Civil Procedure I Outline
Due Process = Notice & Hearing/Opportunity to be Heard
Foreseeability is NOT an issue
Personal Jurisdiction
I. Pennoyer v. Neff
a. introduced 3 elements to establish personal jurisdiction (over individuals)
i. presence (territorial) – defendant is physically found to be within the bounds of the territory/state (personal presence in the forum)
1. every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory
2. corporation is “present” at principal place of business as well as other places of substantial connection – see below w/general J
ii. domicile – usual place of abode (Reciprocity – you receive benefits/protection)
1. determined by two factors: 1) intent of individual to make a location a permanent home and 2) facts indicating that the party had physically located there
2. can only have one at a time; if you depart you’re expected to return
3. to change it: must have intent to change place of habitation and must also have actual change of domicile
4. domicile of a corporation is state of incorporation
iii. actual consent
1. specific agreement to submit to jurisdiction (“real” consent)
2. Express –
a. ex: forum selection clauses in a contract
b. Ex: For corp.- register w/sec of state to do business in that state
A. Scope of consent- claim must arise out of your doing business in that state
3. defendant is given proper service of process
iv. consent by waiver –(implied consent)– consent as matter of law- (general app)
*****(these elements do NOT require the claim to be arising out of activities in the forum state)
Must give personal notice and have the power(authority) over the person.
b. collateral attack
i. when defendant makes an attack on a previous judgment for lack of jurisdiction
ii. can only be raised if defendant had either not already raised the attack on jurisdiction or waived the defense of lack of jurisdiction under Rule 12
iii. can only attack on jurisdiction – (not on merits)
iv. jurisdiction can only be attacked once (see below) – “only one bite out of the apple, not two”
II. Rule 12
a. implied consent under Rule 12
1. if defendant appears (and does not file a special appearance) and fails to raise a Rule 12(b) defense, then defendant waives right to raise that defense (must be done before the pleading or in answers)
a. special appearance – allows a defendant to appear to object to jurisdiction, without letting that person’s appearance establish presence or consent so as to itself not be the basis for jurisdiction (avoid implied consent)
2. if defendant files a 12(b) defense, they cannot later file a separate 12(b) defense – they must be grouped. Otherwise, those defenses omitted are waived
3. Rule 12(b) defenses:
a. (1) lack of jurisdiction over the subject-matter (special rules apply to this – see below)
b. (2) lack of jurisdiction over the person (in personam jurisdiction)
c. (3) improper venue
d. (4) insufficiency of process
e. (5) insufficiency of service of process
f. (6) failure to state a claim upon which relief can be granted
g. (7) failure to join a party under Rule 19
III. “Full, Faith, and Credit” – U.S. Constitution, Art IV §1
a. states must honor each other’s judgments, unless there was no jurisdiction in the original state’s judgment
b. 28 USC §1738 exte
vi. must consider “quality and nature” of the contacts in forum state
1. casual; random or isolated occurrences not enough
2. a single act can suffice (franchisee contracts with BK Corp)
3. quantity not determinative – not a numbers game
vii. How inconvenienced will the defendant be?
viii. Reciprocity – had defendant benefited from the “benefits and protections of the laws of the forum state”?
ix. General jurisdiction (as separate from specific)
1. when a company’s activities are so substantial in the forum state that the company is deemed “present”. Activities are “systematic and continuous”
2. principle place of business (esp. when this is different from state of incorporation) – at the time suit is filed (may be more than one for personal J by general J) not based on their ppb at the time the claim arose
3. domicile – place of incorporation of business
4. for general J, cause of action can be completely unrelated to the contacts and need NOT arise in the forum state
5. for specific J, cause of action must arise out of the minimum contacts with the forum state
x. functions of minimum contacts requirement
1. protect defendant from the burden of a distant forum
2. ensure that states do not overreach power (federalism)
due process clause may divest state of jurisdiction even if D is not inconvenienced
