Civil Procedure Spring 2001Rj Page 1 10/15/2018

Drobak

Civil Procedure – Spring 2001rj Page 1 10/15/2018

Personal Jurisdiction (first, is there a statute – then constitution/due process)
In Personam Jurisdiction – power over the D.
Constitutional/Due Process (don’t give a historical analysis!!)
Pennoyer v. Neff (1877) – state has power over everything w/n its boundaries. (NOTE: to gain quasi in rem jurisdiction over the property of a D, the property must be legally attached at the outset of the suit – this serves as constructive notice and gives the state court the power to dispose of the attached land (nothing in excess of the judgment) in favor of the P) Four traditional basis:
PRESENCE -- D is served with process in the forum.
Of the Person
Of the Property
D is domiciled in the forum. (Gives general jurisdiction)
CONSENT – if you show up in court, you consent, but you can waive personal jurisdiction.
Courts have expanded these traditional notions. See Hess v. Palowski.
Hess got out of the state before they served process on him. Massachusetts had a statute – if you operate a motor vehicle, you are appointing a state office for service of process.
Upheld jurisdiction and is consistent with Pennoyer – agent in the state.
Expand the idea of consent – IMPLY CONSENT – assume that you have consented to in personam jurisdiction.
FULL FAITH AND CREDIT – only judgment which have jurisdiction will be recognized.
Int’L Shoe – the Court no longer purports to expand the traditional basis. Time for a different formulation.
If D has minimum contacts so as not to offend traditional notions of fair play and substantial justice.
You can get in personam w/o serving the D in the forum – so long as the D has minimum contacts.
TWO PART TESTS (only the test if the D is not present – it’s an alternative to the Pennoyer test) BALANCE:
CONTACT
FAIRNESS
Replaces the Consent and Presence Test.
To the extent a corporation conducts activity w/n a state, it enjoys the benefits and protection of the laws of that state. SO – the corporation may incur obligations w/n the state – it is not unfair to have a procedure that requires the corporation to respond to a suit.
Gray v. American Radiator -- A state can exercise in personam jurisdiction over a nonresident whose only contact with that state occurred when its manufactured product shipped into the state by a third party allegedly caused an injury to one of the state residents.
Where a nonresident engages in activities that it should reasonably expect to directly or indirectly affect the residents of another state, and to the extent the nonresident benefits directly or indirectly from the laws of another state, such state is justified in exercising personal jurisdiction over such nonresident.
McGee – TX corporation sued in CA and they only had one contact – sold one contract of life insurance.
D solicited business from CA and reached out to CA
RELATEDNESS – P’s claim arises from the D’s contact with the forum.
Jurisdiction upheld.
STATE’S INTEREST – wants to provide a forum for their citizens.
Hanson – hit the brakes (no jurisdiction).
The act of mailing trust earning reports to a resident of FL is not sufficient contact for that state to gain jurisdiction over the nonresident.
The bank had no RELEVANT contact with FL – failure of minimum contacts.
To be a contact under Int’L – it must result from a D’s purposeful availment. D has to reach out to that forum.
Different from McGee – because there the D received benefits from the forum state AND the forum had a special interest in litigating the lawsuit (providing a convenient forum for its citizen).
Here, it was just the woman moving there.
World-Wide VW – D not doing business past three states.
No minimum contacts – no purposeful availment – it was a unilateral act that the care ended up in OK.
Forseeability is relevant – but it’s the D foreseeing that he would be sued in that forum…not foreseeability that the product would end up there.
Stream of Commerce ends with the retail sale (See Gray).
Quid Pro Quo – if you benefit – if someone is selling cars over the Internet or just advertising b/c the dealer should reasonably foresee being sued in IL since they are reaching out and soliciting business.
Not the amount of business that it’s doing.

See Keeton v. Hustler Magazine: NH is the only state where the statute of limitations has not expired.

D’s Contacts with Forum:

Continuous & SystematicIsolated Act

Hustler had continuous and systematic contact!!!!

Cause of Action’s Connection with Forum

Arises out of Forum state activitiesDoes Not

Cause of action takes place in NH – she’s defamed in NH!!!!

So this is Int’l Shoe because it meets both criteria.

** GENERAL JURISDICTION – Continuous and Systematic and does not arise.

** SPECIFIC JURISDICTION – Isolated Act but Arises out of forum.

Kulko – Dad not subject to jurisdiction after he sends his kid to CA where the kids receive the state benefits.
“purposeful act” requirements mean that the D must receive direct benefits and protections from the state – vicarious benefits and protections are not enough.
Under Hanson, the D didn’t reach out to CA.
Burger King – a whopper of a case.
Minimum Contacts has two parts:
CONTACT – must have a contact before you look at fairness.
The franchised had reached out to FL – K said that it applied so they’re availing themselves of FL.
A sophisticated businessman signs contracts with FL law – the choice of law is FL – so there’s notice.
FAIRNESS – D said it was inconvenient.
On fairness, the burden is on the D to show that the forum is unconstitutional.
Tough thing to show – you’d have to show that FL was so gravely inconvenient that they would be at a severe disadvantage.
The relevant wealth is not important.
Brennan – saying that the little guy can be forced.
The majority emphasized that when a question of personal jurisdiction arises out of a business relationship, underlying realities of the relationship should be examined to determine whether jurisdiction exists. The defendant must then demonstrate that by defending the action he is subjecting himself to unreasonable burdens that cannot be relieved by other means.
Asahi – GREAT EXAM QUESTION -- gives us no law. Stream of commerce case. Split – four justices go one way and four go the other way. There is no law.
Two important theories:
BRENNAN – this is a contact if D puts in the stream and anticipates that it gets to the given state.
O’CONNOR – not enough – you need that plus an intent or purpose to serve that state. (if customer service is there or if they advertised). Just b/c some other third party put Asahi’s product in CA – doesn’t mean there’s jurisdiction.
8 Justices hold that exercising jurisdiction would be unreasonable, considering the severe burdens on D of defending in a foreign legal system.
Nelson v. Park – Manufacturers and distributors purposely conduct their activities to make their product available for purchase in as many forums as possible.
So in WWVW – you get Volkswagen b/c a manufacturer reaches out to a much broader area and derives the profits from sales in all the states.
Perkins v. Benguet – A foreign coroporation can be subjected to in personam by a state in which the corp. carries on “continuous and systematic” corporation activities, even though the cause of action did not arise from those activities. [Not occasionally or irregularly]
Modern view – is that if an authorized rep. Of a foreign corp. is physically present in the state, service on the rep. Is fine.
BUT – we pigeon hole as an exception b/c there’s no place else in the world they can sue (Phillipenes during WWII).
Helicopteros – No jurisdiction – Ps argued Perkins and lost (arose out of TX but no continuous and systematic contacts).
Purchases and related trips (even if occurring at regular intervals), standing alone, are not a sufficient basis for in personam.
If your selling = more of a benefit than buying (Drobs doesn’t buy it)
BUT – companies research who they’re buying from. They’re reaching out to TX and not the EU.
DOJ was worried that companies would buy from another country if we subjected them to jurisdiction.
Drobs doesn’t like the specific/general jurisdiction.
Burnham – does process of service in the state give general jurisdiction (while he was in CA – is the traditional basis of Pennoyer?) SPLIT!! TAG JURISDICTION.
SCALIA – this is OK, has a historical pedigree. Don’t have to assess minimum contacts. Tag jurisdiction comports with notions of fair play and substantial justice.
BRENNAN – you still have to look at minimum contacts. He had enough minimum contacts b/c he was availing himself by being there for three days (CA cops would have helped him out).
(is sitting around in an airport enough purposeful availment??)
General jurisdiction – court has only discussed in Perkins and Helicopteros.
General jurisdiction if D has continuous and systematic ties with the forum (substantial ties with the forum). Very tough.
Domicile is continuous.
Corporations are too.
White – doesn’t like that Brennan’s model would include a case-by-case analysis = waste of time.
In’tl Shoe says: “due process requires only that in order to subject a D to a judgment in personam, if he be not present w/n the territory of the forum, he have minimum contacts”
So minimum contacts only applies if they’re not there. If they’re there it’s cool.
CONSENT – SHOWING UP OR ADHESION K.
Insurance Corp. of Ireland – Every court has jurisdiction to decide if it has jurisdiction.
Once you’re in court you’re stuck.
Unlike SMJ, PJ may be intentionally waived or D may be stopped from raising it as an issue.
Ds refused to comply with discovery during their contesting of jurisdiction = Consent.
Silence constitutes an admission of the lack of merit in D’s defense of lack of minimum contacts.
PJ is a personal privilege – not an absolute precondition for the exercise of judicial power over the person), which means that it can be waived.
Carnival Cruise Lines – Forum selection clause is legal.
These clauses eliminate confusion about where suits must be litigated, and by reducing D’s potential legal costs, the clause reduces fare for passengers.
Ps have not satisfied the heavy burden of proof required to set aside the clause on grounds of inconvenience.
Complaint filed and D answers denying liability, then D moves for dismissal for lack of jurisdiction.
12(h)(1) – it’s too late.
If the answer contained the jurisdiction defense, then it’s OK.
It’s just a special appearance…you have to bring personal jurisdiction first…rules consider that you’ve consented!!!
If you deny liability first, then it’s a general appearance which constitutes voluntary submission to the court’s jurisdiction.
See Baldwin – you get one bite at the apple and courts favor settling it at one blow. D cam to challenge jurisdiction, lost, and then didn’t plead anything else. The judgment is enforceable.
SO – easy to accidentally waive personal jurisdiction.

FRAMEWORK:
Does a traditional basis apply (one of those four tradition basis)?
Minimum contacts analysis too (See Burnham – Brennan said that you still need to do minimum contacts).
WW and BK – two step approach.
A RELEVANT CONTACT – a contact b/n the D and forum. (Hanson no jurisdiction b/c there was no relevant contact).
Purposeful availment – to make money, use the roads. Distinguish the facts of our case with McGee and WWVW.
Forseeability – is it foreseeable that the D would get hailed into the forum?
FAIRNESS – several factors.
Relatedness (McGee) – does the P’s claim arise from the contact. Relatedness can make up from a minimal contact.
FACTORS (five):
Burden on the D and witnesses. Very difficult for the D to get dismissed (See BK – have to show a substantial disadvantage).
State’s interest – providing a forum for its people (McGee).
P’s interest – not entitled to a lot…in suing at home.
Legal system’s interest in efficiency.
Interstate interest in shared, substantive policy.
STREAM OF COMMERCE (i.e. Asahi)
Describe the SPLIT.

STATUTORY INQUIRY – even though it’s constitutional, you don’t have jurisdiction unless there is a statute.
First thing to do is ask if there is a statute.
Every state has a statute.
Allows personal jurisdiction over a domicile.
Non-resident motorist act – gives specific jurisdiction not general jurisdiction – permits jurisdiction only for the motor vehicle crash.
LONG-ARM STATUTE – go after non-residents and usually specific jurisdiction.
Watch for laundry list long-arm.
Certain things a D can do in the forum that will subject him to suit.
Same language in a statute can be interpreted in different ways.
SUPPOSE – manufacture a widget and send to state B and it blows up. State B has a long arm – says it comes up if you commit a tort.
SPLIT – if he was negligent it was in state B.
GRAY v. RADIATOR – YES, b/c the P was injured in state B.
HYPO – P goes into another state, goes into a clock shop and takes it back to Washington, P gets hurt and wants to sue the clockmaker in Washington. Is there personal jurisdiction?
FIRST – IS THERE A STATUTE?
YES – long-arm says that it has jurisdiction over non-residents who commit a tort in Washington.
SPLIT!!! GRAY.
SECOND – CONSTUTIONAL?
Is there a traditional basis? NO – he’s not domiciled, he’s not present, no agent, no consenting.
MINIMUM CONTACTS –
Purposeful availment (very fact specific)
It looks like WWVW, but it’s a neighboring state. What if the shop is on an interstate highway one mile from the WA border? What if they advertise?
At some point it looks more like McGee than WWVW and Hanson.
Forseeability? SPLIT!!! Talk it up.
FAIRNESS FACTORS.
Arises out of the contacts = helps us.
Five factors.
No burden.
IN REM/QUASI IN REM
Difference b/n in rem and quasi in rem – with in rem, the dispute is over ownership of the property. With quasi in rem – the dispute is not about ownership – we know who owns the property…would go in personam if we could get it. Unrelated to the ownership of the land (See Pennoyer, if they would have attached property at the outset, then they would have had quasi in rem.)
FIRST – STATUTE (attachment statute)
SECOND – CONSTITUTIONAL
If you attach at outset.
See Harris v. Balk (intangible property) (1905)
See Shaffer v. Heitner (all assertions of personal jurisdiction – the D still must have minimum contacts with the forum). (Overruled Harris).
In Rem and quasi in rem – in Pennoyer, you would have had to show that he had contacts.
A sweeping ruling? Shaffer hints that with in rem, the presence of the property will satisfy minimum contacts.
For quasi in rem – the D has to have minimum contacts.
Where the stock or portable debt is totally unrelated to the cause of action.
Consistency b/n Helico and Shaffer b/c of Drobak model – here, it’s an isolated act and the cause of action does not arise in the forum.
Powell’s concurrence (that having real property in a state means you don’t need minimum contacts) is congruent with Burnham (tag jurisdiction)
Harris v. Balk goes against – the case of the portable debt.
Establishing title of land – notification by mail/publication for those unknown (constructive notice) is good.
NOTICE – a method sufficiently calculated under the circumstances to give knowledge of the proceeding to person whose interests it affects.

NOTICE – Due process requires that the D get notice (i.e. service of process).
SERVICE OF PROCESS – governed by RULE 4 in federal courts. 6 issues:
Process consists of a summons and a copy of the complaint.
Service can be made by any non-party who is at least 18.
How do we serve an individual?
Rule 4(e) – (2), three different ways:
Personal service (hand it to the D)
Can happen anywhere. [Even in a jail – he couldn’t post bail so he gets tagged]
Substituted Service
OK, if:
At D’s usual abode.
Serve someone of suitable age and discretion who resides there.
Serve the Agent.
Szeukant – valid even if there is no provision that the agent actually notify the D. There’s consent!!!
Rule 4(e)(1) – can incorporate any method allowed by state law where the court sits and in the state where service is effected.
Service on a corporation
4(h) – serve an officer or managing or general agent of that corporation.
4(e)(1) applies here two – if there are methods of state law, can use that too.
Rule 4(d) – is not service of process – WAIVER of service.
First class mail – mail the process to the D along with a self-addressed waiver form.
Duty to reduce costs.
If you don’t waive, you have to pick up the tab for the later service.
Where do you serve it? 4(k)(1)(a) – can serve throughout the state where that federal court sits. AND, you can get out of state only if state law allows. (i.e. a long arm statute).
NARROW EXCEOTIONS – 4(k)(1)(b) – the bulge rule.
You can serve process outside the state w/n 100 miles of the court house. BUT, does not apply to serving process on the original Ds. Only on serving process on people who are joined later.
EXCEPTION – Nationwide service (statutory interpleader)
Fraudulently induced service is no good!!! (Wyman)
Courts don’t like fraudulent inducement but once a D is in the forum, anything goes.
CONSTITUTIONAL STANDARD FOR NOTICE
Mullane v. Central Hannover – Notice is OK if it is reasonably calculated under all the circumstances to apprise the D.
RED FLAG – service by publication (almost never any good)…not reasonably calculated to give actual notice.
Might be OK – in Mullane they upheld publication notice for people who could not be identified.
BALANCING TEST – the vital interest of the state in bringing things to a final settlement against the individual interests protected by the 14th Amendment.
If they’re served in the mail and they don’t get it – tough!! There is a shared interest and the other parties will make the same arguments.
NEW RULE – 4(d) Need a Waiver of Service of Process.
Request for a Waiver.
OPPORTUNITY TO BE HEARD
SUBJECT MATTER JURISDICTION
What court do you go to once you figure out what state you’re in from the above matter?
FEDERAL COURTS can only hear certain kinds of cases – limited SMJ.
ART. III – Diversity of Citizenship(1332) and Federal Question (1331).
Even if you get in, you always have state court which has general subject matter jurisdiction.
DIVERSITY OF CITIZENSHIP -- §1332(a)(1) of Title 28.
Citizens of Different States (6 rules):
Complete Diversity Rule.