CIVIL PROCEDURE I OUTLINE
I. Personal Jurisdiction asks the question: does this court have power over this D to make him appear in this court and subject him to this court’s ruling?
a. First, Was the objection properly raised?
i. Federal Court:
1. Collateral Attack: start with default judgment, challenged raised in 2nd proceeding. There is a risk that you might lose 2nd proceeding and be bound by the judgment. Lose substantive defenses and other court must give Full Faith and Credit to the 1st.
2. Rule 12: Objection to jurisdiction must be the first pre-answer motion raised but can raise additional issues such as venue
3. Can raise in the answer if you didn’t file pre answer motion
ii. IL: 5/2-301
1. Must be by motion (can’t be raised in answer)
2. PJ must be filed prior to any other pleading or motion other than extension of time or else it is waived. Object on the ground (PJ):
a. party is not amenable to process
b. insufficiency of process
c. insufficiency of service of process
i. may be made singly or included with others in a combined motion
3. Special appearance is technically a mistake b/c it was used before 2000. However, courts will generally interpret it as a 2-301 motion to dismiss.
4. FNC can be raised at same time if labeled clearly.
b. When determining if there is PJ, Federal Rule 4k is pertinent, which concerns the territorial limits of effective service. Federal court can exercise PJ only to the extent that a state court sitting in its own jurisdiction can. Therefore, there are 3 filters to go through to determine if PJ exists. The facts must pass thru 3 filters: Fed Constitution, State Statute, State Constitution
II. 1st Filter: Federal Constitution
a. Under 14th amend of Due Process, is it fair to subject this D to power of this sovereign?
b. International Shoe Test: Does the D have sufficient minimum contacts with the forum so as not to offend traditional notions of fair play and substantial justice if jurisdiction is asserted over D?
c. This test will almost always be satisfied when property is located in the forum (in rem)
d. After Asahi, this became a two part test: Minimum Contacts + Fair Play and substantial justice.
e. Some factors to consider for minimum contacts are whether the act was continuous and systematic, the nature and quality, whether there was purposeful availment, and foreseeability.
i. PJ falls into 2 categories: Specific and General
1. Specific Jurisdiction
a. Cause of action arose in the forum
b. Contacts are related to the matter being litigated
c. Requires less minimum contacts
d. Can only be sued for the contacts in state
2. General Jurisdiction
a. D’s contacts with the forum are so substantial that he expects to be subject to suit on any claim brought there, regardless of whether the cause of action has connections to the forum.
b. Can be sued for everything
c. GJ will exist for any individual in his place of domicile.
d. GJ will exist for a corporation in its place o
p in forum but foreseeable that conduct and connection with the forum so great that D could foresee being haled to court there
2. accidental conduct not foreseeable
3. intentional or continuous conduct may be
4. stream of commerce
vii. What is connection b/t D, Forum, and litigation? (Shaffer)
1. merely entering into contract is not enough
2. consider performance, where the k was formed
3. Talk about witnesses, evidence, party is from forum
viii. (If allegations aren’t true, P has burden of establishing PJ)
ix. Burger King test: Only if dealing with contract
1. If the defendant has a substantial and direct connection with a particular state, then there is minimum contacts AND personal jurisdiction
2. The contract has to create a substantial connection between the D and the forum state
3. Look at the number and nature of the contacts or communications between P and D
a. Where were the majority of the contract terms performed
b. Was there more than 1 contract
4. Probably not extended to consumer transaction, mostly franchises
x. Conclusion of Minimum Contacts and SJ/GJ