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Mastering Civil Procedure

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Mastering Civil Procedure Mastering Civil Procedure hricik 3e 00 fmt f2.indd 1 3/28/17 10:54 AM Carolina Academic Press Mastering Series Russell Weaver, Series Editor Mastering Administrative Law William R. Andersen Mastering Adoption Law and Policy Cynthia Hawkins DeBose Mastering Alternative Dispute Resolution Kelly M. Feeley, James A. Sheehan Mastering American Indian Law Angelique Wambdi EagleWoman, Stacy L. Leeds Mastering Appellate Advocacy and Process, Revised Printing Donna C. Looper, George W. Kuney Mastering Art Law Herbert Lazerow Mastering Bankruptcy George W. Kuney Mastering Civil Procedure, Third Edition David Charles Hricik Mastering Constitutional Law, Second Edition John C. Knechtle, Christopher J. Roederer Mastering Contract Law Irma S. Russell, Barbara K. Bucholtz Mastering Corporate Tax Reginald Mombrun, Gail Levin Richmond, Felicia Branch Mastering Corporations and Other Business Entities, Second Edition Lee Harris Mastering Criminal Law, Second Edition Ellen S. Podgor, Peter J. Henning, Neil P. Cohen Mastering Criminal Procedure, Volume 1: The Investigative Stage, Second Edition Peter J. Henning, Andrew Taslitz, Margaret L. Paris, Cynthia E. Jones, Ellen S. Podgor Mastering Criminal Procedure, Volume 2: The Adjudicatory Stage, Second Edition Peter J. Henning, Andrew Taslitz, Margaret L. Paris, Cynthia E. Jones, Ellen S. Podgor Mastering Elder Law, Second Edition Ralph C. Brashier Mastering Employment Discrimination Law Paul M. Secunda, Jeffrey M. Hirsch hricik 3e 00 fmt f2.indd 2 3/28/17 10:54 AM Mastering Evidence Ronald W. Eades Mastering Family Law Janet Leach Richards Mastering First Amendment Law John C. Knechtle Mastering Income Tax Christopher M. Pietruszkiewicz, Gail Levin Richmond Mastering Intellectual Property George W. Kuney, Donna C. Looper Mastering Labor Law Paul M. Secunda, Anne Marie Lofaso, Joseph E. Slater, Jeffrey M. Hirsch Mastering Legal Analysis and Communication David T. Ritchie Mastering Legal Analysis and Drafting George W. Kuney, Donna C. Looper Mastering Negotiable Instruments (UCC Articles 3 and 4) and Other Payment Systems, Second Edition Michael D. Floyd Mastering Negotiation Michael R. Fowler Mastering Partnership Taxation Stuart Lazar Mastering Products Liability Ronald W. Eades Mastering Professional Responsibility, Second Edition Grace M. Giesel Mastering Property Law, Revised Printing Darryl C. Wilson, Cynthia Hawkins DeBose Mastering Secured Transactions: UCC Article 9, Second Edition Richard H. Nowka Mastering Statutory Interpretation, Second Edition Linda D. Jellum Mastering Tort Law, Second Edition Russell L. Weaver, Edward C. Martin, Andrew R. Klein, Paul J. Zwier, II, John H. Bauman Mastering Trademark and Unfair Competition Law Lars S. Smith, Llewellyn Joseph Gibbons Mastering Trusts and Estates Gail Levin Richmond, Don Castleman hricik 3e 00 fmt f2.indd 3 3/28/17 10:54 AM hricik 3e 00 fmt f2.indd 4 3/28/17 10:54 AM Mastering Civil Procedure third edition David Charles Hricik Mercer University Walter F. George School of Law Carolina Academic Press Durham, North Carolina hricik 3e 00 fmt f2.indd 5 3/28/17 10:54 AM Copyright © 2017 David Charles Hricik All Rights Reserved Library of Congress Cataloging-in-Publication Data Names: Hricik, David, author. Title: Mastering civil procedure / David Charles Hricik. Description: Third edition. | Durham, North Carolina : Carolina Academic Press, 2017. | Series: Carolina Academic Press Mastering Series | Includes bibliographical references and index. Identifiers: LCCN 2017009731 | ISBN 9781611637342 (alk. paper) Subjects: LCSH: Civil procedure--United States. Classification: LCC KF8841 .H75 2017 | DDC 347.73/5--dc23 LC record available at https://lccn.loc.gov/2017009731 eISBN 978-1-53100-714-0 Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America hricik 3e 00 fmt f2.indd 6 3/28/17 10:54 AM For Abby, Alex, Houston, and Julian hricik 3e 00 fmt f2.indd 7 3/28/17 10:54 AM hricik 3e 00 fmt f2.indd 8 3/28/17 10:54 AM Contents Table of Cases xli Series Editor’s Foreword lxi Introduction and Acknowledgments lxiii Chapter 1 · Courts Decide Claims 3 Claims Roadmap 3 A. Lawsuits Begin with Clients 3 B. What Is a “Claim”? 5 C. Affirmative Defenses Compared to Claims 7 D. Destroying a Myth and an Impor tant Note About Studying Procedure 8 Checkpoints 9 Part A To Anchor the Action in a Federal Court, a Plaintiff Must Plead One Claim Where (1) Subject Matter Jurisdiction, (2) Personal Jurisdiction, and (3) Venue Are Proper. Chapter 2 · A Preview of Part A of This Book 13 A. The Three Requirements to Adjudicate an Anchor Claim: Subject Matter Jurisdiction, Personal Jurisdiction, and Venue 13 Chapter 3 · The Foundations of Subject Matter Jurisdiction 17 Subject Matter Jurisdiction Roadmap 17 A. A Divided System of Government: States and the Federal Government 17 B. Power to Resolve a Claim: Subject Matter Jurisdiction 19 ix hricik 3e 00 fmt f2.indd 9 3/28/17 10:54 AM x CONTENTS C. Which Law Applies Can be Distinct from Subject Matter Jurisdiction 22 Checkpoints 23 Chapter 4 · Federal Question and Diversity Subject Matter Jurisdiction 25 Federal Question and Diversity Subject Matter Jurisdiction Roadmap 25 A. Do Federal Courts Have Power to Adjudicate the Claim? 27 1. Federal Question Subject Matter Jurisdiction under Section 1331 27 a. Federal Question Subject Matter Jurisdiction 30 i. The Typical “Arising Under” Federal Claim: A Federal Statute Creates the Claim 30 ii. Plaintiff’s State Law Claim Necessarily Turns on a Substantial Question of Federal Law 31 iii. Federal Question Jurisdiction if Federal Law Completely Preempts a State Law Claim 36 2. Diversity Subject Matter Jurisdiction 37 a. Section 1332 Requires Complete Diversity and More Than $75,000 Exclusive of Costs and Interests be in Controversy 38 i. Section 1332(a) Requires Complete Diversity 39 (a) Determining Citizenship of a Party 40 (1) When Is Citizenship Determined? 40 (2) How Is Citizenship Determined? 41 aa. A Natu ral Person Is a Citizen of His State of Domicile 41 bb. Corporations Are Citizens of Both the State of Incorporation and the State of Principal Place of Business, Which Is Where It Has Its “Nerve Center” 43 cc. Citizenship of Other Business Entities 44 dd. Representative Actions: Citizenship of Real Party in Interest 46 ii. Section 1332 Requires More Than $75,000 in Controversy 47 (a) When Is the Amount in Controversy Calculated? 47 (b) The Legal Certainty Test Applies to the Amount Pled by Plaintiff 47 (c) Multiple Claims, Multiple Plaintiffs, and the Amount in Controversy 51 (1) A Single Plaintiff may Aggregate Claims Against a Single Defendant 51 hricik 3e 00 fmt f2.indd 10 3/28/17 10:54 AM CONTENTS xi (2) A Plaintiff Cannot Aggregate Claims Against More Than one Defendant Unless the Defendants are Jointly Liable 52 (3) Multiple Plaintiffs may not Aggregate Their Claims Unless They are Pursuing a Unified Remedy 52 B. Must the Claim be Filed in Federal Court? 53 1. Claims Arising Under Federal Law 53 2. State Law Claims That Meet Diversity Requirements 55 3. The Discussion Here Applies to the First Claim and all Other Claims but as to Additional Claims, if There is no Diversity or Federal Question, Supplemental Subject Matter Jurisdiction may be Available 55 Checkpoints 56 Chapter 5 · The Foundations of Personal Jurisdiction 57 Personal Jurisdiction Roadmap 57 Checkpoints 60 Chapter 6 · Personal Jurisdiction: Consent, Long- Arm Statutes, Minimum Contacts, and Fair Play 61 Personal Jurisdiction Roadmap 61 A. Generally a Claim- by- Claim, Defendant- by- Defendant Analy sis Is Required 64 B. Did the Defendant Consent to Personal Jurisdiction? 64 1. Did the Parties Contractually Agree the Claim Could or Must be Filed in the Forum State? 65 2. For Corporate Defendants, is the Suit Filed in a State Where a State Statute Required the Corporation to Consent to be Sued Over Any Claim? 65 3. Operating a Motor Vehicle Consent Statutes 69 C. Without Consent: The Three Steps to Evaluate In Personam Jurisdiction 70 1. A Long- Arm Statute Must Authorize Ser vice of Pro cess 70 a. State Long- Arm Statutes Apply to Both State and Federal Claims 71 b. Specific Federal Long- arm Statutes Govern Some, but few, Federal Claims 74 hricik 3e 00 fmt f2.indd 11 3/28/17 10:54 AM xii CONTENTS 2. If a Claim is Within the Reach of the State’s Long-Arm Statute, Assertion of In Personam Jurisdiction Must Still Not Violate the Defendant’s Due Pro cess Rights 75 a. Did the Defendant, Individual or Corporate, “Consent” to Personal Jurisdiction, Either by Operation of Law or by Contract? 75 b. Was the Individual Defendant “Tagged” with Pro cess While Pres ent in the Forum State After the Suit was Filed? 76 c. Due Pro cess Requires Either Specific or General Personal Jurisdiction Exist 76 i. General Personal Jurisdiction 77 ii. Specific Personal Jurisdiction: For State Claims and Federal Claims Without Nationwide Ser vice of Pro cess, There Must be Minimum Contacts Between the Forum State and the Defendant; For Federal Claims with Nationwide Ser vice of Pro cess, the Defendant Must Have Minimum Contacts with the United States 79 (a) Purposeful Availment or Direction by the Defendant Toward the Forum 80 (b) Relationship Between Claim and Contacts 85 (c) Defendant can Show that, Even if There are Minimum Contacts, Assertion of Personal Jurisdiction Would be Unfair 86 C. Special Issues in In Personam Jurisdiction 87 1. Which Contacts by a Corporate Defendant “Count”? 87 2. Does an Internet Website Count? 88 3. Rule 4(k)(2) and Foreign- Country Defendants 89 4. The Few Federal, Claim-Specific Long- Arm Statutes 91 ii. Specific Jurisdiction: “Sufficient” Contacts, a Relationship between the Claim and the Contacts, and Fairness 92 Checkpoints 92 Chapter 7 · In Rem and Quasi In Rem Jurisdiction 93 In Rem and Quasi In Rem Jurisdiction Roadmap 93 A.
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