Civil Procedure II
I. Jurisdiction Generally
A. Scope
· To enter a binding decision, a court must have both
1. personal jurisdiction
2. subject matter jurisdiction
· Full Faith & Credit Clause
· decisions upheld and enforced in other states
· U.S. Constitution Art. IV, §1
B. Challenge to Jurisdiction
1) Challenge by motion
a. Motion for lack of personal jurisdiction
· D may challenge personal jurisdiction
· FRCP 12(b)(2) (or state equivalent)
i. Waiver
· D may waive 12(b)(2) challenge by failing to move at appropriate time
· See 12(g) and 12(h)
· Waiver may occur in THREE ways:
1. D appears for an action but fails to challenge jurisdiction
2. D makes to pre-answer motion and fails to raise the defense in his answer
3. D fails to raise the defense when he makes a pre-answer motion
b. Motion for lack of subject matter jurisdiction
· D may challenge the SMJ of a federal court
· FRCP 12(b)(1)
· Court may dismiss at own discretion
· FRCP 12(h)(3)
i. Waiver
· Most favored defense
· raised at any time (i.e. never waived)
· FRCP 12(h)(3)
2) Challenge by Special Appearance
· allows D to challenge jurisdiction without the act of objecting itself creating a basis for jurisdiction
· if D contests any aspect of the case except the basis of jurisdiction, may be held to make a general appearance and be subject to the jurisdiction of the court.
3) Challenge by Limited Appearance
· operates similar to a special appearance, but only allows a
P attempts to have it enforced under Full Faith & Credit Clause (Art. IV, §1)
· D may not raise any D in this challenge (other than lack of jurisdiction) and may not argue the case on the merits
a. Rationale
· D may wish to adjudicate jurisdiction directly within his home forum.
· convenience
· “homecourt advantage”
· If D loses, will be estopped from contesting the decision of the district court
C. Appeal of Jurisdiction Decisions
1) Federal Appeals
· federal courts do not allow an appeal on a decision of jurisdiction until after the trial on the merits
· Decision of jurisdiction is not a “final decision”
· 28 U.S.C. §1291
2) State Appeals
· most states do not allow immediate appeal of jurisdiction under the “final decision” rationale.
· Minority: allow for immediate appeal
II. In Personam (personal) Jurisdiction
A. Historical Analysis
· Pennoyer v. Neff
· rules of jurisdiction straightforward
1) every state possesses exclusive jurisdiction over persons and property within the state
2) no state may exercise direct jurisdiction over persons or property outside of its borders
1) Exceptions to Pennoyer
a) Consent
· non-residents who had no property within a state would nevertheless be subject to its jurisdiction if they had consented to its exercise
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