Civil Procedure II Outline

Professor Brian Clarke

Charlotte School of Law

Civil Procedure II

Spring 2012

PERSONAL JURISDICTION

Can this case be in Federal Court in the FORUM STATE?

Origins

Pennoyer v. Neff

· Court can get personal jurisdiction via:

o 1) Personal Service w/in the State

§ Notice + Presence

§ Actually handing the Summons and Complaint to the D

§ Must occur w/in forum state (soil MAYBE air)

o 2) Consent

§ Post-Dispute Consent

· Pennoyer

· D served w/ Summons and Complaint

· D shows up and defends the case w/out challenging PJ

§ Pre-Dispute Consent (Carnival)

· Parties enter into a K before any claim arises

· K states that all disputes between parties will be resolved in a particular state

o Might or might not specifically include consent to PJ in that state

§ If not spec. stated, consent to PJ implied by selection of exclusive forum in the chosen state

· Procedurally, if the action was filed in another state, the remedy transfer venue 28 USC § 1404

Modern PJ

Int’l Shoe

· Minimum Contacts

o Due process req. that D have certain minimum contacts with the forum state such that the maintenance of the suit there does not offend traditional notions of fair play and substantial justice

o 2 types of PJ under Min. Contacts

§ Specific

· Available ONLY IF P’s claim arises from one of D’s contacts w/ the forum state

§ General

· If Spec. not available, General is fall back

· Requires broad, deep, (generally) long term contacts

· Means D can be sued in forum state for anything

Does the claim arise from the D’s contacts with the forum state?

· If yes, then Specific Jurisdiction is issue

· If no, then General Jurisdiction is issue

· ON EXAM, DEAL WITH OTHER IN A 2NDARY ANALYSIS (time permitting)

Specific Jurisdiction

Contacts

· Can be a single contact IF (but only if) that contact is the basis of P’s claim (Worldwide Volkswagon v. Woodson)

o Must consider nature of contact and the rel. to the claim

· Purposeful Availment (little enough for SJ)

o Active, int. reaching out to or into the forum state by D

o Only need a little under Specific

· Consider Reasonableness

o Is it reasonable to make D defend there

· What’s the state’s interest? (Higher when P resident)

o The forum may have a legitimate interest in providing redress for its residents

· What’s the P’s interest?

· Unilateral Activity by 3d Party (REMEMBER, contact must be by D)

o UA by a 3d party cannot create a sufficient contact

§ World-Wide (Driving to OK)/Hanson v. Denckla (to FL)

Stream of Commerce (World-Wide VW v. Woodson)

· Used ONLY where the claim is about a PRODUCT

o Product liability, breach of K, breach of warranty

· Used ONLY for Specific

· Really all about purposeful availment

o Where D puts product in stream and it is sold in the forum state, D is PA itself of privilege of doing business in forum

· Can get Specific PJ ONLY in state where consumer buys the product and removes it from the stream (World-Wide)

· Once a consumer buys the product ends the stream for PJ purposes

o End of “distributorship” stream discussed in (World-Wide)

· After Asahi and Nicastro, likely requires more than simply placing product in stream of commerce w/ knowledge that the stream would flow to the forum state

o If there is a “middle man” (distributor or retailer) the MFG must have TARGETED the forum state in some way

§ Ad., State-spec. customer service, state-specific product

o If direct sale from MFG to P/Customer, that direct sale is likely sufficient “targeting” of the forum state

Internet Contacts (Pavlovich)

· Primarily relevant to SPECIFIC jurisdiction

· Bright line Rules

o Business Website

§ Spec. Jurisdiction follows sales

o Passive Website

§ Not enough for specific (standing alone)

o Interactive website

§ Sliding scale

· Level of interactivity

o More is more likely to = Spec. Juris.

· Commercial Nature of Site and Interaction

o The