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Civil Procedure II
UMKC School of Law
Berman, Jeffrey B.

Civil Procedure II, Berman, Fall 2012
 
Personal Jurisdiction
 
A.    Federal or State Court? If the case in state court, the limits on STATE COURT jurisdiction applyàproceed to PART B. If the case is in FEDERAL COURT, Rules 4(k) and 12 must be consulted.
                                                              i.      Possible Waiver? Consult Rule 12—FRCP Rule 12 requires Ds to raise any challenge to personal jurisdiction in their initial response or the challenge is waived. Thus, it is critical at this point to determine whether the D has waived a personal jurisdiction challenge by failing to raise it initially. If so, personal jurisdiction is appropriate.
                                                            ii.      Rule 4(k)—does the general rule of 4(k)(1)(A) (self imposed limitation on service of process on D—in general, serving a summons or filing a waiver of service establishes personal jurisdiction over a D who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located) apply or is there an alternate applicable provision for establishing jurisdiction? If one of the alternate provisions applies, then compliance with 4(k)(1)(A)—which incorporates states’ standards of personal jurisdiction—will be unnecessary. Possible options under 4(k) to consider:
1.      100 Mile Bulge Rule = is the party one that was joined under Rule 14 (third party impleader—may be liable to the P) or 19 (required joinder if feasible) and served within a judicial district not more than 100 miles from the place where the summons was issued?
a.       YES = jursidction cn be established under Rule 4(k)(1)(B).
b.      NO = proceed to the next question.
2.      Federal Statutory Provision = is there a federal statute involved here that has its own service provisions, compliance with which would establish personal jurisdiction?
a.       YES = jurisdiction can be established under Rule 4(k)(1)( C ) by complying with the special service provision.
b.      NO = proceed to the next question.
3.      Alien Provision = is this calim arising under federal law against a person not subject to personal jurisdiction in ANY state?
a.       YES = service wil render the D subject to personal jurisdiction if it has minimum contacts with the US Rule 4(k)(2). Proceed to the constitutional analysis below in PART C but analyze minimum contacts with reference to the US as a whole rather than as a particular sate.
4.      Rule 4(k)(1)(A) = if none of these alternative provisions of Rule 4(k) apply, you will have to follow Rule 4(k)(1)(A), which requires you to determine whether the D could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located. Refer to analysis beginning at PART B of this checklist to make this determination.
B.     Long Arm Statute—does the state’s long arm statute authorize personal jurisdiction under these facts?
                                                              i.      Type of Long Arm Statute—what type of long arm statute does the forum state have?
1.      Rhode Island Model = authorizes courts to exercise jurisdiction to the constitutional limit. If this type of statue is involved, no further statutory analysis is required and you may proceed to the constitutional analysis beginning at PART C.
2.      Enumerated Act Model = specifically articulates factual circumstances where courts can exercise personal jurisdiction. If this type of statute is involved, proceed to the next question.
                                                            ii.      Statutory Analysis = do the facts presented fall within one of the categories articulated in the long arm statute?
1.      YES = proceed to the constitutional analysis of PART C.
2.      NO = personal jurisdiction CANT be exercised over the party. Analysis ENDS HERE.
C.    Constitutional Analysis—does the assertion of jurisdiction satisfy the requirements of due process?
                                                              i.      Traditional Bases for Personal Jurisdiction—is one of the traditional bases for personal jurisdiction applicable?
1.      In State Service = was the D an individual real person served with process within the state?
a.       YES = jurisdiction is proper (Burnham v. Superior Court)
b.      Procured by FRAUD = if the D’s in-state presence is procured by fraud, jurisdiction MAY NOT be proper (Wyman v. Newhouse)
2.      Voluntary Appearance—has the D voluntarily appeared and proceeded to defend itself in the action without challenging personal jurisdiction?
a.       YES = personal jurisdiction over the D is constitutional
                                                            ii.      Exceptions to Jurisdictional Analysis—if no traditional basis for personal jurisdiction is present, does an exception to traditional jurisdiction analysis apply? YES = personal jurisdiction is constitutional. NO = proceed with International Shoe analysis of PART C(iii).
1.      Consent –did the D expressly consent to jurisdiction in the state, for example, through an applicable forum selection clause (Carnival Cruise v. Shute—holding that forum selection clauses are generally enforceable).
2.      State Citizens–is the party challenging personal jurisdiction an individual real person who is a citizen of the forum?
a.       YES = forum courts may exercise personal jurisdiction over that party as a state citizen (Miliken v. Meyer)
                                                                                                                                      i.      DO NOT USE THIS FOR CORPORATIONS
3.      Non-resident Plaintiffs–is the party challenging personal jurisdiction the original P in the action?
a.       YES = the party has already consented to jurisdiction by choosing to bring the action in the forum (Adam v. Saenger).
4.      Estoppel—is the D estopped from challenging jurisdiction for some reason? (Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee—finding the D estopped from challenging jurisdiction because of the D’s refusal to cooperate with jurisdictional discovery orders)
                                                          iii.      International Shoe Test—if none of the above exceptions applies, then you must ask, does the assertion of jurisdiction satisfy the standard of International Shoe?
1.      In Rem actions—is this an action in rem?
a.       YES = if so, Shaffer v. Heitner has indicated that such actions will generally meet the minimum contacts standard (isolated but directly related contacts that warrant jurisdiction International Shoe).
b.      NO = proceed to next question.
2.      Four Position Matrix
 
 
NATURE OF CONTACTS
RELATED
UNRELATED
Continuous & Systemic
Jurisdiction
GENERAL JURISDICTION if contacts are “substantial.”
Isolated & Sporadic
SPECIFIC JURISDICTION if purposeful availment and reasonableness requirements satisfied
 
 
No Jurisdiction
 
 
 
 
 
 
 
 
 
 
 
 
a.       Continuous & Systematic and Related = personal jurisdiction is appropriate (Keeton v. Hustler Magazine)
b.      Continuous & Systematic but Unrelated = possible situation permitting general jurisdiction, such as when a corporate headquarters is within the forum state or the corporation is incorporated there. Ask whether the contacts can be described as “substantial” and compare them with the contacts in the following two cases:
                                                                                                                                i.            Perkins v. Benguet Consol. Mining Co. provides the general jurisdiction standard and illustrates facts sufficient to support a finding of general jurisdiction (corporate headquarters-level activity in the forum state).  See also Goodyear Dunlop Tires v. Brown (holding that general jurisdiction is appropriate in a “place in which the corporation is fairly regarded at home.”)
                                                                                                                              ii.            Helicopteros v. H

hat depends upon the facts.
a.       Burden on the D—would the inconvenience to the D be constitutionally burdensome, meaning it would impact the D’s ability to mount a defense?
                                                                                                                                      i.      YES = weigh against reasonableness
b.      State Interest—does the state have a strong interest in resolving the dispute? The state’s interest is greater where its laws or policies are at stake, or where state citizens or corporations are involved.
                                                                                                                                      i.      YES = weighs in favor of reasonableness
c.       P Interest—does the P have a strong interest in obtaining relief in the forum state? For example, is the P from the forum state or is the forum state a place where the P is able to obtain the relief it seeks?
                                                                                                                                      i.      YES = weighs in favor of reasonableness
d.      Systemic Efficiency—would jurisdiction promote the interstate judicial system’s interest in efficient resolution of controversies? For example, would the case be most efficiently tried in the forum state because the witnesses and evidence are located there?
e.       Furtherance of Social Policies—would jurisdiction promote the shred interest of the States in furthering fundamental substantive social policies? For example, are the substantive policy interests of the forum state at stake or are the policy interests of some other jurisdiction at stake in the case?
 
Notice
 
D.    Notice—was adequate notice given to the D? Was notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections? (Mullane v. Central Hanover Bank & Trust Co.) To make this determination, consider the following questions:
                                                              i.      Adequate Information—does the notice convey sufficient information to notify the party of how and by when it should respond?
1.      YES = proceed to the next question
2.      NO = notice is inadequate
                                                            ii.      Timeliness—does the notice allow reasonable time to appear?
1.      YES = proceed to the next question
2.      NO = notice is inadequate
                                                          iii.      Method—is the method of giving notice a method that “one desirous of actually informing the party might reasonably adopt” to achieve actual notice? To answer this question, ask, “Was the most reasonable means available employed?”
1.      YES = where a superior method exists but is too expensive, time consuming, or burdensome, then it need not be employed over more practical methods under Mullane. The notice given to the D was adequate.
2.      NO = if there is a better means that is available and reasonably practical, then it should be employed. This includes follow-up attempts to provide notice after discovering that notice has failed. (Jones v. Flowers).