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

Class: Civil Procedure II
Professor: Stefano Moscato
Book: Marcus, Redish, Sherman, and Pfander's Civil Procedure: A Modern Approach, 5th
Fall 2012 University of California, Hastings
1.      Does the Court have jx over the person or her property?
·         i.e., “Personal Jx”
·         Does the court in the geographical location where the lawsuit has been filed have the power to compel the defendant to appear and defend the lawsuit or else face a default judgment?
·         Did the state legislature confer the power (by statute) on the court to reach a person like this defendant?
·         Even if there is a statute conferring the power, is exercising that power in this particular situation constitutional?
2.      Does the court have jx over subject-matter of the lawsuit.
·         i.e., “Subject-matter jx”
·         Whether this particular kind of case is one that the court is empowered to hear.
·         State Courts: usually can hear any kind of case.
·         Federal Courts: have limited subject-matter jx. i.e. can only hear certain kinds of cases.
3.      Is this court the proper venue?
·         “Venue” means “is this the appropriate geographic area in which to locate the trial?”
·         A corollary to this question is, even if this court is technically a proper venue, should the venue be transferred elsewhere?
4.      If we’re in federal court on diversity grounds, does state or federal law govern?
5.      Choice of law: Choosing among the possibly pertinent laws of different states?
1. The traditional Constitutional Bases for Jx Over Their Property—Pennoyer
2-Step inquiry to Determine Personal JX:
·         Did the state legislature confer the power (by statute) on the court to reach a person like this defendant?
o   Neff: Yes, statute says can extend jx over person who has property in territory, to extent of such property.
·         B. If there is a statute conferring the power, is exercising that power in this particular situation constitutional?
o   No state can extend it’s process beyond its territory so as to subj. either persons/property to its decisions. –Pennoyer
o   Every state has exclusive jx and sovereignty over persons/property w/in territory.
o   Territorial Exceptions:
§  Proceeding to determine status of citizens toward non-resident.
§  Ok for state to require non-resident to appoint agent to receive service.
§  State can enforce obligations of a corp incorporated in the State but whose officers/directors are elsewhere.
Pennoyer v. Neff
§  At the time the action was commenced, Neff was a CA resident, there was constructive service of summons by publication. Neff did not appear in that case à Default Judgment entered
1.     Personal Jx is a substantive liberty interest (constitutional DP applies)
2.     Establishes geographic boundaries as central to protection of liberty interest
3.     Court cannot have jx to determine personal liability unless:
a.       Resides in state b. was found/served in state c. or voluntarily appeared.
Hess v. Pawloski: “Implied consent” statute satisfies DP b/c:
            -dangerous nature of D’s activity. Public interest in regulating conduct.
            -privilege conferred by state, D enjoyed benefits, fair to hold responsible.
            -Puts D’s on = footing w/ residents, limited to in-state conduct
            -Convenient to allow injured person to enforce rights there
1.      Did defendant consent to jx, e.g. by voluntarily appearing in the case?
a.       (including notion of implied consent” conducting certain activities
2.      Was defendant present  in state when served w/ process?
a.       (including notion of “corporate presence” doing business in state)
3.      Is the defendant domiciled in the state?
a.       (Can assert jx even if he’s not currently present in the state.
2. The Shift to “Minimum Contacts” –International Shoe
Original MC:  “…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 have certain minimum contacts w/ it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
·         Guidelines for Applying “Min-Contacts” Test?
o   Activities that have been continuous/systematic & give rise to liabilities sued on.
o   General jx if: so substantial/of such a nature, then Pjx even if the suit concerns “dealings entirely distinct from those activities.
o   Casual presence or isolated/sporadic, and claim doesn’t arise from these contacts.
o   Single/occasional acts could be sufficient depending on nature and quality of the circumstances of their commission.”
§  Nature/Quality:  not mechanical/quantitative
§  BALANCING test: depends on Q&N in relation to fair/orderly admin of laws.
·         In Shoe: reasonable/just according to trad. notions of fairplay/justice
§  Reasonableness: Factors to use in resolving future cases:
·         Inconvenience to defendant?
·         Convenience/burden to plaintiff?
·         Volume of business generated?
·         Number and regularity of contacts?
·         Relation between the in-state activities and current dispute?
·         Whether by virtue of in-state activities D received benefit, protection of laws of the state.
·         State’s interest?
§  Examples of reasonableness:
·         Neff: benefit obtained OR lawyer, on Oregon matters, enough for MC
·         Int Shoe: delivery truck hits P driving through CO,  P can sue in CO b/c D purposefully entered CO w/ dangerous vehicle.
o   Probably not enough to sue in WA.
o   Single Acts: depends on N&Q of circumstances.
§  McGee v. Int’l Life Insurance Co: sufficient for purposes of DP that the suit was based on a K w/ a substantial connection w/ CA. 
·         “CA has manifest interest in providing redress for citz.
·         CA beneficiaries disadvantaged if have to follow ins to other state.
·         Court was not that concerned about inconvenice to insurer.
o   Purposeful Availment—Hanson v. Deckla (1958)
§  Solicitation of business key here, to purposeful aspect
§  D must purposefully avail itself of the privilege of conducting activies w/in the foum state, thus invoking benefits and protections  of states laws.
Updated MC Test:
1. Has defendant deliberately chosen to take advantage of the benefits and protections of the laws of the forum state?
·         Does the act or transaction have a substantial connection w/ the State of the forum?
·         E.g., purposely soliciting business (entering a contract) in the forum state (McGee)
·         I.E., “PURPOSEFUL AVAILMENT”: There must be a purposeful/voluntary relationship w/ the forum state, an intentional affiliation.
2. Reasonableness of forcing the Defendant to defend himself away from his “home” –this requires balancing of:
Forum state’s interest (what law will govern, interest in protecting its citizens, etc)
Whether plaintiff will be severely disadvantaged (amount of recovery sought compared to relative cost of suing far away, where will witnesses/evidence will be found, etc)
Vs. inconvenience to defendant.
[Maybe foreseeability of lawsuit/dangerousness of activity, volume of business generated, regularity of the contact w/ the forum state?] NOTE: Q2 does not appear to come into play if Q1 not satisfied—i.e., where the defendant’s contact w/ the forum state is not “purposeful”
Gray v. American Radiator:  P injured when water heater blew up in Illinois. P sued Titan Valve and American Radiator
Rule: in Product liability cases, D who sells products and knows will be used in a forum may be required to defend action in forum state, if injury is caused there.
“likely intended for substantial use/consumption in Ill.”
Enjoys benefits from laws of state, has been protected.
Generally Not unjust to hold corp liable in state they sell products to when injury caused.
3. Refining MC for Modern inter-state Contacts—Overview of Longarm and PJx in Fed Court (WWV)
FRCP Rule 4(k) Territorial Limits of Effective Service.
(1)  In General.
Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
(B) who is a party joined under Rule 14 or 19 and is served within a judi

ior negotiations, and future consequences which are the object of the K.
o   Does K creates “continuing obligations” between D and forum residents?      –If it does, Strong Evidence min contacts would be satisfied.
Part 2:  Inconvenience/”Other factors:
·         Not—what is the best forum?
·         must present compelling case inconvenience (of traveling to the forum) so substantial that it is of “constitutional magnitude”
Asahi Metal Industry Co. v. Superior Court –Knwlge product will reach state in SOC not sufficient.
Facts: P—Japanese Corp, sells tire valves to Cheng Shin, motorcycle tire maker. All P’s sales to Cheng Shin JPà Taiwan. Sales to Cheng Shin < 1.5% of P’s income. Approx 20% of CS’s sales in U.S. to CA.  Zurcher injured à sues Cheng Shin in CA. CSà indemnity from P. Contacts w/ CA: No offices, property, agents, solicitation of business, or direct sales in CA. Made valves in JPà sold to TW. CS says Asahi fully aware many go to CA. Rule: Full awareness product will arrive in CA through stream of commerce NOT sufficient on its own for “Purposeful availment”             O’Connor 4: Requires additional conduct such as: ·         1. Designing product for state’s market. ·         2. Advertising in state ·         3. Marketing through distributor in that state Brennan 4 concurrence: Stream of commerce refers to regular/anticipated flow of products from manuf. to retail. As long as participant in this in process is aware that the product is being marketed in forum state lawsuit there cannot be surprise. Stevens Concurrence: “Whether or not conduct rises to purposeful availment requires a constitutional determination that is affected by the volume, value, and the hazardous character of the components.                         J. McIntyre Machinery v. Nicastro: JMM is UK corporation, one machine in NJ, this one.                                     Traditional Jx: established by--Explicit consent, presence, citizenship/domicile OR: contact w/ and activity directed at sovereignty, in suit arising out of defendants contacts w/ the forum. KEY INQUIRY: Did D purposely avail itself of privileges of conducting act in forum state PA established: by placing goods in SOC w/ expectation they will be purchased in the forum state???? (FORESEEABILITY STILL INSUFFICIENT HOWEVER)             MUST SEEK TO SERVE a given State’s market. Kennedy Plurality: facts reveal intent to serve U.S., but don’t target NJ. Breyer/Alito Concurrence: ·         questioned strict rules, what if targets whole world? (i.e. amazon) ·         No precedent finds a single/isolated sale + JMM sales efforts to be sufficient. ·         P bears burden of establshng jxà may have been enough, but P didn’t show here UPDATED MIN CONTACTS TEST FOR OUT-OF-STATE CONDUCT CAUSING INJURY IN FORUM STATE Step 1: “Purposeful Availment”: Is there deliberate action aimed at forum state “Effects” test: depends on whether you can reasonably expect your conduct will cause harmful injury within the forum state Purposefully soliciting business from resident of forum state is purposeful availment “Stream of commerce” cases: Need more than mere foreseeability that the product will end up in the forum state – need “efforts ... to serve, directly or indirectly, the market for its product” in that state Contractual relationships: Purposeful availment demonstrated where Defendant has “created continuing obligations” between himself and residents of the forum state