Civil Procedure Class Notes 8/27/03


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.


How 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?


International Shoe Co. v. Washington


American society changes after Pennoyer.  We have more corporations, more cars, and more communications.


What’s 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.  Washington’s response is creating a state unemployment compensation system.  They’re going to have all of Washington’s employers contribute to this fund.  This is sort of a state New Deal program.  At the time, this right was subject to challenge.


What’s the problem, factually, that creates this case?  Shoe is incorporated in Delaware and lives in Missouri, but they also employ traveling salesmen in Washington.  They’re selling shoes door-to-door.


Shoe doesn’t pay the tax because they say they’re not a Washington employer under the act.  That’s one argument they make.  That’s not what the Supreme Court cares about, that’s a matter of state law.


The second question is: how does the state of Washington obtain personal jurisdiction over Shoe?  Washington personally serves one of the salesmen within the state with notice and also mailed the notice to Missouri.


There’s no question about notice in this case.  Shoe knows they’ve been sued.


What does Shoe do procedurally?  They make a special appearance in Washington at the office of unemployment to argue that Washington doesn’t have personal jurisdiction.


The initial action takes place at the administrative level.  We call that a special appearance to quash[1] service.


Surprise, surprise!  The administrative authority says no dice.  Give us the money.  They find in favor of the state.


Shoe appeals to the Superior Court of Washington (the district court).  In Washington, the state trial court reviews the administrative authority as if the trial court were actually an appeals court.


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.


The bottom line is that we find that the state of Washington does have jurisdiction for the purposes of this tax over International Shoe.


What would Justice Field have said?  He said a state could require a corporation to appoint an agent for service of process.


Did the company have property in the state?  The office is in Missouri.  The contracts are written up in Missouri.  The stock in the corporation is mostly or completely outside the state of Washington.


What’s in the state of Washington?  We have the salesmen and they have their shoe samples (one shoe of a pair).  We also have the money that Shoe sends to pay their salesmen.  Can the salesmen sell any goods in the state of Washington?  No way!  The salesman can only take orders.


Shoe has done everything humanly possible to keep from being under the jurisdiction of the state of Washington.


Could we attach the shoes?  Could we attach the permanent sample rooms that they’ve rented?


They 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 Washington, and the Supreme Court buys into this.[2]


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.


Back to Class Notes

[1] dismiss

[2] The cornerstone of jurisdiction up to the point of Shoe is that I must have control of people in my state or land in my state.  Shoe has done everything possible to keep out of the state.  The court will be reluctant to cobble together jurisdiction based only on a display case.