Civil Procedure I
Richard Seamon
Fall Semester, 2009
STEPS TO DETERMINE PJ – Do this for each “claim”!
I. Statutory Analysis – FRCP 4(k)(1)(A) or (C)
A. Does the state (A) or a federal statute (C) grant PJ?
1. State common law?
a. Consent, Domicile, or Continuous and Syst. Contacts?
2. Look at the state’s “Long Arm” statute.
a. Transacting business in state?
b. Commit tortuous act in state?
c. Ownership of real property in state?
d. Any others listed.
3. If no, STOP.
B. Does PJ comport with DPC of 14th A?
1. Consent?
a. Express (usually contracts)
i. Forum Selection Clause?
b. Implied
i. Counter-claim?
2. Domicile? (Incorporation or Headquarters for corps.)
a. Individuals (Pennoyer and Milliken)
3. Tag Jurisdiction? (individuals only) (Pennoyer and Burnham)
4. Minimum Contacts? (International Shoe)
a. Specific Jurisdiction? – see below.
b. General Jurisdiction? – see below.
5. If no, STOP.
II. Constitutional Analysis – is PJ prevented by 5th A?
A. Minimum contacts with U.S.?
1. Briefly list the contacts with U.S. (easy)
SPECIFIC JURISDICTION
I. Does the suit “arise out of” or “relate to” D’s contact with the forum state? (International Shoe)
A. If no, STOP.
II. Was there Purposeful Availment by D? (World-Wide VW)
A. Can be beneficial to D or any purposeful contact (intentional tort).
B. Torts situations
1. Calder v. Jones upheld PA because D targeted the forum state and the harm was suffered in the forum state.
C. Stream of Commerce situations
1. Gray, if followed, would probably uphold PA because the company benefited, although indirectly, from the sale.
2. Asahi, if followed would look like this:
a. O’Connor
i. Mere awareness that goods are entering is NOT enough.
ii. Also need other acts specifically directed at forum like:
(a) Advertisement in the forum.
(b) Design product targeted to forum.
(c) Create, control, or employ the distribution system to forum.
b. White
i. Mere awareness that products entered forum is enough.
c. Stevens
i. Volume of D’s goods entering forum is important.
D. Contracts situations
1. McGee – PJ upheld because D maintained an insurance policy on an individual within the forum state.
2. Hanson – PJ not upheld because the P unilaterally moved to forum state and D could not cancel the contract (trust) based on the move.
3. Burger King – dealing with commercial contracts
a. Merely entering into a contract with a resident of forum state isn’t enough.
b. If contract is negotiated or to be performed in forum state, probably PA.
c. Fairness upheld because both parties were experienced in business.
III. Fairness factors (from World-Wide VW):
A. The burden on D (primary concern)
B. The forum State’s interest in adjudicating the dispute
1. Is P a resident there?
C. P’s interest in obtaining convenient and effective relief
D. The interstate judicial system’s interest in obtaining the most efficient resolution of controversies
E. The shared interest of the several States in furthering fundamental substantive social policies.
F. NOTE: Asahi is the only case to find sufficient un-fairness.
GENERAL JURISDICTION (Corps. Only)
I. Are
usual place of abode with someone of suitable age and discretion who resides there (B);
3. Deliver to authorized agent (C);
4. Follow state law for state where courthouse is located OR state where service is made. 4(e)(1).
a. IRCP 4(d)(2) = same as above, except individual in b. must be “over 18”.
D. Corporations 4(h) must receive notice by one of the following:
1. Deliver copy of summons and complaint to an officer, managing or general agent, or authorized agent 4(h)(1)(B); OR
2. Follow state law 4(h)(1)(A)
a. IRCP 4(d)(4) = same as above except:
i. When an agent cannot be located, summons and complaint may be sent by registered or certified mail to:
(a) The corporation, addressed to its registered place of business; AND
(b) The president or secretary, at the address shown on its most recent annual statement.
SMJ
I. Is it a Diversity claim? If no, move to II.
A. Discuss Authorization
1. Constitutional – Article III, §2 allows federal courts to exercise jurisdiction over “controversies between citizens of different states.”
2. Statutory – 28 U.S.C. §1332
a. Must be Diverse and meet Amount in Controversy requirement.
B. Complete Diversity (as interpreted by Strawbridge)?
1. All parties on one side must be citizens of a different state than all of the parties on the other side.
