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Civil Procedure II
University of California, Hastings School of Law
Wagstaffe, James M.

Civil Procedure II

Professor James Wagstaffe

Fall 2013 – UC Hastings College of the Law

Geographic Location of Litigation

Traditional “Power and Notice” Formulation – 12(h)(1)

Pennoyer v. Neff:

-Due Process Requires JX:

1) Jurisdiction = physical power (at time, there needed to physical presence for jx)

2) Judgment without jurisdiction is VOID

3) Void judgment can be collaterally attacked (challenge JX) BUT cannot argue merits at that time


1) Status for Divorce Purposes (physical presence not always needed)

2) Companies with Agent for Service of Process in state (usually needed to do business in state)

D being “physically present” in the forum (meeting req’s of Pennoyer):

Persons: 1) served within State’s boundaries, 2) domiciled in forum, 3) consent by appearance or otherwise

Entities: 1) present via continuous acts, 2) domiciled in forum 3) Domiciled in Forum

Tangible Property: 1) real estate, 2) personal, 3) other

Intangible Property: 1) bank account, 2) insurance policy, 3) other

Personal Jurisdiction: The power of the court to issue a coercive judgment (subpoena, ruling, etc)

-courts used to arrest witnesses and parties b/c of fear of fleeing

-now summons and complaint are given (satisfies “process” requirement)

-2 req’s of personal jx: 1) basis, 2) process

Three Kinds of Jurisdiction (old):

1) In rem: when court is adjudicating the property (lawsuit is against property in forum state)

-court only has right up to the value of the property

-almost always minimum contacts if property at issue

2) In personam: court has power over the defendant

-connection between D and state (home, job, family in state)

3) Quasi in rem: Actions seizing property for purposes of settling dispute UNRELATED to that property

-prejudgment attachment

-claim doesn’t have to be related to property seized BUT min. contacts MUST be related to forum

-Sequestration: holding property of nonresident to compel appearance in court


Service: giving a party notice of claim against them (summons and complaint)

Pre-judgment Attachment: Freezing of another party’s assets when case against is strong (holds collateral)

Substantial Compliance: modern term meaning “good enough compliance” that meets aims of the legislation

Fraudulent Inducement: Cannot be brought into state under fraudulent or false pretenses to serve process

Minimum Contacts and Long-Arm Statutes – 4(k)

State Long-Arm Statutes:

-Enacted in response to minimum contacts/personal availment test

-Expanded jurisdiction to any people in state that: a) transacted business in the state, b) committed a tortious act in the state, c) owned or possessed real estate there, and contracted to insure people/property in the state

FRCP 4(k): Federal courts only have personal jx if meeting minimum contacts and/or requirements of long-arm statute, in state where the court sits

-(1)(A): When serving summons, ct. uses the long arm statute of the forum state (MOST USED)

-(1)(B) – Bulge (Service of Process) Jurisdiction: There is federal jx within 100 miles of courthouse, even if outside the state (PROCESS, not basis)

-extends to Rule 14 or 19 cases (impleaded parties)

-(1)(C): Nationwide Service of process allowed if stated in federal statutes

-Ex. securities law, bankruptcy, etc.

-if federal cause under statute w/ nationwide process, we look at whether D has contact with country as a whole

-(2): Nationwide Contacts

a) federal cause of action,

b) D not subject to personal jx in any state (foreign Ds sued in US)

c) THEN, we can aggregate nationwide contacts

-difference between 4k1c and 4k2??

International Shoe v. Washington

“Due process (14th) requires that if person being sued is not present in the territory, he have minimum contacts within it such that the maintenance doesn’t offend traditional notions of fair play and substantial justice”

Personal Jurisdiction: connection between 1) forum, 2) defendant, and 3) cause of action

-Emphasis is on convenience for the D

-Factors include: foreseeability of action, expectations, continuous and systematic?, general fairness/justice, benefits received from state

Purposeful Availment Test – Required for Personal JX:

-World-Wide VW: Ds must have conduct and connection with forum state as they could “reasonably anticipate being haled into court there”

-Mere foreseeability of product entering state by stream of commerce NOT enough for pers. avail

-Must be effort to directly or indirectly market in state for availment in product liability cases

-Then, there is reasonable expectation product will be purchased in that state

-Look at: advertising, # of sales in state, Ks with state dealers, history of litigation

Test 1 (Burden on P): Purposeful Availment Test :

1) D purposefully and voluntarily directs its activities toward forum state

2) Foreseeability of being haled into court as result of such activities

-Stream of Commerce > Likelihood of product ending up there (uncertain use)

-Economic benefit from forum state

3) NOT: Random, fortuitous, attenuated contacts

Test 2 (Burden on D): Unreasonableness Factors (relevant for defense to personal jx):

*Defense rarely works after purposeful availment found

-extent of D’s purposeful interjection

-burden on D (size of D and location matters)

-Forum state’s interest in adjudication

-Most efficient judicial resolution (difficult for courts?)

-P’s interest in efficient resolution

-Existence of alternative forum (is there a better location available?)

-Shared interests of several states

3 Views on Component Part

SUFFICIENT CONTACTS for quasi in rem jx > property must be issue of lawsuit??

-Cause of action was in OR, Stocks located in DE > no connection

-Claim doesn’t have to be related to property seized, but min. contacts MUST be related to forum

-When case involves property itself > almost always sufficient minimum contacts for personal jx

-owner benefits from laws of state, wants peaceful conflict resolution

-case effectively equates personal jx and quasi in rem jx

-In rem = when property at issue, Quasi in rem = property is unrelated to claim

-Overrules Harris v. Balk

-FRCP 64: Seizing a Person or Property

(a) Remedies Under State Law—In General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But fed statute governs to the extent it applies.

-Remedies include: arrest, attachment, garnishment, replevin, sequestration and others

Traditional Bases for JX, even if cause of action is not forum related:

Consent – You cannot complain about something you consent to

-What is consent: Appearance, Implied Action (driving in state), Seek Affirmative Relief (making appearance in court (ex. filing counterclaim)), Appointment Statutes (ex. corp statutes require cmp. to consent to jx), Contractual Consent (Consent to JX or Forum Selection Cls)

-Carnival Cruise: WA residents wanted to sue Carnival for cruise in CA. Disclaimer on back of ticket required forum for litigation in FL. SCOTUS found reasonable clause b/c Carnival had HQ in FL and had strong interest in keeping litigation there. K Consent Clause enforceable.

-1) Fair Contract + 2) Notice = Contractual Consent

-NOT enforceable if: no notice, fraud, fundamentally unfair to P, or unconscionable

-CANNOT consent when there is NOT subject matter jx though?

Domicile – Corporate or personal domicile in the forum state

Presence – Being served during short physical presence in forum state is enough to grant jx – Burnham

-Service sufficient basis? > When ephemeral (open Q as to how much), involuntary (NO), or there is entity representative (partners in firm make contacts for others > outside this context, it doesn’t apply to corporations)???