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Civil Procedure II
University of California, Hastings School of Law
Moscato, Stefano

Civil Procedure II

Professor Moscato

Fall 2011


US Constitution, 14th Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Personal Jurisdiction: State P or State D?

1. Is there a state law (aka long arm statute) giving the court jurisdiction over this defendant?

2. Is the state law constitutional under the due process clause of the 14th Amendment? Proper if:

a. Resident: D is a resident of the state.

b. Consent: D appears in court, voluntarily consents to jurisdiction (but can make a special appearance to argue that there is no jurisdiction).

i. Hess: implied consent by conducting certain activities in the state.

c. Presence: D can otherwise be found in the state / Transient jurisdiction. Pennoyer v. Neff

i. Includes corporate presence by doing business within the state. “A foreign corporation is amendable to process if it is doing business within the state in such a manner and to such an extent as to warrant the inference that it is present there.”

ii. Doctrine of Fraudulent Inducement: invalidates service where the plaintiff has lured the defendant into the state to serve him. Includes settlement agreement conversations.

d. In Rem Jurisdiction: D has property in the state and jurisdiction is limited to the property. Must satisfy the minimum contacts analysis.

e. Long Arm Jurisdiction: D is an out of state defendant who does not fit into the above categories.

i. Step 1: Minimal Contact (Shoe) & Purposeful Availment (Hanson)

1. Minimal Contact: Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he can have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. – International Shoe

a. General Personal Jurisdiction: if the continuous activities are so substantial and of such a nature then there is PJx even if the lawsuit concerns dealings entirely distinct from these activities.

b. Specific Personal Jurisdiction: activities that have been continuous and systematic and give rise to the liabilities sued on.

c. Gray Area: even single or occasional acts can give rise to PJx, depending on their nature and quality and the circumstances of their commission. If you are here, go to balancing test.

d. No Jurisdiction: A casual presence or contact that is isolated or sporadic and the claim does not arise from these contacts.

2. Purposeful Availment: has D deliberately chosen to take advantage of the benefits and protection of the laws of the forum state? There must be a purposeful/voluntary relationship with the forum, an intentional affiliation. If this step is not met, there is no jurisdiction. Do not proceed to step 2.

a. Foreseeability / Stream of Commerce: If a corporation elects to sell its products for ultimate use in another state, it is not unjust to hold it answerable there. EX: Co A sells part to Co B who sells machine to State P. P is hurt in state P, sues Co A in state P. There is PJx.

i. Foreseeability alone is never enough, to the extent that it means mere likelihood that a product will find itself in the forum state. D’s conduct and connection with the forum state must be such that it can reasonably anticipate being hauled into court there. WW Volkswagen

ii. D must deliver products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. Ex: marketing, using distributor/middleman to facilitate purchases

1. But what about used, not purchased? Unilateral action…

b. If P has taken unilateral action in state P, then there is no PJx over D.

3. “Effects” test: Commission of a wrongful act outside the state that you can reasonably expect will cause harmful injury within the forum state (either physical injury or commercial injury) is “purposeful Availment”

ii. Step 2: Balancing and Reasonableness – How reasonable is it to force D to defend the action far from his home? Requires balancing… International Shoe, McGee

1. Line cannot be mechanical or quantitative. Balancing test that depends on the quality and nature of the activity in relation to the fair and orderly administration of the laws. But this is determined in the context of our federal system of government.

2. Test isn’t, what would be the best forum? You must present a compelling case that the inconvenience to you to have to travel to the P’s chosen forum is so substantial that it reaches constitutional magnitude. E.g. where contract terms reached through fraud, undue influence, or overweening bargaining power such that litigation would be so gravely difficult and inconvenient that a party will for all practical purposes be deprived of his day in court.

3. Factors: inconvenience to D; burden to P; volume of business generated; number and regularity of contacts; relationship between instate activities and the current dispute; whether D received the benefit and protection of the laws of the state; state interest in providing availability of redress; foreseeability of litigation;

4. Lesser Showing Factors: These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required! Burden on D, Forum State’s interest, P’s interest in obtaining convenient and effective relief, interstate judicial systems interest in obtaining the most efficient resolution of the controversies, shared interests of the several States in furthering fundamental substantive social policies.

Historical Expansion of Long Arm Jurisdiction

· Pennoyer v. Neff: Held that state did not have jurisdiction over out of state defendant. Establishes geographic boundaries and Foreign State Power as central in analysis.

o No tribunal established by a State can extend its process beyond its territory so as to subject either persons or property to its decisions. It is a principle of general, if not universal law, that the State’s authority is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed an illegitimate assumption of power.

o Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. Conversely, no state can exercise direct jurisdiction and authority over persons and property without ti

Co manufactures faulty product in State D and it blows up in State P, injuring P. Where was the tort committed? 2 readings: some say the tort was committed in state D, where the product was negligently put together, others say the tort was committed in state P, since that’s where the injury occurred and the tort was not “committed” until the injury occurs.

· PJx in Federal court: Rule 4(k) D is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located… aka: federal PJx is dependent on State PJx.

· World Wide Volkswagen

o P bought VW in NY. They were moving from NY to AZ, but got into a terrible, fiery car crash in Oklahoma.

o Sued VW big co and Seaway, the NY car dealer. They wanted to defeat diversity jx, so they needed Seaway to have a NY resident “across the v.” More on this latter.

o Seaway sold a car in NY that drove to Oak. Cars can be driven, so it’s foreseeable that the could end up in AZ. VWs can be serviced all over the nation by VW, so “national network”…

o Huge Problem: Seaway did not intend the car to go to Oak. The fact that the car was taken to Oak was a unilateral act by P! Seaway has no contacts with Oak. Therefore, it doesn’t even matter if it’s “fair or reasonable” to sue them in Oak.

o P’s options: can sue just VW International in federal court in Oaklahoma. Or they can sue both VW International and Seaway in state court in New York. Cannot sue both VW International and Seaway in state court in Oak.

· Calder Effects Test

o D is a FL newspaper that sells all over the US. P is a CA person who was the subject of an allegedly libelous article. P is suing newspaper, who obviously has minimum contacts because they sell to CA. P also names the actual author of the article too, who is FL only kinda guy.

o Court holds P has jx over both Ds in CA. D wrote an article about the CA activities of a CA resident. The brunt of the harm was felt in CA. CA is therefore the focal point of both the story and the harm suffered.

o -> this looks very different from World Wide VW because focuses more on P’s harm than on D’s contacts with forum state.

· Kulko v. Superior Court

o H and W lived in NY and had 2 kids. W obviously had an affair, broke up the marriage, went to Hati and divorced H there, then moved to CA and immediately married her other. A few months later the kids moved to CA with her. She filed in CA for child support. H’s attorney made a special appearance to argue that H did not have minimum contacts with CA.

o Allowing son and daughter to live in CA with their mother was not “purposeful availment” of the forum state.

o Even though H did do business in CA, he was not personally served there, and his business ties to CA did not “give rise to” the divorce action.