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Civil Procedure I
St. Johns University School of Law
Alexander, Vincent C.

Fall 2009
Civil Procedure Outline – Professor Alexander
 
PERSONAL JURISDICTION
 
Personal Jurisdiction – Can this court, in this state, assert power over this D.
·         Personal Jurisdiction issues involve a 2-step analysis.
1.      The court must ask whether there is a stature that authorizes it to exercise personal jurisdiction
2.      If there is, the court must ask whether it would be constitutional under the due process clause of the constitution to do so.
 
Remeber Bulge Jurisdiction (100 Miles)
·         Any impleaded party served with process within 100 miles of federal court house.
·         Remember only in federal court and only to impleader.
 
Three types of Personal Jurisdiction
 
        I.            In Personam Action – Power over the D himself.
a.       Judgment may be levied against any assests of the D.
b.      Basis for personal jurisdiction does not need to be pleaded
c.       State law and Federal Due Process clause determines the basis for personal juriscdiction
 
     II.            In Rem Action – Power over the property of the D. There must be an attachment statute in the state, and the property must be attached at the outset of the action.
a.       This is based on a courts power over a thing, not a person. The action is technically against the property, not a person. The subject of litigation is related to the property.
b.      An action is commenced by attaching property (real or personal property)
c.       Effect of judgment is to determine
                                                              i.      Example of In Rem Action
1.      Mortgage foreclosure
2.      Partition of land
a.       i.e. 3 people inherit land in NY and there is a partition proceeding. NY has jurisdiction over the land regardless of where the D or parties are located.
3.      Eminent domain (action brought against property by state)
 
   III.            Quasi-In-Rem Jurisdiction – Here the nature the claim is against the D’s person, but there is no way of getting in personam jurisdiction. Therefore the P brings a claim against the person’s property that is within the state because they could not get in personam jurisdiction. Devised to give local creditors a way to pursue a D’s personal obligation based on their property within the state
a.       Jurisdiction is obtained by seizing the D’s property despite the fact that the property is not related to the action.
b.      P can only recover up to the amount of the value of the property that is located in the state which exercises quasi in rem personal jurisdiction over the D.
c.       The property must be attached to the claim at the outset of the action.
                                                              i.      But Now we have serious Due Process issues with the decision of Shaffer – (Shaffer v. Heitner) Greyhound Co. Stock of officers in DE.
1.      Quasi in rem jurisdiction may only be asserted when the D has the “minimum contacts” with the forum state that would satisfy the requirements of in personam jurisdiction defined by International Shoe.
a.       Shaffer limited the power of Quasi In Rem Jurisdiction, and blurred the line between In Rem and Quasi In rem. Property which is not itself the subject matter of the litigation does not alone provide a basis for jurisdiction.
b.      You can use this for intangible property in the state as well.
                                                                                                                                      i.      Harris v. Balk: Balk owes Epstein money. Wherever your debtor goes, so goes your property interest. Harris owes Balk money. Wherever Harris goes, he subjects himself to the jurisdiction of that forum, so Mr. Balk can sue him wherever he is. So, Epstein could attach Harris, (an intangible property interest belonging to Balk) and sue for the money owed to him.
 
i.        Uses of Quasi-in-Rem:
a.       To secure a preexisting claim in the property or extinguish other claims to it
o   Examples:
–      Suit for specific performance of contract to convey real property; bill to remove cloud on title
o   Property relates to remedy and has some relationship to dispute
b.      As a substitute for in personam jurisdiction
o   Claim need not have anything to do with specific property
o   You’re concerned with a claim as with respect to the individual
o   Successful plaintiff may only recover up to the value of the property
o   Judgment has no res judicata effect
o   Less significant as jurisdictional basis after Shaffer v. Heitner
–      Court set same standard of fairness and substantial justice for all jurisdictional bases: in rem, quasi-in-rem, and in personam
 
**Full Faith and Credit Clause: a valid judgment must be enforced in all states***
 
 
Traditional Bases for Personal Jurisdiction
 
A.     Presence – Service of Process in the State
1.      Common law basis (Established in Pennoyer)
§ A state has power to exercise judicial jurisdiction over an individual who is present within its territory, whether permanently or temporarily.
§ Pennoyer v. Neff
·         State is omnipotent within its borders, and impotent outside.
o   The state has power over people and property within its boundaries — Personal service within state boundaries will always be effective.
o   Gave us the traditional bases of in personam jurisdiction
§ Presence: D served with process in the forum (GJ)
§ D’s agent is served with process in the forum
§ Domicile: D is domiciled in the forum (GJ)
§ Consent: D consents to personal jurisdiction
§ Service: functions as both notice and basis
§ Rule 4k: serving a summons or filing a waiver of service established PJ over D who:
·         Is subject to the jurisdiction of the court.
·         Is a third party defendant and served within 100 miles from the court house. This is the 100 mile bulge rule.
 
2.      Transient basis – sufficient
§ (Burnham v. Superior Ct. of CA ) – father on business and visiting kids.
·         Physical presence alone is sufficient for a state to exercise jurisdiction over a person; Due process requirements are satisfied. Continuous and systematic contacts with the forum state are not necessary. The litigation need not arise out of activities within the state.Still, there is a split if presence alone is enough or if you need presence + purposeful availment, minimum contacts/fair play and substantial justice.
o   Here, Scalia said that presence alone was sufficient for jurisdiction as tradition tells us, but Brennan said jurisdiction was good because of the presence and the purposeful availment of the privileges and protections of the forum state, not presence alone. Therefo

annot just have “presence” wherever a director is.
 
3.      Consent
§ Actual consent
·         By contract
·         Appearance
§ Involuntary or coerced consent
·         Required by statute
·         Coerced
·         Implied by law
·         Condition of doing business in a state by law (requires designation of agent for service)
4.      Doing Business
§ Corporate activity within the jurisdiction
§ Doing an act within the State (even if not authorized) Substitutes as presence within a jurisdiction
 
·         Partnership: look at presence of each individual. Partners are separate entities. If there is a partner resident in every state, there is now way of obtaining diversity of citizenship jurisdiction in Federal Court.
 
If Traditional Basis does not apply, we look at the state’s LAS
 
Statutory Inquiry: Is there a statutory basis for In Personam Jurisdiction . Every state in the union has a series of In personam Jurisdiction statutes, allows for General Jurisdiction for one who is served in the forum or domiciled in the forum. Non-resident motorists act is specific jurisdiction
 
o   Long Arm statute: goes after non-residents, for other claims. Statute authorizing out of state service under certain circumstances (allows courts of a state to have jurisdiction over a person where a traditional basis does not apply)
 
                                               i.      California type: statute reaches to the extent of the constitution.
 
                                             ii.      Laundry List Long arm: a non-resident defendant can be sued in our state on a claim that arises from her doing one of the following things in the forum or out of the forum: statute makes a laundry list
 
a.       Examples:
                                                                                                     i.      Transact business in the forum
                                                                                                   ii.      Use real property in the forum
                                                                                                 iii.      Commit a tort (if you cause a tort in the forum)
                                                                                                 iv.      Enter a contract
                                                                                                   v.      Insure a risk
b.      The language varies from state to state
                                                                                                     i.      Any business v. Substantial Business
c.       Same language can be interpreted in many ways.