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Civil Procedure II
Southern Illinois University School of Law
Pardieck, Andrew M.

 
Civil Procedure II Outline
Professor Pardieck
Fall 2014
 
 
 
Personal Jurisdiction is the courts power to adjudicate the rights and liabilities of a defendant.
·         Court always has personal jurisdiction over its residents or over persons that were served in the state.
 
Long Arm Statute
ILCS 5/2-209
·         States use long-arm statute to assert personal jurisdiction.
·         Every federal court uses the long arm statute of the state in which it sits.
 
Russell v. SNFA
Two-part Analysis
·         First determine whether a specific statutory provision of section 2-209 has been satisfied, and
·         Then determine whether the due process requirements of the United States and Illinois Constitutions have been met.
o   Two-part analysis is not necessary if subsection (c) of the long-arm statute is invoked.
§  Subsection (c) is the “catch-all provision.”
·         Leads to the single issue of whether a defendant’s Illinois contacts are sufficient to satisfy federal and Illinois due process.
 
 
Due Process Analysis
·         Illinois collapses into the federal due process analysis because the Illinois courts see no meaningful difference.
·         Fourteenth Amendment (and Fifth Amendment)
o   Due Process Clause
§  Will not deprive any person of life, liberty, or property, without due process of law.
 
Pennoyer v. Neff
·         A state only has jurisdiction within a state’s territory.
·         Principles and Rules from Pennoyer
o   Jurisdiction and Due Process
o   Due process and full faith and credit
o   The service of process rule
o   The service by publication rule
o   The limited jurisdiction rule
o   The pre-judgment attachment rule
 
Minimum Contacts (analyze sliding scale and then fairness)
International Shoe
·         A state may establish personal jurisdiction over a defendant if she has such minimum contacts with the state.
·         The maintenance of the suit does not offend traditional notions of “fair play and substantial justice.”
·         Depends on
o   Quality and nature of the contacts with the state
o   Even a single contact will do, but not contacts that are casual or isolated.
 
 
·         The defendant who deliberately chooses to take advantage of the benefits and protections of the laws of a state will not be heard to cry foul when that state holds her to accounts in its courts for her in state acts.
 
 
Three types of personal jurisdiction
·         In personam
o   Trying to assert jurisdiction over out of state of defendant.
·         In rem
o   Suit against a property.
·         Quasi in rem
o   Somewhat against the property.
 
Shaffer v. Heitner
·         Greyhound case where minimum contacts were not satisfied with managers and directors ownership of stock.
·         Defendants did not have anything to do with the state (forum) and the state did not enact a statute that treats acceptance of directorship as consent to jurisdiction in a state.
 
McGee
·         Man lives in California, buys insurance from a Texas company.
·         Payments and all correspondence through the mail established the insurance company’s minimum contacts with California.
·         It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that state.
o   The contract was delivered in California, the premiums mailed from there and the insured was a resident of that state when he died.
·         When the insurance company decided to contract with California residents they put themselves on notice and had sufficient time to prepare their defenses.
·         Contract theory was introduced with the increased nationalization of commerce and increased business across state lines.
 
 
Hanson v. Denckla
·         Woman sets up trust in Delaware and retires in Florida.
·         Estate goes into probate in Florida and Florida tried to assert jurisdiction over the trust.
·         However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the minimum contacts with that state.
·         The unilateral activities of those who claim some relationship with a non-resident defendant cannot satisfy the requirement with the forum state.
·         Purposeful Availment
o   Defendant purposefully availed itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the for

v. Bauman
·         Appraisal of a corporation’s activities in their entirety, nationwide and worldwide.
o   Must be “continuous and substantial presence.”
·         When corporation’s affiliations with the state are so continuous and systematic as to render them essentially at home in the forum state.  Goodyear
·         Stream-of-commerce theory does not apply to general jurisdiction (may apply to specific jurisdiction).
·         Continuous activity is not enough.
·         Cannot simply be transitory physical presence.
 
Agency
·         Corporation, generally, not accountable of their subsidiaries under an agency theory.
 
 
 
The Service of Process
 
Burnham v. Superior Court
·         Husband gets served papers while visiting children in Calfiornia.
·         Use the traditional notions and use presence in place of minimum contacts to establish jurisdiction based on physical presence in that forum state.
o   Even if the presence is transitory.
·         If defendant is fraudulently induced to enter the forum, the service is not valid.
 
 
 
Consent (as a Substitute for Power)
·         A defendant may, either at the outset of the lawsuit itself or before it, consent to jurisdiction in a forum.
·         Rule 12(h)(1)
o   A party with a potential defense based on personal jurisdiction waives that defense by failing to assert it at an early stage of litigation.
§  Either as a pre-answer motion or in the answer.
 
Carnival Cruise v. Schute
·         Forum selection clauses in a contract of adhesion are subject to judicial scrutiny for fundamental fairness.
o   Factors
§  Look to fraud or overreaching
§  Reasonableness of the forum choice [does it deprive an individual of their day in court?] §  Look for sufficient notice and consent