Hardaway Civil Procedure Fall 2014
I. Territorial (Personal) Jurisdiction
A. In Personam Jurisdiction
RAW POWER- court has power over person seized in the territory over the defendant by service or domicile
1. Statutory Analysis
2. Long Arm Statutes (Goes after non-reseident)
(1) California Type- Statute reaches full extent of the constitutional due process
(2) Laundry List- a non-resident defendant can be sued in a claim that arises out of the types of things done in their state (torts. Contracts, etc.)
3. Due Process Analysis (Constitutional)
a) 4 traditional basis of In Personam (Pennoyer v. Neff)
(1) Defendant was served with process in the forum
(2) Defendant’s designated agent was served in the forum state
(3) Defendant is domiciled in the forum state
(4) Defendant consents to jurisdiction
b) Minimum Contacts analysis (International Shoe.)- The court has jurisdiction if the defendant “has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”
(1) Must have a relevant contact between the defendant of the forum
(a) Factors for contact:
(i) Purposeful Availment (reaching out)- taking the advantage of benefits of the forum state
(a) World Wide Volkswagen- Car got there through the unilateral act of a third party- no availment
(ii) Foreseeability that the defendant could be hailed into court in that state (not the product being in that state)
(b) Factors for Fairness:
(i) With, specific jurisdiction- if the plaintiff’s claim arises out of a contact in the forum state (800lb gorilla)
(ii) With just general jurisdiction-can be sued anywhere for the claim; Presence in that state has to be systematic and continuous there needs to be a substantial number of the following factors to have this jurisdiction:
(a) Inconvenience for the defendant (they have the burden of proof to show that it is inconvenient-very high burden)
(b) Forum state’s interest in adjudicating the dispute
(c) Plaintiff’s interest in obtaining convenient and effective relief
(d) Interest in the interstate judicial system of efficient resolution of controversies
(e) Shared interest of the state in furthering substantive social policies
(2) Stream of Commerce as a contact
(a) Split court 4/4 in Asahi as to whether putting a product into the “steam of commerce and having it reach the forum state is enough of a contact- we don’t know!
(i) Courts Split:
(a) Yes- If put into the stream of commerce, and the defendant reasonably anticipates the product will get to the forum state, then there is a relevant contact
(b) No- Need to put in the stream of commerce and need to target the forum state, purposeful availment.
B. In Rem Jurisdiction
1. Law suit is about the property, and the property is located in the forum state
2. Court has RAW POWER over all property in its state
3. No minimum contacts analysis needed
4. Must be attached a the outset of the case
a) Statutory basis: attachment statute- property can be attached if a non resident defendant owns that property, and it is located in the forum state
C. Quasi In Rem 1
1. A trust, certain people named for ownership over a specific property
2. Due process satisfied over the presences of the property in the territory
D. Quasi In Rem 2
1. Law suit has nothing to do with property, property was attached to achieve jurisdiction (underlying claim is in personam, plaintiff wants to seize the property to satisfy the claim)
2. MUST be attached at the outset of the case to qualify
3. Statutory basis:
a) Attachment Statute- property can be attached if a non resident defendant owns that property and it is in the forum state
4. Constitutional basis:
a) The defendant MUST have minimum contacts within the forum state (the property is not enough- minimum contacts analysis needed)
E. Full Faith & Credit Clause
1. In Personam- judgment is valid, then the defendant has a personal obligation to fol
4(d)- Waiver of service-defendant can be sent an option in the mail to waive formal service. If defendant does not formal personal service, then they have to pay for the process service
c) Where do we serve process? Federal
(1) 4(k)(1)(A)-we can serve process throughout the state in which the federal court sits
(2) 4(k)(2)- Out of state is a state’s long arm statute allows it
(a) 4(k)(1)(b)-Bulge Rule: ONLY for joined defendants, NOT original defendants, can be served within 100 miles of the federal court, even if it’s out of state
(b) 4(k)(1)(c): Federal statutes can allow for special circumstances for service outside of state (i.e. interpleaders)
B. Constitutional Elements for Service- 4th and 15 amendments D/P
1. In Pesonam:
a) Notice must be reasonably calculated to reach the defendant under the circumstances (Mullane)
b) Actual notice is not required, but must be reasonable calculated
2. In Rem:
a) Plaintiff is required to use due diligence to find the names of those who have an interest in the property (Mullane)
(1) Due diligence could fall between simply looking in the phone book and hiring a private investigator
(2) Once names have been found, then the notice must be reasonable calculated to reach the defendant under the circumstances
(a) If names could not be found with due diligence, then notice of publication may be use-LAST RESORT
(b) If they do eventually find the names, THEN they must serve notice on the known defendant
3. Objection to Service
a) Made by a 12(b)(5) defense (insufficient notice)- either in the answer or in a motion, must be made in the FIRST 12b motion in the case
