Civil Procedure I Outline

Civil Procedure

Fall 2013

Scott Dodson

Jurisdiction

Personal Jurisdiction (power over parties, can be waived)

A) Theory

1. Policy Purpose

Ensure Ds do not have to stand in courts that have no jdxn over them &/or are far away

Only deals with forum, not merits of the case

More than one state can have personal jdxn

2. Scope: How can a court exercise personal jdxn over a D?

i. In Rem – relates to property that D has in the forum state

ii. Quasi-in-rem – gives court authority to render judgment but limits recovery to the value of

property owned by D in court’s jdxn

iii. In personam – related to the Ds personal connection with the forum state

3. Case: Pennoyer v. Neff (US, 1877)

· Lawyer sues an out-of-state Neff for legal fees. Neff does not appear so lawyer wins Neff’s land, which he sells to Pennoyer (P). Neff (D) sues P based on a lack of jdxn over Neff and his land. Neff wins bc SCOTUS holds that because notice was improperly provided, jurisdiction did not exist and the land should never have been sold to pay for fees.

o Est. when a state can impose jdxn over an out-of-state respondent:

· If D is served/appears within the state (must be served in hand)

· By attachment of Ds property in conjunction w/ lawsuit

· Ds consent

· If D has a domicile within the state or is a citizen of the state

o All of these factors are related to the territorial boundary of the state.

o Est. state sovereignty.

Long-Arm Statutes.

Two ways to establish a court’s jurisdiction:

i. 14th Amendment Due Process Clause

ii. Long-Arm Statute

International Shoe v. State of Washington (expands Pennoyer)

· WA sued IS to recover state-mandated contributions. IS is based in MO and was a Delaware corporation. WA served an IS employee and mailed it to MO.

o Does WA have personal jdxn over IS? SCOTUS says yes, and est. a new test for determining

personal jdxn:

i. Mimimum contacts that comport with

-Are the factors continuous and systematic? If yes, then jdxn

-Are the factors isolated and sporadic? If yes, then need to look at the

quality of the contact. (but most likely, no jdxn)

ii. Traditional notions of fair play and substantial justice

-This test is more flexible than Pennoyer’s, but it does not overrule Pennoyer, bc it only

applies to out-of-state service

-Allows for easy service of out-of-state Ds.

Cause of Action

Arises

Does not arise

Isolated & Sporadic

Jurisdiction depends upon quality of contacts

Jurisdiction does not exist under Int’l Shoe

Continuous & Systematic

Jurisdiction exists under Int’l Shoe test

Jurisdiction only applies when there are sufficient contacts

B) Current Doctrine

Rule 12 of FRCP: Party may assert lack of personal jdxn as a defense by motion

B)1) General jurisdiction is continuous and systematic

a. Appropriate when Ds activities in state are so substantial/continuous that they ought to expect being subjected to suit there irrespective of the nature of the claim, and would suffer no inconvenience from defending a case there

b. Contrast with specific jurisdiction, where it is the actions of the D in the forum state that give rise to the claim itself

Do American Courts have jdxn over foreign companies?

Goodyear v. Brown (2011)

· Parents of 2 kids who died in a bus accident in Paris sued Goodyear (in North Carolina, USA, and Europe). Goodyear moves to dismiss under 12 for lack of personal jdxn.

· SCOTUS holds that connections to NC state lack purposeful direction, and fall far short of continuous/systematic requirements necessary for NC court to have jurisdiction (nothing in claim connects subsidiaries to state): nothing establishes that ∆ is so at home in forum state that jurisdiction would be valid

General jdxn – need continuous/systematic contacts, and have this activity give rise to

the episode in suit. D is ‘at home’ in the state. That D is going to be generally

under that state’s jdxn

McIntyre v. Nicastro (2011)

· Nicastro injured his hand on Ps machine in NJ. P was based in England. D argues that NJ has personal

jdxn over P bc it let its products ‘enter the stream of commerce’. P says it ‘never targeted NJ’ so no personal

jdxn. P had a few conferences in US and had >10 machines in US.

· Asahi precedent: The stream of commerce argument only works if the corporation is aware/target that

final product is gets marketed in the state.

· Forseeability argument does not work here bc McIntyre does not target NJ. P did not purposefully avail’ themselves. P could not ‘foresee’ that their product was going to be in NJ.

· Specific jdxn – when certain occasional acts in a state are enough to make a corporation liable

for those acts, which give rise to CoA. That claim is based on CoA that

occurred under these specific jdxn.

One view – a corporation purposefully avails itself when it takes advantage of the

benefits and privileges of a state, or

Two – specific jdxn has to be fair and reasonable

· Possible future issue: companies like Amazon that purposefully avail themselves everywhere.

· Need both specific and general jdxn in order to gain personal jdxn, unless you can make a good argument

i.e., the quality of the specific jdxn (purposeful availment, % of profit, etc.)

Worldwide Volkswagen: Established standards of purposeful availment, foreseeability, and fair play.

Asahi: Must be a concentrated effort to advertise to a particular market in order for product to be specifically sold in that market. Purposeful availment, also.

Challenging Personal Jurisdiction

1) State court: a) Put in special appearance.

i. Immune to in-state service during this time

ii. If court decides in your favor, the case is dismissed

iii. If not, the case is adjucated, and D can still appeal on lack of personal jdxn

after judgment. If this is successful, the judgment is vacated.

iv. personal jdxn has to be the first argument made by the party, otherwise you’ve

waived your right to do so.

b) Collateral Attack: do nothing (which will result in a default judgment against D) then later challenge the enforcement of the default judgment on personal jdxn grounds

c) Waive right to argue and consent to personal jdxn

2) Fed court: a) Enter a 12(b)(2) motion—file w court to challenge personal jurisdiction. Accompany w brief explaining why claim should be dismissed.

– This must be made in initial response, but other claims can be made along with it

i. Effectively consenting to jurisdiction for purpose of challenging it

ii. Merits of case can also be argued in this kind of pleading

iii. Court can decide on 12(b)(2) ruling at any time, including during trial

b) Collateral attack can also be made

Checklist for Personal Jdxn:

I. Does exercise of personal jurisdiction comport both with state long-arm statute and Constitution’s due process clause? To use PJ, a court needs both constitutional and statutory authorization.

a. If state long-arm statute extends to limits of due process, then only consider 14th Amendment due process

b. If not, then did D behave in conduct described by statute? If yes, then jurisdiction; if no, then no.

II. Can D be served in-state?

i. Scalia: presence in forum state sufficient for service, if there