Nicholas Patullo

Civil Procedure Outline

Professor Michael Goldberg
Fall 2010

I. Temporary Restraining Order (TRO) vs.

Preliminary Injunction RULE 65
 Requirements for TRO
o Can be “ex parte” (without D) if
a) Immediate or irreparable harm
b) Documented efforts to notify D go unanswered

TRO is good for 14 days, and may be able to renewed 1 time!

Cannot be appealed

 Requirements for Preliminary Injunction

o Notice and Opportunity for Hearing
o Hearing can be consolidated w/o a trial (facts simple)
o Security Bond may be required
o No chance to appeal

How to choose PI or TRO

1) Likelihood and seriousness of irreparable harm to plaintiff if emergency

relief is denied.
2) Probability of Success by P
3) Likelihood and seriousness of irreparable harm to defendant if relief
erroneously granted.
4) Is the injunction in the public interest?

Minority View-Inglis Case

Factors 1 & 2 are the same, but also P raises “serious” issues on
merits and balance of hardship favors P

Any local rules of C.P. are trumped by Federal Rules of C.P.

II. Due Process (14th or 5th Amendment)

Elements
 Government Action of some kind
 That causes violation of life, liberty, and property.

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 If D.P. applies, what process is needed?
 Notice
 Some type of hearing
o By an impartial decision maker
o When, before, after, or both? What form?

Balancing Test for Due Process:

 Type of Private Interest Affected

 Risk of error/deprivation/value of additional or different procedures
 Burden on the government- If they spend money to have a few
hearings, do they get a better outcome for plaintiffs.

III. Personal Jurisdiction (F.R. C.P. 4(k) and 12)

1. Ever since Pennoyer v. Neff (1877) Plaintiffs are not free to sue Defendants where
ever they would like.
2. A court must have Personal Jurisdiction AND Subject Matter Jurisdiction

You can waiver Personal, not Subject (Rule 12), but it must be
done initially, cannot do it later.

Personal Jurisdiction

In personam- jurisdiction over the parties/territory

In rem- court has power over a property in the jurisdiction and property is the
subject of the cause of action

Quasi in rem- attachment of jurisdiction allows a court to assert over a person

through his/her property

Subject Matter Jurisdiction Fed. Cases Only

A. Diversity of Citizenship (28 U.S.C. § 322)

B. Federal Question ( occasionally arising out of state cause of
action)

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Personal Jurisdiction Requires Minimum Contacts within a state, as developed in
International Shoe. Minimum Contacts & Fairness factors:

A. Diversity of Citizenship (28 U.S.C. § 322)

Through a Long Arm Statute, if between two individuals

•Certain states have statues allowing it to get jurisdiction over foreign residents

• Just because a state has a LAJ statute, does not mean it is constitutional

•Illinois had the first LAJ statute

•California “in anyway not interfering with Constitution” Rhode Island, also.

Do the facts of the case fall in line with what statute says?

Constitutionality of Personal Jurisdiction

Instate service or Voluntary Appearance

Specific Jurisdiction analysis (must consider this)

Minimum Contacts:

 Systematic and Continuous contact v. isolated/miscellaneous

And sporadic contacts. (International Shoe, Burnham)

Continuous, systematic, related- PJ is appropriate

Continuous, Systematic, unrelated- possibly have jurisdiction if

contacts can be described as “substansial” Helicopteros case.

 Corporations and individuals can be brought into court this way.

(Shaffer v. Heitner) also called QUALITY AND NATURE!

Corporations

“muscle test” - where are their agents, equipment, etc.

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 “nerve cetner test”- where are their headcounters. For
diversity purposes, a corporation is deemed to be a member of
the state of incorporation.

 Suits may only arise directly from those contacts w/in a state,
relationship of claim to contacts.

 Quid pro quo- is D receiving benefits from the state?

 Contractual Contact- Has D entered into a contract in forum state?

(Burger King)

 Purposeful availment- did D make a deliberate choice to relate to the

state in some meaningful way? Did D advertise to state? Worldwide
Volkswagen. Can’t exist on the basis of unilateral actions of parties
other than defendant. Also called Stream of Commerce Cases.

2 Views of PA

In Asahi, it was determined by Justice O’Connor, that a “mere

awareness that a product may be in a jurisdiction through the
stream of commerce is not purposeful availment, D will have to
know they are serving the state” (THIS HAS BASICALLY BEEN
ADOPTED BY SUPREME COURT)

Justice Brennan says “where reasonableness may be high, but

contacts are low, or vice versa, there should still be J”. (THIS IS
MINORITY)

 Intentionally targeting wrongful conduct at a state- Calder v. Jones, if

victim suffers harms in home state, and D targeted home state with
harmful conduct, the P can bring a case in home state.

 Foreseeability- does the D know their product/actions may result in

them being sued in that jurisdiction.

 100 mile “bulge rule”- Rule 4(k)(1)(B)- if jurist diction is brought to a D

that was joined under rule 14 or 19 and served withing a judicial district

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 not more than 100 miles from the place where summons was issued,
they may be forced to defend in that court.

 Intentional tort directed at a person in forum state. (Pavlovich-

internet is not purposeful availment if it is not an interactive page, just
something to read). Calder v. Jones- person in NY calling tabloid in LA
about a movie star is held liable for DIRECTING tort towards a person in
foreign state).

Websites
Passive websites = NO j
Active Websities = J
Interactive websites = depends on the the
commercial degree of interactivity

Defenses

•Special Appearance- opportunity to contest

the J issue, without exposing yourself to the
jurisdiction of the forum in court. However, if
you lose you must defend on the merits, you do
not risk yourself to being served while you are
attacking.

•Limited Appearance- where available to quasi

in rem case, can defend on merits w/ exposure
limited to the value of the property in the state.

•General Appearance- in a quasi in rem case,

gives opportunity to defend, but exposure is not
limited by value of the property, full faith and
credit clause.

+
Reasonableness Factors (even if jurisdiction may be
loosely met, ask yourself this in addition using Asahi.

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  Convenience/ Inconvenience
a. Burden on D to defend there
b. Location of witnesses/evidence
c. P’s interest in convenient forum
 Foreign state’s interest in providing forum for residents
 Forum state’s interest in providing for its residents
 Efficient resolution of controversies
 Shared interests of states
 Policy

IV. SUBJECT MATTER JURISDICTION

A. Diversity Jurisdiction- 28 U.S.C. §1332
 Where the dispute exceeds $75,000-F.CT. can hear cases between
citizens of different states, citizens of a state and aliens

$$$$$- compensatory and punitive damages can count. Interest,

costs, etc. do not.
Citizenship depends on DOMICILE-where does person stay and
have intention of staying.

 Nerve center tests and Muscle Tests

 § 1332 has been interpreted to mean COMPLETE DIVERSITY

B. Federal Question Jurisdiction (28 USC § 1331)

•Mottley Rule- it is P’s burden to prove any Federal law reliance as part of
their “well pleaded complaint”. A discovery of Federal law later is not
enough to warrant Federal Question Jurisdiction. Also, a case CAN NOT be
heard in Fed. Ct simply because a Fed issue may arise, it must be part of the
complaint.
• Complaint must have a Federal issue on the surface

• Mottley Rule- it is P’s burden to prove any Federal law reliance as part of
their “well pleaded complaint”. A discovery of Federal law later is not
enough to warrant Federal Question Jurisdiction. Also, a case CAN NOT be
heard in Fed. Ct simply because a Fed issue may arise, it must be part of the
complaint. The well pleaded complaint rule

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 • Complaint must have a Federal issue on the surface
OR
 When it is a state based cause of action which relies on the interpretation
of federal law, provided a SUBSTANSIAL FEDERAL INTEREST is at stake.
 A party can give up their Personal jurisdiction for the sake of the trial, but can
never give up their Subject matter jurisdiction RULE 12(B).

C. Removal Jurisdiction (28 U.S.C. § 1441)

 A defendant in a state court may have the case removed to the federal district
court for the district geographically embracing the location of the state court, if
the case could have been brought in federal court originally.
 Removal can only be based on plaintiff’s claims
 Removal is not possible based on counter claims or defenses by D.
 D may not remove unless jurisdiction would be founded on a cliam that arises
under Fed. Law.

D. Supplemental Jurisdiction (28 U.S.C. § 1367)

 Claims that individually would be brought in state court and not fed, can be
heard in Fed court, when it is part of the same case and controversy that
does have it’s own basis for federal jurisdiction.

V. NOTICE (due process clause)

A. Must convey proper information to notify the party
 How to respond
 When to respond
 Reasonable time to appear
 Reasonable method of notice

Does not mean most desirable notice must exist

Does not mean it is actually received
In personam- the person must receive it, publication notice not acceptable

B. Opportunity to be heard
 Does pre-deprivation process comport with Due Process
 Risk of erroneous deprivation

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VI. Pleadings
Requires: Complaint, Answer, Reply

 The Complaint F.R. C.P. 8

 “Short plain statement” for why relief is required.
 Twombly case has heightened this “specific facts”

UNLESS
 “special circumstances” ---(fraud or mistake) Rule 9 b
 Special damages must be stated to be claimed

 Rule 8 (2) (d) allows plaintiff to plead alternative or inconsistent allegations

 Rule (a)(3) is when P demands relief in monetary damages

*The Answer ( 8 b)

 D has 20 days to respond to the complaint, answer or preanswer motion

(Rule 12 a)
 If D has waived service of process as requested by P, D has 60 days.
 90 days for foreign defendants
 All allegations must be either admitted or denied
 Those not denied are considered to be true

Rule 9

 Requires greater pleadings of particularity from Rule 8 in cases of

o Fraud/Mistake
o Conditions of Mind
o Demurrer- a “so what defense” says P’s claims may be true, but
they are not entitled to relief.
o Traverse- a denial of facts at common law
o Confession and avoidance- saying that yes it happened, but
excused under the circumstances.
*Amendments
 P has first 20 days to amend anything w/o other parties or courts
consent
 Federal Rules allow at least 1 amendment as a matter of right

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 *Rule 11

 Complaints signed by attorney assure court that

o Pre-filing inquiry – construct a reasonable inquiry into the

factual and legal matters presented before submission to court

o It was not filed with improper purpose (harassment, delay,

increase costs) Rule 11 b1, frivolous legal arguments Rule 11 b2,

o It cites applicable law

o Maybe it starts new law

VII. Discovery (Rules 26-37)

A. Any non-privelaged matter that is subject to any party’s claim or defense.

 Must have “good cause”

 Party can make a motion if info necessary is “not reasonably accessible

because of undue burden or cost”.

 Rule 26 forces sides to communicate with one another through

discovery enforcement

 Requests for admissions FRCP 36

 Sanctions possible under RULE 37 (B)(parties seeking this must show

that they tried to get other sides attorney’s but couldn’t) treats disputed
facts as true strike claims of defenses, dismiss action or render default
judgment, contempt of court, etc. Rule 37(5)a may allow attorney’s
fees attached also

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 o Discovery of Trial Prep Material FRCP 26 B3 (saying materials
of litigation are not discoverable unless…..

 It is not otherwise discoverable

 Party seeking it has to have substantial need &

 Unable to be obtained equivalently by any other source

 Court protects against disclosure of attorney’s mental

impression, notes

o Rule 26 (a) 2 & (b) 4

 Initial disclosure of indemnities and written reports

of experts who may testify at trial

 May take depositions of opponent’s experts who

are going to testify at trial

 NO depositions of opponents experts hired for trial

UNLESS

o Exceptional circumstances
(maybe only 1 expert in world
exists)

 Unless a manifest injustice is being created, the

party seeking discovery pays for experts times and
fair portions of fees.

VIII. Pre Answer Motions & Summary J.

A. Pre-Answer Motions
 Rule 12 FRCP, a motion for judgment on the pleadings, a preliminary means
of dismissing actions.

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  Can raise any defense under Rule 12- improper venue, lack of personal
jurisdiction, insufficiency of process, failure to properly serve, failure to
state a claim, failure to join a party under Rule 19.
 Rule 12 (b) (6)- motion to dismiss for failure to state a claim. Court must
consider in light most favorable to plaintiff. Required to be made initially.
Only look at the pleadings, and assumes facts made in pleadings to be true,
does not consider evidence presented.

B. Summary Judgment
 Rule 56- SUMMARY JUDGEMENT, for lack of factual dispute. Granted when:
1. No material facts are in dispute
2. Moving party is entitled to judgment when law is applied to
those facts

 CONSIDERS THE EVIDENCE THUS FAR

 Keep in mind-- Who bears the burden of proof? Celotex v. Catrett (holding
that non-moving parties on a RULE 56 motion must produce factual
evidence that would allow for the trail.

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