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

Civil Procedure 2
August 23, 2010
PENNOYER v. NEFF
– Authority of ct is restricted by state border –cant subject outside persons or p thro process
– State may compel person domiciled within its limits to execute outside p
– jxs over the p (w/in state) of nonresident
– Service by pub- in rem = ok- seizure informs
– in personam, constructive service not ok
– Cant go across state lines to serve (personal or by publication) people domiciled in another state
– In personam – jxs reqs service of process within state
– Exception- cases affecting personal status of P,or where mode of service assented to in advance,
– Exception – proceedings to determine civil status of cit towards nonres
– Exception> state may req nonres corps within its limits to appoint agent in state to receive serve
Notes
– Neff held> in personam only if personal service in the state
– Transient jxs
– Neff held> jxs in rem – personal service in state not nec for state to exercise jxs over in state p
ð whether person is in state or not
– A suit to specifically enforce a k for sale of land could be in personam or quasi rem
– Seider v Roth – p of the ID that is present in NY if the insurance co does business there
– Neff-no state may exercise direct jxs over persons or p outside it.
ð Milliken v Meyer – state has jxs over one of its citizens even while citizen is out of state
– Exceptions> state retains right to determine status of its citizens> family law litigation
ð jxs to decree the divorce (in rem) but not to decide questions of alimony or child support obs involving an absent D (in personam)
ð consent> corps
Archeology of a lawsuit
– Complaint
ð Jurisdiction – allege basis for SMJX, maybe PJX, maybe allegation for proper venue,
ð a ct without jxs issues a void judgment; right to relief
– personal jxs – power of ct over person or property –
– ct can raise subject matter jxs sua sponte on appeal for the first time)
– No hypothetical jxs
Jxs or element (goes to the merits)
– (1) Copy right act requires registration before suing – appeal ct raises sua sponte – not jxs
– Not jxs – does not go to the very power of the ct
– Number 1 consideration – did congress state it was jxsal
– (2) title VII and state law claims
– fewer than 15 employees?
– But if its on the merits, fed claims can go out but the state law claims are still there
– not jxs
Other Cases
– Morrison v. NAB Extraterritorial reach of fed securities laws (sec. 10b(5)) – not jxs
– 129 S.Ct. 1862 (2009) Failure to allege pattern of racketeering under RICO – not jxs
– 128 S.Ct. 750 (2008) Ct of claims statute of limitations – jxs
– 127 S.Ct. 1397 (2007) False claims act “original source” status – jxs
Venue
– Compare
ð Original
ð Transfer – can only trans venue in the same ct system> (CA cant trans to another sovereignty (NY/other country = forum nonconvenience
ð fed ct can trans to any other fed ct- circuit or district

August 25, 2010
Personal Jxs>
– Can prevent a witness from fleeing the jxs
– Subpoenaed – power of ct to compel a witness or documents
– Summons- power of ct to get someone to show up
– Writ of capias ad respondendum – sheriff arrests D and puts him in jail to await trial
Pennoyer v. Neff
– Terms
ð levy is after the judgment
ð Attachment = before
– PJX reqs Personal service in state, voluntary appear (consent), p in state–in rem or quasi in rem
– In personam – power over the D to issue a coercive judgment
– In rem – power over property to issue a coercive judgment; p is physically located in forum> real p, personal p, debt, bank accounts, stocks, domain name is property
Pennoyer Rules
– Due process requires the ct to have jxs
ð Jxs =physical power > the authority of a tribunal reaches the boundaries of its territory; service is valid to extent it is served on you when you are in the state, or on p in the state
ð Judgment without jxs is void
ð Void judgment can be collaterally attacked; once you directly attack, can’t collaterally attack
ð If you only attack it collaterally , you can only attack it on jxs> the merits are irrelevant!! You can only attack the validity of the judgment
Note case
– Neff –
ð personal service in state Or:
ð If the p is located in the state> power to exercise in rem and quasi rem
ð If person is (physically- see Milliken) in state
ð Or consent> voluntary
– Exceptions>
ð Status- ct has power over status
èDivorce – we allow despite no service of process
ð Appoint agent
èPower over corps or partnerships> some business entities
èLegal fiction> must appoint agent for service of process who is within the state
ð Domicile will always serve a basis but if not served properly – no process- no jxs
Relationship between Defendant, Forum, and Cause of Action

August 30, 2010
Class notes
– D physically present in the forum state
– Persons (Defendant)
ð Served within state’s (physically present)
ð Domiciled in Forum (you live here, house is here> live and intend to remain permanenty
ð Consent by appearance or otherwise (fighting it, motion for summary judgment, etc,) [by k] – Entities
ð “Present” via continuous acts (continuously and systematically doing acts in state)
ð Domiciled in forum (Corp headquarters in the state)
ð Consent by registration or otherwise
Fraudulent Inducement
– Being in the forum physically does not auto grant jxs!
– Guilt- not sure fraud
– person chooses to stay in the jxs?
– Where p has lured D into the jxs with falsehoods> invalidates service
– Wyman v Newhouse – plea one last time- invalidated service
– Situations where D has come into the jxs to negotiate a resolution of an admitted dispute
ð Microfral> D proposed irrelevant- D came to state only to discuss settlement
ð Policy> interest of justice to promote speedy settlement; enforcement problems
ð Artcraft Silk – summe

exclude not nec, but pertinent
– Olberding> rejected implied consent argument that D had waived venue objection (car)
– Did Mass need to limit implied consent to claims arising out of driving in the state?? Cally??
ð Gold Issue Mining> state could Cally req corps consent to general jxs (actual vs implied)
– Consent theory founders where state does not have power to exclude the D
ð priv claus-individual partners had right (not shared by corps) to engage in bus in state
ð Watered down in Goodman– special regs of securities permitted consent theory
JXS Over Corporate Defendants
– (1) States req that all corps engaging in bus within state register and appoint agents for service of process>deemed impliedly consented to service if refused to register. Ok- no rights under priv
– (2) Corporate “presence” – corp was present wherever it engaged in a sufficient amount of activities – thus served like a natural person who was present
– Under presence> Whether p’s claim related to D’s activities w/in the state logically irrelevant
ð analogous to transient general jxs for individuals
ð continuous and substantial commercial activity was nec to constitute presence
SHIFT AWAY FROM PENNOYER AND TO MINIMUM CONTACTS
INTERNATIONAL SHOE CO. V. WASHINGTON
– agent of Shoe served in WA
ð No office, makes no ks either for sale or purchase there, no stock of merchandise in state, no deliveries of goods in intrastate commerce
ð Employs 11-13 salesmen under direct supervision of managers in St. Louis
ð Salesman reside in WA, principal activities confined to WA
ð Rent hotels etc> reimbursed by Shoe
ð Exhibit samples and solicit orders- no authority to enter into k or make collections
ð Orders shipped f.o.b. from points outside WA to the purchasers within the state
– DP reqs- in order to subject a D to a judgment in personam, not present in forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice
– Such contacts of the corp with the state of the forum as make it reasonable to req the corp to defend the partic suit which is brought there.
ð incon to the corp to defend away from its home or principal place of bus
– Presence in state> when activities of corp have been continuous and systematic and give rise to the liabilities sued on