Civil Procedure
Melissa Sanders
Fall 2010
State courts Jurisdiction Analysis
Start by mentioning consent
o The DP Clause of the 14A does not forbid a court to exercise its IPJ over a D who has given valid consent to its doing so
§ Forum Selection Clause
§ Express or Implied (show up)
§ Assignment of person to receive process
– Look if service was proper
2 prong analysis for specific jurisdiction
1) State long arm statute; what kind
o California type – Limits of constitution go directly to step 2
o Enumerated act (ex; Georgia) – Go through statute; if no jurisdiction according to statute then -> no jurisdiction. If there is jurisdiction, quote provisions and go to step 2 to determine if its constitutional
§ Common provisions (see below for details)
· Personal service within state – (natural person)
· Local presence or status – (natural person or corp)
· Local act of omission – (natural person or corp)
· Local injury ; Foreign act – (natural person or corp)
2) 14th Amendment Due Process Analysis
– Minimum contacts
o Easy ways (see common provisions for details)
§ Personal Service within state (doesn’t work for corp)
· Burnham – “Tagging” within state
§ General Jurisdication – (domicile, principle place of business) or “systematic, continuous, and substantial general business activities”
o Specific Jurisdiction – International Shoe (sliding scale) in order to give the D some way to tailor their actions to limit jurisdictional exposure (about clarity and predictability)
§ identify D’s contacts with FS and eliminate those that are not “constitutionally cognizable”= result of unilateral act of third party over whom D has no control, rather than D’s own deliberate efforts to make contact with FS, either directly or indirectly (i.e. probably had some control over incorporation of parts into finished goods).
· Hanson- Lady set up trust in DE moved to FL and WWVW – Decide unilateral movement of customer not good enough to count – (note Audi was held to IPJ)
· McGee—positive treatment—company solicited business for insurance in a distant forum (after they took over other company)
§ Decide if “contacts that count” are sufficient to establish “purposeful availment” and give rise to some specific jurisdiction there. For “purposeful availment,” the Court requires “some act by which the defendant purposefully avails itself [either directly or indirectly] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” (insert language in answer) Hanson; WWVW; Asahi.
§ if D’s contacts with FS are sufficient for PA, decide if these claims are sufficiently related to those contacts to fall within the scope of the specific jurisdiction they support (the type of claim that D should reasonably expect will be required to defend in FS, given his connections with it)
· remember that it’s a sliding scale here—the more significant D’s contacts with the FS are, the broader the scope of the specific jurisdiction they will support
· when the contacts are just barely sufficient to get over the PA threshhold, the scope of this SJ is very narrow = limited to claims that are very closely related to those contacts (“arise directly out of” them, in strict causal sense)
o Keeton v Hustler—plaintiff had little contact with forum state, just distributed magazines but defendant had contact so jurisdiction upheld (specific jurisdiction only)
o Calder—writer/editor were both from FL and plaintiff from CA. Neither were ever in CA but they directed the defamatory article there so PJ was upheld in CA.
§ Injury was in CA
§ Injury to CA resident directed to CA
§ Aimed at CA audience about event in CA
· as the contacts become more significant, the scope of the SJ expands, to include claims that are much more loosely related to those contacts (“relate to” them, even if don’t arise directly out of). See dicta in WWVW about OK state ct’s ability to exercise IPJ over Audi on Robinson’s claim against them; lower ct caselaw developing this “relates to” idea).
o Stream of commerce – Asahi
§ Brennan (least strict requirements)– “regular and extensive” insert in stream of commerce with knowledge that it may end up there (Objective)
§ Stevens – Insertion plus knowledge (mere awareness) plus consideration of Volume, Value and Hazardous Character (if it is significant enough)
§ O’Conner (most strict requirements) – insert in stream of commerce + Knowledge may end up there + additional conduct designed to direct product into forum state (i.e. attempting to serve the market)
· Gray—defective parts that manufacturer knew would end up in forum state—direction to state before final sale (+ PJ) (NOTE: State court decision)
– Make sure to mention and discuss for specific jurisdiction claims must “arise out of or relate to” these contacts – (i.e. selling a products claims for injury from that product)
Internet Cases
i. Internet activity— look for analogous supreme court cases (stream of commerce)
a. Zippo—established a sliding scale between passive websites (allow postings) and active websites (allow bilateral info transfer) to establish PJ
b. Revell (professor wrote article about pan am bombing and posted on Columbia website) – Found no jurisdiction —used a directed approac
a “domestic” corporation (incorporated there or has PPB there); or (c) engaged in substantial activity inside the state (whether such activity is wholly intrastate, interstate, or otherwise)
– Local Act or Omission. Authorizes the exercise of IPJ over a non-consenting D on any claim for injury to person or property or wrongful death suffered either within or without the state, arising out of an act or omission of D’s inside the state.
– Local Injury; Foreign Act. Authorizes the exercise of IPJ over a non-consenting D on any claim for injury to person or property or wrongful death suffered within the state, arising out of an act or omissions of D’s outside the state, if, at or about the time of the injury, either: (a) Solicitation or services activities were carried on within the state by or on behalf of the D; or (b). Products, materials or thing processed, serviced or manufactured by the defendant were used or consumed, within this state in the ordinary course of trade
– General Jurisdiction.
o D has purposefully established such a significant connection with the forum state that it’s fair to require him to defend any and all types of claims against him in its courts (“general” jurisdiction):
§ Perkins- “Continuous and systematic” Operated office in Ohio during WWII when Japan occupied Philippines where they used to have headquarters good for GJ
§ Helicopteros – Regular purchases even in high dollar amounts and occasional trips was not enough to satisfy GJ
· Connections with FS that are always sufficient to make D subject to GJ there
· Individual D — “domiciled” in the state [cite case?]
· Corporate D — either incorporated in state or has PPB there [cite case?]
· Possible additional basis for corp Ds: some lower cts hold that a corp D can be subject to GJ in a state where it is not incorporated and does not have its PPB, if it is engaged in “systematic, continuous, and substantial general business activity” within the state (the “doing business” basis for GJ)
o inspiration = Sup Ct’s decision in Perkins (which can be dist. as application of the traditional PPB rule)
o SPLIT in lower courts on whether this is a viable basis for GJ
