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Civil Procedure II
UMKC School of Law
Klonoff, Robert

I. What are we studying in Civ Pro II? 7

II. Personal Jurisdiction 7

III. The Pennoyer Case and Personal Jurisdiction 8

IV. Personal Jurisdiction Immediately After Pennoyer 9

V. When can a court exercise power over a person? 9

VI. Why have Constitutional limits to jurisdiction? 9

VII. Types of Jurisdiction Table 10
VIII. Paula’s Jurisdiction Problem 10

IX. Personal Jurisdiction under Pennoyer and its progeny 11

X. Problems with Pennoyer 11


XII. The International Shoe Test (Minimum Contacts Analysis) 13

XIII. Review of Bases for Jurisdiction (Note: ALL must be met) 13

XIV. Personal Jurisdiction under International Shoe Hypotheticals 14

XV. Progeny of International Shoe 15

XVI. States respond statutorily 16

XVII. In-Class Quiz Review 16

XVIII. Statutes Providing for Personal Jurisdiction 16

XIX. Review to this point 18

XX. Modern Minimum Contacts Analysis 19

XXI. Analysis after Minimum Contacts 21

XXII. Intro to General Jurisdiction 22

XXIII. Filling in the gaps 24

XXIV. Bases for Consent to Personal Jurisdiction 26

XXV. Drafting Jurisdictional Documents 28

XXVI. Service of Process 30

XXVII. Venue 30

XXVIII. Changing Venue 32

XXIX. Venue Example – Piper Aircraft Co. v. Reyno (1981) 35

XXX. Subject Matter Jurisdiction 38

XXXI. Personal Jurisdiction vs. Subject Matter Jurisdiction 39

XXXII. Federal Question Jurisdiction 40

XXXIII. Federal Supplemental Jurisdiction (§ 1367) 43

XXXIV. Summary of Power Issues in Civil Procedure 44

XXXV. Introduction to Preclusion 44

XXXVI. Terminology of Preclusion 45

XXXVII. Res Judicata/Claim Preclusion 45

XXXVIII. Why have Claim Preclusion? 46

XXXIX. Details of Claim Preclusion 47

XL. Details of Issue Preclusion 49

XLI. Erie Doctrine 50

Property (in rem or quasi in rem)

A. Whatever court you’re in, you apply that court’s procedural rules 50
B. What substantive law do you apply? 50
C. 95% of the time it’s pretty easy to tell whether something is procedural or substantive. 51

A. Requirements 49
B. See Restatement of Judgements § 27 49
C. If the requirements are met, the party is bound by the decisions made in that first lawsuit (even when there are new parties). Not just the identical party, but also a party virtually represented and even successors in interest. 49
D. NOTE: “Fairness” is always lurking in the back of the considerations and may even overcome all of the “black letter” rules. 49
E. Preclusion Examples 49

A. Final Judgement – when is it final? 47
B. Validity Issues – State court enters judgement on a RICO claim (despite that the state court doesn’t have SM Jurisdiction). If the court hearing the claim and entering judgement doesn’t have jurisdiction, the 47
B. judgement is not valid (and therefore in this case a federal claim is not precluded). 48
C. Same Claim – is a federal RICO claim the “same claim” as a state Consumer Fraud Claim? 48
D. Same Parties – Plaintiff is suing for law firm’s fraudulent billing. 48
E. Decided “On the Merits” 48
F. Available 48

A. It can seem really unfair. Consider: 46
B. Policy 46
C. Exceptions to the General Rules – see page 35 of the class handouts 47

A. Basic understanding – “the thing has been decided” 45
B. Goal is to avoid “claim splitting” 45
C. Usually based on something that DIDN’T happen 45
D. Essentially, you can’t make the same claim twice. Remember that same claim is a rather broad term. 46
E. Merger – When plaintiff wins a judgement, and then tries to bring another action based on the same claim, the claim is said to have been “merged” with the previous judgement. 46
F. Bar – Same as above, but where defendant wins. 46
G. Elements of Res Judicata 46

A. Older terminology 45
B. New Terminology (from Restatement of Judgements) 45
C. Sometimes, the term “Res Judicata” is used to refer to the entire field of preclusion 45

A. How might a party be told that an argument may not be made? 44
B. Waiver is generally defined as the intentional relinquishment of a known right 45
C. Estoppel (Essentially a form of waiver) 45
D. Sanctions 45

A. Personal jurisdiction is about power over a person.
B. Subject matter jurisdiction is about power of a category of cases.
C. Preclusion is also a power fight, between courts.

A. Supplemental Jurisdiction requires that you have AT LEAST ONE claim that meets the Federal Subject Matter Jurisdiction test. 43
B. Each claim must have a basis for subject matter jurisdiction 43
C. Supplemental Jurisdiction may bring jurisdiction over claims that are so related to claims over which Federal Jurisdiction does exist such that they amount to the “same case or controversy”. 43

E. § 1367(b) 44
F. § 1367(c) 44
United Mine Workers v. Gibbs (1966) 43
A. Statutes that create Federal Subject Matter Jurisdiction 40
B. Definitions of “arising under” in § 1331 41
C. What does the Constitution say about Federal Court jurisdiction in this regard? 41


F. Hierarchy of Analysis of Federal Question Jurisdiction 42
G. Policies involved in Federal Question Jurisdiction 42
Merrell Dow Case 42 Mottley Case 41
A. Personal Jurisdiction can be waived so, even if there are problems with PJ and/or Venue, any judgement by the court is still good. 39
B. Subject Matter Jurisdiction is not waivable. If the court doesn’t have SJ, any judgement issued by the court is worthless. 39
C. PJ is waived if not raised at the first opportunity. 39
D. SJ is the MOST FAVORED defense and it is NEVER WAIVED. (And the statute of limitations continues to run while the case is making its way through various courts and appeals). 39
E. SJ can (and should) be raised by the judge if the court doesn’t have SJ. 40
F. Diversity of Citizenship 40
G. Determining Corporate Citizenship 40

A. Kinds of Courts 38
B. Dividing Up Jurisdiction 38
C. Subject Matter jurisdiction is the power of the court to hear a claim 38
D. Subject Matter Jurisdiction issues must be considered FIRST – the court has to decide if it has power of the case AT ALL before considering whether the court has personal jurisdiction over particular parties. 39
E. Limited Jurisdiction – Federal trial level courts’ subject matter jurisdiction as set statutorily/constitutionally 39

A. Plaintiff is the legal secretary of the attorney bringing the case, who was appointed administratrix of the estate of the people killed in Scotland in the plane crash that is the subject of the lawsuit. The secretary is a California resident. 35
B. They’re suing the airplane maker and the propeller makers 35
C. Suit was filed in negligence and products liability (strict liability). This likely had a lot to do with the reason for choosing to file in California – they’re in the forefront of the development of products liability. 36
D. Court has personal jurisdiction over the plaintiff due to consent – the plaintiff chose that jurisdiction in the first place. Raises an interesting question as to whether that also implies consent to unrelated counter-claims. 36
E. Personal jurisdiction over Piper 36
F. Personal Jurisdiction over Hartzell 36
G. Venue 36
H. Speculative Question – Who else might you have sued, if you were the plaintiff? 37
I. What did Piper say? 37
J. Venue – the removal was to the District Court for the Central District of California (would have been the venue if it was brought there in the first place). 37
K. In Pennsylvania, Piper and Hartzell raise forum non conveniens 37

A. What if we’ve found a venue, but it’s not particularly convenient. 32
B. Plaintiff decides to file in KC, but defendant thinks its either inconvenient or improper. 32
C. Changing Courts 32
D. Removal 34

A. What separates venue from the other considerations? 30
B. In Missouri (Federal Courts) 31
C. Missouri State Courts 31
D. State Venue Rule – “Local Action Rule” 31
E. Federal Venue Rules – § 1391 31
F. All the appropriate venues for this action: 32

A. What about due process in federal courts? See Rule 4k2. It is unclear whether this is Constitutionally OK. There are limits on Federal Courts, which are measured by the 5th Amendment. 5th Amendment rights may differ somewhat from 14th Amendment rights. This particular provision is part of the new revision of the Rules, and three different approaches have been taken: 30
B. Effect of mailing service of process has no effect on the Statute of Limitations. It’s filing the complaint that commences the lawsuit. 30
C. What tolls the statute of limitations varies under state law. Some say it’s tolled by the complaint, some say it’s tolled by service of process, some say both. Note that just mailing the waiver is NOT service. Follow the rule of the state in which you’re sitting if it’s a diversity action. 30

A. Must you plead jurisdictional facts? 28
B. What papers are you going to serve on a defendant along with your complaint? 28
C. How would jurisdiction get raised if not mentioned in the petition? 28
D. Motion to Dismiss v. Default & Collateral Attack 29
E. Service of Process 29

A. Actual Consent 26
B. Appearance 26
C. Statutorily Implied 26

Insurance Corporation of Ireland v. Compagnie Des Bauxites De Guinee (1982) 27
B. Status Jurisdiction 24
C. Domicile 25
D. Consent 26
Pennoyer gave us an outline 24
A. Von Marin & Troutman coin the phr

by a later court after a decision has been entered in a previous court

Choice of Laws/Conflict of Laws (one doctrine of many)

We’ll look at Federal Court only
Which law do you apply when you’re in Federal Court? Do you use Federal Law or a state’s law? (Erie Doctrine).

Practical Implications – you need to know the answer to all four of these questions before filing any litigation.
When we’re looking at Personal Jurisdiction, we’ll really be focusing on the development of the law – an attempt to see the development of the law so that we can predict where the law in this area is headed.

Personal Jurisdiction

What does a court need to have in order to subject an individual to its power?
Notice (Procedural due process)

Statutory basis for jurisdiction – court’s authority is limited, and conferred by the legislature of each state.
Constitutional Basis – the exercise of jurisdiction by state courts is further limited by the US Constitution.
Proper Venue – Which court within the jurisdiction has authority to hear the case?

Notice as constructive seizure

Used to be that the sheriff of the county would go and arrest (seize) anyone against whom a suit was filed. (capias ad respondendum).
Now, service of process serves as a symbol of personal seizure. Therefore, in at least some cases, service is only effective where seizure COULD HAVE taken place.

Basics of seizure in Pennoyer
Couldn’t seize him personally. How could they have asserted jurisdiction?

Seizure of property.

Historically, courts asserted power by seizing either the person or the property (or both).
Seizure of the property could affect only the disposition of that property. (Often called “attachment”).

Service of process serves two purposes

Basis for exercising power

The Pennoyer Case and Personal Jurisdiction


1st Case

Oregon State Court and was Mitchell v. Neff
Neff served by publication, didn’t show, and default judgement was granted

2nd Case

Mitchell moved to enforce the judgement
Mitchell forced a sheriff’s sale, where land was purchased by Pennoyer

3rd Case

Federal Court
Neff sued Pennoyer, saying essentially, “give me my land back.”

Neff’s Argument

Can’t sell what you can’t own, and Mitchell COULDN’T own Neff’s Land
The enforcement of the judgement was void, so Mitchell couldn’t sell to Pennoyer. Pennoyer’s title was therefore void.
Why was the judgement void?

No notice
EVEN IF there was notice, the property was not attached (b/c it wasn’t attached when the original lawsuit was brought) – the affadavit that purports to attach the property is insufficient because it didn’t describe any particular piece of property (as required by the statute).
EVEN IF the affadavit was valid, there was no seizure of person or property IN THE STATE. Seizure of person or property must be seizure IN THE STATE which is attempting to exercise jurisdiction. It’s about territory.

The Supreme Court standard from Pennoyer
A state court has power within its own territory
Each state has that power, and the limits of that power extend only to the borders of the state.

Personal Jurisdiction Immediately After Pennoyer

What are the rules we’re left with?
When can a court exercise personal jurisdiction over a defendant?

Present in the state

Person (in personam), or

A. Power (of the courts) 7
B. Four Subjects 7
C. Practical Implications – you need to know the answer to all four of these questions before filing any litigation. 7
D. When we’re looking at Personal Jurisdiction, we’ll really be focusing on the development of the law – an attempt to see the development of the law so that we can predict where the law in this area is headed. 7