CIV PRO CMR MODULES 1-8 Flashcards
What is PJ?
The court’s power over ∆. Does ∆ have sufficient contacts w/ forum state so that exercise of PJ is fair & reasonable.
PJ Analysis
The exercise of PJ must (1) fall w/in a state statute & (2) satisfy the constitution.
(1) Statutory analysis
Each state has its own long arm statute granting PJ over nonresidents who perform or cause things within the state. Most statutes state it allows courts to exercise PJ to teh full extent of the C. [If statute is different it will be provided.]
(2) Const. analysis
“Does the ∆ have such min contacts w/ the forum state such that the exercise of PJ does not offend traditional notions of fair play and substantial justice?” Int’l Shoe. Whether the exercise of PJ is constitutional depends on a set of factors:
a. CONTACT
There must be relevant “min contacts” btwn ∆ & forum state.
i. Purposeful Availment
Contact must result from ∆’s PA, i.e., the contact results from ∆ voluntarily targeting/reaching out to the forum.
i. FORESEEABILITY
∆ knew/reasonably should have anticipated her contacts in the forum made it foreseeable she may be “hailed into court” there.
b. RELATEDNESS
Does P’s claim arise from/relate to ∆’s contact w/ the forum?
i. If ∆’s contact caused harm to P, P’s claim clearly arises from ∆’s contact w/ the forum.
ii. If ∆ has substantial contact w/ the forum state, if the claim merely related to ∆’s contacts w/ the forum –> then there is relatedness.
iii. If there is relatedness, check for fairness (c). If no relatedness, check for general PJ.
c. FAIRNESS
For fairness, we assess whether PJ would be fair or reasonable under the circumstances. [burden on ∆ & Ws; State’s interest; P’s interest].
General PJ
For the ct. to exercise GPJ, ∆ must (a) be at home in the forum [people = domicile; corps = where inc. or PPB] or (b) must have registered to do bus. in the state & have appt. agent for SoP there. Further, a corp. is subject to GPJ in any state that allows PJ to be exercised on registration w/ the state.
Notice / Service of Process quote from Mullane v. Central Hanover Bank & Trust Co.
As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
What 2 documents constitute process?
- a summons (a formal court notice of suit & timing for response.
- a copy of the complaint.
Who can serve process?
18+ & non party
When must process be served?
If ∆ to be served in U.S. –> within 90 days of the filing of the complaint.
How is process served on an individual in the U.S.?
personal service anywhere
substituted service only (1) at ∆’s usual place of abode (∆ does not have to reside there every day of the year/common sense determination); (2) with someone of suitable age and discretion; (3) who resides there.
service on agent if receiving service is in socpe of agency (e.g, when agent appointed by K)
state law methods
The FRCP permits methods for serving process that are permitted by the law of the state
(1) where the fed ct sits or
(2) where service is made.
How is process served on a business or organization in the U.S.?
- Delivering to an officer (president, treasurer) or a managing or general agent a copy of the summons & complaint, OR
- Using a method permitted by the state (1) where the fed ct. sits or (2) where service is to be made.
How is processed served on a minor/incompetent person in the U.S.?
Only by state law!
How is process served on parties in a foreign country?
- int’l agreement (e.g., the Hague Convention)
- if no agreement –>
a. as directed by the Am. ct.
b. method allowed by foreign country’s law
c. method directed by foreign official in response to a letter of request from the Am. ct.
d. personal service in the foreign country
e. mail sent by the clerk of the Am. ct., requiring signed receipt.
How is process waived?
- P mails ∆ notice & request to waive service
- P includes copy of complaint and TWO copies of a waiver form w/ a PREPAID means of returning the form (self addressed stamped envelope)
if ∆ mails waiver to P within 30 days, she waives service.
Waiver becomes EFFECTIVE once P files the waiver in court.
The ∆ is considered to have been served w/ process the day P files the waiver form w/ the ct.
Penalty for waiving service?
If ∆ doesn’t have good cause for failing to waive service (by returning the waiver form) –> ∆ must pay the costs of service (personal or substituted).
How is service of process proved?
Unless waived, the process server (either civilian or professional) files a report w/ ct. detailing how service was made.
If civilian server –> the report is by affidavit
BUT the failure to file this report DOES NOT AFFECT THE VALIDITY OF SERVICE.
What is immunity WRT SoP?
If ∆ goes to State X to appear as a party/witness/attorney in a different CIVIL case in State X –> ∆ CANNOT be served there. ∆ is immune from SoP (that wouldn’t be fair to hail someone into ct. in a diff. and then be like gotcha bitch!)
How are other docs served? (answer, pleadings, motions, discovery, etc.)
Other docs are also “served” but not formally aka you don’t need a summons.
You deliver or mail other docs to the party’s attorney or pro se party.
Receiving party has 30 days in which to respond to these requests. If delivering by mail, service is deemed complete upon dropping in the mailbox BUT 3 DAYS are added to the 30 days the receiving party has to respond to these requests. [shorthand: If mail other docs –> receiving party has 33 days to respond.]
You CAN email other docs BUT only if the parties agree.
