Bloggin big willy style |
|
William D. Randall's Blog (of no particular interest to no one in particular)
Yep that's right there is no e-mail address on this page (I h8 !@#$#% Spam !@#$@). Vistors: thanks for visiting! Friends: Drop me a line through the usual channels, Thanks.
"We Have Just Begun to Fight...." Winston Churchill "Audentes Fortuna Juvat" - "Fortune Favors the Bold"
Archives
The Bookshelf
|
Saturday, October 08, 2005
Ok, Nobody Panic......Too Late......P..A..N..I..C!!! Two midterms down, two to go. Unfortunately I rolled the dice and ended up getting the split, Criminal Law and Civil Procedure. I'm not too worried about Criminal Law, since my CrimLaw professor is practically giving us the outline and I'm having flashbacks to my undergrad substantive crim law class (the advantage of having a CJ minor). My CivPro professor is doing the same thing, but I think it is under frustration, more then out of being nice. It kinda helps when one has been a part of two cases that have gone through the civil court system. A lot of my fellow students are finding this material abstract; I've actually seen it in process which is allowing me to comprehend the material. Here are the topics I can recall off the top of my head for Civ Pro. Personal Jdx (Are their sufficient contacts with the forum state to bind the decision on the parties? - The first part of an in personam analysis) Territoriality Rule, Pennoyer, Consent, Implied Consent, Consent in fact, Consent implied in law, Hess v. Palowski (Implied Consent), Milliken v. Meyer (Domicile), Due Process Clause, 14th Amendment, In personam jurisdiction, Stream of Commerce, Worldwide VW, Gray v. American Radiator, Asahi, Brennan - Stream of Commerce, O'Connor - Stream of Commerce Plus, Purposeful Availment, Transitory Presence, Burnham v. Superior Court, Scalia and Brennan disagreement (Just gotta love those plurality decisions, Scalia - Presence is tradition, a court can have jdx over anyone who is physically present within the state borders (Just gotta love Scalia standing on his history soap box), Brennan - Benefits and protections in addition to physical presence) Purposeful Availment, Int Shoe - Minimum Contacts "continuous and systematic contacts with the forum state such that jurisdiction does not offend traditional notions of fair play and substantial justice" Helicopteros (also Perkins)- General Jdx, contacts with the forum state are so systematic and continuous that it would not offend due process to hold the defendant to jdx in the forum state when the cause of action does not have any relations to D's contacts in the forum state. A single contact may be enough for jurisdiction based on its quality and nature. McGee - Issuance of a single reinsurance certificate was enough for the insurance company to fall under the Jdx of CA, as the regulation of insurance policies fell under a substantial state interest, and the state had an interest in providing a forum for a state resident to enforce her rights, cf. Hanson v. Denckla, where administrative functions in maintaining a trust by the Plaintiff from FL were not enough for the DE administrator to be brought under jdx in the forum state. Burger King. In determining sufficient contacts with the forum state, the court will only look at the activities of the defendant and not the unilateral activities of the plaintiff. Keeton v. Hustler Magazine, Targeted Contacts - Calder v. Jones (Activity was targeted to the forum state such that the defendant would reasonable be expected to be hauled into court in the forum state.) See also Revell v. Lidov (combination of General Jdx issues and targeted activities) In Rem and Quasi-in-Rem jdx - QIR type 1, global determination of ownership of the property (seizure of the property is to determine the rights to the property, and not to affects the rights of the owner of the property) QIR type 2, Seizure of the property to act as a hook to bring an out of state D within the Forum state for matters of litigation, the hearing itself pertains to the rights of the party. Shaffer v. Heitner (Application of Minimum Contacts (Int Shoe Std.) to in rem matters.) Put a serious crimp on the in rem wing of personal jdx. Their has to be a connection between the property being adjudicated, the cause of action and the forum state. The case concerned a Greyhound shareholder who possessed one share of stock, brought a sequestration proceeding against greyhound shareholders. DE statue stated that stock is considered property in DE. Cause of action occurred out of a breech of fiduciary duty in OR. No DE Shareholders possessed land in DE or resided in DE. Due Process requirement (Is it fair? - the second part of an in personam analysis) - Long-arm statue, enumerated and full-extent, (CA is an example of a full extent statue) Nexus test - is there a sufficient contact between the D, the cause of action and the forum state such that jdx would not offend "traditional notions of fair play and substantial justice." Notice and service of process Rule 4. National Dev. Corp (Service may occur at "place of abode" that contains a "sufficient indicia of permanence,") Service of process (development from Capias Ad Respondum) would in most cases be upheld if the person is physically present in the vicinity of the residence at the time of service of process. One can have many residences ("place of abode"), but only one state citizenship (See Mas) Conn. V. Dohr - Attachment procedure that relied solely on the statement of the plaintiff was a violation of due process as it creating a burden on the D. The case arose from a CN statue that allowed a P to attach property in order to protect possible damages. SCOTUS found the statue uncons as it created a pre-judgment financial burden on the D. Rehnquist believed that use of a lien would not be a burden if the P were to post a bond to mitigate for any damages for an erroneous attachment. Subject Matter Jdx Diversity of Citizenship, Federal Question Jurisdiction, Removal Jurisdiction, Supplemental Jurisdiction, Mas v. Perry, Randazzo, Belleville Catering, FRCP 4, 1332 (D/C statue), 1331 (Federal Question Jdx), 1367 (Anti-collusion statue), 1441, 1446, 1447, (removal statues). Diversity of citizenship (1332 & A.III s.2) -Strawbridge Complete diversity requirement No P can be from the same state as any one D. (interpretation of the D/C statue and not the constitution (See 1332 v. A. III s.2) Mas v. Perry- 1. State citizenship A person may only have one state citizenship. It may only change when 1. One obtains domicile in another state, and 2. Intends to remain there permanently. Intent is derived from a number of factors. 2. Amount in controversy requirement The amount in controversy is determined via a "good faith" determination of the plaintiff. The matter can only be dismissed if it appears to a "legal certainty" that the plaintiff will collect less than the required amount (St Paul Mercury) Courts will allow an aggregation of claims as long as there is one Plaintiff and one defendant, with no limitation on the type of claim. However, the courts will restrict aggregation when there are multiple D's unless the claims are "separate and independent" (I need to check on this one) For class actions Citizenship is determined by the person representing the class, for the AIC requirement each person in the class must have a claim for over $75,000. Corporations Corps are determined to be citizens of both their state of incorporation and the state of its principal place of business (Randazzo, see also J.A. Olson) The principal place of business is determined through the use of two tests, 1 "Never Center" (Scot Typewriter) and the "place of operations"( ) True Diversity must exist between the D and the P. (See Strawbridge) Partnership Partnerships take the citizenship of its members (Belleville Catering). If the court is unable to determine the citizenship of its partners, it will dismiss the case. (Defendant refused to disclose the citizenship of some of its partners) Parties may not create citizenship by assigning a person for purposes of creating jurisdiction, i.e. collusion (1367) If this occurs, the court will look at the citizenship of the assignor not the assignee. If it is a matter of probate, the administrator or the executor will take the citizenship of the deceased, for matters where a guardian ad litem is appointed, the guardian will take the residence of the person they are representing. Domestic Exception While not codified into law, the courts will not hear domestic matters, as state courts are seen as better suited to matters of custody, divorce, etc... (Ankenbrandt). Federal Question (A. III s. 2 & 1331) Mottley - Well-pleaded complaint rule In order for the federal court to have jdx over the matter the federal question must be central to the plaintiffs claim. It cannot be raised as part of a defense, nor will the court look at the counterclaim if it includes a federal question. The court will only look at the Plaintiff's complaint. How central is the federal issue to the complaint? Progression from Osborne, Federal question is an ingredient of the case, to American Well Works (Holmes- Creation Test, The federal claim creates the cause of action) to Smith, The construction/application test, where the federal claim is based on some construction or application of federal law. Of course the Court really loves splitting hairs, in Moore the court allowed the use of the construction/application test over Justice Holmes objections (Shoshone mining brought up the issue of the centrality of the federal ingredient. In that case, the Court refused to allow a claim, as it would have deluged the court with federal claims as all land claims west of the Mississippi, would have some federal ingredient.) Does the federal issue allow for a private cause of action? see Merrell Dow. Congress did not intend for a private cause of action under the FDCA. Claim was brought up as part of a state negligence claim. See also Grabel, where the Court allowed for a state claim (a quiet title action) to be heard in federal court. Court formed a narrow exception substantial federal issue that allowed for a state cause of action that significantly turns on a federal question, that will not upset the federal/state seperation of judical power. (OK, There was a lot more in this post, but Blogger ate my section on Removal and all of the formatting ("We don't need no stinkin Bluebook")). Oh well, I'm not graded on this post at least. No notes were referred to in writing this post, I swear, Scout's Honor. WDR...
Comments:
Post a Comment
|
