Carol Andrews Civil Procedure I Fall 2010
In Personam Jurisdiction
1) Physically In State
Domicile/Resident
Domicile rules…
Non-Resident
“[state] will have personal jurisdiction over X because he was physically within [state]. The broadening of Pennoyer by International Shoe does not affect the traditional basis of in-state service. Burnham confirms that when a non-resident is served while physically in a state, he will have subjected himself to transient jurisdiction within that state. X arguably has benefited from the state’s roads and protection. Further, the presumed common knowledge tradition that in-state service properly confers personal jurisdiction should imply that a ‘passer through’ has conceded to personal Jx.”
Exceptions: Fraudulent Procurement (by trick or misrepresentation; Wyman); Involuntary Availment
2) Out of State Defendant in Fed Ct (if in State Ct move to 3) Long-Arm)
Initial Issues to Consider:
● General Appearance:
○ Deliberate: unlike SMJx, PJx can be waived
■ D shows up and proceeds to defend without challenging PJx
○ Inadvertent:
■ Fails to make timely objection
■ “FRCP 12 requires that a defendant raise any objection to personal jurisdiction in their initial response (or 15(a)(1) amendment) or else the objection will be waived.”
● Special Appearance: appear only to defend against Jx (not merit)
○ Now silently allowed by 12(b)
○ If D loses he may only appeal in that Jx
● Other Consent:
○ Forum Selection Clause/Contract (Carnival Cruise)
■ “X bears a heavy burden of proof to establish the forum-selection clause is unfair. Such clauses are typically upheld when: a) the principal place of business is in the forum, b) the agreement was not obtained by fraud or overreaching and, c) proper notice and an option to reject is given. An exception may be made where it is clear the clause exists to discourage the pursuit of legitimate claims. The underlying reasons for upholding such a clause are: a) the expense of having to defend everywhere, b) the elimination of undue litigation and, c) cheaper products for the end user.”
○ State Domestication Statute – exacting consent
■ Ex: corporate registration, non-resident motorist
■ Generally disfavored, D must be aware and give actual consent
● Citizen of State?
● Non-resident Plaintiff = already consented to PJx
● Estoppel: refusal to cooperate with Ct = personal right waived (Ins. Corp. of Ireland)
● FRCP 4(k):
○ (1)(A) applies unless:
■ (B) Party is joined under FRCP 14 or 19 and outside 100mi from summons location
■ (C) Alternate Fed statute involved that has its own service provision
■ (2) Alien Provision – if person not subject to PJ in any state then proceed to Due Process Analysis using minimum contacts with US not a particular St
● Else:
“[state’s] exercise of personal jurisdiction over X probably will/will not be found to be constitutional. To determine when personal jurisdiction exists over an out of state defendant, first decide whether a state’s long-arm statute confers jurisdiction then analyze whether personal jurisdiction would violate the Due Process Clause of the Fourteenth Amendment.”
3) Long-Arm Statute
“Based on Federal Rules of Civil Procedure (FRCP) 4(k), federal courts will generally follow the long-arm statutes of the state in which they sit. States will enact statutes that either broadly allow jurisdiction to the full extent of the constitution or else they will restrict jurisdiction to suits arising out of specific contacts with the state. When the latter, enumerated act, statutes are in place, one must determine if personal jurisdiction exists under the specifics of the statute before analyzing constitutionality.” [Bensusan: dismissed for lack of PJx, NY long-arm didn’t cover D not physically in state during alledged ™ infraction]
4) Due Process Clause – Minimum Contact Test
“Next determine whether personal jurisdiction will be constitutional under the due process of the 14th amdt. According to International Shoe and its progeny, an out of state defendant must have such minimum contacts that exercising personal jurisdiction will not offend ‘traditional notions of fair play and substantial justice.’ The necessary degree of contacts will depend on whether or not the cause of action arises out of the defendant’s contacts with the forum state.”
Nature of Contacts (Int. Shoe)
Related
Unrelated
Continuous & Systematic:
Jurisdiction. a lesser showing of each combined = PJx (Hustler)
General Jx if contacts are ‘substantial’ (perkins)
Isolated & Sporadic:
Specific Jx if purposeful availment and reasonableness requirements satisfied (BK)
No Jurisdiction
Specific Jurisdiction
“[Discussion of facts showing specific Jx]. The Shoe cases have developed a two prong framework with the first prong analyzing the nature and extent of the defendant’s contacts. When the contacts are related to the cause of action a lesser showing of contacts will be necessary for specific jurisdiction to apply. McGee suggests single and isolated contacts will suffice. Further, not all activities related to the suit must be within the forum state. (Burger King). The initial focus will be on whether the defendant purposely availed himself of the benefit derived from the forum’s economy or laws by conducting or directing activities toward that forum state. (BK, VW, Hanson). To be constitutionally valid, jurisdiction must also be foreseeable such that the defendant can reasonably anticipate being haled into court in the state based on his contacts. (VW). Yet the defendant need not actually enter the forum state (BK).”
Limits
“In an effort to protect defendants from burdensome litigation and prevent states from reaching beyond their limits, some limitations persist. Purposeful availment will not exist when fortutitous or unilateral actions, outside of defendant’s control, are taken by third parties. (Hanson, VW).”
Intentional Torts
“Tortious acts aimed at the forum state can subject an out of state defendant to personal jurisdiction based on foreseeability. The Calder Effects Test suggests the availment of jurisdiction when the defendant; 1) performs an intentional tortious act, 2) expressly aimed at the forum state and, 3) causes harm, the brunt of which is suffered, and defendant knows will be suffered, in that forum state.”
Stream of Commerce
“In fact, the Supreme Court has not yet decided whether putting a product in the stream of commerce knowing that a certain percentage will end up in a given state is, without more, enough to allow jurisdiction in that state. O’Conner would require clearer evidence that defendant seeks to serve the market in the particular state, such as designing the product for the market in that state or advertising there. Concurring Asahi Justices argue sending goods into the stream of commerce, at least in substantial quantitites, constitutes purposeful availment, where or not original maker knows the goods will be sold in a particular state or cultivates customers there.”
General Jurisdiction
“[Discussion of facts showing general Jx]. When the cause of action does not arise from the contacts and general jurisdiction must be established, there must be substantial forum-related activity on the part of the defendant. The idea is analogous to the general jurisdicti
ts with the forum state. Since ∂ purposefully reached out into the forum state and availed himself of resources, subject to in personam jurisdiction of the forum state.
Internet Jurisdiction
Inset Systems v. Instruction Set, Inc.: Connecticut had territorial jurisdiction based on defendant’s continuous advertising in the state based on their web presence.
Zippo Manufacturing Co. v. Zippo Dot Com, Inc.: PA court had jurisdiction over CA defendant because website would take orders. RULE: A website that does little more than provide information is not grounds for territorial jurisdiction.
Panavision International L.P. v. Toeppen: Cybersquatting case. CA had jurisdiction over IL defendant because defendant knew that plaintiff was in CA and was attempting to extort money from a CA resident.
Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc. MD did not have jurisdiction over IL defendant because defendant restricted activities to Chicago area and did not broadcast into MD.
Jurisdiction over Property
● In Rem: (settling estate issue to find a title holder)
“A state has the jurisdiction to hear cases about land inside its boundaries. The reasons include, 1) the land owner derives a benefit from the forum, 2) states desire for land marketability, 3) states desire for peaceful resolution and, 4) the likelihood that important records and witnesses will be in the forum.”
● Quasi In Rem: An attempt to force a defendant to waive in personam jurisdiction by exercising in rem jurisdiction over the defendant’s property to satisfy a potential default judgment in the action.
○ Type 1: one party seeks Ct confirmation that his claim is superior to another’s
○ Type 2: property is not subject of action, it is a hostage for defendant
“Taking the defendant’s property is merely a workaround to assert jurisdiction over the defendant. Therefore all assertions of jurisdiction should follow Shoe and its progeny. Merely owning property in the forum will be considered an isolated contact and is unlikely by itself to confer jurisdiction where the suit does not arise out of the property. (Shaffer). However, the requisite minimum contacts are generally held to exist where the property itself is closely connected with the action.”
I. Shaffer v. Heitner
A. Issue: Can a court use quasi in rem jurisdiction to force a defendant to submit to in personam jurisdiction in a case where the defendant would not normally be subject to in personam jurisdiction?
B. Facts: π filed a stockholder suit in DE and took advantage of a statute that allowed sequestration of shareholder’s stock. Since corporation was incorporated in DE, the stock was “physically” located in DE. ∂s had no contacts with DE other than the stock being there.
C. Held: The minimum contacts test must be met in order to exercise quasi in rem jurisdiction over property to force a defendant to waive in personam jurisdiction fault.
i. In this case, use of quasi in rem violates the 14th amendment.
ii. DE did not have sufficient interest in adjudicating to make it fair.
a. No connection between action and forum state.
