Civil Procedure I Outline

Civil Procedure

Hyatt

Fall 2011

1. Personal Jurisdiction:

a. 3 types of jurisdiction

i. In personam – jurisdiction over the D (person)

ii. In rem – power over property

iii. Quasi in rem – power over property not to due with the case

b. PJ history:

i. Pennoyer v. Neff – physical presence test

a. 4 traditional basis for PJ

a. D was served with process in forum (general jurisdiction)/present when served with process (presence)

b. Ds agent was served while in forum

c. D is domiciled in forum (general jurisdiction)

d. D consents to jurisdiction through contracts, inadvertence, etc.

a. Judgments in personam and without personal service of process will not be upheld

ii. Harris v. Balk – Quasi in rem

a. Court has jurisdiction to render judgment against debtor for the property a person owns in that jurisdiction

iii. Grace v. Macarthur – transient presence

iv. Adam v. Saenger – by appearing in court, one is consenting – must make special appearance

v. Hess v. Pawlowski – expanded idea of consent to implied consent

vi. Transient jurisdiction

a. Burnham v. Superior Court -(divorce in CA while father visiting) Presence test still stands; general jurisdiction

a. Brennan concurrence says should go by international shoe

c. Modern Personal Jurisdiction

i. Statutory Analysis:

a. Long arm statutes – enumerated to the full extent of the constitution or more limiting than scope of constitution

b. Recognize jurisdiction to full extent that constitution will allow

ii. Constitutional Inquiry:

a. International Shoe v. Washington – minimum contacts and fair play and substantial justice

a. D must have certain minimum contacts with forum state such as maintenance of suit doesn’t offend “traditional notions of fair play and substantial justice.”

iii. Specific Jurisdiction

a. Minimal Contacts: A state may exercise jurisdiction over a D whose contact in a state consists of a single contact provided that the act is what gave rise to the claim and was deliberately directed towards the state (mcgee)

a. Purposeful

i. Burger King Corp. v. Rudzewicz – two part sliding scale

· Substantial and continuous relationship; D relationship with FL headquarters was not “random”, “fortuitous”, or “attenuated”.

· Had foreseeability that D might be subject to suit in forum state; foreseeable injuries to corporation in FL

· Purposefully invoked benefits and protections of FL state law

ii. Asahi stream of Commerce Plus test – Calder effects test; deliberately engaged – stream of commerce plus = mere act of placing in stream not enough (must design or market to forum)

b. Availment

i. Kulko v. Superior Court – divorced mother moves from NY to CA and sues for custody in CA court

· Father receives economic benefits in CA b/c of children but no personal benefits or privileges so no jurisdiction (economic v. personal activity)

c. Forseeability

i. Hanson v. Denckla – woman executes will in DE with DE trustee, moves to FL and dies

· Unilateral activity of P does not satisfy jurisdiction

· Trustee transacted no business in FL and entered into trust w/o connection to FL

ii. Worldwide Volkswagen Corp. V. Woodson – woman buys care in NY and gets in car crash in OK on way to move to AZ. Sue in OK? no

· Foreseeable that car may be there but not foreseeable that would get haled into court there

· D did not receive privileges of forum state and did not advertise or have presence in forum state

· Stream of commerce but not stream of commerce plus; unilateral contact by P

b. “fair play and substantial justice”

a. Asahi Metal Industry Co. v. Superior Court

i. 5 Asahi Reasonableness tests:

· What is burden on D? cross international borders, distance

· Asahi – international Ds with minimal connections

· Interest of forum state? Substantial interest or no

· BK state generally has “manifest interest” in providing its residents with a convenient forum for redressing injuries inflicted by out of state actors

· Asahi – no forum parties still in lawsuit

· Interests of P for obtaining relief? More convenient in forum state or no

· Does allowance of pj serve interstate efficiency?

· Does allowance of pj serve interstate policy interests?

c. Internet Contacts

a. Inset Systems v. Instruction set, Inc. – minimum contacts with forum state and “fair play and substantial justice” tests apply

i. Purposefully availed itself to forum state because internet advertisement all over world; could reasonably anticipate being haled into court there

b. Zippo manufacturing v. Zippo Dot Com, Inc. – (sliding scale) entity intentionally reaches beyond boundaries to conduct business with foreign residents, exercise of specific jurisdiction Is proper.

i. 2% of business from PA residents was enough in this case

ii. Sold pw and entered into contract with PA residents; Chose to process PA applications and assign pw

iii. “passive” or active website

iv. A single contact could be sufficient. focuses on “nature and quality”

v. Strong interest in adjudicating disputes involving the alleged infringement of trademarks owned by resident corporations

c. Young v. New Haven Advocate (article in newspaper)

i. Directs electronic activity to state

· Fact that can access anywhere doesn’t mean intentional directing

ii. manifested intent of engaging in business or other interactions w/ state

· Must manifest intent to focus on forum state audience

iii. Activity creates, in a person w/I the state, a potential cause of action cognizable in that state’s court

· Could not have “reasonably anticipated being haled into court” to answer for truth of statements made in articles

iv. General Jurisdiction

a. “continuous and systematic relations”

a. Perkins v. Benguet Consolidated Mining Co.

i. Home office activities are continuous and systematic

· Maintained office, carried out correspondence, distributed employee checks, several directors meetings were held

ii. 14th amendment neither prohibits or forces OH to see claim

b. Helicopteros Nacionales de Columbia, S.A. v. Hall’

i. One trip by D chief officer to negotiate contract is not a contact of “continuous and systematic” nature

ii. Purchases and related trips, standing alone, are not sufficient

iii. Can’t conclude purchases and training in any way enhanced the nature of contacts between D and TX

iv. D had not business in TX, never sold products or given helicopter rides there, no employees, no personal property or stockholders in TX

c. Place of Incorporation or domicile are continuous and systematic ties

v. Power over property

a. Statutory basis? Attachment statute

a. Constitutional analysis

i. Property be attached at outset of case

ii. Harris v. balk – includes intangible property

· Shaffer v. Heitner – overrules harris; quasi in rem jurisdiction, the constitution requires the D have minimum contacts with forum. All assertions of personal jurisdiction must meet international shoe (would this be met in in rem case w/simple presence in forum? Probably)

vi. Consent (usually through contract)

a. Carnival Cruise Line v. Shute – in order to set aside a choice of forum selection clause, the D must satisfy the “heavy burden of proof” requirement

a. Reasonableness – Special interest in limiting where could be sued

b. Judicial economy – spares litigants time and expense of pretrial motions to determine correct forum

c. Reduced fares

d. No indication D set FL as forum as means of discouraging lawsuits

d. Constitutional notice requirement

i. Mullane v. Central Hanover Bank & Trust – notice of judicial proceedings must be reasonably calculated to reach those who are known to be effected by such proceedings

a. Service via newspaper publication is unreliable b/c newspapers have limited circulation and many people don’t examine legal notices

b. Could easily be informed by other means at hand

e. Personal jurisdiction in Federal Courts – Rule 4(k) (see page 7)

f. Can make special appearance in court and not waive PJ

g.