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Civil Procedure I
University of Dayton School of Law
Seielstad, Andrea m.

Civ Pro – Seielstad

Fall 2011

I. Personal Jurisdiction

I) Personal Jurisdiction – Involves the ability of a court to exercise power over a particular defendant or his property. There are three types of personal jurisdiction:

1) In Personam Jurisdiction

A) Jurisdiction over the defendant’s person

B) A court has the power to issue judgment against him personally

C) See Burnham v. Superior Court – a state can obtain IPJ over a non-resident only if that person is personally served with process while in that state.

2) In rem Jurisdiction

A) Jurisdiction over a person’s property

B) Gives the court power to adjudicate over said property

C) If the non-resident owns property within a State, and that property is seized by way of attachment (e.g. forefeiture of a car used to transport narcotics). This can only occur within the physical borders of that State.

3) Quasi In Rem Jurisdiction

A) Court has jurisdiction over D’s property only as a settlement for some other claim arising in that State.

B) This cannot be exercised unless D had such ‘minimum contacts’ with the forum State that in personam jurisdiction could be exercised over D. See Shaffer, where P owned one share of stock and sued – ownership of property alone wasn’t enough – MC also had to be satisfied.

C) Any judgment against D cannot exceed the value of the attached property. Furthermore, D is not bound personally.

D) See Pennoyer v. Neff – notice by publication is sufficient for in rem actions, but not for in personam actions.

II) Limitations on Personal Jursidiction – There are both statutory and constitutional


1) Statutory Limitations – Generally most states have the following requirements, D must meet at least one of them:

A) D must be present in the forum State and be personally served with process

B) D is domiciled in the forum State

C) D consents to jurisdiction

D) D has committed acts bringing him under the state’s long arm statute.

2) Constitutional Limitations – Once it’s determined that a State allows the court to exercise IPJ over a D, then the constitutionality must also be determined. This is determined by the Due Process Clause, which requires both that D have certain “minimum contacts” but also that the suit does not “offend the traditional notions of fair play and substantial justice.”

A) “Minimum Contacts Test” –Established in International Shoe – where shoe corp failed to pay WA state workman’s comp b/c it was a DE corp. Court held Shoe had to pay:

Reasonableness + Minimum Contacts

i) Quality and Nature – Has to be systematic and continuous; court will find this level of activity sufficient for conferring IPJ for any cause of action against D, whether the cause of action arose from in-state or elsewhere. See Helicopteros Nacionales de Colombia v. Hall.

ii) Connection – If D’s in-state activity is less than systematic and continuous, then there must be a connection between asserted claims and D’s activities within that state. See McGee v. International Life and Burger King.

iii) Purposeful Availment – Did D purposefully avail itself of the privilege of conducting activities within the forum State, thereby invoking the benefits and protections of its’ laws.

The placement of a product into the stream of commerce, and no more, is not sufficient to constitute “purposeful availment.” See Hanson v. Deckla.

iv) Foreseeability – Even if D’s activities are performed outside the state, D will still be subject to IPJ for consequences in the state he knows or reasonably anticipates that his activities could give rise to cause of action in the forum State.

Are D’s connections and contact with forum State such that he should “reasonably anticipate being haled into court there”? See Worldwide Volkswagen v. Woodson

B) “Reasonableness” Test – Factors include…

A) Relation of Claim to Contact

B) Convenience to All Parties

C) Forum State’s Interest

D) Other factors include:

i) P’s interest in obtaining relief

ii) The interstate judicial system’s interest in obtaining efficient resolution of controversies

iii) Shared interest of States to further fundamental social policy

III) Disputing Personal Jurisdiction? – If one is sued in another state and jurisdiction is disputed, the best procedure to follow is to raise the defense of lack of personal jurisdiction in a pre-answer motion, or in the answer.

A) Some courts permit making a “special appearance” to raise only issues of jurisdiction

B) If this defense is not raised early, a court may hold that D has waived the defense of lack of jurisdiction

C) If D’s jurisdictional challenge does not succeed, then many systems do not permit D to appeal immediately because denial of a motion to dismiss for lack of PJ is an interlocutory (non-final) order.

D) Direct Attack – D will usually be able to join his jurisdictional attack with other reasons why P’s suit should be dismissed (and to resist on the merits as well). Problem is, it forces D to give up part of the protections secured by due process.

E) Collateral Attack – D’s refusal to participate in the case does not preclude him from later questioning PJ. If he does nothing and a default is entered against him, he can challenge PJ when enforcement proceedings take place. But there’s risk there, since he no longer ha

used in Zippo – since “purposefully availed” with PA residents, PA court had jurisdiction. The likelihood of PJ being exercised is related to the amount of business – since D had a lot here, they’re subject to PJ.

2) Power over Corporations – The claim must arise directly from D’s activities in the forum State.

A) Note minimum contacts test again. MC + Reasonableness.

B) See Volkswagen v. Woodson – the “stream of commerce” case applies here. The mere fact that a product finds it’s way into a State and causes injury is not enough to subject an out of state manufacturer to PJ there. There must be some effort to market directly to that State. Also see Asahi v. Superior Court.

C) Look at Burger King – simply having a contract within the forum is not enough, other factors must be looked at to determine MC, such as prior negotiations, contemplation of consequences, terms of the contract, and actual course of dealings.

Terms of Contract are especially important in Burger King, because D agreed to litigate all matters in Florida.

III. Jurisdiction, generally

I) Consent to Jurisdiction – Note: Jurisdiction = Power OR consent + notice. Since consent acts as a substitute for power, jurisdiction can be exercised over a party if he has consent to it, even if he has no contact with the forum State.

1) Ways to Consent – There are three such ways.

A) Filing an action – obviously, P consents to the jurisdiction.

B) Consent before a claim arises, such as commercial clauses (Burger King)

C) Forum Selection Clauses – see Carnival Cruise Lines, page 169. Court held that if the clause is fundamentally fair, it can be enforced.

2) Implied Consent – when a State has substantial reason to regulate in-state activity of nonresident D’s, it may provide that by D engaging in the activity has consented to jurisdiction. (Ex. an out of state resident gets into a car accident – motorists are subject to jurisdiction in any state.)

II) Proper Notice – Due process requires that a reasonable method be used to notify D of a pending lawsuit so that he may have an opportunity to appear and be heard.