August 17, 1998
Assignment Wed: in casebook look at little problems. Do problems A, B, C page 4. Ch2 read 2 cases. Grace v McCarther, Vannoery v Meth. (pg 45-50)
Exam: all essay, open book. Can bring Federal Rules of Civ Pro, notes, materials, outlines. Cannot bring textbook in. Class participation counts. Can help grade by half to full grade. Can be called upon at any time to present a case.
Jurisdiction: court that has the power to hear certain cases.
Can have jurisdiction over person or over subject matter.
Civil pro is primarily about fairness: DUE PROCESS. From US Constitution.
Due process: an adequate opportunity to appear and defend your interest in the property.
System has to be fair to D as well as P.
Cause of action: property. Cannot deprive P of day in court.
Most law here is common law. All judge made law. There is a high degree of ambiguity and abstraction. Need to be able to ask correct question. That is what law school is all about.
Territorial jurisdiction: has to do with geography.
Service of process: summons and complaint. This is how court gets jurisdiction over D.
Civil litigation process. Hard to get money that was granted in judgement. So P has to pursue D in Judgement Enforcement Procedures. Court will issue a writ of attachment. The sheriff will then use the property to satisfy the judgement.
Case: person went to Oregon, hired an attorney but did not pay. Attorney sued. How does the lawyer serve the D with process as the D cannot be found. Instead can have service of process by publication (newspaper). Construction of process. D was out of the state. P takes D default. Then starts to sell property to a third party. D now returns to Oregon. Now D wants to file a suit to get his property back. D sues the person with the deed of property. If the original court (giving the deed) did not have jurisdiction, then all transactions would be invalid.
August 19, 1998
Bring blue book to class
sect 1332 title 28 - districts court shall have original jurisdiction when value in conflict exceeds $75,000 etc….
Federal courts can hear nothing unless specifically authorized.
Sect 1338 title 28 – example of foreclosure
PENNOYER V NEFF – discussion
In rem: against the thing
1, said judgment is in personam, and appears to have been given without the appearance of the defendant in the action, or personal service of the summons upon him, and while he was a non-resident of the State, and is, therefore, void; 2, said judgment is not in
rem, and, therefore, constitutes no basis of title in the defendant; 3, said copies of complaint, &c., do not show jurisdiction to give the judgment alleged, either in rem or personam; and, 4, it appears from said papers that no proof of service by publication was ever made, the affidavit thereof being made by the "editor" of the "Pacific Christian Advocate," and not by "the printer, or his foreman or principal clerk." The court admitted the evidence subject to the objections.
Physical presence is the basis for in personam jurisdiction?
Grace v. MacArthur
Served while passing over the state’s airspace on a nonstop flight. D said service invalid. Court held that this service was valid as the service had taken place while D was in the "territorial limits" of the state.
Read through hess v pawloski and international shoe v state of washington and notes following it. Through page 56.
August 21, 1998
Physical presence is the basis of jurisdiction in personam from Pennoyer v Neff. Is physical presence simply necessary or is it sufficient? In Grace v. McArther court said physical presence is actually enough for jurisdiction (airplane case).
Is the service of process complete if service of notice has not been completed? Service is complete as long as court waits until the defendant gets his receipt.
Wuchter v. Pizzutti 276 U.S. 13 (1928)
Statute is the same but statute does not require notice to defendant. But notice was give. Question: If it is the plaintiffs position that the court has acquired jurisdiction over person by virtue of authority given by long arm statute of state than it is solely by virtue of that statute the state has jurisdiction? Says statute is unconstitutional because it did not require service of notice.
Mgee v. International p56
Herkens v BenGat
Ray v American Radiator p58
Read 55 – notes on p 61
August 24, 1998
Pg 4 problem A – lacks subject matter jurisdiction. Barney would object on ground that court has no jurisdiction. See Fed rule 12B1. See section 1332 title 28 (p303). Diversity jurisdiction: lawsuits may be filed between citizens of different states.
Original jurisdiction where the action started
Pg 4; problem B: Federal district court: can sue in federal court because of diversity jurisdiction as long as amount exceeds $75,000.
State trial court in Rochester: yes
State trial court in Buffalo: yes because United Motors is doing business in NY.
Venue: based on considerations of convenience. Primarily D oriented.
Look at section 1391! Page 309
3 things to worry about when talking about proper form
-have jurisdiction over subject matter?
-Have jurisdiction over persons?
-is venue proper?
Writ of error: refuse to accept an appeal. Higher court does not believe the lower court was in error.
BRING BLUE BOOK TO CLASS
See rule 8c statute of limitations is to be raised as an affirmative defense
MgGee v International Life Company
See section 1331 title 28
Full faith and credit clause of US constitution – one state shall recognize judgements by
other states
read fedus v mgukus and markus v anderson, hanson v denckla.
August 26, 1998
Hanson v. Denckla
Probate – process of determining how will is divided up after person dies.
Specific gifts – give specific things to specific people
Residuary clause – deals with everything left over, not specified in specific gifts.
Florida laws would not permit the reservation of power of appointment. That is why she could not have made the appointment from Florida. Then the everything in the trust should have been in residuum which would then go to the sisters. Florida Court cannot dispel a trust unless there is jurisdiction over the Delaware trustee (trustee was indispensable).
Question: was the contact with trustee in Delaware from Florida sufficient enough for Florida to have jurisdiction? What does sufficient contact mean?
Continuous and systematic activity under International Shoe was enough for purposeful activity.
How can Delaware’s trustee’s actions be characterized with Florida?
When considering question of jurisdiction, courts also consider probability of an alternative forum. In this case if jurisdiction was denied then there is not much of an alternative forum. Only in Philippines.
Next assignment: continue, review Grey and Feathers. P 62, Helicopteros, Worlwide Volkeswagon Corp on page 65.
Find out who D is in Volkeswagon and why D is suing.
August 28, 1998
Specific v general jurisdiction
Test for general jurisdiction: contact with state must be systematic and continuous, and P must be benefiting from state?????
SPECIFIC JURISDICTION – claim is related to the contacts (with the state)
GENERAL JURISDICTION – claim is not related to the contacts (with the state)
Buckeye Boiler v Superior Court
Buckeye makes boilers and sells them to Cochin which incorporates the boilers in its products and then sells the complete package to companies in CA. A boiler exploded and injured someone in CA. Person suffered more injury as he was taken to the hospital (by an accident). Sues hospital, ambulance, nurses, and Buckeye Boiler each for 100% of his injuries. Jury has to allocate to each of the parties how much blame there will be.
Buckeye says they have no advertising, office, postage in the state of CA. Never gone outside of state of Ohio. P says this fits minimum contacts test. Because there was a reasonable certainty that the boiler would reach CA. What if Buckeye quashes service b/c CA believes CA has no jurisdiction? Then court finds that the above mentioned only contribute 10% of total injury.
Now Buckeye says he has to go to Ohio to sue for the remaining 90%. Not true. This would deny Buckeye due process. Now have new trial in Ohio. Found that Buckeye only contributed 10%. So now total recovery is only 20%.
Fair play and substantial justice. CA has an interest in getting this case settled. Ok for CA to exercise jurisdiction. Can say that "justice demands the jurisdiction."
Way of determining whether or not results can change if leave facts surrounding d and simply change other things. After MgGee collects, and says she wants to move to OK. Becomes OK resident. A Audi pulls up, and then sees the car rear-ended and is injured because of the accident. She sues WWV and Seaway.
August 31, 1998
WWVW v.
Fairness: relative position of parties must be considered. What is consequence to plaintiff if court says no jurisdiction exists? Must be considered. If it is a huge inconvenience see which party is in a better position to shoulder that inconvenience.
Sufficient contact to exercise jurisdiction in these circumstances. Must look at individual circumstances in order to see if there is jurisdiction or not.
Additional way to show Oklahoma had an issue in this case:
State has interest in justifying jurisdiction
Is there an interest that was not addressed? The event occurred there… must be some interest
Diversity jurisdiction – can sue another resident of another state on diversity grounds in a federal court.
General jurisdiction requires a substantially higher form of contact with the state.
FEDERAL RULES OF CIVIL PROCEDURE SECTION 4 (pg9)
Service of a summons or a filing a waiver is effective to establish jurisdiction over the person of a defendant
Federal court in determining the reach, are bound by the laws of the state…
Burger king Case, and Sai case for Wed.