CIVIL PROCEDURE Winship: Fall 2014
1. Is there SMJD: does the court have the power to hear this type of case?
2. Is there personal JD: are the parties subject to the JD of the court?
3. Is there proper venue?
4. Has proper notice been made?
5. Was service proper / has service been waived?
6. Is there a possibility of removal/transfer of venue?
7. Has there been a waiver of any rights?
Before proceeding to Constitutional analysis:
§ Is this a federal court? If not, proceed to the long-arm statute. Any alternative means to gain personal JD in federal court?
o Waiver under Rule 12
§ Defendants must raise any challenge to PJD in their initial response or it is waived.
o PJD under Rule 4K
§ 4(K)(1)(A): Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant… (a) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located.
§ Other options under 4K
· 100-Mile Bulge JD in 4(K)(1)(B)
o Party is joined in impleader (14) or compulsory joinder (19).
o Served within judicial district not more than 100 miles from the place where summons issued.
· Federal Statute in 4(K)(1)(C)
o Federal statute involved with its own service provisions, which would establish personal JD?
· Alien Provision in 4(K)(2)
o Claim arises under federal law and person is not subject to personal JD in any state.
o Service will render D subject to personal JD if it has minimum contacts with US.
o May apply where the forum state’s L-A statute does not authorize PJD, and there are not sufficient contacts with any other state to support PJD.
§ Does the State’s long-arm statute authorize personal JD?
Predicate jurisdiction over nonresidents upon the ∆’s general activity within the state, or the commission of certain enumerated acts within the state, or even the commission of a certain act outside the state causing consequences within it.
o If long-arm statute extends to the constitutional limit, skip to constitutional analysis.
o Otherwise look at the facts and see whether they fall within one of the categories articulated in the long-arm statute.
§ If not, no personal JD.
§ If so, constitutional analysis.
Does the assertion of personal jurisdiction satisfy due process requirements?
§ Traditional Bases for Personal JD (all are constitutional).
o In-state service of process
§ Burnham v. Superior Court
· D was only in state temporarily and for an unrelated purpose.
· Plurality opinions: Service in-state satisfies traditional notions of fair play and substantial justice. In-state service has always been valid even transitory.
o Except fraud or coercion, or involuntary in-state (?).
o Voluntary Appearance
§ Defendant has appeared without challenging personal JD. This is a waiver.
· If they fail to object to personal JD in their initial response to the complaint.
· D can make a special appearance to contest PJD.
§ Carnival Cruise Lines v. Shute
· Consent to personal JD can be an express part of a contractural agreement.
· Forum selection clause that was on the back of a passenger ticket mailed to her after she had paid, even though it was seen after the ticket was already bought.
· Forum selection clauses are generally enforceable.
§ Consent to personal JD can be implied (Hess).
o State Citizens
§ Defendant is a party challenging personal JD who is a citizen of the forum state. Forum state may exercise personal JD over them.
· Plaintiff consents to personal JD by choosing where to bring the action.
§ Determined by domicile (location of residence).
o Is this an in rem action?
§ In rem: Disputes over interests in property. Court takes JD over a piece of property. Shaffer: Generally will meet minimum contacts. “Claims to the property itself are the source of the underlying controversy”. D expects to benefit from state’s laws protecting his property interest.
· State has JD over property (tangible and intangible) within its borders, whether or not the owner is present.
o Presence of the property within the state.
o Property is seized at the beginning of proceedings.
o Opportunity of the property owner to be heard.
· Quasi in rem: Enables the state to seize property of the D in the state, and extend JD over a dispute that has nothing to do w/ the property. Per Shaffer, scrutinize using the minimum contacts requirement of Int. Shoe.
§ Shaffer v. Heitner
· Due-process constitutionality of a DE statute that allowed court to take JD over a lawsuit by sequestering property of the D that is in DE, sequestered stock. P owns 1 share of Greyhound. Brought suit against DE state ct. against all officers and directors of Greyhound, none of whom lived in DE.
o Mere ownership of the stock is not sufficient contacts. No JD in DE.
o All assertions of state court JD will be tested by International Shoe and following case: minimum contacts, fair play/subjust.
§ Does the case involve insurance?
· McGee v. International Life Ins. Co.
o Even with Int. Shoe requirement, insurance is special and unusual. There is personal JD over TX Company who has
5. The shared interest of the several states in furthering fundamental substantive social policies.
a. State’s substantive policy interests are at stake? Mostly a concern when foreign country is involved.
o WWVC v. Woodson
§ P purchased Audi in NY from Seaway VW (WWVolks was distributor). On way to AZ, P injured in OK; sues Seaway and WWVolks in OK.
· OK L-A statute uses constitutional limits.
· Held: D’s lack minimum contacts with OK, no personal JD.
o D’s do/solicit no business in OK – only connection is a unilateral act (P drove car there).
§ “Stream of commerce” test (Volkswagen): When a corporation delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state, then the corporation can reasonably expected to be sued (“hauled into court”) in that forum state
· Asahi Metal Industry Co. v. Superior Court
o Even if nonresident D had minimum contacts, if suit would be severely unfair then forum state has no PJD.
o Zurcher injured in motorcycle accident in CA caused by faulty tire. Tire tube made by Taiwan co. (Cheng Shin), tire valve assembly made by Japanese co. (Asahi) à Asahi knew some of its assemblies sold by Cheng in CA
§ Cheng files indemnification claim against Asahi in CA court à can CA exercise personal jurisdiction?
o Held: Plurality. Court says no personal JD.
§ Significant burden on the foreign (JAP) D. CA has no interest in the case, involves international countries.
o Plurality (O’Connor): Placement of a product into stream of commerce without more is not an act of the D purposefully directed toward the forum state. Not enough that a non-resident D merely knows products will/may end up in the forum state.
§ Needs more: marketing, sales reps, service centers. Something to purposefully avail itself of the CA market.
o Plurality (Brennan): Placement of a product into the stream of commerce is by itself enough. Enough that the nonresident D knows that product will/may end up in forum state.
§ And enough that D knows product is being marketed in a forum state should be subject to JD (availing himself of state’s commercial laws).