Select Page

Civil Procedure II
UMKC School of Law
Achtenberg, David Jacks

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

XI.

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

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

D.
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

D.

E.
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

D.
Insurance Corporation of Ireland v. Compagnie Des Bauxites De Guinee (1982) 27
A.
B. Status Jurisdiction 24
C. Domicile 25
D. Consent 26
Pennoyer gave us an outline 24
A. Von Marin & Troutman coin the phrases General and Specific Jurisdiction 22
B. Specific Jurisdiction: Relationship between the dispute and contacts with the state 22
C. General Jurisdiction: Jurisdiction regardless of the relationship between the dispute contacts with the state 22

D.

E.
F. Review of Specific Jurisdiction Test (See International Shoe) 23
G. General Jurisdiction Test 23

H.
I. Bringing the cases together 24
Helicopteros Nacionales de Columbia, S.A. v. Hall (1984) 23 Burnham is about General Jurisdiction for individuals (according to Scalia) 23 Helicopteros is the ONLY recent Supreme Court case that deals with General Jurisdiction as to corporations 22
A. What about the other possibilities for acquiring personal jurisdiction? 21
B. See the list in the Study Guide 21
C. In-Rem Jurisdiction Quick Quiz (pg. 19) 21

A.
B. How would Gray be answered today? 20

C.
Shaffer v. Heitner (1977) 20 Asahi Metal Industry Co. v. Superior Court (1987) 19
A. Tendency to read cases too broadly – especially Calder. 18
B. Also Burger King read too broadly 18

C.
Asahi 18
A. Kinds of Statutes 16

B.

C.

D.
Burger King 18 Keeton is best explained by: 18 Gray v. American Radiator & Standard Sanitary Corp. 17
A. Power of state court of individual is derived from the U.S. Constitution. 16

B.
C. If a
D. Regardless of the type of long-arm statute, courts often interpret those statutes to reach to the limits of due process. 16
E. Personal jurisdiction is irrelevant in federal courts 16
International Shoe rejected the territorial basis of jurisdiction 16
A. States didn’t like the restrictiveness of Pennoyer and its progeny 16
B. States respond with “long-arm statutes”, that extended jurisdiction outside of the state (at least nationally) 16
C. Two different kinds of statutes 16

A.

B.
Hanson v. Denckla (1958) 15 McGee v. International Life Ins. Co. (1957) 15
A. Washington resident bough IS shoes at a shoe store in Seattle and is injured due to a defect. Can the resident shoe IS in Washington? 14
B. Oregon resident buys IS shoes in Washington, takes them home to Oregon, and is injured in Oregon by a defect in the shoes. 14
C. Wash. resident visits St. Louis and buys shoes there, takes them home to Wash. and is injured there. Can she sue in Wash.? 15
D. Oregon retailer meets IS agent in Seattle and buys 100 pairs of shoes to be delivered in Oregon. Customer discovers a defect and returns a pair of shoes. Can retailer sue in Oregon? 15

A. Statutory Basis 13
B. Constitutional Basis 13
C. Notice 14
D. Venue 14

A. Quality and Content of Contact (Contacts) 13
B. Relationship of Contact to the Conduct sued upon (Relatedness) 13
C. Bounded by “Traditional Notions of Fair Play and Substantial Justice” 13
International Shoe 12
A. State of Washington was suing I.S. for back payments of unemployment compensation taxes 12
B. I.S. is a Delaware Corp. with Corporate Headquarters in St. Louis, MO 12
C. Issue: Does State of Washington have personal jurisdiction over International Shoe? 12

D.
E. In IS, what’s the outcome (Justice Stone’s opinion) 13
Pennoyer analysis 12
A. The rules don’t necessarily support the rationale 11
B. The exceptions stretched the Pennoyer rule to an ad absurdum extent 12
C. What do you do with corporations? 12

A.
B. Must secure jurisdiction through the method that will bring about the desired result. 11
C. Hierarchy 11
D. Paula’s Jurisdiction Problem (Detailed Analysis) 11
E. Fraudulent Inducement into the Forum 11
Pennoyer – based on presence (keep in mind the notion of seizure) 11
A. Parties 10
B. Location 10
C. Where can she sue? 10

A. Choice of Laws – Multiple inconsistent liabilities in different states (though the courts try to say this isn’t the case) 9
B. Fairness to non-resident defendants 9
C. State Sovereignty 10

A. Notice 9
B. Statutory basis for jurisdiction 9
C. Constitutional Exercise of jurisdiction (within Constitutional boundaries) (Pennoyer) 9
D. Venue 9

A. What are the rules we’re left with? 9
B. When can a court exercise personal jurisdiction over a defendant? 9

A. Background 8
B. Neff’s Argument 8
C. The Supreme Court standard from Pennoyer 8

A. What does a court need to have in order to subject an individual to its power? 7
B. Notice (Procedural due process) 7
C. Notice as constructive seizure 7
D. Basics of seizure in Pennoyer 8
E. Service of process serves two purposes 8
D consents, no statutory basis for jurisdiction is necessary 16àDifferent territories fighting over a person 44àUsually the state and federal courts fighting over who has to hear the case. 44à The fight is between courts over which court has power to prevent another court from hearing a case/argument. 44
What are we studying in Civ Pro II?

Power (of the courts)

What are the limits on a court’s power?
Especially, how is that power distributed among courts?

Four Subjects

Personal Jurisdiction & Venue – about ½ of the course

Power of the courts over individuals
Especially focused on state courts’ power over individuals
Example

Car accident while on vacation
Which court has the authority to hear the case that arises from that accident – your home state, the other guy’s home state, the s

ome idea that implied consent statutes must be limited to “dangerous instrumentalities/vehicles”.
Quasi-in-rem (personam type) – you can’t find them to serve them personally

Any state where they own property – there’s no need for the property to be connected to the accident/incident.
BUT, you haven’t seized the person, you’ve seized the property. So you have Quasi-in-rem jurisdiction.
Recovery limited to the value of the property seized (and if she wins less than the value of the property,

Fraudulent Inducement into the Forum

You make up a falsehood to “trick” the person to come into the jurisdiction for service
Also called “Immunity from Service” – varies from state-to-state. Some states provide immunity from service for a person who comes into the jurisdiction to appear in another lawsuit or as a witness under subpoena.
– based on presence (keep in mind the notion of seizure)
Problems with Pennoyer

The rules don’t necessarily support the rationale

Fairness to the Defendant
State Sovereignty
Sometimes jurisdictional rules are in conflict with the rationales from Pennoyer.

Implied consent may protect state sovereignty, but isn’t necessarily fair to

The exceptions stretched the Pennoyer rule to an ad absurdum extent

Harris v. Balk
Flying over a state in an airplane conferred physical present
Consent stretched to include implied-at-law consent

Hess v. Pawloski
Conduct was especially dangerous – automobiles
Limited by state’s power to regulate its highways
– limited to proceedings growing out of accidents or collisions on a highway in which the non-resident may be involved. on presence of property
What do you do with corporations?

Initially, under Pennoyer, corporations were considered present in its state of incorporation
Some court said that corporate agents (officers & directors) could establish presence in a state when they were in that state for a corporate business purpose
In-rem – That’s an easy one, but recovery is limited
Statutory Implied Consent, through Registered Agent statutes (on a state-by-state basis) – problem with the “doing business in a state” part of the analysis.

International Shoe

The International Shoe Test (Minimum Contacts Analysis)

Quality and Content of Contact (Contacts)

Systematic and Continuous contacts with the forum state are probably enough
Occasional or singular acts are probably not enough

Relationship of Contact to the Conduct sued upon (Relatedness)

Occasional unrelated contacts are not enough
Continuous unrelated contacts may be enough
Occasional related contact may be enough

Bounded by “Traditional Notions of Fair Play and Substantial Justice”

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

Statutory Basis
Constitutional Basis

Presence (Pennoyer)

Person
Property
Status

Consent

Express (as from a contract)
Implied

Showing up and defending
From a statute (like the auto driver consent)

Domicile?
“Minimum Contacts” (International Shoe)

Who
What
When – at the time of the cause of action (some sort of relatedness to the cause of action)
Where – Still a territorial conext
Why
How Much
Related to the cause of action – these contacts count more
“Fair play & substantial justice”

Some commentators say that this is simply an empty phrase – a toothless test.
Notice and other fairness to the defendant
State’s interests (peculiar interest of state law), balanced against whether the state would want its citizens exposed to similar jurisdiction in other states.
Unreasonable and burdensome to enter the forum state to defend itself (HUGE expense, unavailability of witnesses – based on
Breadth of jurisdictional reach
Risk allocation – how forseeable was it to the
How much benefit does the
What is the burden on the plaintiff of pursuing the case in another jurisdiction? (This may be the only place where we actually look at the plaintiff’s interests).

State of Washington was suing I.S. for back payments of unemployment compensation taxes
I.S. is a Delaware Corp. with Corporate Headquarters in St. Louis, MO
Issue: Does State of Washington have personal jurisdiction over International Shoe?

Pennoyer

Is the corporation “present”? Probably not, the company doesn’t have any officers/directors/place of business in Washington.
Other ways to get to IS in Washington

Quasi In-Rem (in personam) jurisdiction over IS property (inventory) in Washington. (But the sales agents only have one shoe of each pair). Orders were shipped directly to the customers. Limited to recovery equal to the value of the unmatched pairs of shoes.
Quasi In-Rem (in personam) by attaching uncollected accounts payable (Harris v. Balk), but relies on a state statute that recognizes that debt exists at the place of the debtor.

Consent
Actual – No indication that IS did this.
Implied – maybe through the laws of Washington to the sales reps as agents of IS or by showing up and defending. IS DID show up and defend (arguing that jurisdiction didn’t exist). They showed up to defend the jurisdiction issue, which does not imply consent to jurisdiction on the overriding matter (because you have to raise it up front or forever lose it). (Fed. Rule Civ. Pro. 12h).

In IS, what’s the outcome (Justice Stone’s opinion)

Minimum Contacts – “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
What’s the effect of International Shoe on Pennoyer? IS appears to expand Pennoyer (see pg. 688-9 & 690). The presence/seizure part of Pennoyer is added to – if defendant is present, may not even need to get to the IS contacts test. Territorial/sovereignty holding remains good law. The “presence” issue remains unsettled law.
analysis
How does this fit into the test as a whole