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?
Harris v. Balk
Facts: Balk has lent money to
Harris, and Epstein has lent money to Balk.
Harris and Balk are in
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
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.
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.
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.
 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
 This happens a lot in car accidents.
 Sometimes the original claim gets dropped, and there’s a jurisdiction question of whether the cross-claims can go forward.