Fall 2014 Civil Procedure II Professor Pardieck
· Personal Jurisdiction Analysis
o First step is to always apply Traditional Personal Jurisdiction requirements
§ Defendant lives in forum State
§ Through Consent of the party
§ Presence within the forum state and Proper Service
§ Under Burnham v. Superior Court Traditional requirements for Personal Jurisdiction do not need any further analysis.
o Second step if non of the traditional Personal Jurisdiction apply then must determine whether forum State’s Long Arm Statute allows for Personal Jurisdiction
§ 735 ILCS 5/ §2-209(a)(1)-(4) & (b)(1)-(4) (ILLINOIS LONG ARM STATUTE)
· (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
o (1) The transaction of any business within this State;
o (2) The commission of a tortious act within this State;
o (3) The ownership, use, or possession of any real estate situated in this State;
o (4) Contracting to insure any person, property or risk located within this State at the time of contracting;
· (b) A court may exercise jurisdiction in any action arising within or without this State against any person who:
o (1) Is a natural person present within this State when served;
o (2) Is a natural person domiciled or resident within this State when the cause of action arose, the action was commenced, or process was served;
o (3) Is a corporation organized under the laws of this State; or
o (4) Is a natural person or corporation doing business within this States
o Third Step traditionally was different between in rem and in personam. However, under Shaffer v. Heitner there is no distinction between in rem and in personam and both must be subjected to minimum contacts requirements.
§ Under International Shoe Due Process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”
· Purposefully Availed
o Whether the defendant has “purposefully availed” themselves of the laws of the forum State.
· Traditional Notions of fair play and substantial justice
o (1) Burden on the defendant
o (2) The forum State’s interest in adjudicating the dispute
o (3) Interstate judicial system’s interest in obtaining the most efficient resolution, and
o (4) Shared interest of the several States in furthering fundamental substantive social policies.
· Shield Doctrine states that an individual may not be subjected to personal jurisdiction in a forum State when the actions in question only occurred due to the directions of an employer.
o However, Shield Doctrine will not be applied in cases where even though an individual is an employee acting within the scope of his employment when the actions in question resulted from the defendant’s own discretion
o Furthermore, officers, directors and majority shareholders of corporations are not allowed to base a defense on Shield Doctrine
· Specific Jurisdiction v. General Jurisdiction
o General Jurisdiction
§ When such substantial contact with the State in question that will make it fair to assert jurisdiction even over claims unrelated to the contact by the defendant
§ Determined by look at either for an individual the place of domicile, or for a corporation the principal place of business.
o Specific Jurisdiction
§ When defendant’s activities fall short of general jurisdiction, but the contact in question is directly related to the suit in question occurred within the State’s boundaries
· Specific Jurisdiction in Tort Cases
o Must still go through same analysis as general Personal Jurisdiction.
o However, in cases involving intentional torts the question is whether the defendant, and no one else, created minimum contacts with the forum State.
o The contacts cannot be developed by the plaintiff or third parties.
· Specific Jurisdiction in Contracts
o An individuals contract with a nonresident defendant alone does not automatically establish the requisite minimum contacts
o To determine whether a defendant has sufficiently transacted business (in terms of a contract) to satisfy “minimum contacts” must show to have purposefully availed him or herself of the benefits of Illinois law:
§ (1) Seller or Buyer Defendant;
§ (2) Commercial or Consumer Plaintiff;
§ (3) Who initiated the transaction;
§ (4) Where the contract was negotiated;
§ (5) Where the contract was formed;
g a motion to dismiss.
o Unlike under Fed. R. in Illinois the PJ defense must always be filed first
o Waiver Achieved by:
§ Filing a responsive pleading first
§ Filling a motion first (other than a motion to extend time) that does not include Personal Jurisdiction).
§ KSAC: Filing an appearance and a jury demand first does not waive Personal Jurisdiction because neither is a responsive pleading or motion
o Contesting Personal Jurisdiction-Fact Finding & the Burden of Proof
§ D moves to dismiss for lack of PJ
§ P must establish a prima facie case for PJ
§ If D disputes facts, the ct must hold an evidentiary hearing and P must prove PJ by a preponderance of the evidence
§ Fats found in resolving PJ are not binding at trial on the merits if the same facts are disputed at trial
o Illinois Appeals
§ D WINS: court enters final judgment dismissing action. P can Appeal final judgment under R. 301
§ P WINS: court enters interlocutory order denying motion. D can appeal with permission under R. 306(a)(3) or D can appeal later from a final judgment if D also loses on the merits.
o Consent to Personal Jurisdiction
§ Consent may occur either when defendant does not argue personal jurisdiction before the court or through contract and a forum selection clause.
§ Forum Clauses in general are enforceable and will require all future litigation arising from the forum clause will have to be resolved in the named forum State.
§ However, there are few exceptions in which courts are not likely to enforce a forum clause.
· For one the defendant must have had notice of the forum selection clause before they will be valid.
· Also, the form selection clause must not be so unfair or unconscionable otherwise it will not be enforceable.
o Forum selection clauses are generally upheld by courts for a variety of reasons.
§ First, corporations have a special interest in limiting the number of possible forums for litigation.