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CivilProcedureOutline--November09,2008

CivilProcedureOutline--November09,2008

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11/11/2011

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Sections

  • 1. General Notes
  • 2.1.1. Notes
  • 2.2.1. Notes
  • 3.1. Notes
  • 3.2. Case Briefs
  • 4.1. Notes
  • 5.1. Notes
  • 6.1. Case Briefs
  • 7.1.1. Notes
  • 7.2.1.1. Notes
  • 7.2.2.1. Case Briefs
  • 7.3. Corporations, Generally
  • 8.1.1. Notes
  • 8.1.2.1. Notes
  • 8.1.2.2. Case Briefs
  • 8.2. Opportunity To Be Heard
  • 9.1. Notes
  • 9.2.1.1. Notes
  • 10.1. Notes
  • 10.2. Case Briefs
  • 11.1. Notes
  • 11.2. Case Briefs
  • 12.1. Notes
  • 13.1.1. Notes
  • 13.2.1. Notes
  • 13.3.1. Notes
  • 13.4.1. Notes
  • 14.1. Notes
  • 14.2. Forum Non Conveniens
  • 15.1. Notes
  • 15.2. Case Briefs

Civil Procedure Course Outline November 09, 2008

1. General Notes
Civil Procedure - September 04, 2008
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Pennoyer v. Neff Issue: Personal Jurisdiction When the word appears alone usually means subject matter jurisdiction Sometimes can institute the word power for jurisdiction John Mitchell sued Neff for attorney fees because Neff hired him to file some title docs on land When Neff did not pay Mitchell sued for breach of contract Neff did not get notice as he did not live there Background: Mitchell got judgment with writ of attachment o Writ is an order (summons, injunctions)

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Pennoyer bought land and was very settled for some time Neff came and wanted land back Second lawsuit is Neff suing Pennoyer for title of the land Pennoyer bought land from sherrif sale but Neff is claiming judgment and sale was bad because did not have juridiction due to lack of notice. KEY ISSUE: Personal Jurisdiction Amenability (subject to be served) o Responsible; subject to answer in a court of justice liable to punishment Notice (served) o They have to actually get notice o In rare cases can do publication notice if cannot reach the person o Subject to jurisdiction once given notice Decision: SC states that Neff must be in the forum state to get notice o Have to be served personally (usually handed, threw and hit in head) o THIS CASE WAS A IMPERSONUM JURISDICTION and therefore did not get notice and no jurisdiction Once the judgment is enforceable (ex. 10,000) everywhere in United States (due to full faith and credit) Impersonum Jurisdiction Sue for personal issue Courts jurisdiction over a particular person Requires in person notice

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Judgment good everywhere! Corporation could serve an agent In rem True in rem case have to give notice to everyone usually about property not people Name of the property not the people Jurisdiction in rem (Latin, power about or against "the thing") is a legal term describing the power a court may exercise over property Judgment good in forum state only Quasi in Rem Jurisdiction A quasi in rem action is commonly used when jurisdiction over the defendant is unobtainable due to his/her absence from the state. Any judgment will affect only the property seized, as in personam jurisdiction is unobtainable. Personal lawsuit usually contract issues or torts Judgment good in forum state only

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← ← This case is key because with 14th Amendment passed the three previous jurisdiction rules were common law widely spread and rule broken all of the time. SC decided to tie it to the 14th amendment to apply it to all of the states. ← • 14th Amendment is just a limit that the state cannot exceed, however always have to look to state statutes for jurisdiction… power comes from state ← ← NOTES: • Blackmer v. US …SC upholds Pennoyer o Blackmer creates exception states that US citizen that does not reside in US can be sued here does not matter so long as you given notice. • Miliken v. Meyer o State has power to subject its own citizens to jurisdiction o Cannot to non citizens unless served in forum state (d/n have to live there) ←

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Hess v. Pawloski Car wreck in MA between PA person and MA person Implied Consent: states can write a law that states when you do this you have implied consent Take summons and serve it in registrars of motors…sent to PA… official in PA sends in by mail to persons address then person has notice ISSUE: IS THIS OK??? SC stated yes this is ok!!! Hess upholds Pennoyer International Shoe v. Washington

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Washington State Law o You can be served notice by certified mail Due Process o Hand it to them in the state (Pennoyer) o Issue: (1) whether, within the limitations of the due process clause of the Fourteenth Amendment, appellant, a Delaware corporation, has by its activities in the State of Washington rendered itself amenable to proceedings in the courts of that state to recover unpaid contributions to the state unemployment compensation fund exacted by state statutes, Washington Unemployment Compensation Act, Washington Revised Statutes, s 9998-103a through s 9998-123a, 1941 Supp., and (2) whether the state can exact those contributions consistently with the due process clause of the Fourteenth Amendment. Background: Int’l show trying to get out of paying unemployment benefits Has people in other states taking orders claims that since taking no orders or no site in Washington do not have to pay Rule: Presence since corp is a fiction can only be from action so f it s agents to satisy due process. Court applies IMpliecent ocndent from its presence in the state to the states laws

• • The court overrules Pennoyer but not entirely …overrules the impersona portion of the case and gives us new test Minimum Contacts: o Such that  Systematic and continuous  Obligation arose out of D’s activity in forum state  Traditional notions of fair play and substantial justice Perkins v. Mining (1952): ← ← ← • General Jurisdiction: TEST: Continous and Systematic COntacts o What Ohio had over Benget Mining..everything was there except for the mine o Applied continious and systematic contacts o Substantial presence in a state even though not a citizen and event did not happen there subject to jurisidiction o Have to have a lot of contacts o Non residents of texas really from New York and something happens in New York can they be sued here Hansen v.bank person in Delw claiming that Fl court does not have juridisdiction Court found that he did not have contacts to Florida NOT SUBJECT TO JURISDICTION BECASE HE DID NOT: . Denckla ← ← ← • • • • • • Old lady money trust in Delaware Moved to Florida and changed will cut off couple of daughters Daughters want the trust after she dies Question goes to Supreme Court to decide minimum contacts..

was subject to the jurisdiction of the Illinois court after service of summons was made upon its registered agent in Ohio. of Comm.• • o Purposefully availed himself to the benefits and protections of Florida law Purposeful Availment: o Ex. To manufacture and knowledge that it is being used elsewhere court states that is enough (OK under Ill law) . American Radiator Illinois State Law o Operation of a Long Arm Statute  o Suit by an Illinois resident for injuries sustained when a water heater allegedly exploded. J. that driver from RI in Mass drove in Mass and assumed the laws and benefits of that state Specific Jurisdiction: o First case test is Hansen o Purposefully availed himself to the benefits and protections of Florida law o Mcgee case states you need just one contact o Test for contacts is qualitative and not quantitative o Non residents whom did something in the forum to give lawsuit o TEST: STREAM OF COMMERCE o Foreseeablity o Reasonable anticipation of being haled into court At this time Due Process is International Shoe ← ← ← ← • ← • Gray v. Klingbiel. Cook County. held that the foreign corporation. J. Allen Ashcraft. which manufactured in Ohio a safety value incorporated in Pennsylvania in the hot water heater which was sold to a consumer in Illinois. moved for dismissal of the complaint and the cross-claim filed against it... The Supreme Court. wherein one defendant. dismissed both the complaint and the cross-claim and the plintiff appealed. a foreign corporation. The Circuit Court.. o Rule: Court comes up with term “STREAM OF COMMERCE” o If a defendant places their product in St.

o Due Process:  Stream of Commerce no contacts but place it in the stream  Court found that in law the place of a wrong is wher eth elast event take place which renders the actor liable. automobile wholesaler and retailer.apeal during the case filed in the supreme court of the state to make the judge change his ruling. Seaway Volkswagon in NY. The following year they left NY for a new home in AZ. As they passed through OK another car struck their Audi in the rear. purchases a new Audi from Pet. causing a fire which severely burned Resp’s wife and two children. Woodson (1980) Mandamous Case: like an appeal. ← ← Legal Issue(s): Whether corporate Dfs. who carried on no activity whatsoever in Oklahoma and availed themselves of no privileges or benefits of Oklahoma law.. (Illinois)  1) Power of that state to enter judgment depends on: • whether party has minimum contact with the State • nd reasonable method of notification  Court finds that volume of business is not the method of defining “minimum contacts” • Instead use the work act has SUBSTNTIAL connection with the State of forum ← ← ← • ← • Case is maybe Specific Jurisdiction o TWO OTHER TESTS:  Forseeability  Reasonable Anticipation Volkswagen Corp v. mere fortuitous circumstance that a single automobile sold in New York to New York residents happened to suffer an accident while passing through Oklahoma constituted "minimum contacts" with Oklahoma so as to permit Oklahoma courts to exercise jurisdiction consistently with due process? ← • . defendant suing trail judge. ← ← ← Relevant Facts: Resp..

Foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the D. or retail offices. Pet have no contact. They close no sales and perform no service there. Ct denied appeal by Pet. OK. ← ← Court Rationale: The record has a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. P. ← ← Petitioner’s Argument: The Petitioner does not do business in OK. They avail themselves of none of the privileges and benefits of Ok law. or relations w/ the State of OK. it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury. It is foreseeable that autos sold by WWV and Seaway may take them to OK. They solicit no business there either through salespersons or advertising. agents. Financial benefits accruing from collateral relations will not support jurisdiction if they do not stem fro a Constitutionally cognizable contact w/ the State. Ok S. But foreseeability applies to a dfs conduct and connection w/ the forum State such that he should reasonably anticipate being haled into ct. Reversed ← ← Law or Rule(s): Due process clause of Fourteenth Amendment limits power of state court to render valid personal judgment against nonresident defendant. ties. there. Pet does not have any contact with OK at all. Petitioners carry on no activity in OK whatsoever.← Court’s Holding: No ← ← Procedure: Tr ct ruling for Resp. ← . ← ← Respondent’s Argument: The mobility of the auto with the nature of the Pet’s business creates a situation where it is foreseeable that the product would enter the stream of commerce. salesmen. State court may exercise personal jurisdiction over nonresident defendant only so long as there exist "minimum contacts" between defendant and forum state. but the mere unilateral activity of those who claim some relationship w/ a nonresident df cannot satisfy the requirement of contact with the forum state. has no sales. Pets appealed. If the sale of a product is not simply an isolated occurrence.

" The Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts. Ruzewicz ← ← Facts ← . The State has a legitimate interest in enforcing its laws designed to keep its highway system safe. Each sold the auto which in fact was driven in OK where it was involved in an accident." ← ← Test from VW Case ← ← Specific Jurisdiction: (minimum contacts test) • Activity in forum gives rise to the action o Foreseeability – great for tort case  Foresee harm or injury in forum state o Purposefully availing – great for contract cases o Reasonable anticipation of being hailed into court – great for tort case o Stream of commerce – passive defendant whom did nothing in forum state (narrow products liability) ← ← ← ← ← Burger King Corp. v. and the trial can proceed at least as efficiently in OK as anywhere else.” ← ← Sub-Notes on Rule: ← ← A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. It is not that the dealer foresees that they will move. ties. and the relationship between the defendant and the forum must be such that it is "reasonable . Essential witnesses and evidence were in OK.← DISSENT: The interest of the forum State and its connection to the litigation is strong. The accident occurred in OK. The Pl were hospitalized in OK when they brought suit. . or relations. The defendant's contacts with the forum State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. The petitioners are not unconnected with the forum state. but the dealer actually intends that the purchasers will use the automobiles to travel to distant States where the dealer does not directly “do business. . to require the corporation to defend the particular suit which is brought there.

Burger King then appealed to the Supreme Court.← Two Michigan residents (John Rudzewicz and Brian MacShara. ← ← NOTES: • Court found that he purposefully availed himself to Fl law. The defendants were unable to make their monthly payments to Burger King. ← ← [edit] Dissent ← ← In dissent. prompting the Florida-based corporation to file a lawsuit in Florida for breach of contract and tortious infringement of Burger King's trademarks and servicemarks through the defendants' unauthorized operation as a Burger King restaurant after the defendants received notice to vacate the premises. Rudzewicz could not have anticipated being summoned into court in Florida. The Court reasoned that the defendants had a "substantial and continuing" relationship with Burger King in Florida and that due process would not be violated because the defendants should have reasonably anticipated being summoned into court in Florida for breach of contract. One of the defendants also attended training courses at regional Burger King University locations and in the Florida headquarters on how to run a Burger King franchise. The two defendants would pay their franchise fees and royalties to Burger King's Florida headquarters. to exercise jurisdiction over the defendants would be fundamentally unfair and thus violate the due process clause of the Fourteenth Amendment. subject to jurisdiction there. . ← ← [edit] Holding ← ← The Supreme Court concluded that the defendants purposefully availed themselves of the protections of the forum state (Florida) and were. therefore. and it violates the due process clause to require a small businessman in Michigan to have to make an appearance in a court in Florida to present his defense. ← ← [edit] Procedure ← ← The District Court held that Florida had jurisdiction because of a statute that allowed the state to extend jurisdiction to anyone breaching a contract within the state. The United States Court of Appeals for the Eleventh Circuit reversed the lower court's decision finding that even though the defendants had minimum contacts with Florida. Justice John Paul Stevens argued that Rudzewicz had never been to Florida and had no business established in Florida. the defendants) entered into an agreement with Burger King to run a franchise.

 5) Judicial Systems Interest  if all other factors are equal lets pick a fair site and not burden the overall system. same type of burden as above. best evidence of state interest is Florida statutes. • Two kinds of forum clause o Mandatory choice of forum o Discretionary clause that parties agree that lawsuit MAYBE in Florida but not the only place.  2) Plaintiff’s Interest  convient and effective relief. Stream of Commerce did not apply FAIR PLAY AND SUBSTANTIAL JUSTICE TEST o Factors: (balancing test)  1) Burden on defendant  economic.. Court found that choice of law is relevant and by entering the contract and has FL choice of law clause you have purposefully availed yourself of the FL law.  Difference between choice of law and choice of forum clause • Forum clause sets the forum in which the lawsuit will occur.• • • o Because of the terms of the contract signed o Agreed to choice of law clause  We agree to be governed by Fl law when get in lawsuit going to apply FL law wherever we get sued.better for FL courts to apply FL law  4) Other states’ interest  if FL has laws out of the mainstream could be a reason if can show all of these other states that differ from FL law. Significantly different. if tied usually go with plaintiff  3) Interest of forum state  Legislative branch helps determine public policy. Poloski drive into state) . physical evidence location. ability to subpoena witnesses’. o IF GIVEN LAWSUIT WHERE WOULD BE THE FIRST PLACE TO LOOK:  Traditional Bases:  Resident of the forum state  Consent • Express – choice of forum clase • Implied (Hess v.

Trott.2d 247. and plaintiff appealed. Caddy ← ← Background: Operator of “Pebble Beach” golf resort brought trademark infringement and trademark dilution action against operator of a British bed and breakfast. v. which consisted of one trip to Texas by corporation's chief executive officer for purpose of negotiating transportation services contract. reversed and dismissed case for lack of jurisdiction. ← ← ← Holdings: The Court of Appeals. The Texas Supreme Court. and plaintiffs appealed. were insufficient to satisfy requirements of due process clause of the Fourteenth Amendment and hence to allow Texas court to assert in personam jurisdiction over corporation in wrongful death action. Phyllis J. held that Colombian corporation's contacts with Texas.W. Denying Colombian corporation's motion to dismiss actions for lack of in personam jurisdiction over it. Hall ← ← Wrongful death action was instituted in a Texas state court against a Colombian corporation and others. Hamilton. 638 S. ← ← Justice Brennan dissented and filed an opinion. granted defendant's motion to dismiss for lack of personal jurisdiction. ← ← Texas Supreme Court judgment reversed. Harris County. held that: . Justice Blackmun. the District Court.W.. Circuit Judge. entered judgment against corporation on a jury verdict in favor of plaintiffs. ← ← ← Pebble Beach CO.. Certiorari was granted. Heard.when you fail to object in time Served personally in forum state If none of the these apply then you go to Minimum Contacts test o Asahi Metal v. reversed. Wyatt H. The Supreme Court. acceptance of checks drawn on Texas bank.  ← • • ← Waiver. and purchases of helicopters and equipment from Texas manufacturer and related training trips. J.2d 870. Superior Court • ← ← Helioteros v. J. The Texas Court of Civil Appeals. 616 S. Corporation appealed. The United States District Court for the Northern District of California.

← • Personal jurisidiction o Caddy states no personal jurisidiction if the exercise of that juridiction does not violate federal due process • 3 Part Test: o D performed some act or some trasction within the forum or purposefully availed himself of the provilges in the forum o Claim arirses out of or result from defencets forum related activites o Exercise of jurisdiction is reasonable ← ← • Availment is actually two pronged: Purposeful Avaliment and/or Purposeful Direction ← ← Tyler v. and ← (2) defendant's acts were insufficient to subject him to personal jurisdiction under the federal long-arm rule. whereby the court determines whether the defendant intentionally conducted activities in the forum and thus knows. The mere fact that you have a contact does not create jurisdiction you have to go to the second test . that such conduct could give rise to litigation in that forum. PERSONAL JURISDICTION . or could reasonably expect. Court of Registration ← ← QUICKNOTES MINIMUM CONTACTS . consistent with the requirements of due process. ← ← Affirmed.An element in determining whether a defendant had the required minimum contacts in a forum necessary in order for a court to exercise jurisdiction over the party.The court's authority over a person or parties to a law suit.← (1) defendant's use of “Pebble Beach” in passive website advertising his services and in the website's domain name were not acts aimed at the state of California. PURPOSEFUL AVAILMENT .The minimum degree of contact necessary in order to sustain a cause of action within a particular forum. and thus were insufficient to subject him to personal jurisdiction there.

. Notes Civil Procedure .September 11. Substituted Service 2. negihbor to give to person. Matter Juris Ch 5: Venue Ch 6: What law applies 2.what if gave to neighbor but he never recieved it even though got substitute service it is good service but court will probably have new trial once he objects.September 11.In Burger King they find a contact and what we get is a balancing As well as importance of the choice of law clause Civil Procedure . Notes Civil Procedure .October 21. 2. Service Of Process 2. . 2008 Ch 2: Personal Jurisdiction Ch 3: Notice Ch 4: Sub.2. Service On Corporations 2.1.1. 2008 Can service to a corp permitting the delivery of process to an officer or director of the corporation or agent of serving process.1. Actual Notice = bad service Ex.2.1. 2008 Have to make three good faith attempts and then get substitute service (get to name someone else employer.

(Maryland State Firemen's Association v. 4(d)2 .2.3. Mechanics of Giving Notice 3. 3. Chaves 199 9/11/2008 7:33:39 PM Mechanics of Giving Notice Jurisdiction Over The Parties / Personal Jurisdiction / In Personam Jurisdiction/Federal Actions/Waiver Of Formal Service. substituted service 4. no service but filed the suit..you send a copy of the suit and a waiver form.September 11. Chaves) Fed R. Mere receipt of a request for waiver of service does not give rise to any obligation to answer the lawsuit and does not provide a basis for default judgment.. (Godo thing saves money and time) THE MERE FACT THAT THEY RECIEVED THE WAIVER DOES NOT MEAN THAT THEY GOT NOTICE.Personal notice 2. .talks about Waiver. If you fail to return this we will send service person. Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Civil Procedure MD State Firemans Assoc v.P.1.u return this and you have effictvly waived service of process. Civ.service on sutitable age reisidng in same home Rule 4(e)(2)(b) Permits service process to be made upon an individual by leaving a copy of the summons and complait at his "dwelling or usual placce of abode with someone of suitable age and discretion who resides there. Waiver 4(d)2 3. Notes Civil Procedure . Request For Rule of Law Specific Applications of the Service Provisions. 2008 1.

The Hauge Convention . Notes Civil Procedure . will get sent through the correct channels to be served.she comes out and gives service (good service) Rule 4(e)(2)(b) Permits service process to be made upon an individual by leaving a copy of the summons and complait at his "dwelling or usual placce of abode with someone of suitable age and discretion who resides there. service on people of foreign countries 4. 2008 .September 11.1.Issue What was the problem of giving service? Facts Holding Notes Rule 4(e) Process server yells fire.. Letters Rogatory . 2008 First thing could send a waiver 4(d)(2) Maybe they come tot he US from time to time you can serve them here mailed abroad might be good but the key thing the book states is: 1. return of service 5.old common law method . Notes Civil Procedure .it is a means of complying with foreign law so you dont have to send your person across seas and possibly he get arrested. 4..(international court of justice) . 2.1.general process go to local court and get judge to sign writteen letter from your judge to that judge in that country and they will generall serve process 5.September 11.

Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure National Equip Rental v. Holding . Szukhent 9/11/2008 7:34:46 PM Service of an Agent Delivery to an Agent Authorized by Appointment.. V. an agent authorized by appointment? Facts FACT SUMMARY: Szukhent (D) leased farm equipment from National (P). Ruling was that you have to trust the thing in the record .the did not even try and serve just threw it into the sewer but filed something with the court with return of service stating that it was served. When National (P) commenced this action on the lease. who is designated by a party to a private contract to act as agent to receive service of process who is unknown to the party and is not expressly required to transmit notice to the party. (National Equipment Rental. Ltd. A party to a private contract may appoint an agent to receive service of process where the agent is not personally known to the party and is not expressly required to transmit notice to the party but does promptly accept and transmit notice.1. 6. Service of an Agent 6.. Szukhent) Issue ISSUE: Is a person. Weinberg was served. The printed lease provided that Szukhent (D) designated Weinberg as agent to accept service of process in New York. and she mailed the summons to Szukhent (D).

in fact. Based On 7. Further. P. Notes Civil Procedure . Reversed and remanded. Here.1.1.DECISION: (Stewart. H OLDING AND 7. Here. Notes You can contract away your agent for service of process. prompt notice to Szukhent (D) having been given. the fact that Szukhent (D) did not know her is irrelevant. to permit notice to be served by the opposing party. Weinberg's prompt acceptance and transmittal to Szukhent (D) of the summons and complaint was sufficient to validate the agency even though there was no explicit requirement that she do so. 4(e)(2).September 09. 2008 Shaffer v. Hence. Jurisdiction Based Upon Power over Property. or to waive notice altogether. Jurisdiction Over The Parties / Personal Jurisdiction / In Personam Jurisdiction 7. receive timely and complete notice. An agent with such limited authority can in no meaningful sense be deemed to have an interest antagonistic to Szukhent (D). Jurisdiction cannot be founded on prop-erty within a state unless there are sufficient contacts within the meaning of the test developed in International Shoe. Heitner) . Parties to a contract may agree in advance to submit to the jurisdiction of a given court. Heitner: 1. the purpose underlying the provision designating Weinberg was to assure that any litigation under the lease would be conducted in New York. Weinberg was his agent authorized by appointment to receive process within the meaning of Fed. This case does not involve a due process problem since Szukhent (D) did.1.) Yes. R. Ownership Of Property. Civ. Weinberg was appointed Szukhent's (D) agent for the single purpose of receiving service of process. (Shaffer v. J.

2.2.2.2. Chaves 199 9/11/2008 7:33:39 PM Mechanics of Giving Notice Jurisdiction Over The Parties / Personal Jurisdiction / In Personam Jurisdiction/Federal Actions/Waiver Of Formal Service.P. (Maryland State Firemen's Association v. Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Civil Procedure MD State Firemans Assoc v. Civ. Mere receipt of a request for waiver of service does not give rise to any obligation to answer the lawsuit and does not provide a basis for default judgment.2. 2008 1.1. . Federal Actions 7. Limited by Due Process 7.1. Waiver Of Formal Service. Long Arm (Forum State Law sets standard) 2. Notes Civil Procedure .Burnham v. 4(d)2 .September 11.1.1. Request For Rule of Law Specific Applications of the Service Provisions. Superior Court (DO!!!) Carnival Cruise Lines (DO!!) 7.talks about Waiver.2.2. Chaves) Fed R. Request For 7. Amenability To Suit 7.

Notice And Opportunity To Be Heard 8. 2008 1.1.3. 7. Forum law .no service but filed the suit.. If you fail to return this we will send service person. Corporations. Generally 8. 2008 See Mulane brief Blancing Test Civil Procedure . Notice Requirement 8.September 09.she comes out and gives service (good service) Rule 4(e)(2)(b) Permits service process to be made upon an individual by leaving a copy of the summons and complait at his "dwelling or usual placce of abode with someone of suitable age and discretion who resides there.. Issue What was the problem of giving service? Facts Holding Notes Rule 4(e) Process server yells fire.1.u return this and you have effictvly waived service of process. (Godo thing saves money and time) THE MERE FACT THAT THEY RECIEVED THE WAIVER DOES NOT MEAN THAT THEY GOT NOTICE.you send a copy of the suit and a waiver form. Notes Civil Procedure .September 11.1..

were factors that could be taken into account in determining whether publication was sufficient notice. and the availability of names and addresses of beneficiaries. availability of other.). if its name and address are "reasonably ascertainable. ." But this may be limited by reasonable considerations of economy. notification methods. declined to determine whether the case was in rem or in personam.September 09. Holding: The Court held that the expense of notification by mail. 462 U. Publication 8. 2008 c.2. Basis for jurisdiction not stated: Mullane. the standard is becoming one of general reasonableness in view of all the circumstances (e. Instead. the Court simply relied on a state's interest in "providing means to close trusts that exist by the grace of its laws …" This indicates that old distinctions between the notice required in in personam actions and that required in in rem actions are dying out. Instead. There. Reasonableness standard: "The means [of notice] employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. better. 791 (1983).g. or by perosnal service.1. Note Case: Mennonite Board of Missions v.1. notice by mail or other means equally likely to insure actual notice. the Mullane "reasonableness in view of all the circumstances" test seems not to have been followed in the case of Mennonite Board of Missions v. Notes Civil Procedure . i.S.1.2." Instead. Adams. in determining what constituted reasonable notice. Court held that publication is not enough to give notice but must be supplemented by notice mailes to the mortgagees las tknown avalible address. cost. Adams: Public notification of sale of real property due to mortagee not paying taxes.2. the Court held that publication notice will not suffice as to any party having any liberty or property interest in the controversy. must be used. etc. Similarly. b. importance of proceedings. Limited by Due Process 8.

2. and must afford a reasonable time for those interested to make their appearance. and the notice must be of such nature that it reasonably conveys the required information. better calculated to give actual notice. notice must be by means calculated to inform the desired parties. those conditions are reasonably met.A. 14. notice by mail or other personalized means must be used. 8. A fundamental requirement of due process of law in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. U. is available? .OVERALL REGARDING PUBLICATION: b. even if its cost is very high relative to the interest at stake. with due regard for practicalities and peculiarities of the case. notice by publication is insufficient.2. but only as a very general principle. Issue ISSUE: Is notice by publication sufficient to satisfy due process challenges where the parties to be informed reside out of state and an alternative means.S.Amend.C. but if. In the "reasonably ascertainable" situation. the constitutional requirements are satisfied. Hanover 1950 Jackson 9/11/2008 7:07:24 PM Notice And Opportunity To Be Heard/Notice Requirement/Publication RULE OF LAW: In order to satisfy due process challenges. Const.1. Summary: So the Mullane "reasonableness" test probably survives today. That general principle is overridden by the more specific rule that publication notice will not be enough as to any party with an interest in the controversy whose name and address are reasonably ascertainable. where they reside outside of the state and their names and addresses are available. Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Mullane v. and.

Facts A New York statute allowed corporate trustees to pool the assets of numerous small trusts administered by them. then publication is the most viable alternate means available for giving notice. losses. publication is an impermissible means of providing notice. especially with regard to out-of-state beneficiaries. the method chosen should. be deprived of property without due process of law. Notice by publication was not a reasonable method of informing interested parties that their rights were being affected. it is not readily calculated to reach those who could easily be informed by other means at hand. it must also provide beneficiaries with adequate notice so that their rights to contest the accounting are not lost. With respect to remote future interest holders and unknown parties. but. Once approved by the court. A periodic accounting of profits. publication is permissible. Notice of accountings was by publication in a local New York newspaper. Reversed. These parties have. fails to inform everyone. While the state has a right to discharge trustees of their liabilities through the acceptance of their accounting. This allowed more efficient and economical administration of the funds. Central Hanover Bank (P) established a common fund by consolidating the corpus of 113 separate trusts under their control. their claims would be barred. However. the statutory requirement violates the Due Process Clause of the Fourteenth Amendment. Mullane's (D) objections were overruled in state courts and the prese Holding (Jackson. Notice in a New York legal paper is not reasonably calculated to provide out-of-state residents with the desired information. Each participating trust shared ratably in the common fund. be reasonably designed to accomplish this end. Beneficiaries were to be notified of the accounting so that they might object to any irregularities in the administration of the common fund.) No. and assets were to be submitted to the courts for approval. the court will approve its use where alternative methods are not reasonably possible or practical. not because it. Publication is only a supplemental method of giving notice. In cases where the identity or whereabouts of beneficiaries or future interest holders is unknown. because under the circumstances. in fact. if at all possible. better calculated to give actual notice. at least potentially. Therefore. Notice to known beneficiaries via publication is inadequate. Notice of the common fund was sent to all interested parties along with the relevant portions of the statute. J. Where alternative methods. A guardian was appointed to protect the interests of principal and income beneficiaries. are available. The purpose of a notice requirement is to inform parties that their rights are being affected. . Mullane (D) was the appointed guardian for all parties known and unknown who had an interest in the trust's income. but the trustees held complete control of all assets. Since publication to known beneficiaries is ineffective. He objected to the sufficiency of the statutory notice provisions claiming that they violated the Due Process Clause of the Fourteenth Amendment.

Pizzutti Non resident motors Note 5: Tulsa Proff. If the admin of the esate as aware there were outstanding bills you had to mail the notice of the deceased to the coll. Notes Civil Procedure . limited 9. agency of the bill instead of just publishing. appellate Exclusive v. Appellate jurisdiction Mandamous . Collection v.1. 8.an orrigional action Appealte juridction courts can have trails if given ability in statute Habeous Corpus cases can be heard in appellate courts as a trial. Opportunity To Be Heard 9.Notes Note 3: Wuchter v. 2008 Origional v. Ever single court will have one of these 3 things: Origional v.2.September 23.2. concurrent general v. Pope Notice of probate is generally publication of debt. Subject-matter Jurisdiction 9. (exclusive/origional jurisdcition/ and the court is limited juridction) As well lawsuits against ambassadors. The United States Supreme Court under Srticle 3 have origional jurisdiction in cases of disputes versus states. Federal Question Jurisdiction .

Dollar Amount: has nothing about dollar amount in conroversy in Art. Federal Law 1. 2008 -Supplemental Readings . 1. If primary claim is a diversity claim.federal question 1.9. any claim. General Federal Questions 1. Jurisdiction (have to have either federal question or diversity) 1.October 02.as long as related to claim 10. Notes Civil Procedure . any party . Notes Civil Procedure . 28 USC § 1331 2. any defendant can bring any claim against any exisiting or new party .new claim must form part of the same case or controversy 1.Erie Doctorine Chapter Federal Subject Matter Jurisdiction Outline (handout) 1. must have supreme court and may have federal courts II.1. Article 3 I.1. 3 2. against any other party or new party as long as related to fed. Congressional Contol of Federal Courts 1. 2008 1. sets path for subject matter jurisdiction and diversity jurisdiction III. Federal Subject Matter Jurisdiction 10. Forms on ingrediant . have to have a claim that arises under: 1. ex Tx ag NY 100K claim. Basic authoirty for diversity jurisdiction 3.2. Case associated with: Osborne v. Congress has the power to restrict the power of the federal courts: 75k barrier to get into Fed court set by congress 2. Diversity Jurisdiction 1.1. Supplemental Jurisdiction 9. Federal Question 1. question 2. Cases or controverses (dont worry about) authoirty of 9 or 10 cases/conroversies 1. Federal Statutes . TEST FOR RELATED: Common Nucleus of Facts Test . Constition 2.October 02. Diversity 1. Federal Question 1. Bank of United States I. Supp.1.2.

prof assoc. 4.) 1. 3 and then look to diversity or is it a federal question and what does it arive under (one of the 5). What if congress says that you might not be able to sue in federal court. 28 USC 1332 1. . Well pleaded complaint rule 1.suppose had a contract and you breachd and it is worh 25000 and sue you for 25000 plus 75000 punitive however in the law that is going to govern does not allow punitive TO A LEGAL CERTIANTY CANNOT GET PUNATIVE DAMAGES and so cannot be in federal court. for each plantiff you can add all of the plantiff lost but cannot add it twice . phhysical presence and intent to remain indefinitly (Mas v. Constituion does not require complete diversity 1. all plantiffs and defendants must be from different states .plantiffs right to recover must rest of federal question that is being interpreted 1. Citizenship Requirment (TEST) 1.100k D 2. Domicile in a state 1. Administrative regulations (OCC. International Law 3. Treaties of the United States 2. Perry) . TWO CITIZENSHIPS . Cannot aggreate different theroies for the same loss (breach of contract and fraud) 3. Associations: citizenship of all of its members (non profit. Means that if plan. 3. If I describe lawsuit in federal court nad ask about jur.2. 5. Legal Certainty Test .Review Brief 1.no state on both sides of equation 1. Citizen of the United States 2. Executive Orders 5. . 1.all the diffrent losses can aggregate (lost wages. Amount in Controvery 1.Rule congress must have intended it to be in federal 4. Good Faith .will assume good faith when bringing claim about example flowers worth 100k 1.50K and same defendant 3. Mas would be a resident of Lous if permanet resident alien 2. 2. IRS etc) 3. EXAMPLE: P . Specific Federal Questions 3. Motley Test 2. Rule: Thier right to recover rested on a breach of contract which is not a federal question.. EVERY ARROW HAS TO SATISY FEDERAL JURISDICTION (Alapada Case) 1. Supplemental jurisdiction might get us here as two seperate claims one qualifies and the other does not.how to defeat federal purpose 2. What is the citizenship of a corporation? 1. Federal Common Law 1.state of corporation and principle place of business 3. Strawbride Rule: complete diversity 1. partnerships. 4.. DIVERSITY 1. Have to have MORE than 75k in controversy and exclusive of interest and cost 1. is sneaking and depending on federal law and disguise it as state law go ahead and READ federal law INTO IT. Merrill Doude Case . and if my question is it properly in federal court (say something about art. comes up in removal case (sues in state court and remove to federal court) sometimes plantiffs knowing that they will be removed will plead around a federal statute. destroyed car) 2. punitive damage claim.

October 7. 2008 Article III Title 28.S. ALL FEDERAL COURTS ARE LIMITED JURISDCITION ( ex bankruptcy courts. Limited Jurisdiction if a court is general juridcition it can hear everything unless tatute states that it cannot if court is limited juris. it cannot hear everything unless you can show that it has the power to hear that case. . U. General v.C.Civil Procedure .deciding on the merits Note 1: Constituional Duty Some duty that arise under a notehr states or countries law there is a duty to hear those cases. 2008 Article III Title 28. (Review Outline given by Prof) Civil Procedure . 2008 Chapter 4Subject Matter Jurisdiction. U.C. concurrent ex: patent cases on in Federal court (exclusive) ex: concurrent Civil rights cases canbe heard in Fed or state How do we know if a case can be heard in state court? Congress should state that it cannot go to state court if it is not to go.S.competance .deciding on the merits .September 23. small claims courts) Civil Procedure .September 23.competance . Note 2: State courts can also hear Federal causes of action but not all of them because we have: (STATES CANNOT REFUSE TO HEAR A FED CASE) exclusive vs. .

ALL FEDERAL COURTS ARE LIMITED JURISDCITION ( ex bankruptcy courts. concurrent ex: patent cases on in Federal court (exclusive) ex: concurrent Civil rights cases canbe heard in Fed or state How do we know if a case can be heard in state court? Congress should state that it cannot go to state court if it is not to go. small claims courts) 10.2. Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Issue Civil Procedure AFA Tours v. Limited Jurisdiction if a court is general juridcition it can hear everything unless tatute states that it cannot if court is limited juris. General v. it cannot hear everything unless you can show that it has the power to hear that case.Note 1: Constituional Duty Some duty that arise under a notehr states or countries law there is a duty to hear those cases. Whitchurch 9/23/2008 7:39:08 PM Federal Subject Matter Jurisdiction ISSUE: May a court dismiss a diversity action for failure to meet the amount-in-controversy requirement without allowing a plaintiff to brief the issue? . Note 2: State courts can also hear Federal causes of action but not all of them because we have: (STATES CANNOT REFUSE TO HEAR A FED CASE) exclusive vs.

which the court could not have done on the record before it. F. (P) has in fact suffered losses of at least $50. A. Whitchurch (D).The value of a claim sought by a party to a law suit. F. F. DIVERSITY ACTION . the record before a court which raises the issue sua sponte without briefing will be insufficient for a court to meet this requirement. over which the federal court has jurisdiction. whether A. Saint Paul Mercury Test: Good faith standard and well pleaded complaint means good faith standard.000 or more.Facts ACTS: A. we take plantiffs word for it unless it is not in good faith. Inc. At a hearing. (P) filed an action in federal court. Holding No. A. Tours.An action taken by the court by its own motion and without the suggestion of one of the parties.. a former A. F. namely customer lists. A.000 jurisdictional requirement. defendant has to show to legal certainty plantiff could not recover this amount to defeat jurisdiction. Jurisdiction was based on diversity. F.An action commenced by a citizen of one state against a citizen of another state or against an alien. Here. The law requires that a court cannot dismiss for failure to meet the jurisdictional requirement in diversity cases unless appears to a legal certainty that such is the case. (P) appealed. Reversed and remanded Notes MOUNT IN CONTROVERSY . the court raised sua sponte the issue of whether A. involving an amount in controversy of $10.. Course: Civil Procedure Case Name: Mas v. formed a competing company. (P) was in the business of providing guided tours. Concluding it could not. A. Perry Case Date: Citation: Jurisdiction: . (P) employee. A. In all but the most extreme situations. A court may not dismiss a diversity action for failure to meet the amount-in-controversy requirement without allowing a plaintiff to brief the issue. the court dismissed.000 requires a somewhat detailed factual analysis. A.'s (P) damages could meet the $50.. SUA SPONTE . A. alleging misappropriation of trade secrets. A. F.

(Mas v. the Mases (P) had no fixed intent to remain in Louisiana. Mas was a citizen of Mississippi. Notes Students are inherently Domicilary . Perry) Issue ISSUE: Does residence in a state create domicile for purposes of federal diversity jurisdiction? Facts FACTS: The Mases (P) returned to Louisiana to complete Mr. a lack of diversity existed. Perry (D) appealed. fixed. Mrs. Domicile is the true. After Mas (P) finished his education. J. they were unsure of where they would live. As a result. Thus. contending they were citizens of Louisiana. complete diversity existed. While in Louisiana.000 judgment. Holding HOLDING AND DECISION: (Ainsworth. Mas (P) remained a Mississippi domiciliary and Mr. Determining Citizenship. Mas (P) was a French citizen. They sued in federal court on the basis of diversity and obtained a $20. Mr.) No. . and Mrs. they rented an apartment from Perry (D) and subsequently discovered he had used two-way mirrors to invade their privacy. Mere residence in a state does not establish domicile for purposes of diversity jurisdiction. and.. Mas's (P) education. In this case. therefore. Formerly. permanent home and principle establishment of home base. Mas (P) remained a French domiciliary. Affirmed. Mere residence in a state does not establish domicile for purposes for diversity jurisdiction.Judge: Book Page: Last Update: 9/23/2008 7:34:00 PM Legal Concepts: Federal Subject Matter Jurisdiction Rule of Law 1.intent to remain in that state Citizen of US and domicile in UK cannot bring suit under diversity. have to live in a state.

Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Lacks v.1. fixed.Citizen of US domicle of State Test for Domicile: Domicile is the true. Notes Civil Procedure . A final judgment is not void for lack of subject matter jurisdiction if the defect alleged concerns a judicial error as to the existence of a necessary element of the cause of action. (look at plantiffs origional petition) 11. (Lacks v.September 23. 2008 Organize it in State courts by amount of damages. Subject Matter Jurisdiction in State Courts 11. Subject Matter Jurisdiction in State Courts. INTENT TO STAY The day you file the suit is when domicile and citzenship is reviewed Rule Change since CASE A permanet resident alien is not a citizen of the domicle of the United States 11.2. Lacks) . permanent home and principle establishment of home base. Lacks 9/23/2008 7:20:50 PM Subject Matter Jurisdiction in State Courts 1.

Affirmed. The court's subject matter jurisdiction is statutory and is unquestionable in this case. Holding (Breitel. Lacks (D) moved to vacate her husband's (P) divorce judgment contending the court lacked subject matter jurisdiction. A final judgment is not void for lack of subject matter jurisdiction merely because the rendering court erroneously found the existence of a necessary element of the cause of action. J. C.1. Organization of State Courts 12. There is no jurisdictional question present. . 2008 District Court County Court at Law Justice/Small Claims Courts Municiple Courts All have subject Matter jurisdiction guidelines.Issue ISSUE: Is a final judgment void for lack of subject matter jurisdiction if the rendering court erroneously found present all the requisite elements of the cause of action? Facts FACT SUMMARY: Mrs. Notes 12.) No. Notes Civil Procedure . The absence of a necessary element of the cause of action presents a different question than that concerning the existence of subject matter jurisdiction.September 23.

October 02.2. 2008 1. 1.October 02. 13. Supplemental Jurisdiction 13.October 02. 3.1.sets fourth have to articlualte one of those four grounds 2. C. 2. federal courts may decide state issues which are closely related to the federal issues being litigated. United Mine Workers v. Notes Civil Procedure . Ancillary Jurisdiction 13. (United Mine Workers of America v.1. Absent extraordinary circumstances. Notes Civil Procedure . Common Nucleus Of Facts Test 13. (Executive Software North America. The Subject Matter Jurisdiction of the Federal Courts—Supplemental Claims and Parties.2. 28 U. S. v. 2.1. 2008 1. 13. Under pendent jurisdiction. 1367C . 1.13. Notes Civil Procedure . 1. example: citizens of different states but only 50k 1. Gibbs 1.1. United States District Court for the Central District of California) 1.3. Gibbs) . 2008 1. Inc. The Subject Matter Jurisdiction of the Federal Courts—Supplemental Claims and Parties.1. Pendent Jurisdiction 13. § 1367(c)(1)-(c)(3) sets forth the exclusive circumstances under which a federal court may appropriately decline pendent jurisdiction.3.

.4. 2008 Idea of venue: -place where the trial is -within the state How does venue differ from personal jurisdiction? .personal juridistion looks at the state (minimum contacts) personal jurisidiction p. Key word is: THE DISTRICT.October 09. Venue is set by district. Notes Civil Procedure . 2008 14. Test: Common nuceuls of operative facts (more or less same facts) 1. Venue 14.October 09. federal court could hear both 13. Where the cause of action arose (where tort happened) transitory 3.Texas has four districts.1.347 lists venue however looks at the place within the state where you can be sued(county/city) What is the geographic unt for Federa venue? The ENTIRE United States Federal court personal jusidcition contorlled by the state but venue is not. Venue 13. Where the defendant resides Local v. Transitory: .mone. winning the case.2. Forum Shopping . Three basic venue rules: 1. Notes Civil Procedure . 1.1.4. Where the subject of the action is situated local 2. Fedearl system broken up into districts . Federal Venue is ocntroleld by Federal law.

(breach of contract. and with counterclaim it is local and land is in Miss. (Bates v. Hoffman v. Harrison) It is a local venue action . Under 28 U. (Reasor-Hill Corp. C&S Adjusters. C & S Adjusters. 2. v.breach of contract transitory. General venue v. v.inconvient venue (Hoffman v. Inc. Blaski) and forum non conveniens Bates v. § 1404(a). the action may be brought in the state where the defendant resides. been Piper Aircraft Co.) Statory phrase dealing with is "substnatila part of where the events took place" . V. Reyno) 1404 authorizes a transfer but there is not federal court in scotland to transfer it. Venue is proper under the Fair Debt Collection Practices Act in the district where an allegedly offending letter is received. Court . v. Specific Venuepatent claims. Reasor-Hill Corp. a federal court can only transfer a case to a court where the plaintiff could have originally brought the case. Local and Transitory Actions. Venue in the Federal Courts. tort examples) Mandatory venue v. Blaski) If defendant objects to wrong venue can onl move it to where is could have filed. Reyno 4. etc certain fact occurred or is part of the case. Transfer of Venue in Federal Courts. .brings transitory calim in ark. (Hoffman v. §1391 is GENERAL VENUE for Federal Venue Structure (need to have this read pretty well) 1406 is wrong venue statute 1404(a) . but the land is in Miss. Harrison: 1. Blaski 3. C. Inc. If a local action cannot be brought at the situs of the property because of lack of jurisdiction of the defendant. Permissive Venue Local is mandatory and other things are mandatory depending on the statute.. S. Forum Non Conveniens. (Piper Aircraft Co. A plaintiff may not defeat a motion to dismiss for forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to him than that of the present forum.Local venue means like in rem have protery and fighting about the property Transitory venue means a certain cateogry of actions (transitory actions) it ran with the party the defendant and not with teh thing and can sue anywhere you can find him and serve him or wherever you live.

Forum non conveniens is a scotland common law in our legal system. the representative of five victims of an air crash. But under forum nonconveniens we cannot tell Scotland what law to apply. Issue ISSUE: May a plaintiff defeat a motion to dismiss for forum non conveniens merely on the basis that the laws of the alternative forum are less advantageous? Facts FACT SUMMARY: Reyno (P). Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Piper Aircraft Co v. Reyno 10/9/2008 7:31:16 PM Venue/Forum Non Conveniens RULE OF LAW: A plaintiff may not defeat a motion to dismiss for forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to him than that of the present forum. SAME FACTORS BUT THE TWO ARE A LITTLE DIFFERENT 14.Forum non conveniens: if the court decides that this is the case then case is dismissed and then refilled in Scotland and protects plantiff that if it is not filled in scotland then court will again assume jurisdiction.2.2.1. . When you move a case under 1404 when you transfer a case to another court the Choice of law is the same law as the plantiff filed. Forum Non Conveniens 14. brought suit in California even though the location of the crash and the home of the victims were in Scotland.

Holding No.FACTS: Reyno (P) was the representative of five air crash victims' estates and brought suit for wrongful death in United States district court in California. while the court of appeals reversed.1. Piper (D) moved to dismiss for forum non conveniens. Reyno (P) opposed the motion on the basis that the Scottish laws were less advantageous to her than American laws. then the motion may be denied. Erie Doctrine / Ascertaining Applicable Law / Choice Of Law 15. If the state chosen by the plaintiff has the only adequate remedy for the wrong alleged. The district court granted the motion. even though the accident occurred and all the victims resided in Scotland. contending that Scotland was the proper forum. As a result. Reversed. the motion was properly granted. 2008 . all the evidence. Notes Civil Procedure .October 21. witnesses. the fact that the chosen state's laws are less attractive to the defendant could be used to defeat a motion to dismiss for forum non conveniens. Notes The Court in this case specifically noted that under some circumstances. and interests were in Scotland. A plaintiff may not defeat a motion to dismiss for forum non conveniens merely by showing that the substantive law of the alternative forum is less advantageous than that of the present forum. In this case. QUICKNOTES FORUM NON CONVENIENS . the most convenient forum was there. The Supreme Court granted certiorari. Thus.An equitable doctrine permitting a court to refrain from hearing and determining a case when the matter may be more properly and fairly heard in another forum. 15.

CHOICE OF LAW Western Union Case . Two kinds of choice of law that go on in any court: 1.. 2008 Mason Case: privity . from Supreme Court for binding authority 2) Miss.Horizontal choice of law. (Mason v.when this happens always follows local state law When this RI federal court is faced with applying state law: What two things does the court supposed to do? (Choice of law Rule) BINDING AUTHORITY 1. American Emery Wheel Works) In order to be federal question must arise under constituion. Ascertaining the State Law.the law of the place of the wrong . states statutes PERSUASSIVE AUTHORITY Persuasive: 1. Faced with state law question.manufactur 1..) lower courts 2) Federal Courts in that state SPECULATE!! Party can make the argument that Binding authoirty is outdated and that court might use discretion as to what should be done. Substantive law is like contracts. torts.Substantive v.side by side jurisdictions (different legal systems not overlapping) 2.. whom wins the case. Civil Procedure . Lex locus delicti ..one overlays the other. etc. A state supreme court ruling on an issue need not be followed by a federal court sitting in diversity if that ruling has lost its vitality. Erie doctorine is vertical (federal over state) . (other things under Farticle III etc) Federal Court follows that STATES CHOICE OF LAW RULE.October 28.) Look to common law of Miss.if you buy a product from someone and you can state a cause of action can sue . Procedural Law Forum laws governs its only procedure.

Supreme Court decided that 5th Circuit was wrong and cite Skinner Electric that choice of law test with diversity case in Federal Court apply locate state court rules.Place of wrong.. Argument that just because Les Locus Delicti not just Cambodia law ... Parent company in Maryland and principle place of business in Penn. For now on when faced with choice of law question not governed by agreement will use the above test. Cessna wants NM law..this case is really a contract about a settlement.. Distinction between rights and remedies Right was the obligation the duty/breach Rememdy was what ou got: money. Anther party.Supplemental Readings Court oes further. 5th circuit state that trial court made a mistake that in the 5th circuit have choice of law rule that says when faced with more than one state (gov't interest analysis) Choice influencing considerations .only settling with whom named...Chikasaw law has law that would enforece rights but unless you show us that they would not enforce under Universal law would give cause of action...there is diversity in this case and how ended up in federal court.. Pro Art tried to sell posters of his likeness and Factors sued for an injunction. Brought action in Houston..leave Lex Locus Delicti Facts: plane crash in New Mexico result is pilot and the plantiff's husband died. ..... However New Mexico law allows this. injuction. Idea was that estate owned likeness of Elvis..can argue where was manufactured. Texas.HOWEVER LES LOCUS DELICITI. Texas did away with the unity of release rule.these are choice of law tests. will see how the Texas Choice of Law rule is changed. When Elvis died Boxcar company liscened this to Factors Inc.round manufactured in Texas. ..place where wrong occurred so Cambodia law. and in Texas that is Les Locus Delicti . more like an international law case. Remedies were governed by form law Rights are governed by where breach occurred. Wife signs a release with Cessna. Read Challoner for Thursday: Products liability. going to allow him to recover under universal law. Law of state with most signifigant relationship test(7 factor balancing test) will be the choice of law.October 30. on injured and the other one killed. 2008 Duncan v.. one from TN and one from Wisc... Civil Procedure .. Texas choice of law rule is Lex Locus Contractus should rule (where the contract was made) Contract was made in Texas .. Must do what a local state court would do. Court decided to adopt restatement of conflict of law.say maybe texeas law but have to to this test. Victims from Wisc adn TN. Cessna Out of Federal Court..filed in Federal Court suing various defendants. Deahs occureed in Cambodia. and applying that Texas Law applies Factors Case: Issue: Rights to likeness after death This is not a question of federal law it is set by the states. goes on appeal to 5th Circuit.

Although the 1789 Rules of Decision Act left federal courts unfettered to apply their own rules of procedure in common law actions brought in federal court. Tompkins) Issue Was the trial court in error in refusing to recognize state case law as the proper rule of decision in deciding the substantive issue of liability? Facts Tompkins (P) was walking in a right of way parallel to some railroad tracks when an Erie Railroad (D) train came by. Case filed in New York seeking the relief of injunction in NY. State law includes not only statutory law. at trial. Tompkins 10/21/2008 7:02:56 PM Erie Doctrine / Ascertaining Applicable Law / Choice Of Law The Erie Doctrine: The Rules of Decision Act and the Rules Enabling Act. Co v. state law governs substantive issues. but case law as well. Choice of Law: Horizontal v. . would be chosen because this is where the liscensed was given to Factors in probate court. Tompkins (P) was struck and injured by what he would. where the posters were being sold.Court is faced with can someone other than Factors Inc. (Erie R. law is and right now Tenn. v. No evidence that Tenn. Therefore Tenn. law would cover right of likeness therefore look to common law and there is no right to likeness law. Now hae to figure out what Tenn. Case Briefs Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Erie R.2. law does not have anything with rightness to likeness. market and make money off of his likeness. Co. Vertical 15. The choice of law rule in New York is signifigant contacts test.

is overruled. unwritten as well as written. Under Pennsylvania case law (the applicable law since the accident occurred there). could simply reincorporate in another state. 41 U. in matters of general jurisprudence. The Court's opinion is in four parts: (1) Swift v. Upon appeal to a federal circuit court. Swift introduced grave discrimination by noncitizens against citizens. there was no satisfactory way to distinguish between local and general law. The hoped-for uniformity among state courts had not occurred. which held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not. § 725 requires that federal courts in all matters except those where some federal law is controlling apply as their rules of decision the law of the state.000. 28 U. the law to be applied in any case is the law of the state. recognized in federal courts. (16 Pet. On the other hand. state courts would have treated Tompkins (P) as a trespasser in denying him recovery for other than wanton or wilful misconduct on Erie's (D) part. The federal courts have no power derived from the Constitution or by Congress to declare substantive rules of common law applicable in a state whether they be "local" or "general" in nature. local citizens could move out of the state and bring suit in federal court if Furthermore. c. Furthermore. More than statutory relief is involved here. S. (4) The federal district court was bound to follow the Pennsylvania case law which would have denied recovery to Tompkins (P). Holding Brandeis. corporations. Notes . The privilege of selecting the court for resolving disputes rested with the noncitizen who could pick the more favorable forum. similarly. apply the unwritten law of the state as declared by its highest court.) Yes. (3) Except in matters governed by the Federal Constitution or by acts of Congress. local citizens could move out of the state and bring suit in federal court if they were disposed to do so. S. federal courts had assumed the power to make "general law" decisions even though Congress was powerless to enact "general law" statutes. There is no federal common law. Under "general" law. J. The resulting far-reaching discrimination was due to the broad province accorded "general law" in which many matters of seemingly local concern were included. Tompkins (P) would have been regarded as a licensee and would only have been obligated to show ordinary negligence. Because Erie (D) was a New York corporation. Up to this time. where he won a judgment for $30. the unconstitutionality of Swift is clear. Tompkins (P) brought suit in a federal district court in New York. Reversed.) 1 (1842). Section 34 of the Federal Judiciary Act of 1789. 20. the decision was affirmed. Tyson.claim to be an open door extending from one of the rail cars. 2) Swift had numerous political and social defects.

While state law cannot define the remedies which a federal court must . Supreme Court. v. Even though federal equity may be thought of as a separate legal system. Erie R. overruled a particular way of looking at law after its inadequacies had been laid bare. since the former are more frequently defined by legislative enactment. and federal courts must respect state law which governs that right. S. which would bar a suit in state court. however. Note. the federal court is bound by the state law. the substantive right is created by the state.EDITOR’S ANALYSIS: Erie can fairly be characterized as the most significant and sweeping decision on civil procedure ever handed down by the U. 304 U. Erie held that while federal courts may apply their own rules of procedure. even though the suit be brought in equity. Issue Does a state statue of limitations. As interpreted in subsequent decisions. also act as a bar to the same action if the suit is brought in equity in federal court and jurisdiction being based on diversity of citizenship? Facts Holding es. Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Guaranty Trust Co v. Co. 64 (1938). S. how later Supreme Court decisions have made inroads into the broad doctrine enunciated here. Tompkins. Federal courts have traditionally given state-created rights in equity greater respect than rights in law. issues of substantive law must be decided in accord with the applicable state law—usually the state in which the federal court sits. York 10/21/2008 7:25:57 PM Erie Doctrine / Ascertaining Applicable Law / Choice Of Law Where a state statute that would completely bar recovery in state court has significant effect on the outcome-determination of the action.

356 U. in effect. practice. And in Byrd v. Cooperative. the right to a jury trial in federal court) are so important as to be controlling over state law—once again. v. and procedure. Tompkins was not an endeavor to formulate scientific legal terminology. the Court suggested that some constitutional doctrines (there. Matters of "substance" and of "procedure" turn on different considerations. Hanna v. held that where state law conflicts with the Federal Rules of Civil Procedure. since the federal court is adjudicating a state-created right solely because of diversity of citizenship of the parties it is. S. may itself be in the process of being slowly eroded by modern courts. Erie insures that insofar as legal rules determine the outcome of litigation. therefore. Co. which clarified Erie. 460 (1965). 380 U.give simply because a federal court in diversity jurisdiction is available as an alternative. the latter prevails regardless of the effect on outcome of the litigation. Course: Case Name: Case Date: Citation: Jurisdiction: Judge: Book Page: Last Update: Legal Concepts: Rule of Law Civil Procedure Mason v. the outcome notwithstanding. immaterial to make a "substantive-procedure" dichotomy—Erie R. S. Federal courts enforce state-created substantive rights if the mode of proceeding and remedy were consonant with the traditional body of equitable remedies. Congress meant to afford out-of-state litigants another tribunal. and not another body of law. Blue Ridge Elec. Plumer. Here. Through diversity jurisdiction. the result should not be any different in a federal court extending jurisdiction solely on the basis of diversity of citizenship. it cannot afford recovery if the right to recovery is made unavailable by the state." but whether the statute so affects the result of litigation as to be controlling in state law. Reversed and remanded. It is. Emery 10/28/2008 6:49:59 PM Erie Doctrine / Ascertaining Applicable Law / Choice Of Law . 525 (1958). The question is not whether a statute of limitation is "procedural. Notes Guaranty Trust. only another court of the state. but rather an expression of a policy that touches the distribution of judicial power between state and federal courts. a federal court may afford an equitable remedy for a substantive right recognized by a state even though a state court cannot give it.

This is borne out by dicta in at least one case indicating dissatisfaction with the 1928 precedent. J. C. Ascertaining the State Law. Here. a pronouncement of a state supreme court will be final on a given issue. there has been a major shift in products liability law since 1928. (Mason v. There is no question but that a federal court sitting in diversity must follow state law. the role of a federal court becomes much like a state trial court. Notes EDITOR’S ANALYSIS: Obviously. Where. Generally speaking. American Emery Wheel Works) Issue ISSUE: Must a state supreme court ruling on an issue be followed by a federal court sitting in diversity. A state supreme court ruling on an issue need not be followed by a federal court sitting in diversity if that ruling has lost its vitality.) No. the decision appears to have lost its vitality. A state supreme court ruling on an issue need not be followed by a federal court sitting in diversity if that ruling has lost its vitality. even if that ruling has lost its vitality? Facts Holding HOLDING AND DECISION: (Magruder. it is up to the district court to try to decide how the state court would rule on that issue today. It must search through other state precedent to rule on an issue. Course: Civil Procedure Case Name: Swift v. it seems relatively clear that the true state of the law in Mississippi is not to require contractual privity. and it is unlikely that the Mississippi Supreme Court would follow its own precedent.1. When this occurs. The order of the district court is vacated and the case is remanded to the district court for further proceedings. not every issue that comes before a federal court sitting in diversity will have been ruled upon by a state supreme court. however. In light of this. Tyson Case Date: Citation: .

if no federal law on point then even in federal court you apply state law. 1652 federal court apply state law excepet where Congress says other wise.Tyson answers and states: you are in federal court not governed by federal law and there is no state statute it will be cmmon law. Federal Court decided Facts Holding Notes Rules of Decision Act: 28 U.Jurisdiction: Judge: Book Page: Last Update: 10/21/2008 7:23:31 PM Legal Concepts: Erie Doctrine / Ascertaining Applicable Law / Choice Of Law Rule of Law Issue Issue of holder in due course..C.. New York law was going to govern..S.. Which State? Swift v.someone whom gave consideration Federal Court about rights on a holder in due course being enforced. do not apply local common law but SUPER common law which is the Majority Rule. .

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