CIVIL PROCEDURE: Objective is to help underlying law work.
FULL FAITH AND CREDIT (Art. IV): Constitution provides that each state must give full faith and credit to judicial proceedings of another state. Exceptions: full faith/credit does not preclude inquiry into validity of [pers and s/m] juris of court –no full faith/credit if no juris (Pennoyer). Similarly, no full faith/credit if judgment procured fraudulently (equivalent to lack of juris).
GETTING THE D INTO CT: D need not appear in ct unless each of the following requirements. D can challenge suit based on lack of any one of these requirements. But if D just doesn’t appear at all, risks having to pay default judgment and losing chance to litigate on merits if ct ends up finding no prob w/ juris, notice, etc. (of course if ct found any requirements lacking, default judgment would be invalid).Requirements: p/j, notice, service, venue, s/m (fed ques, d/j, or suppl), joinder.
1) PERSONAL JURISDICTION (const + stat): Any court (state or fed) can exercise pers juris over D only if auth by statute and in compliance with due process. Due process requires that a court in one state must have certain power over a D before D must answer in a lawsuit. Because each state is sep sovereign, juris/pwr of process and other state laws end at state lines (federalism). But defense of lack of pers juris is WAIVED unless asserted by motion before answer or in answer itself – see challenges to p/j below!
a. HISTORICAL BASES (Pennoyer)
i. Citizenship: in forum state
ii. Presence in forum when served:
1. In Personam: Suits to determine personal rights/obligations of parties (K, tort, etc). Need actual physical presence of self / formally appointed agent, or minimum contacts. If have one or other, get pers juris and judgment is portable / enforceable anywhere by full faith/credit.
a. Transient juris: Transient/temporary presence alone, no matter for how short a time, is enough to assert personal juris over D (Burnham and Grace note case where D served while flying over state). Usually, transient juris only applies to individual Ds – little law applying to corporations (say where CEO/agent is temporarily in forum) – prob no pers juris b/c after all, Int’l Shoe developed min contacts to deal w/ very prob of defining corporate “presence.”
b. Minimum Contacts: Nonres “presence” enough for specific (and sometimes general) jurisdiction – see below.
2. Quasi in Rem: Suits to determine personal rts/obligations, but where P attaches D’s property (tangible or intangible/like debt which follows debtor) as security for judgment (Harris). Need presence of prop + attachment at outset of case (seizure/garnishment) + min contacts to assert juris(Shaffer). Because cause in no way related to property, presence of property alone is insufficient (Shaffer overturns Pennoyer which said presence of prop + attachment is enough for pers juris in quasi in rem suits). Limits to quasi in rem juris: 1) can only have juris for recovery up to value of property and 2) judgment is not portable (if injury more than value of prop, must sue again, get in personam juris, and re-prove facts to recover rest) – so prob only use if can’t get in pers juris b/c of long-arm statute limits.
3. In Rem: Suit about property itself (suits over title). As long as D owns prop in forum, usually an easy case. Even if D a nonres, cause arises out of property (min contacts) so only need to attach prop at outset of case. Only time might be difficult is if prop is mobile (i.e. car) and can be moved to forum without D’s knowledge – then might need to prove more contacts before asserting pers juris in a suit to quiet title to D’s car.
iii. Consent: voluntary appearance (why there is juris over Ps for countercl). Note: if D appears specially only in state ct (no special appearance in fed ct – need to use motions) to contest juris, there is no consent except consent to play by rules of ct/ let ct det whether it has juris→if D wins, can leave but if D loses, must stay and answer to suit (b/c means ct has determined it already has juris / no consent needed). (Ins Corp v. CBG). Ct always has juris to determine whether it has juris.
1. Forum Selection Clauses in Ks: Can be evidence of consent to juris (so no need for min contacts) but cts may scrutinize for reasonableness/fairness (compare Bremen – where two businesses so equal bargaining strength, with Shute – where forum selection clause in fine print, ind. vs. corp/unequal bargaining strength. But ct in Shute still upheld forum clause as consent for efficiency reasons – seemed sketchy).
b. MINIMUM CONTACTS FOR NONRES Ds / SPEC JURIS: All assertions of pers juris over non-res begin with Int’l Shoe →need min contacts with forum state in accordance with notions of fair play and substantial justice to satisfy due process.
2 Requirements:
i. Due Process Minimum Contacts: To establish pers juris over nonres D, the D must have sufficiently “reached out/ solicited” to the forum state, maybe by “purposely availing himself of the benefits and protection of the forum state’s laws” so that he might reasonably anticipate getting sued there (Worldwide Volkaswagon) or maybe by committing some intentional act in forum (MO/IA border student shooters).
1. Cont/sys … Arises out of: Courts determine min contacts by looking to the number and nature of D’s contacts with the forum as well as whether the cause of action arose out of those contacts or not. If the cause arises out of some forum activity this may be enough in itself to establish min contacts, especially if D has initiated contact/solicited/reached out to forum in conducting that activity. (McGee). Note: sales in forum more “reaching out” than purchases in forum (Helico). However, the “unilateral activity of those who claim some relationship with nonres D can’t satisfy min contacts. (Hanson – where ct refused to let mother’s activities stand in for bank’s). Problem might arise when it is D, not third person, who acts (so no Hanson prob) but “act” takes place outside forum and injury occurs in forum (Hypo where student shoots in MO across state lines and kills friend on IA border) – D not “reaching out/purposefully availing self” of IA laws (b/c doesn’t know he’s standing at border) but prob enough of an intentional act from which cause arises to const min contacts even though D was not aware that contact was with diff state (can argue state interest in protecting pol pwr and not much burden to D to go to neighbor state to lit).
2. Stream of commerce: Gray’s “stream of commerce” theory that if D manf product, juris follows wherever commerce takes product, “stream” may end where last retail sale takes place. So if last retail sale takes place outside forum, even if injury takes place in forum, may not be suff to const min contacts (WWV – where last retail sale of auto was in NY and though driver drove to Okla. where injury took place, D had no other contacts with Okla., and ct said no min contacts). Also Asahi plurality wants stream of comm. + something more (solicitation, design for forum mkt, etc) – this is only persuasive auth b/c majority did not sign on.
3. Ks formed or breached in forum: Can’t just look to K alone (where formed/where breached) b/c too mechanical– look to totality of circ including negotiations, terms, and parties’ course of dealing (Burger King).
4. Internet/Cyber Contacts: Newer way to “reach out” to forum is through websites/internet advertising. Perhaps depends on whether a passive website (merely informative), which is more like a print ad in a nationwide magazine and not suff for min contacts (Pebble Beach). Maybe an active website (used to carry out business trans with residents of forum), which is more like sales in a forum state would be suff (Zippo), but prob only if cause arose out of those activities.
5. State Interests and Convenience: Min contacts analysis may also take into account whether the state has a particular interest in litigating the suit, whether a lack of other avail forums might make D judgment-proof if forum cannot get pers juris (McGee), whether burden/inconvenience to D, or whether forum is convenient b/c of where evidence/witnesses are (Burger King factors and Asahi).
ii. State Long-arm Statute: Need a state long-arm statute the reaches nonres D. If the statute is read broadly to reach the outer limits of the due process clause, can analyze by min contacts alone. But if statute read more narrowly, may need more than min contacts and if can’t get, no pers juris. (Gray – where long-arm stat required D’s “neg act” take place in forum for state to have pers juris – ct interpreted broadly to say even though only injury took place in forum and actual neg manf took place outside forum, can’t sep injury from neg act →all one “neg act” so satisfied long-arm. But if read more strictly like Scalia would want then maybe no pers juris even though min contacts b/c “neg act” took place outside forum and long-arm doesn’t reach.)
1. Alternative if long-arm doesn’t reach D (quasi in rem): If D has min contacts and property in forum, can get around long-arm limitations using quasi in rem to say min contacts + attached property = pers juris but only for recovery up to the amount of the property value.
c. GENERAL JURIS OVER NONRES: When cause in no way arises out of / relates to forum activities (very bottom of “arises out of” continuum), can try to get gen juris – saying contacts so systematic and continuous that can get min contacts for any cause, even one that does not arise out of forum activities. But this is very rare! Only when D does 100% of business in forum (business in forum and nowhere else), have we seen a ct grant gen juris (Perkins). Easier to try to prove cause even somewhat relates to forum activities, so can move off bottom of “arises out of” continuum and get min contacts for spec juris.
d. PERS JURIS IN FED CT: Fed ct can exercise pers juris over D when auth by fed stat (or by “piggy-backing” onto state long-arm) and in compliance with due process “fairness.” Rule 4 is a service of process rule which tells fed cts how to effect pers juris.
i. Rule 4(k)(1)(A): when D subject to juris in state ct by long-arm stat and min contacts, also subject to juris in fed ct in that state (allows fed ct to piggy-back on long-arm stat of state in which it sits).
ii. Rule 4(k)(1)(C): when fed stat auth pers juris (only few such fed statutes)
iii. Rule 4(k)(2): if party not subject to juris in any state, limited fed long-arm provision establishes juris for fed ques cases if consistent with US const and laws (very narrow – usually only for foreign Ds).
iv. Due Process: Determined by the sovereign that created the court – here the United States so min contacts not too helpful b/c all US residents have min contacts with nation. If use 4(k)(1)(A), not problem b/c need min contacts with state, but for fed stat and limited fed long-arm, unresolved how to determine due process “fairness” b/c so little caselaw on it.
e. CHALLENGING PERS JURIS: In state ct can appear specially to contest, but if argue merits in anyway = gen appearance and consent to ct juris (waives lack of juris defense). In fed ct, no special appearance – assert defense in answer or by motion before answer or else waived.
i. Rule 12(b): D can assert lack of pers juris by 1) including as part of answer / amended answer as an aff’ve defense, or 2) by motion only if filed before answer. If not in motion before answer or in answer itself = WAIVED (Rule 12(h)(1).
1. Rule 12(g)(1): Can file multiple 12(b) motions concurrently (i.e. lack of s/m, improper venue, insuff process, insuff serv of process, failure to state a cl, or failure to join a part under Rule 19.
2. Rule 12(g)(2): Also some defense must be raised in initial motion if motion filed or lose chance to raise later (lack of p/j, improper venue, imsuff process, or insuff service).
3. Rule 12(h)(2) and (h)(3): Failure to state a cl and failure to join under 19 can be raised at trial (not waived until trial over); Lack of s/m juris never waived – can be raised at any time before judgment (even on appeal), and by anyone (even by ct itself) and if found, ct must dismiss.
2) NOTICE (Due Process): Besides pers juris, due process req adeq notice and reas opportunity to be heard. To satisfy this due process requirement, P must provides notice that is practical and reasonably calculated to actually inform D of suit (Mullane). Sending notice by first class mail satisfies this requirement, even if somehow post office loses or D never receives actual notice, b/c still reas calculated to actually inform (Mullane). Notice is waivable.
3) SERVICE OF PROCESS: Rule 4 requires service of process. Service is a procedural rule sep from notice (can have notice but improper service). But service usually satisfies due process requirements of notice and personal juris (serving transient D). Service is waivable and if defense of improper serv not raised in answer or by mot before answer = WAIVED (Rule 12(h)(1).
a. MECHANICS OF SERVICE: Rule 4(e) governs service on individual (personal service, abode service, service on agent, or following state law for serving (usually long-arms have service rule which fed cts can follow to serve nonres Ds – so 4(k)(1)(A) + state long-arm effects personal juris, satisfies notice, and satisfies service requirements). To respond to problem of “sewer service,” where b/c of difficulties of in-hand pers service servers were throwing away service and making false returns, laws made easier and allowed for abode service. Also usually to serve on agent, agent must have been appt by D (or by law), but Szukhent allowed for flexible understanding of “agent for service” – okay even if appt by printed-form K and no explicit promise by agent to transmit notice, as long as all parties interested in getting D notice so can be confident agent will do job. Rule 4(h) governs serv on corp (permits serv on officer, managing agent, or general agent) and cts have interpreted to say serv okay on any representative reas calculated to give D actual notice, and can rely on corp employees to identify proper person to accept service – even an executive secretary (Zurich Ins Co note case). Rule 4(m) requires dismissal if D not served w/in 120 days of filing complaint unless service waived or P shows good cause.