever he goes. QIR JD can be determined by a unilateral act. See
Katie about the notes and questions to this case.
d. NO,
PJ in Shaffer v. Heitner: stock in DE not good enough
to establish PJ
over Greyhound, a non-resident corp. incorporated under DE law which says,
the stock is deemed to be DE, the situs of the stock. The Ct. ruled that “all
assertion of state JD must be evaluated according to the standards of set forth
in International Shoe and its progeny.” (i.e.-minimum contacts, fairness) after
P tried to sequester D’s stock. The ct. reasoned that IR and QIR proceedings
are really proceedings against the person or the person’s interest. Shoe test
should be done for IR and QIR. MC test won’t really affect IR bc res in
the FS will most likely meet the MC test. MC test will have a dramatic effect
QIR cases.

Why change? MC test is
easy, fair, and more applicable to contemporary notions of
justice.
Powell
Concurrence: this new rule goes too far, but MC is a good test
for stock.
Stevens
Concurennce: this new rule goes too far in that it may
unreasonable in some cases.
Brennan’s Dissent:
if we are going to make up this rule, the P should be allowed
time to discover MCs. Also, DE clearly
has an interest in
deciding this issue since it made the statute. If the D tried
to bring themselves under the rules of the
state, they should
be bound by them in a judicial proceeding.
Shaffer
basically overrules Harris, but Harris is still
alive: 1) if there is no other forum, the property=JD, and 2) in
Steven’s
concurrence bc he says that it seems unreasonable to apply MC
test in some cases, 3) if D is avoiding JD by
moving property,
4) as in Rhoades v. Wright (see below)
DE changed its law as
a result of this case to ensure JD in like future cases.

e. YES,
PJ in Rhoades v. Wright when Sup. Ct. of UT
considered:

the presence of the
land (as distinguished from the kind of chattel involved in
Shaffer)
the fact that the
CO D actively used the land
the fact that the
person who died in the wrongful death suit was a UT resident
….to conclude that
the D has sufficient contacts w/ UT to satisfy DP requirement
for QIR JD.

YES, PJ in Feder
v. Turkish Airlines where the ct. upheld QIR JD based on

the attachment of the D corporation’s NY bank account which was the D’s
sole contact with NY. The account was for the purchase of aircraft parts and
components and the CoA stemmed from a wrongful death suit which
happened in Turkey.

QUESTION: Does this
illustrate how cts. treat corporations and individual D’s
differently? Yes.
QUESTION: Is the
difference btw. this case and Shaffer in that his is a wrongful
death suit?

NO,
QIR JD over insurance obligation attachment after ct. separated the

contacts
btw. the D and the FS and the contacts btw. the insurer and the

forum.
Insurers contact with the FS cannot be used to establish over the D

policy
holder. (Rush v. Savchuk)

YES, QIR JD in Admiralty
courts! EXCEPTION to Shaffer in Amoco

Overseas
Oil Co. v. Compagnie Nationale Algerienne de Navigation in

which ct. upheld
JD based on attachment of a foreign corp.’s bank account

reasoning that
“maritime actors must reasonably expect to be sued where

their property
may be found.” Is this an example of #1 exception to

Shaffer?

Cybersquatting-“registering,
trafficking in, or using Internet addresses that

are identical or
confusingly similar to protected trademarks.”

i.Cybersquatting=online
version of a land grab (Interstellar Starship Servs., Ltd. v
Epix, Inc)
ii.Congress responds by
creating CoA over cybersquatting with a bad faith intent to profit
and says that when in personam JD
is not available,
(typically when the D is overseas), IR JD in the FS where the
domain name is registered is OK.
- example: Harrods
  Ltd. v. Sixty Internet Domain Names

IIi. HOW TO CHALLENGE JD
A. Direct Attack
1. Challenge in your answer
a. “special appearance”-the procedure at common law by which a D presented a
challenge to the court’s exercise of personal JD without submitting to the
court’s JD for any other pupose.
If the D argues the merits of the claim in any way, the “special appearance”
becomes a “general appearance,” a voluntary submission to the court’s JD.
**The
rules on special appearance vary from state to state, but most
states
follow
the federal scheme.**

Data
Disc, Inc. v. Systems Technology Associates, Inc.:
The limits which the

district judge imposes on the pre-trial proceedings will affect the burden which
the P is required to meet. Where the JD facts are enmeshed with the merits, a
decision on the JD issue is dependent on a decision on the merits. In this case,
the P will not be required to meet the higher burden of proof.
 Rule 12(d): preliminary hearings-a motion for judgment on the pleadings is
generally heard before commencement of the trial, although the court may
order the motion deferred until the time of trial.

Baldwin
v. Iowa State Traveling Men’s Association:
D made a special appearance to challenge the service of
process and personal jurisdiction. The court denied the motion. D
failed to plead on the merits and the court filed a judgment against
D. D did not appeal this judgment. P filed action against D in Iowa
to recover the Missouri Court’s judgment but D again brought the
challenge to service of process and personal jurisdiction. In this
case, the D tried to directly and collaterally attack. Not
possible—YOU HAVE TO CHOOSE !!
- Under the principle of
  res judicata, once the D’s motion was denied in

***“A
defendant who makes no appearance whatsoever remains free to
challenge a default judgment for want of PJ. A court only has power to
determine its own PJ is limited to D who submit the question for judgment
to
the court.”***

“limited
appearance”-when a D in action commenced on a QIR basis
appears for the limited purpose of defending his interest in the
attached property w/out submitting to the full in personam JD of the
court.

 without this provision, a D must choose btw. appearing and possible

suffering a judgment in excess of the value of the attached property or not

appearing
and possible suffering a judgment against the property, as in U.S.

Industries, Inc. v. Gregg

2. 12(b)(2) motion: How presented

– “Every defense in law or fact, to a claim for relief in any pleading, whether a claim,

counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive

pleading thereto if one is required, except that the following defenses may at the

option of the pleader be made by motion: (2) lack of JD over the person…. A

motion making any of these defenses shall be made before pleading if a further

pleading is permitted. No defense or objection is waived by being joined with one

or more other defenses or objections in a responsive pleading or motion. If a

pleading sets forth a claim for relief to which the adverse party is not required to

serve a responsive pleading, the adverse party may assert at the trial any defense in

law or fact to that claim for relief.

—NOTE: different than 12(b)(5): insufficiency of service of process (challenge to

notice)

B. Collateral Attack-attack lawsuit of one FS by attacking it in another state, claiming that

the FS does not have PJ to excise judgment. If a collateral attack is chosen, you then

give up your right to attack the merit of the claim.

 Why might someone do this?

1. if they are certain there is no JD.

2. if they know they can’t win on the merits and defending it will cost time and

money.

3. to run out the statute of limitations (if you happen to win on the collateral attack,

the P would have to re-file and this may exceed the SoL)

4. If it is big
corporation and the settlement is so small that litigation in the FS
will

cost more than
the settlement.

***NOTE: A
DISMISSAL FOR A LACK OF JD IS A DISMISSAL WITHOUT PREJUDICE. A P
CAN RE-FILE THE CLAIM, BUT PROBABLY IN A MORE DISTANT FORUM***

C. waiver (to objections of PJ)

– Rule 12(h)(1): a D who fails to raise an objection to PJ in the answer or in an initial

motion under Rule 12 cannot later object to JD.

IV. NOTICE

A. Federal Rule of Civil Procedure #4

1. Rule 4: Summons: sets forth specific means of making personal service on, among

others, individuals, corporations, partnerships, and other associations subject to suit

under a common name.

2. Rule 4(d): Waiver of Service

– strongly encourages waiver of formal service.

– Like PJ, notice and service of process requirements may be waived by a party at

trial or in advance of litigation.

an action commences when
the  send a form (Form 1A) entitled “Notice of Lawsuit and
Request for Waiver of Service of Summons,” or similar document,
by first class mail, postage prepaid, or some other reliable means.
Domestic s have 30 days
from the date on which the waiver was sent to return the waiver;
otherwise they will be charged with the costs associated w/
providing formal service. Also, s receive an incentive in that
they are allowed 60 days after the date on which the waiver was sent
to answer the complaint if the waiver is returned in a timely
fashion.
1. Maryland State
  Firemen’s Association v. Chavez (1996): service of
  process by first-class mail plus 3 telephone conversations with a
  representative of the D in reference to the matter, but the D never
  returned the paperwork or officially answered the summons. The
  court held that personal

service
is required before entering a default judgment if a

domestic
defendant fails to respond.

ii.
Audio Enterprises v. B & W Loudspeakers:
Federal Express is

not
1^st class mail, postage prepaid.

“cognovit
note”-debtor waives objection to JD, notice, and service of

process.

iii. D.H.
Overmyer Co. v. Frick Co. (1972): cognovit note not a

violation
of the Due Process Clause, but agreements are weighed

on a
case-by-case basis, w/ special attention to if there was

unequal bargaining power or lack of consideration.

Many state courts have
invalidated cognovit notes and other “consent to judgment”
provisions.

***What about
internet contracts where waivers of JD, notice, and service of
process
are made
w/ the click of the mouse?***
3. Rule 4(e): Personal Delivery on Natural Persons
– specifically provides that state procedures to serve a party “may be effected in any
judicial district in the United States,” thus enabling federal courts to take
advantage of the reach of long-arm statutes.

The story of Mr. Grossman,
the process-server, and his unique ability to “place

and leave
with” any summons on any person.

Rule 4(e)(1):provides
an alternative to 4(d) methods by broadly authorizing the

use in federal
courts of the procedures governing the manner of service; prescribed by
the law of the state in which the District Court is sitting.
b. Rule 4(e)(2): Service on a Person Residing in ’s Dwelling House or Usual
Place of Abode: permits service of process to be made upon an individual by
leaving a copy of the summons and complaint at his “dwelling house or usual
place of abode with some person of suitable age and discretion then residing
therein.”
– Based upon the facts of each individual case

National Development
Co. v. Triad Holding Corp.-service to a housekeeper was
upheld after a millionaire  claimed that the NY apt. where the
service was delivered was only 1 of 12 places he actually resided.
Service was upheld bc the  was actually living at the NY apt. at
the time of service. The court said that this was the most
likely method of ensuring the 
received the summons and complaint, reasonably
calculated to provide actual notice.
Karlsson v.
Rabinowitz–service was declared invalid after the

receive the paperwork until 3 years later after the judgment had been
entered against him.: c. Rule 4(e)(2):
Delivery to an Agent Authorized by Appointment: service by; delivering a
copy of the summons and complaint to an agent of the  who is
“authorized by appointment or law” to receive process.

There MUST BE EVIDENCE
that  himself intended to confer such

authority upon
the agent. The agent’s claim is not enough.

National Equipment
Rental, Ltd., v. Szukhent: 1 ½ pg K with
authorization of agent clause at the end of the K, in the same type
as the rest of the K, the K stated that the respondents authorized
Florence Weinberg of, Long Island City, New York, as the agent for
the purpose of accepting service of any process within the State of
NY." The respondents were not acquainted with her. The
petitioners delivered the summons and complaint for the suit to
Florence Weinberg, pursuant to the K and Ms. Weinberg accepted the
paperwork and promptly mailed a copy to the respondents. The ct
held that the law only requires "prompt notice to the
respondent needs to be given and the ‘authorized agent by
appointment’ designated in the K meet the standards of Federal
Rule 4(e)(2)."

4. Rule 4(f): Service on Individuals in a Foreign Country: makes provision for service

of process in a foreign country affording American attorneys with a flexible

framework to comply with procedures of foreign countries.

– provides that “any internationally agreed means reasonably calculated to give

notice” may be used to effect service on persons outside the US.

– internationally
agreed means contained in the Hague Service Convention: each

Contracting State
must establish a Central Authority, which will receive and

execute requests
for service from judicial authorities in other Contracting States,

and will see that
a certification that service has been affected is returned to the

court of origin.

avoids violating the
sovereignty of other countries by adhering to their official
standards and procedures.
maximizes the likelihood
that the judgment rendered will be recognized and enforced abroad.
does NOT govern in those
countries that are not Contracting States and does NOT govern in
all circumstances
Volkswagenwerk
Aktiengesellscheft v. Schlunk (1988): Convention only
applies if service is made “abroad,” rather than on the
domestic subsidiary of a foreign corporation.
Does not apply when
 takes advantage of the “Waiver of Service”—only invoked
by “service” abroad.
Foreign ’s still
receive incentives to return the waiver, but are allowed to refuse
to return the waiver as anything compulsory might violate the
Convention.–
Rule 4(f)(3):
authorizes forms of service “by other means not prohibited by
international agreement as may be directed by the court.”

5. Rule 4(h): Service on Artificial Entities: Corporations, Partnerships, and
Unincorporated Associations: authorizes service upon corporations, partnerships,
and unincorporated associations that are subject to suit under a common name.
– permits service by delivery of process to an officer, a managing agent, or a
general agent.

Insurance Co. of
North America v. S/S “Hellenic Challenger” (1980): ’s
service of process upheld even though the agent who accepted the 
misplaced the summons and complaint. The court held that the
service was made to “a representative so integrated with the
organization that he will know what to do with the papers.” Such
service is reasonably calculated to get to the intended recipient.

Court would have
decided differently if the evidence showed that the acceptor of the
summons and complaint had such “infrequent contact” with such
paperwork and whose “unfamiliarity with service of process
increased the risk of careless or improper handling”.
If acceptor’s loss of
the summons and complaint is a “mistake in the ordinary course of
internal operations of ’s business”, such a mistake does not
merit remedial relief.

Fashion Page,
Ltd. v. Zurich Ins. Co. (1980): A corporation may
assign the task of accepting process and may establish procedures
for insuring that the papers are directed to those ultimately
responsible for defending its interests (i.e.-an executive secretary
may accept service of process, despite the fact that he/she is not a
“managing agent.”)

6. Rule 4(m): Time Limit for Service: requires a federal court to dismiss without
prejudice an action when the  has not been served within 120 days of the filing of
the complaint, if the  fails to show “good cause” for not completing service
within that time.
– In cases where service is promptly attempted, but improperly made, the court
has discretion on whether to dismiss the action without prejudice or whether to
quash service and order the  to re-serve.

B. Federal Rule of Civil Procedure #5: Service and Filing of Pleadings and Other Papers
1. After the process-server has delivered the papers, he must file a return, which
should disclose enough facts to demonstrate that  actually has been served and
given notice that he is required to appear in court. A return of service is not
conclusive and may be proved to be inaccurate, however, a ’s testimony alone
will not suffice as proof.

Miedrich v.
Lauenstein (1914): the Court upheld a mortgage foreclosure
judgment against the  after a sheriff filed a false return of
service. The court reasoned that the judgment was justified bc the
court acted on a return which they thought was true.
United States v.
Brand Jewelers, Inc. (1971): The court held
that the US had good standing to seek an injunction preventing 
from systematically obtaining default judgments against economically
disadvantaged people by utilizing so-called “SEWER” SERVICE
techniques, by which the process-server simply disposes of the
papers and makes a false affidavit of service.

one major cause of
such technique was bc delivery of a summons to a person other than
the  was not permitted unless the process-server had first
exercised due diligence to locate the .—This led to legislative
changes.

2. Rule 5(b): Making Service: allows service by “electronic means” when
“consented to in writing by the person served.”
3. Rule 5(e): Filing with the Court Defined: makes certain electronic filing questions
a matter of local rule.
C. Federal Rule of Civil Procedure #3: Commencement of Action–Service of Process
and Statutes of Limitations: governs when a Federal action commences
– the action is commenced when a copy of the complaint is filed with the district court
– BUT, if the underlying cause of action is based in state law, state law will govern
when the action officially commences.

V. PROVIDING NOTICE
A. IS IT CONSTITUTIONAL?
1. Mullane v. Central Hanover Bank (1950):
– Bank attempts to file suit against all beneficiaries saying, “this is how we have
been and will continue to manage the funds. If you have a problem with that,
step forward now or shut up. In other words, it was a judicial settlement to
make sure the beneficiaries are bound to the bank’s results.: – To trigger this
lawsuit, the Bank had to give notice.; – The Bank files
notice in: 1) a newspaper, publication and 2) at the time the; trust was
initiated, the Bank mailed a copy of the law discussing the yearly; settlement
procedures to all beneficiaries whose address they had. The Bank; followed the
letter of the law so it was authorized, but was it was; constitutional?

Justice Jackson says the
DP clause applies here bc people are potentially being deprived of
property,$, in that the Bank is taking away their right to $. The
Bank is attempting to bind the beneficiaries to not contesting the $
mgmt.
The Bank says that the
QIR, IR rule from Pennoyer from applies to this IR case, but this
does not mean that publication is automatic notice.
Constitutional=Fair.
The test is if the DEVICE WAS “REASONABLY CALCULATED” to give
the D notice
Whether the D actually gets the
notice is irrelevant, the test is whether the method of notice is
“reasonably calculated”
The
Court says: 1) known addressees=invalid, 2) unknown whereabouts
beneficiaries=valid.
WHY?
The focus of Constitutionality of Notice is on EFFICACY
and ALTERNATIVE.
- EFFICACY: known address
  people had only a small chance of seeing a notice in a publication.
  Plus, the initial mailing didn’t give any settlement details.
  It was not effective. Unknown address notification was efficient.
- ALTERNATIVE:
  They could have done a 2^nd,
  more specific mailing to known address beneficiaries. There was no
  alternative for unknown address beneficiaries.
The Bank argues that
using an alternative would be too costly, too burdensome, too
time-consuming for what’s at sake. They are not taking the
property from the beneficiaries, just forfeiting the right to
contest money mgmt.
The Ct. says, shut-up.
You should have mailed the letters.
THE MULLANE TEST:

Is it authorized?
Is it
constitutional?

Is it efficient
(reasonably calculated)?
Are
there better alternatives?
what is the
size of the deprivation?

If the P knows the D’s
name and address and the thing at stake is

valuable,
notice by mail is generally accepted.

If
the deprivation is small, the address is unknown, then publication
is

2.
McDonald v. Mabee (1917):
service by publication 4 consecutive wks. in a TX
paper was not sufficient bcD had left TX to establish a domicile elsewhere and ct.
said that it was not the most likely method. (pre-Mullane)
3.
Walker v. City of Hutchinson:
service by publication in a local newspaper in
state condemnation proceedings not Constituional.

Mennonite
Board of Missions v. Adams:
notice by publication and posting must be supplemented by notice
mailed to the mortgagee’s last known available address, or by
personal service when dealing with real property.
Tulsa
Professional Collection Services, Inc. v. Pope:
“application of a state requirement that claims against a decedent
be presented to his executor within two mos. of publication of
notice of the commencement of probate proceedings was held to
violate due process where it cut off rights of creditors whose
identity was reasonably ascertainable to a decedent’s executor and
who were not given notice.” The state interest in getting things
done quickly, tries to trump the requirement of adequate notice, but
the Ct. said no when actual notice is not overly cumbersome or
impracticable.
Greene
v. Lindsey: notice by posting
to non-rent payers not constitutional in apartment where flyers are
routinely pulled down off walls. Service by mail is much more
effective and provides an easy alternative, especially when
depriving a D of place to live.
1. O’CONNOR’S DISSENT:
  1) how often is it really that someone pulls a posting off the
  wall, 2) the deprivation is small here! The tenants are dead beats
  and they haven’t paid rent. It is a small thing to kick a person
  who hasn’t paid rent out of their apartment.
2. This case provides an
  example of how cts. are divided amongst liberals and conservatives.
Dobkin
v. Chapman: The NY Court
of Appeals upheld court-ordered substituted services (by mail to the
Ds last know addresses and by publication) when the whereabouts of
the Ds of 3 automobile accident cases were unknown. The court held
that the P’s did the best they could do in these “situations in
which insistence on actual notice, or even the high probability of
actual notice, would be both unfair to the Ps and harmful to the
public interest.” The onus was put on the Ds since they should
have been sure to give the Ps the proper addresses. (WHEN PERSONAL
SERVICE IS IMPOSSIBLE)
Covey v. Town of
Somers: Notice by mail is not sufficient when dealing with
someone who has been adjudged insane and

committed to a hospital, who is also without protection of a guardian.

Dusenberry
v. US: service of process by
mail from the FBI to a federally incarcerated prison inmate declared
Constitutional even though the mail clerks did not specifically say
that the notice depriving the D of drug-related properly got to the
D. They only said what the procedure was and that it is usually
followed. The Ct. declared that the method of notice was
“reasonably calculated to reach the D.”
1. GINSBURG’S DISSENT:
  this method is too lax when you consider the fact that the
  Government has total control of the inmate’ s location.
2. This case was split again
  btw. liberals and conservatives, but the conservatives won.
3. This case affirms the
  minimum requirement that service by certified mail is a method
  reasonably calculated to reach the D and if it does not, the mail
  will usually be returned to sender.

d.
**this presents a problem for people whose location, travel, and
mail are
controlled by the government , such as members of the armed forces, law
enforcement agents, or other government employees, especially those who
are
in a combat situation.**

Cash
v. Hamilton County Department of Adult Probation:
Issue of how to send reasonable notice to homeless
individuals who lack a permanent resident or fixed address. Is
publication in a newspaper sufficient? Case remanded.

CONTENT OF NOTICE

Aguchak
v. Montgomery Ward Co: Supreme
Ct. of Alaska set aside a default judgment after the appellants
failed to respond to a small claims summons that did not inform them
they could: 1) appear by a written pleading, 2) request a change of
venue, and subsequently had a judgment entered against them.
Finberg v. Sullivan:
PA’s post-judgment garnishment procedure which permitted the
seizure of assets without notice or opportunity for a hearing, upon
a judgment creditor’s petition (to a clerk or magistrate) for a
writ of execution, violated the Due Process Clause.

UNCONSTITUTIONAL/FRAUDULENT
NOTICE

Wyman
v. Newhouse: A
judgment procured fraudulently lacks JD and is

null
and void.

Tickle
v. Barton:
held
that where attorney for plaintiff telephoned defendant at his

Virginia
home and invited him specially to attend certain high school banquet
in; West
Virginia, without disclosing his name or that his purpose was to
obtain; personal
service in West Virginia county of process on defendant, and
defendant; would
not have attended banquet if facts had been revealed, service of
alias; process
on defendant at banquet was void, and did not justify exercise by
Circuit; Court
of jurisdiction over defendant.
NOTE: Fraudulently inducing a D to enter a JD vs. Fraudulently inducing a D already within the JD to accept service of process. The latter is legal. (Gumperz v. Hoffman)

VI. Immunity From Process and Etiquette of service
A. POLICY and ISSUES:
– justified as promoting the administration of justice
– benefits the court
– originally meant to protect the court from interference with its judicial processes
– Immunity from process serves legitimate goals, but when carried to the extreme, it
ignore the P’s desire to litigate in a local forum ( i.e.: P can’t sue D bc D has
immunity).
– How should the State balance these interests?: 1. Maybe
by weighing the efficiency. If the intent behind immunity is to
make the; cts.
more efficient, there has to be a line at which the interest of
justice outweighs; the
purpose of immunity.; 2. Maybe by making
restrictions on immunity.
B. Illustrations
1. State Ex. Rel. Sivnksty v. Duffield: Ct denied immunity when the D,
Sivnksty, struck and injured two children with his car while vacationing in W. VA.
Sivnksty had planned to vacation there until July 2. After the accident, Sivnksty
was arrested for reckless driving, was unable to post bond, and remained in jail
until his trial on July 2. While stuck in jail, Sivnksty was served with process in a
tort action brought by one of the injured children.

Rule: "A
person confined in jail on criminal charge or imprisoned on
conviction for such charge is subject to civil process,
irrespective of the question of residence, at least if he was
voluntarily in the JD at the time of the arrest and confinement."
(72 C.J.S., Process, Sec. 82)

2. In many cases, immunity is governed by statute:

Kadic
v. Karadzic:
immunity from service is confined to the headquarters distrct itself
so a diplomat was not immune bc he conducted affairs outside of the
principal headquarters.
Silverman
v.
Superior
Court:
In CA and NY, if the long-arm statute can reach the D, the D is not
granted immunity.


VII. PROVIDING AN OPPORTUNITY TO BE HEARD
– D must be able to develop the facts and legal issues in a case.
– D must be informed of the action (receive notice) sufficiently in advance so one can obtain
counsel and prepare a defense

Illustrations

1. Roller v. Holly: Due process violated where D in VA was only given 5 days
notice to appear in TX. Most statutes require a minimum of 20 days.
2. Goldberg v. Kelly: procedural due process applicable for termination of welfare
benefits. (Notice, a right to be heard)

Dicta:
The hearing “must be tailored to the capacities and circumstances
of those who are to be heard.” “Termination of aid pending
resolution of a controversy over eligibility may deprive an eligible
recipient of the very means by which to live while he waits.
“KIND
OF HEARING” LINKED TO THE “NATURE OF THE P’S

INTEREST”

“Provisional
remedies”
provide exceptions to the ordinary requirements associated

with the constitutionally mandated opportunity to be heard and are justified by the
need for expedition and summary.
1. PRE-JUDGMENT HEARING FACTORS OF CONSIDERATION
– Interest of the P:  Risk of
Delay
– Interest of the D:  always interest in
the “continued use and possession….”
– Risk of Error

No Notice
Is the Affidavit
Conclusory or Factual?
Is there an opportunity
for a post-judgment hearing? If so, when?
What is the burden of
having a pre-deprivation hearing? (Usually low.)
Is the P required to post
a bond?
Who issues the writ? A
clerk? A judge?
Is this a simple case
involving paperwork or more complex?

2. Illustrations of Limitations on the use of Provisional Remedies

Sniadach v. Family
Finance Corp (1969): Ct. struck down a WI
pre-judgment wage garnishment procedure. The ct. weighed the fact
that garnishment was a great drain on family income.
Fuentes
v. Shevin (1972):
The central
meaning of procedural due process is clear, as parties whose rights
are to be affected are entitled to be heard, and in order that they
may enjoy that right they must first be notified. It is equally
fundamental that the right to notice and an opportunity to be heard
must be granted at a meaningful time and in a meaningful manner. The
use of provisional remedies cannot preclude this right.
Mitchell v. W.T.
Grant Co. (1974): Ct. held that sequestration of personal
property was Constitutional due to the P creditor’s interest in
the property in an installment sale of goods.
North Georgia
Finishing, Inc. v. Di-Chem, Inc. (1975): pre-judgment bank
account garnishment un-Constitutional when a P claimed the D owed
him $ for goods sold and delivered.
Connecticut v. Doehr
(1976): pre-judgment deprivation of real property is
response to a cause of action arising out of an assault and battery
claim is Un-Constitutional.
Mathews v.
Eldridge (1976): Gov’t. pre-judgment termination of SS
benefits constitutional after considering 3 factors:

the private interest
that will be affected by the official action
the risk of erroneous
deprivation of such interest through the procedures used, and
probably the value, if any of additional or substitute procedural
safeguards
the Gov’t’s interest,
incl. the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.
**NOTE: particular
importance is given to claims in which “the government itself
seeks to effect a deprivation on its own initiative.”**

Richmond Tenants
Organization, Inc. v. Kemp: Ct. held

that drug
activities are not “exigent circumstance”so as to constitute an

exercise of a
pre-judgment eviction from a Public Housing facility. The

level and type
of drug trafficking may effect whether there is in fact an

exigent
circumstance, but drug activity = not enough.

United States v.
James Daniel Good Real Property: seizure of house no good
after US obtained an ex parte write of arrest in rem from a
magistrate judge after showing that the D’s house was used in
drug-trafficking 4 years earlier.
Bennis v. Michigan:
a forfeiture of a family’s automobile held as Constitutional after
a husband used the car for sex acts with a prostitute. The Gov’t.
provided the wife with notice of a hearing to contest the
forfeiture, but refused to acknowledge the wife’s interest in the
automobile. The Ct. ruled that “an owner’s interest in property
may be forfeited by reason of the use to which the property is put
even though the owner did not know it was to be put to such use.”
Patterson v. Cronin:
Immobilization of a car by use of a boot declared a violation of Due
Process solely bc the State failed to provide a post-deprivation
hearing, despite the fact that the driver had been illegally parked
7 prior times.
Shaumyan v. O’Neil:
(Connecticut) pre-judgment seizure of a house declared
Constitutional in a K hearing since the risk of error was low and
the P was a contractor who worked on the home and had a substantial
pre-existing interest in the home.
Peralta v.
Heights Medical Center: Pre-judgment seizure and selling of
an employer’s property by a hospital to recover a medical bill
owed by the employer on behalf of one of his employees declared
un-Constitutional.



































VIII. SUBJECT MATTER JURISDICTION—Can this court hear this type of dispute?
A. Federal cts. have limited JD—must be something affirmative to grant JD
B. To be in Federal Court:
1. Authorized by The Constitution (Article 3) (CONSTITUTIONAL)

arising under the
Constitution, under the law of the US, under Treaties=NECESSARY
INGREDIENTDEMANDS A BUT FOR ANALYSIS—But for the law,
the claim or parties wouldn’t exist! (Osborne)
all cases affecting
ambassadors, other public ministers, and consuls
all cases of admiral and
maritime JD
controversies where the US
is a party
controversies btw. 2 or
more states (i.e., a dispute over a border; THESE CASES START AND
END IN THE SUPREME CT)
between a state and
citizens of another state
between citizens of
different states
between citizens of the
same state claiming lands under grants of another state
btw. someone in the US and
an alien (alienage JD)

Hypo: Law
states that “Shaun can sue in Federal Ct.” Julie punches
Shaun. Can Shaun sue in Federal Ct? 1) Authorized, Yes. 2)
Constitutional, No, bc federal law is not necessary ingredient in
dispute so suit doesn’t arise under Federal law.

Authorized by Congress
1. § 1331-Federal Question
  1. The district cts. shall
    have original JD of all civil actions arising under the
    Constitution laws, or treaties of the US.
    - MUST BE PART OF THE
      PLAINTIFF’S COMPLAINT
    - Merrell Dow:
      Private CoA created by law
    - Grable: If a
      case: 1) requires an interpretation of federal law and 2) it
      is a “MATTER OF NATIONAL IMPORTANCE” the absence of a
      federal CoA is not inevitably fatal to federal JD.
2. § 1332-Diversity of
  Citizenship; amount in controversy; costs
  1. The district cts. shall
    have original JD of all civil actions where the matter in
    controversy exceeds the sum or value of $75,000, exclusive of
    interests and costs, and is btw.: 1) citizens of different states,
    2) citizens of a State and citizens or subjects of a foreign
    state, 3) citizens of different states and in which citizens or
    subjects of a foreign state are additional parties.
  2. An alien admitted into
    the US for permanent residence shall be deemed a citizen of the
    State in which such alien is domiciled.
    - AFA Tours:
      Ct. must find that the amount in controversy has not been met to
      a LEGAL CERTAINTY
  3. Citizenship is
    determined by domicile at the time the suit is filed.
  4. Citizenship of
    corporation: 1) wherever incorporated, 2) wherever its principal
    place of business. Principal place of business is determined by:
  5. Unincorporated
    associations’ citizenship determined by members.
  6. Injunctive Relief and $
    in Controversy

Plaintiff
viewpoint-only value to P may be used
Value from the point of
the party seeking to invoke Fed. JD
Either viewpoint-the
pecuniary result to either party which the judgment would directly
produce.
In general: Ps can
aggregate claims against single Ds, unless the Ps’ claims are
separate and distinct. If there is any single divisible harm, Ps
may aggregate.

Exceptions: probate
matters and domestic-relations cases are generally dismissed in
federal cts. for lack of SMJD. Div. JD was created for suits of a
civil nature in law or equity.

Civil Procedure – Law School Outline 1L

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