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Civil Procedure II
Elon University School of Law
Fink, Eric Mitchell

Civil Procedure II

Fink—Spring 2013

Jurisdiction over the Parties

A. Types of Jurisdiction

1. In Personam: gives the court power to issue a judgment against the defendant personally. It can then be sued upon in other states, and all of his assets may be seized to satisfy the judgment.

2. In rem: Gives the court power to adjudicate a claim made about a piece of property or about a status.

1. Ex. Action to quiet title to real estate, or to pronounce a marriage dissolved.

3. Quasi in rem jurisdiction: Action is begun by seizing property owned by (attachment), or a debt owed to (garnishment) the defendant within the forum state.

1. Different from in rem because it is not about the thing seized; instead the thing seized is a pretext for the court to decide without having jurisdiction over the defendant’s person. Any judgment affects only the property seized and judgment cannot be sued upon in any other court.

B. Minimum contacts requirement:

1. Defendant must have taken actions that were purposefully directed toward the forum state. (Selling goods in the state, incorporating in the state, visiting the state, etc.)

2. Balancing Test: If the defendant has the requisite “minimum contacts” with the forum state, the court may not exercise jurisdiction if considerations of “fair play and substantial justice” would make requiring the defendant to defend the action in the forum state so unreasonable as to constitute a due process violation. (Asahi Metal Industry Co. v. Superior Court).

C. Long-arm Statutes:

1. Allow jurisdiction on the basis of certain links between the defendant and the forum state.

2. Even if the long-arm statute covers the act, court still must decide whether there are constitutionally required minimum contacts with the forum state.

3. In-state tortuous acts: Allow jurisdiction if the plaintiff shows at the outset that it is reasonably likely that the defendant committed the tortuous act within the state.

4. Out-of-state acts with in-state consequences

§ Titan makes valves, which it sells, to another company, which incorporates them into a boiler, which it sells to plaintiff. Boiler explodes in Illinois, injuring plaintiff, who sues Titan. Illinois long arm statute allows suit based on “tortuous act within the state.” Held: a tortuous is committed where the resultant damage occurs. (Gray v. American Radiator Corp.).

ú Gray case may be invalid as a result of World Wide Volkswagen Corp. v. Woodson. Case established that the mere fact that a product made out of state has found its way into the forum state, and has caused injury there, is not sufficient for the assertion of jurisdiction. Majority noted that jurisdiction is permissible over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. Therefore it the defendant in Gray has reason to expect that Illinois customers would buy a product containing its valves, Gray may survive the Volkswagen decision.

5. Acts committed on the Internet

§ If the only connection with the forum state is access by a few forum-state residents, and the defendant does not make a conscious effort to try and do business with forum-state residents, the courts will generally not find defendant as committed an in-state act.

6. Owners of in-state property

7. Conducting Business

D. Individual’s Presence

1. Jurisdiction may be exercised over an individual by virtue of his presence within the forum state.

§ Must be present voluntarily.

2. Constitutionally valid even where the individual is an out-of-state resident who comes into the forum state only briefly—so long as service is made on the person while he is in the forum state, even if the defendant then leaves the forum state and has no other contacts with it. (Burnham v. Superior Court)

3. Even service on an airplane flying over the forum state has been held valid on the theory that the persons in the plan were “present in” that state. (Grace v. MacArthur).

E. Domicile:

1. Jurisdiction maybe exercised over an individual who is domiciled within the forum state, even if he is temporarily absent from the state.

2. Formula for Domicile:

§ A person is considered to be domiciled in the place where he has his current dwelling-place, if he also has an intention to remain in that place for an indefinite period.

§ A person’s general desire to return to a previous domicile at some indefinite point in the future does not prevent her present res

of an Internet Website:

§ Passive:

ú Used to merely post information and not to conduct business transactions.

ú By merely posting information available to people in other states, the operator of the passive website is unlikely to be found to have subjected himself to personal jurisdiction in every state where the site can be viewed.

§ Active:

ú Established for the primary reason of conducting business transactions with residents of other jurisdictions.

D. General Jurisdiction:

1. Where the claim does not arise from the in-state contacts, the in personam jurisdiction asserted is called general jurisdiction.

2. Systematic and continuous:

§ Perkins v. Benguet Consolidated Mining Co.

ú Business actually conducted must be so systematic and continuous as to make it not unjust that the corporation be forced to defend suit there.

§ Helicopteros Nacionales de Colombia v. Hall

ú Where the claim does not arise out of the defendant’s in-state activities, the mere fact that purchases have been made by the defendant in the forum state, even if they occurred regularly, will not be sufficient to establish minimum contacts

Jurisdiction over Things

A. In rem

1. Actions that do not seek to impose personal liability on anyone but seek to affect the interests of a persons in a specific thing.

B. Quasi in rem jurisdiction

1. Action is one, which would have been in personam if jurisdiction over the defendant’s person had been attainable. Instead property or intangibles are seized not as the object of the litigation, but merely as a means of satisfying a possible judgment against the defendant.

2. The minimum contacts test of international shoe applies to determine whether the exercise of quasi in rem in a particular case is constitutional.