Domicile = intent + Physical presence
§ Domicile has significant implications in jurisdiction and choice of law
§ PRESENCE: actual bodily presence in the county or place
§ Need not be for a specified duration
§ Cannot be dispensed with no matter how good evidence of intent: +
§ INTENT: the freely exercised intention of remaining there permanently or for an indefinite time =
§ a domicile retained until a new domicile has been actually acquired
§ MAXIM: person has one and only one domicile at a time “at least for the same purpose”
§ Three Types:
§ Domicile of Origin (§ 14)
§ Domicile of Choice (§ 15)
§ Domicile by Operation of Law – is that domicile which the law attributes to a person independent of his own intention or action of residence.
§ Residence is a weaker connecting factor than domicile because it does not require an intention to make a relatively permanent home.
§ Derivative Domicile: determined by the relevant intent of another.
§ Example: A child’s domicile is that of her parents, or the parent with which she lives.
§ Intent verses Motive:
§ The focus is on intent, not motive
§ Motive is not entirely irrelevant because it may supply evidence of intent
§ CASES:
§ Tenant (W.V.)(Family Farm case that had property in both West Virginia and Pennsylvania. White was in the process of moving to Penn., but went back to W.V. to tend to his wife (locked the house door in Penn. before he left). However, he became ill and died in W.V.)
Holding: The court ruled that he went to his house to visit his former domicile, not to make a new one. The one that existed was in Penn. not W.V. It follows, therefore, that the Pennsylvania house remained his domicile up to and at the time of his death; and the laws of that state must control distribution of his personal estate.
§ In re Jones’ Estate (IA)(Jones came to America from Wales, lived in Iowa, worked and started a family. His wife died, and decided to go back to Wales. On the way back his ship sank and he died before reaching Wales)
§ Holding: Because he had not yet reached Wales, his domicile was still Iowa. It therefore follows that the domicile of decedent was in Iowa until a new domicile had been actually acquired in Wales. No such domicile having been acquired, at the time of his death, his personal estate must be administered according to the laws of Iowa.
§ Taubman (1918)(Mo. Ct. App.) (Mrs. Taubman grew up in Kirksville, got married and moved to Lexington, left her husband and Lexington to return to Kirksvill with the intention to never return to Lexington, but bringing no personal items. After being in Kirksville for some time, brought suit against husband for a divorce).
§ Holding: We are therefore of the opinion that nothing, in law, forbade or prevented Mrs. Taubman from creating a separate domicile in Kirksville which would confer upon the circuit court the jurisdiction or power to entertain and hear her petition for divorce.
§ In re Estate of Toler (Mo)(Toler was born in MO. but did his education and worked throughout the country. He paid taxes in both Louisiana and MO., most likely for his benefit, but was registered to vote in LA. and died in this state, but not before marring a woman and establishing an intent to remain in LA.)
§ Importance: While physical presence is required, it is not necessarily essential that there be established a home, in the generally accepted meaning of that term, in a particular building. “Thus where a man, never settling down in one place, lives at hotels or clubs in a certain place, he may nevertheless acquire a domicile there.”
§ Holding: he established a regular dwelling-place in Louisiana which he intended to constitute his true, fixed and permanent home; that he intended to remain there for an indefinite time; and that he clearly had no intention of returning to MO. on the basis that it constituted his place of abode.
§ Reardon v, Mueller (Mo. Ct. App.)(Political case where Mueller bought a house in the 1st ward, but was elected to represent 21st, all because Mueller believed that since he had an apartment there, that he never used, that was his domicile.
§ Holding: The court rejected several of the counsel’s contention, Holding that Mueller was not a resident of the 21st ward.
Jurisdiction to Adjudicate/JUrisdiction of courts
Bases for Jurisdiction to Adjudicate
Traditional Method
§ An Individual Person Is Served Through 3 Modes:
o Personal Service within the state
§ Oldest and most common way of acquiring jurisdiction
o Domicile has two types of jurisdiction:
§ Basis for general jurisdiction
· A defendant can be sued in his domicile upon any cause of action no matter where it arises.
o Factors:
§ Fairness
§ Fair-play and substantial justice
§ Reciprocal rights and duties of the citizens and the state.
§ Necessity
§ Basis for specific jurisdiction
· The time to measure specific jurisdiction is when the claim arose. Many state long-arm statutes use domicile as a basis for specific jurisdiction.
o Consent – Three ways:
§ General Appearance: Appearing before the jurisdiction of the court
§ Special Appearance: A less risky maneuver than default or collateral attack by the defendant. It relates to when the defendant appears for the purpose of litigating the court’s jurisdiction without making a general appearance on the claim.
§ Consent:
· Statutory: Consenting in advance (May be in the form of a document nominating a particular state official or private person as his agent to accept service of process
· Contractual: Where a contract may stipulate that if an issue arises, that the matter will be tried in a particular state.
§ Jurisdiction over Corporations
o Domestic Corporations
§ Restrictive Territorial Theory: there were ample bases upon which to exercise jurisdiction over the domestic corporation
§ Consent Theory: The state can require the corporation’s consent to the jurisdiction of the state’s courts
§ Jurisdictional Theory: Incorporation within the state remains a constitutionally adequate basis for jurisdiction over the corporation.
· Must be consist of “fair play” and substantial justice”
§ place of incorporation
o Foreign Corporations: Most states have a condition that foreign, outside the state corporations consent to the jurisdiction of that state’s courts.
§ Are incorporated through state’s long-arm statutes.
§ “Doing Business Statute”
§ 2nd RE: of Tort’s
· Must be “so continuous and substantial” that exercise over jurisdiction is “reasonable”
o Parents and Subsidiaries
§ If the parent so controls the subsidiary that its separate legal existence is a mere fiction, courts will “pierce the corporate veil.” Even if not the case, jurisdiction may still be available on an agency theory
o Partnerships and Unincorporated Associations
§ Now most states have statutes that permit a partnership or association to be sued in its own name based on its activities in the forum.
STATE LONG-ARM STATUTES: FORMS
o California Style
§ A court may exercise jurisdiction on any basis that is consistent with the Constitution of the state or the United States. Tells courts to exercise jurisdiction to the fullest extent possible without violating the Due Process Clause
· The court can pass directly to the constitutional question
· May be seen as too vague.
o Enumerated Acts Style
§ Most states have enacted more specific statutes that restrict jurisdiction to certain kinds of cases.
· The court must first determine if the case fits into one of the specified categories.
FEDERAL LONG-ARM STATUTES
o The power to confer territorial jurisdiction comes from the 5th Amendment, not 14th, and requires defendant to have minimum contacts with U.S. as a whole, rather than with forum state.
§ Must consist of “fair play and substantial justice”
o The notice provisions of rule 4(k) permit service on or solicitation of a waiver of service from defendant anywhere in the world.
§ Over the defendant who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located.
§ Over defendant when authorized by a federal statute.
§ Provides for jurisdiction in cases “arising under federal law over defendants not subject to personal jurisdiction in any state court.
§ CASES
o Hollier (Mo) (Strawn, a MO. resident, was injured in a fall in a K-Mart store in Colorado. K-Mart is incorporated in Michigan and is registered to conduct business in MO.. K-Mart was severed in MO., to have MO. law apply – K-Mart contend MO., through their long-arm statute, does not have personal jurisdiction)
§ Holding: International Shoe shifted the focus of jurisdictional inquiry from, “is the defendant there?” to “is it fair?” Court decided not to apply long-arm statute analysis, Holding that K-Mart was a foreign corporation that had substantial and continuous business in MO..
Constitutional Limits on Jurisdiction to Adjudicate
Notice
§ Relation of Notice to Jurisdictional Basis
o Due Process Clause requir
bargain over the place and manner in which their disputes will be resolved.
§ Can be used in consumer contracts, where if something happens, the parties consent to jurisdiction in a particular state.
§ Goes further to bind the parties to litigate only in a particular forum.
§ CASES
o Reichard (MO)(Frederick signed a life insurance policy that said if any disputes, the action will arise out of New York. When Frederick died, the insurance co. said he violated the policy, by signing it while drunk, and that his wife could not recover and could not sue in a MO. court).
§ Holding: Because the agent was not incorporated within the state, and because the agent did not file with the clerk of the county certain documents pertaining to his business, the forum selection clause was null and void due to public policy.
o Gooseneck Trailer (MO) (A business out of MO. and a business out of Texas entered into a contract agreement, stating that the venue would be a county in Texas. Williams filed suit in MO., and the other business said Texas was the correct venue).
§ Holding: Although forum-selection clauses were disfavored by the courts, several courts decided they were applicable. But this court was not ready to side with the changing times, and held that it would not prejudice both parties to have the trial in MO.
o Hess (MO) (Marlo and a plumber entered into an agreement that all disputes will be resolved in Jefferson County. Marlo did not pay for services which were incurred in Jefferson County, and was served in St. Louis County, his place of residence, asking him to go to Jefferson County. Marlo disagreed).
§ Holding: The court upholds the contract provision, saying the claim should be resolved in Jefferson County. MO. courts are changing towards. No undue hardship existed towards Marlo to have the case tried in Jefferson County.
o High Life Sales Co. (MO) (High Life, based out of MO., entered into an agreement with a co. out of Cal. The provision stated that the jurisdiction will relate to the principal place of business. Brown, based in Ken. acquired the Cal. co. A dispute occurred, where High Life sued Brown for interfering with Mo. interests in Mo. Brown contends they are the defendant, and the suit should be in MO.).
§ Holding: Because Kentucky did have to have a statute remotely similar to MO.’s franchisee protection law, the enforcement of the clause would be unreasonable, and the case should be decided in Mo.
o for exam:
§ First ask if permissive or mandatory
§
Limits to Forum Non Conveniens
§ Common Law Notion
o The doctrine permits a court to refuse to exercise jurisdiction, if it is a seriously inconvenient forum for the action, and if another more convenient forum is available to the plaintiff.
o Gives defendant a right to avoid a suit in an inconvenient forum. Depends on sound discretion by the trial judge.
§ Two interests which should be relevant (Gilbert)
· Private interest of the litigant being charged
o Proximity of tangible evidence
o travel costs of witnesses
o possibility of viewing property
· Interest of the public
o caseload pressures of the court
o burden on jury duty when they have no relationship to the cause of action
o having a court decide unfamiliar principles of substantive law.
§ Possible Options for trial judge
· Dismiss case outright and hope plaintiff files suit in proper venue
· Dismiss case due to defendant’s waiver, and plaintiff may sue in a convenient forum
· Stay the action pending plaintiff’s demonstrated ability to sue defendant in a more convenient forum.
