Procedure Class Notes
Yesterday, we blazed through Rule 12. But let’s go over Rule 12 more because there will almost certainly be a question on Rule 12 on the exam.
Hierarchy of Rule 12(b) motions
All 12(b) motions are potential pre-trial motions to dismiss a case without it having to go to trial.
1. subject matter jurisdiction
2. personal jurisdiction
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim
7. failure to join a party
Rule 12(g) and (h) establish which of these get waived if you fail to bring it at the earliest possible time. Use them or lose them!
Rule 12(h) tells us three things:
1. You’ve waived personal jurisdiction, venue, insufficiency of process, and insufficiency of service of process if you didn’t do these right off.
2. But we protect a 12(b)(6), failure to state a claim, as well as Rule 19, which can be raised all the way up to the time of trial.
3. But subject matter jurisdiction can be raised at any time, even by the court itself without any action from the parties.
Hypotheticals on Rule 12
Yeazell, p. 93-94
Say you file a 12(b)(6) motion and it’s denied. What if you then try a 12(b)(2)? Well, the court will say you’ve already waived this motion according to Rule 12(g). 12(h) lists the motions that are waived.
At some point, the court wants to go ahead and go forward with a matter even though there may be problems with certain issues like personal jurisdiction. Why would the court do this? This is the equity/efficiency tradeoff. For efficiency reasons, if you wait too long, we’re just going to say you’ve waived your right to have your motion heard.
about if we file a Rule 12(f) motion to strike an allegation? Say it’s denied. Then we try filing a 12(b)(2). It will be waived too, based on Rule 12(g). If a party makes a motion under Rule 12 (in
general), but omit any other objection you can make, you can’t make that motion
later (with the 12(h) exceptions). 12(h)
doesn’t say there’s an exception for 12(f).
If you wrote on an exam that this claim would be waived according to Rule 12(h), you would be wrong. It gets waived under Rule 12(g).
Say you file a motion to transfer venue under 28 U.S.C. §1404 and you lose. Then you want to file a 12(b)(2) motion. Nobody knows what would happen!
Rule 12(g) says if you make a motion under Rule 12, you give up the chance to do 12(b)(2). But if we presume you didn’t make a Rule 12 motion, you can still do your Rule 12 motions. It depends on whether you think the motion was under Rule 12(b)(3). Tricky tricky!
Different courts in different jurisdictions have reached different results. This is a place where a litigator can argue the procedural merits. It’s not a slam dunk either way.
Question: Are the FRCP statutory, or what? What are their standing compared to, for example, 28 U.S.C. §1404?
American society changes after Pennoyer. We have more corporations, more cars, and more communications.
going on at the time of the facts of Shoe? It’s around 1937-1940. It’s near the end of the Great Depression. There’s massive unemployment.
the problem, factually, that creates this case?
Shoe is incorporated in
doesn’t pay the tax because they say they’re not a
second question is: how does the state of
There’s no question about notice in this case. Shoe knows they’ve been sued.
does Shoe do procedurally? They make a
special appearance in
The initial action takes place at the administrative level. We call that a special appearance to quash service.
Surprise, surprise! The administrative authority says no dice. Give us the money. They find in favor of the state.
appeals to the Superior Court of Washington (the district court). In
The state trial court affirms the judgment of the administrative authority. So Shoe has lost twice now. But they don’t pay, they appeal again!
It then goes to the Washington Supreme Court, which also affirms the decision. But Shoe doesn’t pay, they appeal yet again to the United States Supreme Court!
The Supreme Court finally affirms for good.
Why in the world was Shoe willing to litigate this issue all the way to the U.S. Supreme Court? They seem very motivated.
bottom line is that we find that the state of
What would Justice Field have said? He said a state could require a corporation to appoint an agent for service of process.
the company have property in the state?
The office is in
in the state of
Shoe has done everything
humanly possible to keep from being under the jurisdiction of the state of
Could we attach the shoes? Could we attach the permanent sample rooms that they’ve rented?
try to do personal service on the corporation by serving the salesman. However, they’re unwilling to make the
argument that they’re going to attach the one shoe or the display case. The state argues that the company is doing a “substantial
amount of business” in
What is the modern test? Just look at the sentence written by Stone. But what is “fair play”? What is “substantial justice”? How many prongs does this test have? We’re going to see numerous future decisions that try to interpret this decision. Not all of the implications of this decision are sorted out, even today.