Transcript CIVIL PROCEDURE CLASS 38 Professor Fischer Columbus School of Law

CIVIL PROCEDURE CLASS 38
Professor Fischer
Columbus School of Law
The Catholic University of America
November 18, 2005
WRAP UP
General
MULLANE AND NOTICE
Mullane is the leading Supreme
Court case that sets the modern
standard for notice that satisfies
due process.
Mullane Facts
Mullane involved a judicial settlement in the
NY Surrogates Court of a common trust fund
established by a NY bank under a NY banking
statute.
Who was the common trustee of this fund?
What is the purpose of a common trust fund?
Who were the beneficiaries?
Judicial Settlement of Trust
Account
Why would the common fund trustee
want to have an accounting approved?
Parties
Who is Mullane?
General Notice Requirement
“An elementary and fundamental
requirement of due process in any
proceeding which is to be accorded
finality is notice reasonably calculated,
under all the circumstances, to apprise
interested parties of the pendency of
the action and afford them an
opportunity to present their
objections…”
Standard for Notice in Mullane
“…The notice must be of such nature as
reasonably to convey the required
information . . . And it must afford a
reasonable time for those interested to make
their appearance . . .But if with due regard to
the practicalities and peculiarities of the case
these conditions are reasonably met, the
constitutional requirements are satisfied.”
Published Notice
Can published notice ever be adequate
under the Mullane standard?
3 categories of beneficiary:
was notice acceptable?
Some could not be identified/located
with reasonable effort
Some could be identified/located but
had conjectural or future interests so it
would cost a lot to identify/locate them
Some were known present beneficiaries
Mullane Changes Historical
Notice Requirement
Notice by publication in in personam
cases is greatly cut back
Publication will not be sufficient notice if
it would be reasonably practicable to
provide individual notice
But Mullane makes clear that official
notice does not always have to be
personal service – could be, e.g., mail
After Mullane
Court decisions after Mullane have
found that notice by mail is the
constitutional minimum for D who can
be found by reasonably diligent efforts.
Mullane paves the way for reforms to
service in R. 4
Don’t Forget R. 4: Service
Rule
R. 4(e)
R.4(h)
Jurisdiction for Internet
Contacts
Als applies Zippo v. Zippo.com model
Influential case on how to determine
whether a court has personal
jurisdiction where D’s contacts with the
forum state occurred over the Internet
Zippo Sliding Scale
Application of Zippo in ALS CB p.
664
How is the Zippo standard applied in
ALS?
Is it basically the Calder test?
Scale
Doing business over the Internet
Passive web site
Middle ground
Is this a good test? Can you think of a
better test?
On to Venue Venue is the third of Glannon’s
“3 rings” that limit Ps choice of
forum. What are the other two
rings?
Why is venue required?
VENUE
Based on fundamental notions of
fairness
There are venue rules for state
courts and federal courts (usually
statutory).
TO THINK ABOUT: Do the venue
rules adequately protect
defendants?
Venue Rules in General Are
Based on Logical Relationship to
the Forum
Examples:-Where the cause of action arose
Location of property or event that
is the subject matter of the action
Where D resides, does business or
retains an office
VENUE REQUIREMENTS ARE
PURELY STATUTORY
What is the general federal venue
statute?
VENUE REQUIREMENTS ARE
PURELY STATUTORY
What is the general federal
venue statute?
28 U.S.C. §1391
VENUE IN FEDERAL
DIVERSITY ACTIONS
Under 28 U.S.C. §1391, where
can venue lie in a federal
diversity action where the
defendant(s) is/are natural
person(s)?
§1391(a) VENUE IN FEDERAL DIVERSITY
ACTIONS: NATURAL PERSONS
In a judicial district
(1) Where any D resides (if all reside in
the same state)
(2) Where a substantial part of
events/omissions giving rise to claim
occurred; or where substantial part of
property that is the subject of the action
is located
(3) If (1) or (2) don’t apply, district in which
any D is subject to p.j.
MEANING OF RESIDENCE
If a D, Thomas
resides in Roanoke,
VA and the events
giving rise to the
claim occurred in
France, in which
federal judicial
district(s) would
venue lie under
1391(a)(1)
What about if there
was also another D,
Martha, who lived in
Richmond?
MEANING OF RESIDENCE
What if Thomas (resident of
Roanoke) also has an beach house
in Ocean City Maryland?
MEANING OF RESIDENCE
Should “residence” for venue purposes be
equated with domicile or citizenship for
diversity purposes?
Compare
ex parte Shaw, 145 U.S.
444, 447 (892)
(dictum that residence
and citizenship are the same) with
convenience rationale for venue. Most courts
seem to follow Shaw, but this is unresolved.
§1391(b) VENUE IN FEDERAL
QUESTION ACTIONS
Under 28 U.S.C. §1391, where
can venue lie in a federal
question action where the
defendant(s) is/are natural
person(s)?
Is this different from diversity
actions?
§1391(b) VENUE IN FEDERAL QUESTION
ACTIONS
In a judicial district
(1) Where any D resides (if all reside in
the same state)
(2) Where a substantial part of
events/omissions giving rise to claim
occurred; or where substantial part of
property that is the subject of the action
is located
(3) If (1) or (2) don’t apply, district in
which any D may be found
Difference in Fallback Provisions of
1391(a)(3) and 1391(b)(3)
What is the difference between
“subject to personal jurisdiction”
[1391(a)(3)] and “may be found”
[1391(b)(3)]?
Difference in Fallback Provisions of
1391(a)(3) and 1391(b)(3)
What is the difference between “subject
to personal jurisdiction” [1391(a)(3)]
and “may be found” [1391(b)(3)]?
Unclear - perhaps “may be found”
requires jurisdiction based on physical
presence as opposed to minimum
contacts; perhaps these two phrases
mean the same thing
VENUE FOR CORPORATIONS
Where does venue lie if a
defendant is a corporation?
Cite the relevant provision(s)
of the federal venue statute.
VENUE FOR CORPORATIONS
Section 1391(a), (b), (c)
A corporation is deemed to reside
in any judicial district in which it is
subject to personal jurisdiction at
the time the action is commenced
If the state has more than one
judicial district, corporation is
deemed to reside in any district
within the state in which its
contacts would subject it to p.j. if
that district were a separate state;
if no such district, where it has
most significant contacts
VENUE FOR ALIENS
Where does venue lie for alien
defendants? Cite the relevant provision
of the federal venue statute.
VENUE FOR ALIENS
Section 1391(d) provides that “an alien
may be sued in any district”
OBJECTING TO VENUE?
Is this waivable (like personal
jurisdiction)?
OBJECTING TO VENUE
Waivable if not made in timely manner
– see FRCP R. 12(1)
28 U.S.C. § 1406 - The district court
of a district in which is filed a case
laying venue in the wrong division
or district shall dismiss, or if it be in
the interest of justice, transfer such
case to any district or division in
which it could have been brought.
VENUE AND COLLATERAL
ATTACK
“Unlike personal jurisdiction,
proper venue is not a
constitutional requirement for a
valid judgment, and thus cannot be
raised by way of collateral attack”
(CB p. 783)