GARRETT CIVIL PROCEDURE 2009 I. INTRODUCTION 1.

In-class exercise No Vehicles in the Park (no reading for this); read this Syllabus; Supp. 4-14 (Introduction, Bramble Bush) Introduction to: - Sources of law: Constitution, Statutes, Administrative or Court Rules, Cases - How to read and brief a case - The interpretation of statutes - The distinction between dicta and holding - Stare Decisis - Rules vs. Standards - Facts and the Holding of a case II. DUE PROCESS 2. CB 1; Supp. 15-30 (Hamdi v. Rumsfeld); U.S. Constitution Amendment V (sec. 1) Overview of course Beginning, Middle, and End of a case Elements: 14th Am. State deprive person life, liberty, property due process of law 5th Am. same but federal government Hamdi Application of Mathews test: Balancing state interest, risk of error and deprivation Minimal process due to P = Notice, Fair opportunity to Rebut Gov. Case, Hearing before Neutral Decisionmaker Questions for discussion: What additional process did Hamdi seek? What else could he have sought? What is the purpose of the Due Process Clause? What protection does the Due Process Clause provide? 3. CB 325-32 (Ct. v. Doehr), Supp. 30-42 (Mathews v. Eldridge); Fed. R. Civ. P. 1, 2, 3 (RB); U.S. Constitution, Amendment XIV (sec. 1) (RB); Federal Rules 1 3 the rules apply in civil cases there are no separate forms of action, and the purpose of the rules is to secure just, speedy, and inexpensive determination of every action The case begins with the filing of a complaint.

Questions for discussion: Is the Mathews test superior to the Courts prior flexible test? Can numbers be used to calculate results under the test? What purpose does the balancing inquiry serve? Was Ct. v. Doehr correctly decided? 4. CB 149-56 (Mullane), CS 4-5; Review Exercise #1 Notice is preliminary to any right to be heard. Actual notice not required just notice reasonably calculated to reach parties Questions for discussion: What does reasonable calculated mean today? For example, when could emailed notice suffice? III. PERSONAL JURISDICTION A. The Traditional Framework 5. CB 49-62 (Pennoyer), (Harris), (Hess), U.S. Const. amend XIV, Supp. 42-46 (Purdue on Pennoyer), CB 807-11 (Fauntleroy) Traditionally, a court had power over a defendant or property within its jurisdiction But increasing interstate commerce leads to a more flexible due process approach. Concept of collateral attack challenge to a prior judgment. - Normally, judgments are final and are binding in subsequent litigation (see preclusion) but exception if the prior court lacked jurisdiction - Full Faith & Credit Clause states must respect each others judgments As to quasi in-rem in Pennoyer, publication suffices when property attached at the commencement of the action Forms: Person in the state (1) In personam (a) Service - defendant served inside the state (b) Consent, including voluntary appearance Property - inside the state (1) In Rem property related to claim. (2) Quasi in rem - attach unrelated property (3) Status like property, ex. marriage, incorporation

Questions for discussion: Why does the Due Process Clause apply to personal jurisdiction? Why does the type of thing present in the jurisdiction (person, property, unrelated property) matter? Why was the notice provided by the state court in Pennoyer insufficient? B. The Modern Minimum Contacts Test 6. CB 63-71 (International Shoe), (Carnival Cruise Lines), Fed. R. Civ. P. 4 (RB); CB 132-33 (Rule 4(k)). Minimum contacts analysis: There must be some Contact, tie or relation with the forum state Fair, Just and Reasonable Consent is still a valid ground for jurisdiction Rule 4(k) Federal Rules for service: Incorporate state rules, or Bulge Rule for parties joined under R. 14 or 19, or Federal Statute, or consistent with Constitution if otherwise cannot be reached Questions for discussion: What satisfies the minimum contacts test? Why does consent obviate the need to satisfy the minimum contacts test? Was Pennoyer overruled? 7. CB 72-95 (World-Wide Volkswagon), (Hanson), (McGee) (Asahi) A. How far does the long arm statute reach? In federal court proper service under F.R.C.P. 4? B. Specific or General jurisdiction? Specific contacts are related to subject matter then conduct minimum contacts analysis General suit is unrelated to contacts so there must be continuous and systematic ties to the forum far more than due process analysis would otherwise require C. Due Process Analysis 1. Minimum contacts - some contact, tie, or relation New factors (WWVW) 2. Purposeful availment

3. Reasonably anticipate being haled into forum court 4. Fair, Just and Reasonable - Quantity and Quality (spectrum from casual presence to continuous and systematic) - Does cause of action arise out of (is it related or unrelated to contacts) - Benefits and burdens on parties (convenience of defendant, plaintiff) - Reciprocity (benefits, protection state law) (Add to this forum state interest, policy) - Foreseeability / Notice Asahi Is stream of commerce enough? The Justice do agree that the F, J, R factors can be dispositive Asahi plurality STREAM OF COMMERCE PLUS must one show designing the product for the market in the forum State, advertising in the forum State, or marketing the product through a distributor who has agreed to serve as the hales agent in the forum state? Under WWVW, regular sales, serving the market, etc. may suffice. Questions for discussion: What is the purpose of purposeful availment? What satisfies that requirement? And how about reasonable anticipation? What is the status of WWVW after Asahi? C. In Rem, Quasi in rem and Tag Jurisdiction Return 8. CB 96-122 (Shaffer, Burnham), CB 141-48, Review Exercise #2 Quasi-in rem jurisdiction analyzed using the minimum contacts analysis But not personal service within the jurisdiction (tag), which suffices Questions for discussion: What was the property in question in Shaffer? Does Shaffer impact in rem cases? What explains the reliance on tradition in Burnham?

E. Internet Jurisdiction 9. CB 123-32 (Cybersell); Supp. 49-77 (Millennium) (Sealand) Zippo sliding scale (a way to assess purposeful availment) Conducts Business over the Internet with forum residents Interactive web site (examine level of interactivity and commercial nature of the exchange of information) Passive web site (requires additional contacts related to claim) Questions for discussion: Do these courts really understand internet commerce? Compare their test to the Calder test for purposeful availment in defamation cases What explains the difference between the tests? Does personal jurisdiction have more or less importance in the internet era? 10. Supp. 78-90 (Burger King); Review Exercise #3 Review Application of purposeful availment to interstate contracting