Civil
Procedure Class Notes
Finishing
up Pennoyer, getting to Rule 12
Tomorrow,
International Shoe
Review
of hypothetical (i) from yesterday, and in particular issue preclusion
Why
Pennoyer? It introduces three
basic concepts that are still important today:
1. Power –
jurisdiction is power, and the power of states or other jurisdictions (federal
courts) to make you do what you might otherwise not do; plus limits to that
power imposed by the Constitution itself
2. Consent – If
you consent to jurisdiction, these black and white rules go out the
window. For example, in corporate law,
you must appoint an agent to receive service of process. This is an important part of law in the
modern view.
3. Notice – the
“concealed” strand of Pennoyer.
This will eventually become a constitutional requirement. At the time of Pennoyer, we have sort
of a duality of notice. For in
personam jurisdiction, you need personal service of process within the state. For in rem or quasi in rem
actions, you can be served by publication.
With publication service, do we know that the defendant received actual
notice? Nope. At the time of Pennoyer, notice is
important, but we have two different ways of achieving it, and one is more or
less fictional. Over time, courts will
become uncomfortable with this fiction.
What
ever happened to these guys?[1]
Harris
v. Balk
Facts: Balk has lent money to
Harris, and Epstein has lent money to Balk.
Harris and Balk are in
Epstein
sues in
Issue:
What must
the jurisdictional issues be?
Conceptually,
we’re trying to figure out if debts are a personal obligation or in rem
obligations. The Court says that the
debt travels with the debtor, making the [creditor] subject to personal
jurisdiction wherever the debtor goes.
If one is a creditor, that sucks.
If you lend people money, and then you’re subject to personal
jurisdiction wherever that person goes, you might get sued anywhere that debtor
goes. I, the creditor, am in big
trouble!
This
case is made possible by the difference between in rem and in
personam jurisdiction, and the rise of non-tangible kinds of property. How do we classify such property? This is the first case that illustrates this
problem.
Hess
v. Pawloski
Someone
from
So,
All
of this was created as a result of the need to make the Pennoyer rules
fit contemporary society.
Over
time, we get more and more exceptions to the rigid in personam/in rem
system of Justice Field.
Harris is wrong, Hess is
right, based on how we do things today.
Analysis
of Rule 12
When
a lawsuit is filed, you can file a motion to dismiss, or do nothing and execute
a collateral attack. Let’s see how that
goes on the federal level.
Rule
12 is a long rule. It deals with when
you can move to dismiss due to lack of personal jurisdiction, among other
things.
Rule
12 is tough! You have to wade through
them. This is an important rule, and if
you practice in the federal courts you will definitely use this rule.
(a)
First off, there is an answer deadline.
When do you have to answer a complaint?
20 days after you’ve been served.
That’s not a lot of time. Your
client has been served. Then they go around
looking for a lawyer, and you might have far less than 20 days to do your
answer. But you have another option: if
you waive service under Rule 4(d), you get 60 days after the request of the
waiver. As a practical matter, most
people waive service because that’s a big boon.
These are rules for repeat players in the litigation game.
So
12(a) just tells us when.
(b)
There’s a lot of stuff you can present, stuff you can include in your answer.
When
you file an action against somebody, that’s a claim. What if that person wants to sue you
back? That’s the counterclaim.[2]
What
if I want to sue against two different people?
I can have a claim against them, they can have a claim against me, but
they might have claims against each other. These are cross-claims. In other words, these are claims between
people on the same side of the “v.”: plaintiff v. plaintiff, or defendant v.
defendant.[3]
Let’s
say the defendant wants to bring in their insurance company. This would be a third-party claim.
All
Rule 12(b) says is: bring it on!
Let’s get everybody in and on the table before we get started. The process is designed to get you into court
quickly and cheaply, and then we’ll work it out later.
There’s
an exception. There are certain
defenses that can be made by motion.
1. Motion to
dismiss for lack of subject matter jurisdiction
2. Motion to
dismiss for lack of personal jurisdiction – this is what we would do with Pennoyer
today
3. Motion to
dismiss for improper venue – this is an outmoded, outdated, archaic part of
procedure that should be replaced with the rules of personal jurisdiction, but
is still around to screw us up
4. Motion to
dismiss for insufficiency of process – that is, the actual paper that has the
notice of the lawsuit
5. Motion to
dismiss for insufficiency of service of process – that is, the way you got the
process was no good
6. Motion to
dismiss for failure to state a claim – a popular motion: I agree with
everything you said, but it’s not against the law
7. Motion to
dismiss for failure to join an indispensable party under Rule 19 – it’s neat if
you can do this
The
judge will have a hearing on these motions.
The critical part of this rule, though, comes in parts (g) and (h).
(g)
This is a use ‘em or lose ‘em rule!
You’ve got one chance to bring your Rule 12 motions, except for the
exceptions in (h). You can even combine
all seven in one motion!
(h)
This is the hierarchy. There are certain
disfavored notions that are waived if you don’t bring them all together first
with your answer or before your answer.
However, 12(b)6 or 12(b)7 can be brought up any time, all the way up to
trial. Subject matter jurisdiction can
be raised at any time, because it is the most favored defense.
Next
time: one or two hypotheticals based on the Rule.
[1] Good old Marcus Neff faded into obscurity. J.H. Mitchell was also known as John
Hipple. He was a thief, a polygamist, a
liar, and a general, all-around bad dude.
Sylvester Pennoyer was a lumber baron.
He eventually became the governor of
[2] This happens a lot in car accidents.
[3] Sometimes the original claim gets dropped, and there’s a jurisdiction question of whether the cross-claims can go forward.