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Civil Procedure I
Rutgers University, Newark School of Law
Askin, Frank

Civil Procedure – Frank Askin – Rutgers (Newark) – 2010

Jurisdiction – before a court can decide a case, it must have jurisdiction over the parties (personal jurisdiction) as well as over the subject matter (subject matter jurisdiction).
Personal Jurisdiction Checklist:         
Is it a federal or state court? (If state, go to part B to review state court limitations on jurisdiction)
Possible waiver? Rule 12 requires any defendants to raise any challenge to personal jurisdiction in their initial response or the challenge is waived.  If I has been waived, personal jurisdiction is appropriate.
Rule 4(k)(1)(A) –
Long-Arm Statute – Does the state’s long arm statute authorize personal jurisdiction under these facts?
Type of long-arm statute – what type of long-arm statute does the forum state have?
a.  Rhode Island Model – authorizes courts to exercise jurisdiction to the constitutional limit.  If this type of statute is involved, no further statutory analysis is necessary à go to Part C
b. Enumerated Act Model – specifically articulates factual circumstances where courts can exercise personal jurisdiction.  If this type of statute is involved, proceed to next question.
Statutory Analysis – do the facts presented fall within one of the categories articulated in the long-arm statute?
a.  Yes – if the facts fall within the long-arm statute, proceed to the constitutional analysis of Part C.
b. No – if the facts do not fall within the long-arm statute, the personal jurisdiction cannot be exercised over the party. End of analysis.
Constitutional Analysis – does the assertion of jurisdiction satisfy the requirements of due process?
Traditional Basis for Personal Jurisdiction – is one of the traditional bases for personal jurisdiction applicable?
a.  In-State Service – Was the D an individual served with process within the state? If so, jurisdiction is proper (see Burnham v. Superior Court).  Even service on a plane, flying over forum state is valid.  However, if the D’s in-state presence is procured by fraud, jurisdiction may not be proper (see Wyman v. Newhouse)
b.Voluntary Appearance – Has the D voluntarily appeared and proceeded to defend itself in the action without challenging personal jurisdiction? If so, the court will have personal jurisdiction over the D.
c. Domicile – Is the D domiciled within the forum state (even if he isn’t currently present)? If so = jurisdiction is appropriate.
1.      Domicile = citizenship =/= residency (you can have only one domicile, but several residencies)
2.      Domicile = current dwelling place + intent to remain indefinitely
Exceptions to Jurisdictional Analysis – If no traditional basis for personal jurisdiction is present, does an exception to traditional jurisdiction analysis apply?
a. Consent – Did the D consent to jurisdiction in the state?
1.      Forum Selection Clause – is there a forum selection clause? If so, does it apply to this dispute? (see Carnival Cruise Lines v. Shute)
2.      State Domestication Status – is there a state statute exacting consent from the D (e.g. through corporate registration; non-resident motorist statute)? If so, such consent is generally disfavored; look for actual consent and question whether jurisdiction should be based on fictitious consent.
i.            If the D was unaware of the consent to appoint an agent for in-state service, like motorist statute, consent will be more suspect.  In such cases, ordinary minimum contacts analysis applies. Proceed to Part C.3
3.      State Citizens – is the party challenging personal jurisdiction a citizen in the forum state? If so, forum courts may exercise personal jurisdiction over that party as a state citizen
4.      Non-Resident Plaintiffs – Is the party challenging personal jurisdiction the original plaintiff in the action? If so, that party has already consented to jurisdiction by choosing to bring the action in the forum.
5.      Estoppel – is the D stopped from challenging jurisdiction for some other reason?
i.            D refusing to cooperate with jurisdictional discovery orders
ii.            D misrepresented that it was registered to do business in the state
International Shoe Test – if none of the above exceptions applies, then you must ask: Does the assertion of jurisdiction satisfy the standard of International Shoe?
a. In rem Actions – Is this an in rem action?
1.      If so, Shaffer has indicated that such actions will generally meet the minimum contacts standard (these are isolated but directly related contacts that warrant jurisdiction).
2.      If not, proceed to the next question.
b.Four-Position Matrix – determine whether the contacts serving as the basis for jurisdiction are systematic and continuous or single and isolated and whether they are related or unrelated to the cause of action.

Specific Jurisdiction Analysis – can specific jurisdiction be exercised over the D? The answer depends on a two-pronged analysis of minimum contacts and reasonableness:
a. Minimum Contacts – are there minimum contacts between the D and the forum state?
1.      Purposeful Availment – has the D purposefully availed itself of

                                         i.            Zippo – jurisdiction depends on the location of the site on the active/interactive/passive spectrum
i.      Passive – no jurisdiction based on the website
ii.      Active – Jurisdiction is appropriate
iii.      Interactive – jurisdiction depends on the degree of interactivity and the commercial nature of the website.
ii.            Express Aiming of Internet Activity – most courts will evaluate whether the internet activity was specifically aimed at the forum state.  If so, then purposeful availment is usually met; if not, then forum contacts can be evaluated under the other purposeful availment rubrics.
b. Reasonableness – if the analysis has indictaed that the D has purposefully established minimum contacts with the forum state, then ask: “Would the exercise of jurisdiction be (un)reasonable?”  Analyze with reference to the following 5 factors applied in Asahi, noting that a balancing of the first 3 of these factors is typically determinative.  The balancing of these interests is somewhat a subjective exercise that depends on the facts.
1.      Burden of the Defendant – would the inconvenience to the D be unconstitutionally burdensome, meaning it would impact the D’s ability to mount a defense? Yes = unreasonable.
2.      State Interest – Does the state have a strong interest in resolving the dispute? The state’s interest is greater where its laws or policies are at stake, or where state citizens or corporations are involved. Yes = reasonable.
3.      Plaintiff Interest – Does the P have a strong interest in obtaining relief in the forum? Yes = reasonable.
4.      Systematic Efficiency
5.      Furtherance of Social Policies