Civil procedure Professor Perritt Fall 2017 Model Answer Question I A. To establish that the state court has personal jurisdiction over Einmalig, Buford must establish four things: (1) that the state of Maryland has asserted jurisdiction over defendants on facts like these, (2) that this assertion does not violate due process, (3) that Buford has served Einmalig with process as authorized under Maryland law, and (4) that the service of process provides constitutionally adequate notice. Buford will argue that Maryland s long arm statute asserts jurisdiction over Einmalig. The pertinent provisions are section 6 103(b)(1), (2), and, maybe, (3). Entering into a contract with Buford is doing business, and promising to provide leads and scripts to Buford is a contract to supply services in Maryland. If Buford pleads defamation (he has not, in appendix A), then jurisdiction is asserted under paragraph (3), because defamation, unlike breach of contract, is a tort. The other paragraphs are inapplicable because Einmalig is not an insurer, and it does not have a sufficient pattern of activity in Maryland to satisfy (4). Notably, the statute does not require targeting of Maryland or any other mental state by the defendant. Objective conduct touching Maryland is enough. Under section 103 of the long arm statute, he must show that the that his claims arise out of these contacts. The breach of contract claims clearly do; they directly relate to the contacts. If he pleads defamation (he has not in Appendix A) it does not arise directly, but it has a but-for relationship with the contacts; Einmalig would not have smeared him except for their business relationship that went sour. Exercising jurisdiction of the statute, however, is unconstitutional unless Buford can show that exercising jurisdiction over Einmalig satisfies the requirements of Pennoyer v. Neff and International Shoe. None of the Pennoyer factors are present on the facts: service of process on one physically within the borders, consent, attachment of property while within the borders, or domicile. So the only constitutional pathway is International Shoe. International Shoe requires minimum contacts, and Worldwide Volkswagen requires that the contacts be purposeful and targeted to the forum state. Unfortunately for Buford, there is nothing in the facts suggesting that Einmalig targeted Maryland. The ad that Buford found apparently was generally aimed and was just out there on the Internet. 1
The website was in German, which is inconsistent with target targeting Englishspeaking Maryland. While Einmalig surely targeted Buford when it began to work with him, there is no indication that Einmalig knew that Buford was in Maryland. It did not have his address. At most, it could have found out that his domain name provider was in Maryland, but there is no evidence that it knew who his domain name provider was. Even if it did, the use of a Maryland domain name provider does not mean that the owner of the domain name is in Maryland. It is unlikely that the assertion of jurisdiction over Einmalig is constitutional. The question does not say how process was served; unless it was served in a way authorized by Maryland law, personal jurisdiction does not exist. Buford should seek a court order under Rule 2 121(c). He will file an affidavit saying that he has attempted to send notice with the summons and complaint attached to the chat room that he had access to, but that he has been cut off. He will also testify in the affidavit that he cannot use usual means of serving process because he does not know where Einmalig is. Thus neither mail nor personal service is possible. He will seek a court order permitting service either by send the summons and complaint by email to Einmalig s Internet service provider or domain name service provider identified as in the answer to subquestion (b). This means of serving process should pass muster under Mullane and Green v. Lindsey because it is reasonably calculated under all the circumstances to result in an actual notice. He does not have any other way of giving notice, thus satisfying Mullane, and it is reasonably likely that Einmalig s ISP or domain name provider will pass along notice that it receives, the satisfying Green v. Lindsey. B. The Federal Rules of Civil Procedure permit discovery before the Rule 26(f) conference when I ordered by the court. Rule 26(d) The rules have been interpreted to permit discovery before a complaint is filed in aid of establishing personal jurisdiction. Rule 27 has nothing to do with the situation. The question says the Maryland rules do the same. So Buford must seek a court order. In his motion or petition for that court order he shoud explain that, because he does not know where Einmalig is, he cannot use the typical tools of discovery which require responses from a party. He will seek an order allowing him to submit Rule 34 requests and possibly Rule 30 deposition notices to Einmalig s domain name service provider, accompanied by a subpoena, compelling the service provider to disclose Einalig s address and other contact information. Once he knows Einmalig s address, he can serve process on it via mail or personal service by a suitably authorized officer of wherever I Einmalig is found. He can find Einmalig s domain name service provider by using the "who is command in his web browser or command line interface. 2
Until he has obtained approval for this discovery, framing request to Einmalig is a waste of time, because he has no way to communicate them to Einmalig. C. We don't know what bases Einmalig asserted in notice of removal, so our motion to remand must cover all the possible bases. The case is removable to federal court only if the federal court has federal question jurisdiction or diversity jurisdiction. Buford will argue that no federal question jurisdiction exists because he has not pleaded any federal claims. Although federal issues appear in his claim 3 the outcome of that claim does not depend upon resolving questions of federal law. Breach of the covenant of good faith and fair dealing is a question of state law, so deciding federal issues in adjudicating the case are neither essential nor central in importance, and thus the requirements of Merrill Dow and Grable are not satisfied. He has a weaker but still plausible argument that diversity jurisdiction does not exist either. Whether it does is entirely within his control. The parties pretty obviously are diverse. If Buford is a citizen of anywhere, he is a citizen of Maryland, although he can argue that he never changed his domicile to Maryland. But he doesn't have to be a citizen of Maryland as long as he is a citizen of a place different from Einmalig. Einmalig almost certainly is a citizen of Germany, Austria, Switzerland, Belgium, or some other place where German is the dominant or one of the major languages. Buford certainly is not a citizen of one of those places, and he is not going to move there before he files his complaint. So the parties are diverse. But appendix A does not contain a request for relief. So Buford has not asked for more than $75,000, and thus the jurisdictional amount requirement is not satisfied. He can make sure that diversity jurisdiction does not exist by asking for less. He may not want to do that, but unless he does, he probably cannot get the case remanded to state court. If federal question jurisdiction is found to exist over claim 3, then supplemental jurisdiction under section 1367 probably exists over claims 1 and 2 because of their close relationship with claim 3. They have a common nucleus of a operative fact. If the diversity jurisdiction exists, it exists over all three claims. D. The doctrine of forum non conveniens allows a court in which venue is authorized to decline to exercise it power when another, more convenient, forum exists. There is no reason that that alternative forum might not be state court. While a forum non conveniens argument usually is made by the defendant in the lawsuit, there is no reason that I know of that it cannot be asserted by a plaintiff opposing exercise of jurisdiction over a removed case. This is a matter for further research to confirm it, however. Any forum non conveniens argument must begin by identifying an alterative forum. If we can make the argument at all in this removal context, the alternative forum is clear: the Maryland state court where we filed the complaint in the first place. Then, we must 3
show how the public and private factors suggest litigating there instead of in federal court. The only way the federal court can transfer the case back to state court is to remand it, and the framing of the question says that the federal court has denied the motion to remand. But Buford can seek dismissal without prejudice in federal court and file once again in state court. Notably, in applying the public and private interest factors, a quart considering a forum non conveniens motion must give great weight to the plaintiff s selection of forum. Ordinarily, that is not the alternative forum, but in this case, given removal, the the plaintiff chose the alternative forum in the first place. Most of the private and public factors seem neutral, because both courts are in Maryland and would have only slightly different jury pools. Buford s only argument must be based on the private factor other practical problems and on the public factor, court congestion. He would have to argue that because he is now homeless, getting to federal court in Baltimore is difficult, as opposed to State court, which is much closer. The public interest factor is available only if Buford can show that congestion in federal court is much worse than in state court. We don't know that yet. So Buford s only real argument is based on the inconvenience of federal court as a "practical problem. This arguments is not particularly strong. An hour-and-a-half hour drive is not all that burdensome, and even though Buford is homeless and now boatless, he can he can get a ride to Baltimore with me, his lawyer. While the plaintiff s choice of forum Well the plan is entitled a great weight, it would be inconsistent with the statutory authority for removal to allow plaintiffs choice of state court to trump removal in cases like this. E. Count one almost certain does not satisfy the Maryland pleading rules. Count 2 and 3 probably do. The complaint does satisfy the requirements that each cause of action be set forth in a separately numbered count and that all averments be made in numbered paragraphs. The problem with count 1 is that it does not plead facts establishing each element of a breach of contract claim, although that is required by the Pawlik case. Count 2 and 3, however, do allege that establish all the elements of a breach of contract claim: offer, acceptance, consideration (if it is distinct from offer and acceptance) and breach. The only possible problem with counts 2 and 3 is that their headings do not say, "breach of contract." If a hyper technical application of the rule is warranted by the caselaw, that might make them flawed as well. But in any event, the state court will likely dismiss count 1. The notice pleading rules in federal court are much more flexible, and the complaint almost surely passes muster under Federal Rules 8 and 10. Fraud is not pleaded, so Rule 4
9 does not come into play. The only problem is that Fed.R.Civ.P. 8(a)(3) requires a claim for relief. The complaint set forth an appendix A does not contain one. F. Maryland Courts and Judicial Procedure Code section 6 103 is amended to add at the end thereof the following new paragraph: (7) enters into a business relationship with a Maryland resident via the Internet. Maryland Courts and Judicial Procedure Code 6 304 is amended by adding at the end there of the following new subsection: (e) when jurisdiction exists under amended section 6 103(7), but the plaintiff is unable to determine the location of the defendant to enable service of process by one of the means set forth in subsections (a) through (c) of the section, service may be made (1) on the defendant s Internet domain name service provider as the defendant s agent, (2) on the Maryland Secretary of State as agent for service of process, or, if neither of these means is feasible, (3) by publication. when process is served under this subsection, any of these recipients of process shall be deemed the defendant s agent under Maryland Rule of Civil Procedure 2-124. QUESTION II A. Davenport, as an original codefendant (the question refers to Penelope as the other defendant ), can get the entire case dismissed if he can show that the court lacks subject matter jurisdiction. The question is not entirely clear on whether the case is pending in state or federal court. If it is in state court, subject matter jurisdiction almost surely exists, so the question is interesting only if it is pending in federal court. It doesn't matter where the federal court is, it must have a federal question, diversity, or supplemental jurisdiction over every claim in order to decide it. There is no suggestion that the original negligence claim by Tinley involves any issues of federal law, so federal question jurisdiction under 28 U.S.C. 1331 is lacking. There can't be supplemental jurisdiction under 28 U.S.C. 1367 without an anchor claim, so the question boils down to whether there is diversity jurisdiction under 28 U.S.C. 1332. Diversity jurisdiction exists only if all plaintiffs are citizens of states from the states of citizenship of all defendants and if the jurisdictional amount of $75,000 is satisfied. Tenley is not going to have any difficulty claiming more than 75,000. Apparently his $80,000 automobile was a total washout, or close to it. His medical bills and pain-and- 5
suffering will run into the tens of thousands, if not hundreds of thousands of dollars in compensatory damages. He can claim punitive damages as well. So Davenport s only serious argument is that both Tinley and Penelope are citizens of Mississippi. If they are, that defeats complete diversity even if Davenport s citizenship is different from Tinley's. Without complete diversity the court lacks diversity jurisdiction over any aspect of the case. Penelope almost certainly is a citizen of Mississippi. Citizenship for federal jurisdictional purposes turns on domicile, a question of state law. Penelope was domiciled in Mississippi when she was born there, she has only been out of the state once, to Memphis, Tennessee, and there is no indication whatsoever that she meant to change her domicile to Tennessee. So her birth domicile remains MS, and thus she is a citizen of MS. Tenley's citizenship is more contestable. He started out with a Florida domicile when he was born there, and he has not changed it to Virginia, because, although he may have the intent to make VA his domicile, there is no indication that he has been there. Domicile requires that one be in a place contemporaneously with an intent to make it one s domicile. So the question resolves to whether Tinley changed his domicile from Florida to Mississippi by moving to Mississippi, undertaking graduate studies there, and registering his car there. The question says he doesn't like Mississippi. If he never liked it, it's unlikely that he formed the intent to make it his domicile changing his residence from Florida to Mississippi and registering his car there are not determinative. Many states require residents to register their vehicles in the state regardless of whether they intend to make it their domicile. Maybe he's just law-abiding as well as literary. Citizenship presents a factual question to be resolved according to the evidence. Davenport right be able to unearth some evidence that Tinley changed his domicile from Florida to Mississippi, even though he doesn't like it, for example, by registering to vote in Mississippi. Conversely Tinley may buttress his argument that he is not a citizen of Mississippi by offering evidence that he has been to Virginia with had the intent to make it his new domicile, which would negate Mississippi citizenship, if it ever existed. What matters is citizenship at the time the complaint is filed, not when the accident occurred. So Tinley might go to Virginia and, while there, declare his intent to make it his domicile, before he files a complaint. Absent such additional evidence uncovered by Davenport or offered by Tinley, diversity jurisdiction exists and Davenport will have to depend on the merits. 6
B. Under Fed.R.Civ.P. 15, Davenport can amend once as a matter of right if he does so within 21 days after Davenport files its motion to dismiss. After that, he may amend only with the defendants consent or with court approval. It's unlikely that both defendants will consent, but the court almost certainly will approve an amendment. It s early in the litigation process the court is still considering Davenport s motion to dismiss. Leave to amend can't be denied only if the court finds prejudice to one of the other parties. Merely because Penelope and Davenport have begun (if they have; maybe their waiting for the motion to dismiss to be decided before doing anything) to prepare defenses on a negligence claim does not suggest they would be significantly prejudiced by also preparing defenses based on violation of federal safety standards. Assuming the amendment is permissible, it will significantly change analysis of the court s subject matter jurisdiction. It does not, of course, change anything with respect to diversity jurisdiction, but it may introduce a federal question. It certainly does if there is a private right of action conferred by the federal vehicle safety statute and if Tinley pleads it, which is what he is doing with his amended complaint. That's well within the holding of Merrill-Dow. There may be a federal question even if Tinley is not asserting a federal private right of action, under Grable. But then, to establish federal question jurisdiction he must show that resolving the federal issue is necessary to new claim. If he is simply pleading violation of the federal safety standard as a way of establishing negligence per se in a products liability action against Davenport, that is precisely the posture of Merrill-Dow itself, where the Supreme Court found federal question jurisdiction lacking. If your federal question jurisdiction exists over the new claim, it's highly likely that supplemental jurisdiction will extend to the original negligence claim against Penelope and Davenport because both relate to the same occurrence-- the accident--and has at least some common elements: identity of the drivers, their actions, how the braking of the Davenport occurred, damage to the Davenport, injuries to Tinley and Penelope. C. Penelope is entitled to summary judgment because there is no evidence in the record to establish the tort of negligence. Absent the excerpt from the deposition transcript, there is no evidence of fault. Without the evidence she was following only one carlength behind Tinley has offered no evidence that she reached her duty of care. Without the excerpt, there is no evidence that she reached any duty. The only possibility for Tinley to survive summary judgment against him is to show that under the applicable law likely Mississippi--the driver of a vehicle striking another from behind is strictly liable, without proof of fault. That is not likely to be the law of Mississippi. [In fact it is not.] 7
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