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Civil Procedure I
University of Connecticut School of Law
Berman, Paul Schiff

CIVIL PROCEDURE
I. Personal Jurisdiction (Constitutional base)
a. Is there a traditional basis for asserting Personal Jurisdiction?
i. Physical Presence: is defendant there? If he’s physically present in state, he’s subject to jurisdiction (Pennoyer v. Neff) (only have to be present at the time summons/complaint served)
1) Burnham Case: Transient(voluntary) presence is still an open question
a. Scalia says: physical presence no matter how slight remains a basis for pj, like flying over the state in a plane
b. Brenan: purposeful availment, there’s personal jurisdiction because husband made use of the benefits of the state , a very low threshold for minimum contacts – eat lunch there then leave and that is good enough to satisfy min contacts (berman doesn’t think that is what he actually meant)
2) Schaffer and quasi in rem: you can’t attach property if it has nothing to do with the suit, still need minimum contacts. Only time you can use quasi in rem is if the defendant satisfies the minimum contacts standard but not the state’s long arm statute
ii. Consent or waiver?
1) Consent: 2 kinds
a. Forum selection clauses, which are express. Like on credit cards
b. Implied: like Hess v. Palowski (car accident in Mass), but we don’t really use this anymore, International Shoe replaced doctrine of implied consent with the minimum contacts inquiry. Having an agent for service of process in that state gives consent
2) Waiver: Defendant has to object to personal jurisdiction in first appearance, it is a use it or lose it objection. Rule 12b2 to object to personal jurisdiction
iii. Domicile of Individual? 1 place, Must have 2 things
1) residence
2) intent to remain
3) Domicile only changes when both of these change
iv. Domicile of corporation: domiciled in 2 places
1) where it’s incorporated
2) principal place of business
b. Is the forum state’s long arm statute applicable to the situation? If no you have no personal jurisdiction, but go to c. Usually state’s long arm statute is interpreted broadly. “LONG ARM STATUTE IS APPLICABLE BECAUSE IT FITS THE CASE AND FACTS”
i. IF yes, would the assertion of Personal Jurisdiction under the long arm statute of state be constitutional?
1) Minimum contacts: the International Shoe sliding scale test (relatedness v. number of contacts) The more contacts in the state, the less related the contacts have to be with the claim (focus on time when D acted, not time of the lawsuit)
a. Does the defendant have continuous and systematic contacts with the foreign state? If yes, you have general jurisdiction (can sue about anything). I

s
i. How much control over products and where they go
ii. How much of the flow, how many products are going to the state
iii. How much money did thy get from the product sold in that state
iv. Targeting – was it designed for that geographical area, special advertising in jurisdiction or was there some distribution network setup in order to bring it
c. Make sure you explain and argue both ways. It is unknown whether many unrelated contacts with the forum state are enough for j b/c supreme court has yet to deal with this, however it is unlikely that wholly unrelated contacts would be sufficient absent a traditional basis of jurisdiction (consent, presence etc)
2) Fair and Substantial Justice satisfied? Factors
a. What are state’s interests?
b. What are plaintiff’s interests?
c. Does the plaintiff need protection by the forum?
d. What are the burdens on the defendant?
e. What are the burdens on the system generally?
f. If it’s an international dispute: US judicial system interest in resolving, foreign relationship?