Civil Procedure, J. Rensberger Fall 2015
Personal Jurisdiction
Traditional Basis: Pennoyer
Due process as a limitation on state power
Mutual sovereignty of the states
Territorial definition of sovereignty (person or property within the state)
In Personam= person present and served in the state
Doesn’t matter for how long or why they are there
In Rem= Property present and attached
Must have JRD at the outset
Service must be delivered
Attachment= seizing the property or preventing transfer of property
In theory, you are not suing the person, but the property= judgment against property
Quasi in Rem= Binding vs. Particular Person
In Rem= Binding vs. Whole World
Domicile= where you are from; present with intent to remainà general JRD
Status in the state where one is domiciled
Consent= person agrees to be sued in state (contract, implied consent)
Person
Present &
Served
(General)
Consent
(General)
Property Present & attached
(General)
Status
(General)
State of Incorporation
(Domicile)
(General)
Individual Domicile
(General)
Challenges to the traditional system posed by corporations (not present w/in state), and greater interstate commerce and travel
Hess v. Pawloski: Transient JRD no longer sufficient with vehicles
Use of highway=implied consent to an agent to be served with process (trying to work around the rule in pennoyer)
Transition between Pennoyer & International Shoe
International Shoe – Minimum Contacts
Shift of inquiry from power of state to the fairness to defendant
Converts fictional findings of consent or presence (based on defendant’s activities) to the minimum contacts test
Rationale: a corporation that chooses to conduct activities w/in a state implicitly accepts a reciprocal duty to answer for its in-state activities in the local courts
Minimum Contacts Test:
How many contacts?
Continuous and systematic v. isolated
Enough to satisfy “fair play” and substantial justice
Fair play substitutes “presence”
# OF CONTACTS
Continuous and systematic
No JRD
General JRD: Substantial contacts that are unrelated to claimà can be sued for anything
Specific JRD: Minimal contacts that are related to the claimàclam must arise from contacts
The Modern Structure
In Rem-Shaffer
Presence of property does not provide a basis for JRD separate from shoe
Property may be a contact but must still analyze in terms of shoe:
1) Property must relate to the litigation, or
2) Defendant must have so many unrelated contacts (including property) that general JRD is present
State of Incorporation
(Domicile)
(General)
Consent
(General)
Individual Domicile
(General)
Status
(General)
Minimum Contacts
Related=Specific
Unrelated=General
Person
Present &
Served
(General)
Property Present & attached
(General)
Transient JRD-Burnham
Transient JRD (D in state + Personal service of process) allows a state to exercise JRD when Shoe would seem to forbid it
Scalia (4 votes)
Approach: tradition, original intent, bright line rule
Due process is consistent with traditional notions of fair play. Therefore, if its traditional, it’s consistent with due process
Originalist interpretation
JRD in all cases because of tradition (voluntariness is part of tradition)
Brennan (4 votes)
Approach: Theory of Shoe (fairness) & Shaffer (can invalidate old procedures)
Transient JRD is usually permitted because it is fair (low burden, foreseeability, benefits to the defendant) and satisfies due process
Modern interpretation
Not minimum contacts
Defendant had been in state for 3 days
Harder to apply to cases where D’s visit is shorter
Therefore, transient JRD is usually valid (assuming defendant is voluntarily in the state)
Domicile of Individuals
Extends to general JRD (claims unrelated to anything done in state of domicile)
Counterpart for corporations is state of incorporation
Rationale:
reciprocity (subject to JRD in return for getting state benefits
always minimum contacts over a domiciliary (so many contacts or such important contacts by virtue of domicile)
Status
JRD for divorce when
utor who has agreed to serve as the sales agent in the forum
Stevens= Inquire as to volume, value, and hazard (any one of these + awareness= sufficient for JRD)
Kennedy (4 votes)= contacts exist in a stream of commerce case if:
D is aware that the product is going to the forum, AND
D targets the forum (presumably same type of conduct as O’Connor requires), AND
Must target the VERY STATE that is the forum, not the U.S. generally
Breyer (2 votes)= Yes, Contacts exist if:
Single isolated sale not sufficient; mere awareness not sufficient
Need either: more sales (cf. Stevens) OR additional conduct showing an intent to serve the market (cf. O’Connor)
Brennan approach rejected by 6 Justices
: consider negotiations, actual terms, course of dealing, and future consequences to find contacts (Burger King)
Other Factors:
Whether D could “reasonably foresee” JRD (begs the question)
Reciprocity- extracting benefits from out of state activity
Effects test: D acts in state A intending a harm in state B (not extracting a benefit but injecting a harm) (Calder)
The role of Fair Play
Burden on D
Other protections for D and convenience of modern travel
Higher if a truly foreign legal system (Asahi)
Forums Interest
Present if a resident plaintiff (McGee) or local event
P’s Interest in Forum
Consider alternative forum for P if no JRD in the chosen forum
Interstate Interests
Efficiency
Substantive law
Relationship of Fair Play to Contacts
High fair play makes up for low contacts (Burger King)
High contacts makes up for low fair play (Keeton)
At the limits
Very low fair play=no JRD even if purposeful availment (Asahi)
No contacts but high fair play?
Woodson= must have contacts
Why need contacts if JRD is otherwise fair? = idea of state power (no contacts, no power)
