Overview/catch-all

Civil procedure, things to remember by topic.
OVERVIEW/CATCH-ALL:
-Summons – the start of the process, let’s you know you’ve been selected to participate in the process. There are geographical jurisdiction questions about who can issue what summons.

-Complaint comes after summons or can be served with it. It has two functions: to tell the person what you think he did so he can defend himself and (more recently) to act as a threshold for what you need to show that you know.

-Two options as a response to the complaint:

-An answer is a passive piece of paper denying the allegation.

-A Rule 12 motion says there is something wrong with the face of the complaint (wrong place, wrong court, doesn’t set out enough facts or the legal justification is wrong)

-If you survive the motion, you go into discovery, where a plaintiff with a plausible understanding of his harm develops the facts needed to make the case. This can be done through depositions, document demand or written interrogatories. Part of the reason they are pushing up the threshold on pleadings is because the cost of discovery is so high.

-After discovery, you bring a motion of summary judgment, asking the judge for rule for you because all the necessary facts point to you winning.

-If the judge thinks there’s a question of fact and summary judgment is denied, we go to trial. Judges decide questions of law and questions of fact that are so obviously in their favor that no reasonable jury could decide the other way.

-Two types of appeals:

-Interlocutory appeals: if a judge makes a ruling that will affect the outcome of the case, the parties can appeal immediately. You jump up to the appellate court and get an answer. Some states use this.

-Final order appeal is used in the federal system – only at the end of the trial (except for a collateral order exception where the decision would shade the trial in a way that would make it impossible to go back – like if they deny your attorney-client privilege.)
Due process can mean two things:

-Procedural due process is the uncontroversial idea that it’s a way the government should act before doing something to you (the procedures it should go through).

-Substantive due process says there are some things the government can’t do to you no matter what. Big divide on this.
-Note about mixed motive discrimination cases. If plaintiff proves mixed-motive in discrimination case, he wins. That’s been the case for years in race and sex discrimination. Last year in Gross v. FBL Financials, Supreme Court said it wasn’t the case for age discrimination, but Congress will likely overrule that.
Thayer presumption busts the bubble and we’re back to the BC range.

Morgan presumption shifts the burden of persuasion to the other side.

Federal rules of evidence say without other rules, presumptions are Thayers.
To dispute in personam jurisdiction, enter a special appearance

To dispute quasi in rem, enter a limited appearance.

-Where is a debt? In Harris v. Balk, the court said the debt is on the back of the debtor. So when Harris is up in Maryland, it’s OK for Epstein, who is owed money by Balk, to take the debt that Harris owes Balk. (This may not be valid)
-Kokkonen Problem: After a settlement has been reached in a case that had subject-matter jurisdiction, the court losses jurisdiction to enforce the settlement unless it specifically retains it in the settlement. (A breach of the settlement is treated like a regular contract claim).


PLEADING
Rule 8(a) requires the plaintiff to tell three things:

-A short, plain statement saying the court has jurisdiction

-See personal and subject matter jurisdiction.

-A demand for the relief sought

-Straightforward: damages, injunction, etc

-A short, plain statement showing the plaintiff is entitled to relief

-Need to plead facts that, if true, would give you relief.

-Not enough to say the defendant negligently hit me with a car. You have to say, he was driving too fast on the wrong side of the road and hit me.

-Those facts must be “plausible”: Twombley raised standard to “plausible” (though it said the plaintiff’s story had to be more likely than the defendant’s story, so maybe probable) from Conley standard of possible (any set of facts)

-Examples of not enough facts:

-Twombley: (class action against the Bells alleged that because they had not been competing for years, they must have been conspiring.) Not competing is not enough facts to prove conspiracy in our legal system.

-Iqbal: (Man sues Ashcroft for discrimination after Sept. 11. The complaint alleged Ashcroft knew about harsh conditions of confinement based on race or religion.) Court says you haven’t plead enough facts because even if true, him knowing about that is not enough for you to win because qualified immunity requires the plaintiff to prove purpose.

-Note: both these cases turn on what you need to prove. They’re making judgment about whether plaintiff will be able to win if we go forward. Seems OK to do this before discovery IF the plaintiff has no way to win later.

-Examples of enough facts:

-Erickson v. Pardus (2007, after Twombley) (Inmate brings discrimination suit against the head of prison alleging that they won’t give him medical treatment). Court said this is enough facts – you only need to give the defendant an idea of what the claim is.

-Not many other cases post-Twombley. Try to interpret it narrowly and see if it is plausible the plaintiff will win if right on all their facts.

-Consider the cost of discovery and the risk that the jurors will misinterpret the claim, which are both concerns in Twombley.

-Look through the factors in summary judgment – the point that the judge considers what the burden of persuasion will be when deciding SJ; that they only view evidence in the light most favorable to nonmoving party when there is a “genuine” dispute.

-Will those factors start to be used in the pleading stage?

SUMMARY JUDGMENT:
After discovery, the defendant will ask for summary judgment, saying the plaintiff doesn’t have enough evidence to win later, so why go forward. (Rule 56 is summary judgment)

-Originally used when damages could be shown by documents: here’s what I lost.

-Argument is that now they’re interpreting more broadly and are even doing it earlier: at the pleading stage. Summary judgment at least comes after discovery.

Test: to get summary judgment, the defendant has to show “the absence of any disputed material fact.” (Adickes v. S.H. Kress – White school teacher is in a restaurant with her black students when cop comes in. When she leaves the restaurant, she is arrested and she says her civil rights were violated). Defense offered affidavits from the store manager, the chief of police and the arresting officer denying a prearranged scheme)

-Those affidavits did not provide an alternative reason for why the cop was in the store, so there is still a material question of fact. (if they can prove that, maybe they will win at directed verdict)

-But clearly you’re also making a judgment on the merits of the case, trying to decide if a reasonable jury could decide the other way.

-Court can consider what the burden of persuasion will be for the jury to find for the plaintiff when deciding if the case should go forward (why let it go forward if there is no way it will be decided by a jury by clear and convincing evidence – even if it could have decided either way by a preponderance of evidence.

-Anderson v. Liberty Lobby (Anderson publishes an article saying the Liberty Lobby was neo-nazis. Anderson said it wasn’t intentional or malicious.): Because the standard is higher for liable cases, the court granted the summary judgment motion asking for the case to be dismissed

Factors to look at:

-Only looks at evidence that will be admissible at trial: If the plaintiff is relying only on evidence that won’t be admissible at trial, why go forward. (Celotex)

-Celotex Corp. v. Catrett was a mass tort case where the only evidence that the plaintiffs had been exposed to the defendant’s product was three affidavits that wouldn’t be admissible at trial. Court granted summary judgment.

-Note: you don’t need the actually evidence: you can use an affidavit of what a witness will say at trial, even though you will need to use the actual witness at trial.

-Also note: defendant doesn’t have to deny any of the facts to get summary judgment.

-Facts viewed in light most favorable to the nonmoving party, but only when there is a “genuine” dispute to those facts.

(Scott v. Harris – car chase video raised no dispute to genuine fact, so court granted summary judgment for the defense.)

DIRECTED VERDICT:
Rule 50 allows the judge, after the witnesses and evidence have been presented, to enter a judgment on the law if the facts are sufficiently clear. (50a is before the jury hears it and 50b is after the jury’s verdict)

-Note: Galloway v. United States is the 1943 case that tried and failed to say that directed verdict was a violation of the Seventh Amendment.

-Can’t take it away from the jury unless it is unreasonable for the jury to decide one way.

-Rogers v. Missouri Pacific RR where Laborer was told to burn off weeds near the track.

-A jury is allowed to look at the evidence and say I don’t believe one side. That is not justification for the judge taking it away from them.

-Reeves v. Sanderson Plumbing (Age discrimination case where the company said he didn’t do his job and he presented an alternative, saying the company’s time clocks were often broken): Case turned on whether they believed the man or the company, so no directed verdict.

-Note about mixed motive discrimination cases. If plaintiff proves mixed-motive in discrimination case, he wins. That’s been the case for years in race and sex discrimination. Last year in Gross v. FBL Financials, Supreme Court said it wasn’t the case for age discrimination, but Congress will likely overrule that.

NOTICE:

Notice is about due process: making sure the parties know about the litigation and have a fair shot at litigating.

First step is service of process which is governed by Rule 4: see the rules.

What is needed?

-You have to give the best notice reasonably possible. If you know the person’s address, posting in a newspaper is not enough. But you aren’t required to actually reach everyone if that is not possible. (Mullane v. Central Hanover Bank)

-Very fact specific:

-Hand delivery is the best, but not required because can be avoided by defendants.

-By newspaper can be OK if it’s the only option (Mullane)

-Attaching notice to property is often sufficient, the court said in Mullane, but in Greene v. Lindsey, that was not enough because those notices were often removed by children.

-Sending certified mail to the prison was enough in Dusenbery v. United States.

-But certified mail wasn’t the best way in Jones v. Flowers because they knew the certified mail didn’t get to him – court said you should have tried regular mail because for certified mail, you have to be at home.

-This comes up here and in class actions, when you have to notify everyone in the class.

Timing for notice:

-Parties have the right to be heard before being deprived of property, but sometimes it is OK to have a hearing immediately after.

-It’s a balancing test of:

-what the person is being deprived of (is it wages – sniadach – or the right to sell their house – doehr)

-for how long – will there be a hearing right after (WT Grant)

-what is the chance of mistake (will it be a jury question whose property it is – Doehr)

-what is the seizing party’s interest (shared property, WT Grant, or someone else’s bank account, North Georgia)

-General rule: no prejudgment hearing unless there is a real need and the plaintiff has a serious interest at stake.

-Protective attachment of property when worried about it disappearing is probably OK. (WT Grant) IF:

-Judge makes decision (as opposed to Fuentes and Di-Chem)

-Creditor posts bond (says Doehr)

-Debtor has right to immediate hearing on the merits (no immediate post-deprivation hearing in Di-Chem or Fuentes

-STILL: prejudgment hearing may be necessary (Sniadach and Di-Chem)
-Case NOT requiring notice first:

-Mitchell v. WT Grant (There was shared property interest on a debt and a judge approved the seizure, which is sort of like a mini hearing and there was a bond posted by the seizure.)

-Cases REQUIRING notice:

-Prejudgment wage garnishment: Sniadach v. Family Financing: defendant has very strong interest in her wages and plaintiff has no right to them.

-Prejudgment corporate bank account attachment: North Georgia Finishingn v. Di-Chem is corporate analog of Sniadach (a prejudgment freezing of accounts). Massive harm to corporation whose accounts are frozen, no interest by seizing party.

-Prejudgment joint property garnishment: Fuentes v. Shevin – seizing party had the title on the stove they were financing for the buyer. Still, see balancing test above. (court said might be OK if there was risk of them damaging the property – as long as there was a hearing right after.)

-Attaching real estate: Connecticut v. Doehr is close to the line. The seizing party had very little interest (though you could think of a situation where they would – say they built the property), and the risk of error is high. But the risk of damage to the plaintiff is low

DISCOVERY:
-The limits on discovery are: a party may obtain discovery on any nonprivileged matter that is relevant to any party’s claim or defense. (Rule 26(b)(1))

-There is supposed to be a voluntary exchange of relevant information. After voluntary disclosure, there is discovery by three other methods:

-Depositions – question anybody under oath. Transcripts aren’t usually admissible at trial but they are used to protect against perjury and stop deviations at trial. There are no objections at depositions, so you can ask anything.

-Document demands – can be linked with a depostion if you want, but generally, it’s the first thing you do: demand relevant documents.

-Written interrogatories — cheap way to do it but unhelpful because lawyers answer the questions.

Exceptions to wide-open discovery:

-Sensitive material: Judge has discretion to deal with sensitive material by issuing protective orders that say this information cannot get out. In Marrese v. American Academy of Orthopedic Surgeons, two orthopedic surgeons were denied membership to an Academy. They sued and in discovery asked for all correspondence relating to membership applications.

-Neuborne has a theory of phased discovery where you get X depositions in phase I and then as you more forward, the judge can give you more.

-Publication: Trial court has the discretion to restrict the dissemination of information received through discovery (similar to Marrese). Seattle Times v. Rhinehart (Rhinehart, head of a controversial spiritual organization, brought a suit against the Seattle Times for liable. In discovery, the Times asked for a list of all the organization’s members. Court said they couldn’t publish the list and it was not a first amendment violation because it was obtained through discovery)

-Work Product: Attorney work product is protected and is not discoverable. In Hickman v. Taylor, party asked for all the other side’s info so he could make sure he didn’t miss anything. Hickman v. Taylor argument in every case and it’s up to the judge’s discretion to figure out what is work product:

-Memos are clearly work product

-Work product does not cover information not given by the client to the attorney.

-Gray area in between about things found out in investigation and interviewing of witnesses, etc.

-If it’s in the public record, no discovery for it.

-Privilege: attorneys and clients must be able to predict with some degree of certainty what will be protected. If it flows directly from the client to the lawyer, it is absolutely privileged.

-Upjohn v. United States says that all employees are clients if the corporation is a client. All courts recognize attorney-client privilege as necessary for public policy under these conditions.

-person claiming privilege is a client or seeks to be

-attorney is a member of the bar and a practicing lawyer

-privileged info was told to the lawyer in confidence

-privilege was not waived.

-Exception is if it’s information that someone will harm someone in the future.

PERSONAL JURISDICTION:
Summary -- Three types of personal jurisdiction:

-in personam: power over the person

-general jurisdiction: the act we’re suing for didn’t happen in the forum but the entity that we’re suing had contacts in the state. For most big companies, for example, if they sell stuff everywhere, there is in personam jurisdiction over them everywhere they sell stuff.

-General jurisdiction is grounded in the Pennoyer power concept – the corporation is physically present.

-Two cases define the boundaries of general jurisdiction:

-Burnham finds jurisdiction in a close call:

-Helicopteros says not enough for jurisdiction

-Specific jurisdiction is when the act that we’re suing over happened in the state. In order to get specific jurisdiction over someone not in the state, you need a long-arm statute.

-in rem: power over the property that is the center of the dispute

-quasi in rem: power over some property but not the property being disputed. For quasi in rem, you can only sue up to the value of the seized property. (No good reason to use this any more and Shaffer v. Heitner makes it very difficult if not impossible – if you have the contacts for quasi in rem, just use in personam)

-quasi in rem I: there is some relationship between the property and the lawsuit – In Pennoyer, Mitchell sued for the money that got Neff the land that was seized.

-Quasi in Rem II: No relationship at all – seize someone’s racehorse.

-Complicated when you get into more abstract ideas. Where is a debt? Where is a stock?
In Personam -- Specific jurisdiction

Is there a traditional basis for jurisdiction – leftover from Pennoyer? If so, that’s all you need for jurisdiction:

-Physically present in the state: State has jurisdiction over anyone in the state.

-Burnham v. Superior Court said the old Pennoyer test still holds, even for transient presence. Burham just went to California for a few days to visit his kids. Scalia says he doesn’t have to have minimum contacts if you are served in the state.

-Brennan argues that him being there is enough for minimum contacts, but the end result is the same.

-Live there: Assertion of power over property in the state. This is directly from Pennoyer, but it seems obvious that if you have property there, you probably have minimum contacts. (you are given the privileges and protections of the state law)

-Consent: If the person consents.

-Often an express term in contracts like renting a car.

-Can be implied in cases where the state has an interest in keeping its roads safe.

-Hess v. Pawloski upheld this, saying it was OK to say that if you drove on the road, you consented to jurisdiction and made the secretary of state your agent for process.

-There would be nothing wrong with them saying no cars on the road, so they can force you to impliedly consent. The privileges and immunities clause of the 14^th Amendment (saying no state shall make or enforce any law which shall abridge the priv and imm of citizens of the U.S. would mean that you couldn’t say anyone who steps foot in your state consents).

Does a long-arm statute apply? (start with statutory authority, not due process clause)

-Typically, they say if cause of action arises out of commission of tortious act in this state, doing business in this state, insuring of risk in this state, contracting to supply goods and services in this state, or arising out of breakdown of marriage in this state, then forum state can assert jurisdiction over non-citizen based on commission of act in that state

-Some just extend to the limits of the constitution.

-If it includes something that says arises out of the commission of a tort, is the making of the defective product the tort or is the act of the tort exploding the tort?

-No precise formula.

-Consider the contacts related to the cause of action: Isolated or continuous; related or unrelated

-Consider whether the defendant has invoked the benefits and protections of the law of the forum

-Gray v. American Radiator (Titan Valve makes valves and sells them to Am. Rad., which sells them all over the country. Valve blows up in Illinois. Titan Valve doesn’t directly sell to Illinois). Still jurisdiction. This is related and arguably less than continuous but more than isolated

If long-arm applies, is its application in this case constitutional?

Minimum contacts and substantial justice (objective/subjective test)

-International Shoe v. Washington said due process requires “certain minimum contacts” (objective) such that it does not offend “traditional notions of fair play and substantial justice.” (subjective)

-Continuous-related is definitely enough.

-Note: if the contract is made in Washington, then specific jurisdiction. If the contract is made in Missouri, then general jurisdiction. Could change the analysis.

-Factors to look at and the Case Law:

-Nature and number of the contacts (isolate/continuous; related/unrelated).

-Continuous-related is clearly enough (Intl Shoe). Isolated-unrelated is not enough. Continuous-unrelated is a general jurisdiction. Isolated-related can be enough depending on other factors (It was enough in McGee v. Intl Life Insurance)

-Must have some contacts: In Hanson v. Denkla, a woman with money in a Delaware bank moved to Florida. Getting statements from the bank sent to her was not enough to establish minimum contacts.

-Does the state have a “manifest interest” in providing redress for its residents? (McGee)

-In McGee v. International Life Insurance said despite the insurance company selling only one policy in Calif., the state’s residents would be at a huge disadvantage if they had to go to Texas to litigate.

-In Keaton v. Hustler, defamation case can be litigated in New Hampshire because New Hampshire gets plenty of copies of Hustler magazine, so the state has an interest.

-Careful – are their interests met by just using their law? In Shaffer v. Heitner, Heitner argued that Delaware’s had a strong interest in regulating its corporations, but the court said that was reason to use Delaware’s law, not its forum.

-Purposeful availment, or foreseeability, not that the product will get to the state, but that the defendant will have to be sued there. (World Wide Volkswagen)

-In World Wide Volkswagen v. Woodson, the defendant sold cars, so it was foreseeable that the car might go there. But foreseeability alone is not enough. The company had to “purposefully avail” itself of the privilege of conducting business in the state.

-White is worried about federalism – defendants should be able to choose which states’ laws it wants to follow: think four-lug rule.

-In Gray v. American Radiator, it was foreseeable, that the product would be used in that state and could commit a tort in that state. Titan Valve was availing itself of the Illinois market.

-Distinctions are that the company knew where its products were being sold, as opposed to not being able to predict where consumers would take them. Stream of commerce v. out of the stream of commerce.

-In Calder v. Jones court finds jurisdiction for freelance writers of a National Inquirer story ho had never been to California. It’s sort of like Gray v. Am. Radiator: they put their words in a product they knew was going everywhere.

-Purposeful Availment is a subjective test. Tries to get in the defendants’ heads. Court FINDS purposeful availment in Keaton and Calder but in WWVW and Kulko, they look in D’s heads and say, not enough.

-Fairness and substantial justice concerns that override?

-How easy is it to litigate in that state? Burger King v. Rudzewicz made it clear there were two prongs to the Intl Shoe test. NOTE: hard to have fairness concerns – would have to be really unfair, I think (it wasn’t enough in Burger King, a case where the two poor franchise owners had to travel from Michigan to Florida to litigate with the huge corporation). Easier to find jurisdiction in a contract case where there is a continual relationship that is consensual.

-Public policy considerations (for family, at least). Will it encourage a behavior we don’t want to encourage?

-In Kulko v. Superior Court, the only contact was a plane ticket out to California for the daughter. Daughter is getting the benefits and protections of the forum (and in a sense, so is the dad), but court says if we said there was jurisdiction, parents wouldn’t buy that plane ticket (sort of dubious)

-Three tests in Asahi:

-All three take into account the fairness of the forum. Perhaps think of it as a sliding scale with fairness of the forum and minimum contacts as the two variables: the more of one, the less of the other you need.

-O’Connor says there has to be a volitional relationship. “Mere awareness” that your product is sold there is not enough to satisfy purposeful availment.

-Brennan says: it is enough that the company is benefiting from the California market; stream of commerce is the regular, predictable nature of sales in the market. (but California had no more interest in the case)

-Stevens says that in most cases, 100k valves over several years would be purposeful availment, but I’m not going to decide that because it’s clearly not a fair forum and there’s no reason to do it in California.

-Facts related to or arise out of the incident?

-In Helicopteros, Brennan said there should be specific jurisdiction whenever the cause of action arises out of or relates to the contacts with the state. The majority didn’t talk about it, so you could try to argue one way or the other.

In personam – general jurisdiction: