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Civil Procedure I
Rutgers University, Newark School of Law
Gonzalez, Carlos

Civil Procedure – Gonzalez

Forum Selection
Overview: Comprised of 4 parts (in order):
1)      Personal Jurisdiction: Whether P can sue a particular D in a given state.
2)      Notice: D must be given notice and an opportunity to be heard.
3)      Subject Matter Jurisdiction: forum state is now chosen, will the case be heard in state or federal court.
4)      Venue: where litigation will proceed within chosen judicial system. i.e. So. Dist. Of CA or No. Dist. Of CA

Personal Jurisdiction
Definition: Constitutional Principles of Due Process limit the ability of a government (through its courts) to impose binding orders on a litigant only when it has appropriate powers over the litigant. However this protection may be relinquished, either by choice or by failing to raise the appropriate objection. 
Remember: Any court will always have personal jurisdiction over the plaintiff b/c she chose the forum.
And no distinctions between state and federal courts.

Introductory example:
Facts: D from WV is on vacation in Hawaii…P from UT is also in Hawaii. D punches P in a hotel in Hawaii.
Can P sue D in UT?: No
But if D visits UT to ski: Yes, as long as he is served with notice while there.
Can P sue D in WV?: Yes, eventhough tort occurred in Hawaii
Can P sue D in HI?: Yes, event occurred there
Can P sue D in CA?: No, obviously
But if D visits CA to surf: Yes, as long as he is served with notice there
D has IL bank account, can P sue D in IL: Yes, quasi-in-rem

Three Types of personal jurisdiction: In Personam, In Rem, Quasi-in-rem
In Personam: Jurisdiciton exercised over the D herself b/c of some appropriate connection w/ forum.
Example: P sues D in Kansas court and wins $100,000 judgment. D refuses to pay. So court seizes & sells $60,000 of D’s assets located in Kansas. Then P finds out D has a house (or bank account) in Florida.   Florida court can recognize the Kansas judgment and seize/sell those assets to fulfill judgment. This is called ‘Full Faith & Credit’. For this reason In Personam jurisdiction over a D is more preferable than in rem or quasi-in-rem. For in rem & quasi-in-rem property must be attached before proceedings.

In Rem: Very rare, involve a dispute over ownership of the property that is the jurisdictional predicate, and it is for the court to determine ones ownership of something against the rest of the world.
Quasi in Rem – Type 1: Very similar to in rem in that determines ownership of property that is used as jurisdictional predicate, but only between and among parties to the case.
Example: D, from Maine, holds deed claims adverse possession over land in Montana…P, from Montana, sues claiming she owns land. Assuming P cannot proceed in personam, she can proceed by QIR-1 by asking court to attach land before litigation. Court would have jurisdiction to decide ownership among the 2 parties.

Quasi in Rem – Type 2: involves courts jurisdiction over property, not the person…But the property is not the subject of the litigation. P cannot obtain in personam in given state, so she attaches property located in the state that belongs to D. 
However ‘Full faith & credit’ does not apply, so only that property can be used to satisfy judgment, and if insufficient P cannot take judgment to other state to fulfill remaining balance.

Jurisdiction by Necessity
Definition: Theory that a court may exercise jurisdiction over a D if there is no other forum in the world in which justice may be had.
·         In Helicopteros & Shaffer the Court mentions the far-reaching possibility of such a basis for jurisdiction, but only under a well-developed fact record…however this is yet to happen
·         Some have considered Mullane to involve jurisdiction by necessity. It involved claims relating to a pooled trust fund having 1000’s of beneficiaries, some know some not, some residing in forum state, some not. Though the courts of many states could be involved, it would be a nightmare; so SC upheld jurisdiction in a single court to oversee the administration of the trust.


1.     Long Arm Statute:

a.     Type- Two Types, analyze facts under each…if not covered by statute, DONE-No Personal Juris
i.      California-Style Long Arm Statute: Exercises jurisdiction to the extent allowed by due process clause/Constitution.
ii.      Illinois-Style: Enumerated-Acts: Enumerates certain situations where jurisdiction is satisfied.   Usually less than CA-style
a.      For Tortious Acts, 2 Approaches:
i.      where injury takes place. See Gray
ii.      if negligent behavior took place outside state, but injury occurred in side…must also show “persistent course of conduct” or “derived substantial revenue”. NY Approach

2.     Constitutional Analysis:Does assertion of jurisdiction satisfy the req’s of Due Process?

a.     Traditional Bases for Personal Jurisdiction:
i.      In-State Service: Defendant is served with process while in state. See Burnharm
a.        Exception: procured by fraud
ii.      Voluntary Appearance: D voluntarily appears and waives any challenge to personal jurisdiction
iii.      Consent: D consents to jurisdiction in state
a.        Forum Selection Clause: In K’s; sets out forum in event of litigation. See Carnival Cruise
b.       Non-Resident Motor Vehicle statute: Driver consents by crossing state lines in car

If none of the above apply…try:
b.     International Shoe Test: Standard extends scope of jurisdiction beyond trad’l bases

If In Rem or QIR-1: mere presence of property in forum state satisfies Int’l Shoe Test, If Satisfied go onto specific juris
If QIR-2: presence insufficient, property must have, for ex, caused injury. See Shaffer (“where D’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of ownership.”)…This is the ‘Min Contacts portion’…If satisfied Go on to Specific Juris

i.      Four Position Matrix: Analyze the contacts that serve as basis for jurisdiction in table:

Contacts are Systematic and Continuous
Contacts are Single and isolated
Contacts are Related to Cause of Action
Personal Jurisdiction is appropriate.                                As in Keeton & Int’l Shoe
Specific Jurisdiction fact pattern…move onto specific jurisdiction analysis
Contacts are Unrelated to Cause of Action
Possibly General Jurisdiction…Analogize using Helicopteros & Perkins to decide if contacts are “substantial”…If insufficient to support General Jurisdiction move on to Specific Jurisdiction analysis…For ex having permanent bus location or employees, or extensive sales
No Personal Jurisdiction…Analysis Done       Ex. Domiciliary of WV, goes to HI on vacation and is served there for actions in WV…No Good
Helicopteros: No minimum contacts found because general jurisdiction. Claim doesn’t arise out of D’s contacts in forum state(Texas). 
Buckeye Boilers- D regularly sold boilers in CA, P was injured in CA by boiler not sold in CA. P still able to establish jurisdiction in CA through general jurisdictio

citizens are subject of litigation
i.      In Asahi: slight interest of the state of CA (P was not a citizen, transaction b/w 2 companies from 2 different countries)
c.       Plaintiff Interest: strong interest in obtaining relief in the forum?
i.      In Asahi: plaintiff settles outalready, countersuit b/w companies is left
d.       Systematic Effieciency: Would juris promo interstate judicial systems interest in efficient resolution of controversies
e.       Furtherance of Social Policies: would it further states interest in substantive social policies.

Notice & Opportunity to Be Heard
Definition: Due Process requires that a defendant be given notice and an opportunity to be heard before a judgment can be entered against her. Must satisfy 1) constitutional standard and 2) statutory standard (federal rules or state statute)
Note: Because the basic methods by which D’s are given notice are so well-established under constitutional principles, the issues of notice in cases will be whether the notice was proper under the Federal Rules or state statute.

Proper “Service of process” on a defendant satisfies both the notice requirement and the opportunity to be heard requirement. 

1) Constitutional Standard of Notice
Definition: Constitution comports in that the government may not deprive someone of her property without giving that person “Due Process of Law.”

Explicated in…
Mullane v. Cent Hanover Bank & Trust: NY Statute allowed banks acting as trustees to pool relatively small trusts into one large account, to take advantage of economies of scale but required the bank to make regular accountings to a court. If the court approved it entered an order that 1) provided the bank/trust with its fee(from the assets) and 2) extinguished any trust beneficiaries right to sue for negligent handling of trust. But beneficiaries were allowed to appear at accounting-hearings to object to fee/appropriation of funds. The statute provided that the bank needed only to publish the hearing dates in a local newspaper in order to provide sufficient notice. Beneficiaries challenged this as insufficient notice. Held:   “Notice must be reasonably calculated, under all circumstances, to apprise interested parties and afford them opportunity to present their objection.” Beneficiaries in Mullane fell into 3 groups, each of which was assessed to determine reasonableness of notice:
1)      Beneficiaries whose interests or whereabouts could not with D.D. be ascertained- Notice by publications was constitutionally permissible, thus this group is bound by the outcome of hearing.
2)      Beneficiaries whose whereabouts could be discovered upon investigation- Notice by publication was sufficient. Court noted the practical difficulties & costs of investigating all these parties was too much of a burden.