CIVIL PROCEDURE
RENSBERGER
SPRING 2014
I. PERSONAL JRD
A. Generally = A ct. must have the power to subject the D to personal liability.
B. Long Arm Statute = for contacts based JRD, the forum must first have a long-arm statute so that the forum may issue a judgment against a non-resident D.
1. Generally = is a statute that permits the ct. of a state to obtain personal JRD over persons not physically present within the state at the time of service.
C. Transient Jurisdiction = Ct. has JRD if D is served w/ process while he is physically present in forum state, whether he is a resident or not
1. Scalia opinion in Burnham = Ct. has JRD b/c it is traditional, i.e. in the tradition of Pennoyer
2. Brennan opinion in Burnham = Ct. has JRD b/c it is fair
D. Domicile = Ct. has JRD by virtue of the D being domiciled in forum state
1. Corporations = is domiciled in its state of incorp. and “nerve center”
2. Individuals = are domiciled in state if:
a. He/she is physically present within that state; and
b. Has the intention to remain indefinitely
E. Consent to be sued within forum state
1. JRD may be exercised over D if D consents, either explicitly or implicitly, to service
a. Implicit = Non-resident motorist consents to service of process
b. Explicit = def. appoints a registered agent in the state or signs a contract w/ a forum selection clause (must be reasonable)
F. Contacts based JRD
1. General contacts based JRD = D may be sued on a claim even though D’s contacts with the forum are unrelated to the claim
a. Helicopteros = in order to establish general contacts based JRD D’s contacts with the forum state must be “systematic and continuous”—“tantamount to home.”
2. Specific contacts based JRD = D’s contacts w/ the forum are related to the subject matter of the suit; usually a ct will have JRD if D voluntarily sought to do business in the forum.
a. International Shoe = D must have certain minimum contacts w/ the forum such that the maintenance of the suit does not offend traditional notions of fairness and substantial justice.
i. Hiring employees in the forum = minimum contacts.
b. McGee = Minimum contacts will exist if D sends an insurance policy contract to forum state and P signs the contract and mails premiums to D in another state.
c. Woodson = D needs to purposefully avail, or target the forum; unilateral activity by the P or mere awareness by D that the stream of commerce will convey goods to forum is not enough.
i. Mere awareness plus a high amount of contacts, e.g. sales, will be enough, but probably only if the burden on D is not unreasonable.
d. Asahi = Brennan is okay w/ awareness that stream will convey products to the forum, while O’Connor requires an intent to target the forumàbut considerations of fair play militate against JRD.
e. Nicastro = Kennedy requires awareness + targeting of the specific forum state (targeting US as a whole is not enough), while Breyer requires awareness + high volume of sales or a high-risk product.
f. Five ways to “purposefully avail:”
(1) Designing the product for the forum state;
(2) Marketing the product or reaching out to or soliciting in the forum state;
(3) Signing deals with forum specific distributors;
(4) Establishing channels for providing regular customer advice in the forum state; or
(5) Purposefully attempting to serve the market of the forum (awareness + test)
g. Burger King = Contracts w/ forum may indicate minimum contacts & the ct. will consider past negotiations as well as future performance
i. Reasonable anticipation test = if D could reasonably anticipate being required to litigate in the forum, then that will be enough.
h. Calder = Cause and effect testà D purposefully availed himself of the forum state if he knew or should have known that the brunt of the injury would be felt in the forum
i. Shaffer = no “quasi in rem” JRD w/o first establishing minimum contacts
3. Role of fair playàfour fair play factors should be added at the end of minimum contacts analysis:
(1). Burden on the D = distance, language barrier, or different legal system
(2). Interests of the forum = the forum has an obligation to provide a remedy to P if P is resident of the forum
(3). Forum as the natural venue = is the forum the most convenient venue for a
enses later incurred of making service + attorney fees.
a. If D waives then D gets 60 days to file an answer but if D doesn’t waive then he only has 21 days to file an answer.
C. Rule 4(c)(2) = an individual over 18 and not a party in the suit may serve the summons and complaint.
D. Rule 4(e): Serving an individual within a judicial dist. of the US
1. An individual (not a minor/incompetent) may be served in US by:
a. Following state law for serving summons in an action brought in cts of general JRD in (1) either the state where the dist ct. is located or (2) where service is made. (Two options = 1. where filed or 2. where service is made); or
2. By doing any of the following:
(1) Delivering a copy of the complaint and summons to the indiv. Personally;
(2) Leaving a copy of each at the individual’s dwelling or usually place of abode with someone of suitable age and discretion; or
(3) Delivering a copy of each to an agent authorized by appt or by law to receive service of process.
E. Rule 4(f) = serving an individual in a foreign country = service may be effected in any manner, internationally agreed upon, which is reasonably calculated to give notice. If no agreement exists, then local rules will apply.
F. Rule 4(h) = service on corps and assoc.
1. Inside the US = must be accomplished by delivering SOP to an officer, managing agent, general agent, or registered agent.
2. Outside the US = same method required for individuals outside the US
G. False Service = strong and convincing evidence that service occurred in an improper manneràburden is on the D.
H. Rule 4(m) = If D is not served within 120 days of filing, the ct. must dismiss the action w/o prejudice, unless the P shows “good cause” for delay.
I. Immunity from Service = common law rule granting immunity to non-resident witnesses, jurors, ct. officials, attorneys, defendants in criminal cases, and foreign nationals in the US for the purposes of attending a UN conference.
J. Fraudulent Inducement = “Service…having been procured by trickery, deceit, and subterfuge…is null and void”à(Tickle v. Barton)
K. D’s Opportunity to be Heard
