Select Page

Civil Procedure II
University of California, Hastings School of Law
Marcus, Richard L.

Civil Procedure Outline 2
Prof Marcus
Pennoyer v. Neff:
In personam jurisdiction:
You can’t serve process in personam outside state lines. This does not constitute due process of law under the 14th Amendment. The process of one state cannot cross state lines and serve a party.
Appearance in the jurisdiction implies consent.
Special appearance: You must do this to challenge jurisdiction. You must be sure everyone knows you are there only to challenge jurisdiction, or it will be counted as an appearance.
Fraudulent inducement: Person is lured into the state in order to serve process.
Transient jurisdiction: State can exercise jurisdiction even if the person is only in the state for a short time.
Under this case, you need appearance or personal service in the jurisdiction.
Full faith and credit: If the Pennoyer requirements are satisfied and you receive a judgment, you should be able to execute the judgment in any state.
Power principle of jurisdiction: The exercise of power in personam is the process. The process, generally called a summons, may not cross state lines to summons an individual to defend in that state.
This led to transient jurisdiction; all you have to do is be there.
If jurisdiction is improper, the judgment is not entitled to full faith and credit.
In rem:
If the power you are exercising is over the property, that is all you have power over. You have no rights over the person outside of the property.
Limited appearance: You can defend the property without entering a general appearance. It is limited to defending the property.
When Pennoyer was decided, the location of property was not a problem because most property was tangible. But, now, a lot of property is not tangible.
Quasi in rem: The lawsuit has nothing to do with the property, but the state is using the property to get at some other interest of the person.
Exceptions to requirement of having in personam or in rem jurisdiction:
Status: The state has the authority to determine the status of a resident with respect to a non-resident. (married/not married)
Consent: A person can consent to jurisdiction before hand.
In Hess v. Pawloski, MA said that due to the dangerousness of driving an automobile, you should have to appoint someone in the state as an agent to serve process upon.
This is an incursion on Pennoyer.
But, what can the state regulate? How far does this go? Can any activity in the state imply the defendant appoints an agent for service?
These questions are answered to some extent by International Shoe. The court creates the minimum contacts rule.
You need a way of knowing if a corporation is present in the state.
A way to make it easier to serve corporations is by making them register an agent for service if they do business in the state.
Another thing we do is say you must register an agent or you can’t sue in our courts.
The Supreme Court does not use “doing business” as the test, but whether the corporation has certain “minimum contacts.”
Now, there must be minimum contacts such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”
This standard came to be used for individuals as well, not just corporations.
Systematic and continuous
Activities in state give rise to claim
benefits to defendant of state law
location of witnesses
balance of conveniences
state interests: citizen plaintiff
Fair play and substantial justice is not talking about whether the defendant should be sued, but whether it is fair for the defendant to defend in a particular locale.
The issue is that defending away from home is harder. Hard to get witnesses there, finding a lawyer.
We should consider the balance of conveniences between the plaintiff and defendant.
Another issue is state interests in citizen protection and regulatory interests.
Regulatory: If out state has an interest in regulating things that happen here, that is an interest even for out of state people because the next tort could happen to a state citizen.
The idea of general jurisdiction is you can always sue the defendant at home.
The Supreme Court tightened up the jurisdiction requirements in Hanson: note 4 after McGee.
From Hanson, we draw the line using purposeful availment. Any arguments based on the above criteria don’t count unless the defendant purposefully availed itself of the opportunity to take place in activities in the forum. This is the big obstacle.
The plaintiff must also have to show reasonableness using the other criteria, but purposeful availment is the first obstacle.
I.                   Long-arm statutes
II.                Due Process
A.    Purposeful Availment
B.     Reasonableness
In CA, the long-arm statute is eliminated. CA says that you may exercise jurisdiction if it is allowed by the Constitution.
So, we go right to step II.
IL was the first state to enact a long-arm statute. If you do a certain thing in the state, then jurisdiction can be exercised.
In Gray v. American Radiator, the plaintiff was injured by a radiator made by American Standard in PA. American Standard bought valves from Titan, which manufactures in OH. American had a cross-claim against Titan.
Titan objected to jurisdiction with respect to both claims against it.
These claims are couched in a long-arm statute, which allows jurisdiction if you commit a tort in IL.
In Feathers, a NY case, the long-arm statute says the same thing, but the case came out the other way.
The court in American Radiator is doing hand springs to fit the statute.
Many states, such as IL, have interpreted their statutes to go to the maximum length of Due Process, probably because they think the legislature did not intend to close the courts to its citizens.
Although many states don’t say so, many courts interpret them to go to the maximum limits.
Rule 4(k)’s basic provision in 4(k)(1)(A) is that a federal court may exercise jurisdiction only if a state court could.
So, normally, the long-arm statutes and Constitutional limits apply to federal as well.
An exception is bulge jurisdiction (within 100 miles)
4(k) also mentions that there is nationwide service of process in interpleader cases and in other certain cases too.
4(k)(2): Where there is a claim based upon Federal law, but there is no state court with jurisdiction, it can go to federal.
This may happen in two common cases:
(1)    State has a short long-arm statute;
(2)    There are no contacts with any particular state to justify jurisdiction, but contacts with the country justify jurisdiction.
In WW Volkswagon, OK is not an unreasonable place. The accident occurred there, the witnesses are there, etc. 
It looks like fair play and substantial justice would be satisfied. 
But, the judge ruled that jurisdiction was no good.
“Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another state; even if the forum state has a strong interest in applying its law to the controversy; even if the forum state is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate Federalism, may sometimes act to divest the state of its power to render a valid judgement.”
There is no due process problem if the defendant does not object to jurisdiction, so this rule seems to protect the defendant. This isn’t really a protection for the state, but for the defendant.
So, Due Process is the first big hurdle for plaintiffs and protects defendants.
We must first get by the long-arm statute of the state, and then get by the due process of the constitution, namely the purposeful availment prong, and then the fairly easy reasonableness prong.
Purposeful availment is the ability of defendants to make a choice: Am I going to engage in activities with respect to OK or not? If I don’t purposefully avail myself of a connection with OK, all that other stuff does not count.
In VW, the Supreme Court says the purposeful availment prong restricts jurisdiction, even if it is reasonable.
One dissent said people should not have complete control. Another dissent said it is not always possible for the defendant to control this.
The plaintiffs are saying the injury in OK is foreseeable, so this is enough. 
The Supreme Court says the relevant foreseeability is the foreseeability of getting sued. “Hailed into court.”
In structuring his primary conduct, does the defendant do something that makes it reasonable for him to be hailed into court in a certain forum.
For products, purposeful availment is satisfied if the defendant seeks to serve that state.
The kind of thing we are looking for is voluntary activity by the defendant which attempts to provide goods and services to the forum state.
Audi and VW certainly sought to serve OK. But, it matters whether the claim comes out of the fact that VW is seeking to serve OK.
There is some place in which the defendant is subject to general jurisdiction.
Specific jurisdiction has to do with whether to suit originates due to the fact that the defendant purposefully availed himself of the locale. For products, whether the claim arises out of the fact that the defendant sought to serve the state.
Foreseeability means, “should put someone on notice.”
With products manufacturers, this seems to mean, “seeks to serve.”
From VW, stream of commerce ends when the retail purchaser buys the product. If the purchaser takes the product somewhere else, it does not mean suit is permitted there.
In Keeton v. Hustler, the plaintiff sued first in OH, but the statute of limitations had run. So, she then sued in NH, which has a very long statute of limitations.
The Supreme Court said it is purposeful availment because they publish thousands of newspapers in NH.
In Calder v. Jones, we have to look at jurisdiction separately for the individuals, Calder and South.
It is OK to sue them in CA because they purposefully availed themselves there.
It is reasonable to sue there, so purposeful availment is the big-ticket item.
The idea of foreseeability is that this person should have foreseen that if a suit happened, it would happen in the forum and they would be sued there.
In Madera v. Hall, a guy in NY got a call from a guy in CA to ask about his former agent. The agent filed a lawsuit in FL. The court says that simply giving an interview is not enough to foresee being drawn into court in FL.
We are trying to draw the line to determine what is enough for foreseeability of suit.
The dividing line may be if a choice was made to reach out. At some point, we come to the conclusion that just answering the phone does not make that person foresee being sued in the foreign state.
Underlying question: Should the defendant have foreseen suit in the state where he is sued?
In Burger King, the Supreme Court ruled that there is no mechanical step to see if a contract is a contact, but we must look at it on an individual basis.
The choice of law clause does not necessarily mean that Florida should have jurisdiction; it is merely one of the factors to consider.
The case turns on the fact that the defendant reache

ving notice that is reasonably calculated to give actual notice to the one being sued.
In Bates, someone bought something in the western district of PA. He then moved to the western district of NY.
The debt collection agency sent a letter to PA and it was forwarded to NY.
The guy sued the debt collection agency in NY.
With a corporation, if jurisdiction is OK, venue is OK.
§1391 says that venue is OK for a corporation where jurisdiction is OK. However, we look to see if personal jurisdiction is OK “at the time the action was commenced.” In this case, jurisdiction is OK because the defendant did not object to it. However, it probably would not have been OK at the time the action was commenced, so this doesn’t automatically satisfy venue. Venue must be considered separately.
So, venue has to be satisfied by §1391(b)(2), where a “substantial part of the events or omissions giving rise to the claim occurred.”
It is no longer true that only one venue is always proper. A “substantial” part of the events may occur in more than one place.
If there is no district in which venue is proper, §1391(b)(3) kicks in. Either where defendant is found or where the defendant is subject to personal jurisdiction is OK.
§1404(a) says transfer available when a district court wants to transfer to another district court. 
Cases removed from state court are not subject to venue limitations at all.
The U.S. Supreme Court said it is OK to transfer even if the court does not have jurisdiction.
Under forum non conveniens, we favor the place where the plaintiff chose to file suit because they already have a bunch of hurdles to overcome.
Grounds for FNC dismissal:
-adequate forum
-private interests
-public interests
The U.S. should consider if the place where the case would be removed to would be just.
But, generally, the unfavorable change of law is not an argument for forum non conveniens.
Subject Matter Jurisdiction
Under Rule 12(h)(3), you can raise subject matter jurisdiction at any time. You can’t waive it. It’s almost always available. You don’t have this problem in state court.
Potential advantages of federal court: Federal judges are more independent and don’t depend on campaign contributions. In Federal court, we have the FRCP and more liberal discovery. Also, federal courts tend to be located in big cities.
In Mas v. Perry, there were two issues raised: diversity and the amount in controversy. 
These issues are under §1332.
In 1806, the Supreme Court said you have to have complete diversity of citizenship.
The Constitution, Article III §2 says the Supreme Court has jurisdiction of matters between citizens of different states.
So long as there is minimal diversity, it is constitutional, according to State Farm, to be in Federal court.
However, according to statute, there must be complete diversity.
To effect a change of domicile, you must:
(a)    take up residence in a different domicile
(b)    with the intention to remain there.
There is a gap in §1332. Had the wife in Mas been deemed a domiciliary of France, she could not be sued in Federal court. There is not a provision for expatriates. (citizen of U.S., but not a citizen of any state.
Even if there is diversity between a husband and wife, or former husband and wife, the Supreme Court has said that lawsuits over divorce, alimony, and child claims should be handled in state court.
Under §1332(c), a corporation is a citizen of any state in which it is incorporated and of the state it has its principal place of business.
For a limited partnership, there must be complete diversity as to each individual partner. The same with unions.
The minimum amount in controversy is currently $75,000.
No problem arises with respect to amount in controversy in Federal question cases. There, we don’t care about the money.
In order to meet the money requirement, we look to see if the plaintiff’s claim was made in good faith. In order to decide that something is so outlandish that it shouldn’t count, it must appear to a legal certainty that the defendant could not recover that much.
So long as the plaintiff puts a big number on the complaint, it is usually hard to show the plaintiff could not recover that much. Very rarely does the amount in controversy present a problem.
In Louisville and Nashville RR v. Mottley, a bill was passed that said you could not give free rides. Here, the court raised the question of subject matter jurisdiction.