Wagstaffe – Civil Procedure II – Fall 2013
Personal Jurisdiction (Due process from 5th and 14th amendment)
Personal Jurisdiction (4 bases)
Defined: Personal jurisdiction is the power of the Court to issue a coercive judgment. (Basis + Process)
1st Base: Does the forum state have a long arm statute purporting to givee its courts jx over this defendant?
· NO è end of inquiry!
· YES è move on to next step
o CA long arm statute: state can exercise jx on ANY basis not inconsistent with the constitution of the state or US.
2nd Base: Would exercise of Jx under the circumstances of this particular case satisfy Due Process?
· Waiver
o 12(h): a party waives any defense (12b2-5, including 12(b)(2)) if not joined in initial motion or 1st responsive pleading.
o Sanction FRCP 37(b)
o Invoke jn of court (seek relief, litigate)
· Traditional territorial bases (per Pennoyer):
o CAN DO PEOPLE (CONSENT (e.g. registered agent in state), DOMICILE, PRESENCE)
o Served while present in state
§ Burnham v Superior Court
D (NJ) went to CA for business. In CA, his ex wife served him divorce papers. Only contacts were occasional visits and visit with his children.
· Scalia (4): Physical presence appears to be ALWAYS enough
· Brennan (4): Physical presence is GENE˙ƒRALLY enough but still depends on case by case reasonableness analysis. The fact that transient presence while served is historically been enough is relevant to reasonableness analysis.
· What if D is duped?:
o Brennan: there may be cases where D’s involuntary or unknowing presence in a state does not support PJx.
o White: suggests that presence in forum state must be intentional
· Extends to partnerships (partner being present), but MOST COURTS say this does not extend to representative of a company being present.
Bourassa v. Desrochers (9th Cir. 1991)
938 F.2d 1056
D (from Canada) calls B in California. [only CA connection] Tells her property in Canada is valuable – peat moss; can be harvested and we should enter into joint venture business. B goes to Canada and buys property based on D’s reps. [she goes to Canada to buy property!) For 26 years D told B business not functional. [no profits…] Discovers D all along has been operating successful peat moss business.
– D’s sole California contact – phone call and maybe some subsequent phone calls.
– B sues D in CA federal court on federal securities claim. Nationwide service of process (securities) – Rule 4(k). We look to D’s contacts with nation as a whole. (Rule 4(k)) D served while vacationing in Florida
Court: Upheld on Burnham grounds. Relevant contacts are with nation as a whole (federal nationwide service of process statute), if you are served while physically present in the United States, that provides basis for jurisdiction in any State.
o Domiciled in state
§ Current dwelling w/ intent to remain or place incorporated
§ D
o Voluntary appearance or consent
§ Implied consent to jx by conducting certain activities in state can establish PJx (Hess v. Pawloski)
· State pays for and maintains highways, D drove in state and benefitted from state. Accident grew out of interstate conduct.
§ Appointing an instate agent for service of process
§ Enter K stipulating specific state forum for disputes. (Carnival Cruise lines – fair K + notice) à can be thrown out based on standard K theories
o Defendant has property in state
§ When analyzing jx in rem, court must apply minimum contacts test. Ownership of property alone is not sufficient (per Shaffer v Heitner).
· BUT presence of property in forum state can establish or help establish Jx.
o Ex: claims to property itself is source of underlying controversy between P and D. Very likely, states have jx.
o Ex: cause of action is related to rights and duties growing out of property ownership in forum state.
§ Shaffer v Heitner
Alone, stock ownership in a state does not subject D to “in rem jx.” Even if that state’s law governes suit (ex: because D was incorporated there), this is still not enough. Need to satisfy minimum contact test.
§ “Quasi In Rem”: Property is not source of the conflict; it is sought as compensation by the plaintiff (OK after Shaffer?)
· Third Base: General Jxn: Claims unrelated to non-resident activities
General JX: Lawsuit concerns dealings entirely distinct from the contacts with the forum state
· Step 1: D must have “continuous and systematic” contacts with CA that is so “substantial and of such a nature” as to render them “essentially at home” (per International Shoe, Goodyear)
· Perkins v Benguet (General Jx met)
o D’s contacts with Ohio: D’s pres/GM/principle stockholder has home in OH. Office in OH. Office files in OH. Banking, payment of salaries in OH. Purchased stuff for business in OH è General JX OK.
· Helicopteros (General Jx not met)
o D’s connection to Texas: D’s (Colombia) helicopter crashed in Peru. P brought suit in TX. D negotiated K in CA. 80% of D’s fleet bought from TX. D sends pilots to TX for training. Sends employees to TX for consultation. è NO General Jx
o Standing alone, mere purchases and related trips (even if occurring at regular intervals), does not establish general jx.
· Goodyear Dunlop Tires (General Jx not met)
Family of NC teenagers killed in a bus crash in France. Family brought suit in NC, alleging faulty tires. Tires were made by Goodyear in Turkey. P sued Goodyear (OH) and its subsidiaries in France and Turkey. OH did not contest jx.
o General Jx over foreign corporations is OK where corporations affiliations are so “continuous and systematic” as to render them “essentially at home.”
o Factors
§ Registered to do business in forum state?
§ Place of business in forum state?
§ Employees or bank accounts in forum state?
§ Design, manufacture, or advertise its products in forum state?
§ Soliciting business in forum state? Selling directly to forum state customers?
3nd Base: Specific Jurisdiction (no general jxn).
Specific JX: for contacts that give rise to the liability sued on. Must show that D has minimum contacts with forum state related to c/a.
Minimum contact required (purposeful availment + inconvenience/ “other factors”):
D must have sufficient contacts with the forum state such that it would be reasonable and just according to our traditional notions of fair play and substantial justice. (International Shoe Co v. WA).
§ Single or occasional acts can be enough. (McGee) MUST BE Voluntary, Directed Activities, that Invoke Benefits and Protections of Forum State.
§ Factors to consider? (articulated in International Shoe)
· Inconvenience to the defendant?
· Convenience/burden to the plaintiff?
· Volume of business generated?
· Number and regularity of contacts?
· Relation between the instate activiti
ot enough right now (but fact that D is in state and not foreign might make a difference).
Post-Asahi, the Supreme Court has addressed this split and again produced differing views in a plurality opinion. However, it appears that the High Court generally has concluded that additional conduct beyond mere awareness is required, differing primarily on the quantum of acts targeted directly at the forum state that will be required, particularly in view of “contemporary circumstances” (e.g., Internet connections, modern online distributors, etc.). [See J. Breyer concur.opn. in J. McIntyre Machinery, Ltd. v. Nicastro, supra, US at , 131 S.Ct. at 2794]
REASONABLENESS: if directed at forum state, then there must be a COMPELLING reason for no jxn.
Ainsworth v. Moffett, 716 F.3d 174 (5th Cir. 2013).
Ainsworth is injured in forum state of MI
He is bringing products liability case against Manufacturer of Forklift in Ireland (Moffett)
And there is a National Distributor in Ohio (Cargotec)
McIntyre would seem to say: no jxn
But 5th Cir disagrees
– Stream of commerce metaphor survives
– 203 forklifts in forum
o This ended up in forum state through some plan or design
o Ginsburg dissent is right that the McINtyre 640 did not get into NJ by accident (there was an order place, as many as four). It was not accidental.
o WWVW was distinguishable for Gisnburg in McIntyre.
§ Contractual relationship:
· Purposeful availment demonstrated where D has “created continuing obligations” between himself and residents of the forum state (BK).
· Choice of law provision (not controlling)
· Forum selection clause (bigger rock)
· Consent to jxn clause (determinative)
· Alone, entering into K with a resident of the forum does not suggest purposeful availment. (per BK).
· Need to evaluate entire course of dealing including (BK)…
o If K was negotiated in the forum and/or performed there
o Prior negotiations in forum
o Future consequences in forum. [BK à contemplated that money would be sent to FL.]
· International Shoe
o D (principle place of business out of state) having 11-13 employees soliciting products and renting out sample rooms in forum state = “continuous and systematic”.
· McGee v Int’l life Ins (single contact with forum OK):
o D (out of state corp) took over P’s insurance plans from another company. K was delivered to CA, premiums were there, and the insured was a resident of CA. Activity has “substantial connection” with CA.
· Hanson v Deckla (articulates purposeful availment req)
o X established trust in DE and named a DE bank as the trustee. X moved to FL and died there. X’s beneficiaries brought suit in FL. No purposeful availment. X moved voluntarily.
