CIVIL PROCEDURE CLASS 38

1. CIVIL PROCEDURE CLASS 38 Professor Fischer Columbus School of Law The Catholic University of America November 18, 2005

2. WRAP UP • General

3. MULLANE AND NOTICE • Mullane is the leading Supreme Court case that sets the modern standard for notice that satisfies due process.

4. 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?

5. Judicial Settlement of Trust Account • Why would the common fund trustee want to have an accounting approved?

6. Parties • Who is Mullane?

7. 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…”

8. 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.”

9. Published Notice • Can published notice ever be adequate under the Mullane standard?

10. 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

11. 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

12. 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

13. Don’t Forget R. 4: Service Rule • R. 4(e) • R.4(h)

14. 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

15. Zippo Sliding Scale

16. Application of Zippo in ALS CB p. 664 • How is the Zippo standard applied in ALS? • Is it basically the Calder test?

17. Scale • Doing business over the Internet • Passive web site • Middle ground • Is this a good test? Can you think of a better test?

18. 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?

19. 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?

20. 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

21. VENUE REQUIREMENTS ARE PURELY STATUTORY • What is the general federal venue statute?

22. VENUE REQUIREMENTS ARE PURELY STATUTORY • What is the general federal venue statute? • 28 U.S.C. §1391

23. 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)?

24. §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.

25. 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?

26. MEANING OF RESIDENCE • What if Thomas (resident of Roanoke) also has an beach house in Ocean City Maryland?

27. 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.

28. §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?

29. §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 Dmay be found

30. 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)]?

31. 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

32. VENUE FOR CORPORATIONS • Where does venue lie if a defendant is a corporation? Cite the relevant provision(s) of the federal venue statute.

33. VENUE FOR CORPORATIONSSection 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

34. VENUE FOR ALIENS • Where does venue lie for alien defendants? Cite the relevant provision of the federal venue statute.

35. VENUE FOR ALIENS • Section 1391(d) provides that “an alien may be sued in any district”

36. OBJECTING TO VENUE? • Is this waivable (like personal jurisdiction)?

37. 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.

38. 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)