Select Page

Civil Procedure I
University of Oregon School of Law
Moffitt, Michael L.

à Topic 2: How to Determine if Personal Jurisdiction is Proper… “The Tests”
 
1)      State’s “Long-Arm” Statute…
a)      1. Does the LA Stat grant jurisdiction? No= stop no jd. Yes= 2. Does it comport with Due Process? > Run ISHOE to find out!
(i)                 Does it extend to the full length allowed by the Constitution? Or, does it limit the exercise of jurisdiction to a specific number of scenarios? It is quite possible that the long-arm statute is stricter (less-broad) than constitutional limits defined by the Supreme Court. “Assuming X State’s long-arm statute extends to the limits of the constitution, the facts of this case are evaluated against the constitutional tests established by International Shoe and other like-minded cases.”
2)      Pennoyer’s Traditional Bases for Specific or General Personal Jurisdiction
Overrules ct. default judgment for Mitchel over Neff, after insufficient service by publication, attaching N’s land which M sells to P. N sues P: ct didn’t have personal jurisdiction over N to take land. Must have significant relation to forum state for jurisdiction:
a)      Presence at time of service (transient or not, see Burnham v. California-served in CA while visiting but not a resident)
b)      Voluntary Consent (see section below, topic 3)
c)      Citizenry (present or not at time of service)
d)     Appointed Agent (by statute, a state may allow appoint an agent for you: implied consent laws, see Hess v. Pawloski.)
e)      Property in the state (Shaffer: now considered a really, really, significant contact, but not an automatic jurisdiction-getter.)
3)      International Shoe’s Tests for Specific Personal Jurisdiction
IShoe didn’t want to pay state tax, employees served in state. Jurisdiction found due to Minimum Contacts, symbolize presence. 1) Regular + systematic contacts? 2) Does action arise out of contact? = yes comport with “traditional notions of fair play and substantial justice”: how many contacts enough?
a)      Minimum Contacts Test: “In lieu of real presence, fake presence might work.”
(i)                
                    0-1 contact     Many contact
 
Arises          Y/N/Maybe
out of…         Q: FP/SJ?            YES
 
Doesn’t                                  
arise                   NO                 Maybe?
out of…                              Q: Gen. Juris.?  
Did the cause of action arise in the host forum? At least, is it related to the host forum? How many contacts with the forum (related or not)? How many are related to the cause of action?
 
(ii)               Effects Test: Where are the effects of your actions felt? Did you direct your harm to the forum, knowing that the Π would feel it there? Calder v. Jones, Nat’l Enquirer case.
(iii)             Purposeful Availment to the Forum’s Benefits and Protections? Hanson v. Denkla(D DE bank no contacts with FL will probate. NO availment.), World Wide Volkswagen (family OK crash, fire due to faulty part. Sue NY dealership in OK. NO pjd. No availment, If reasonable to foresee being sued there = jd ok.): The unilateral actions of the Π do not constitute a purposeful availment. However, the unilateral actions of the ∆, do count. McGee v. International Life (Tx ins. Owe CA res. $ from K. Ca res = contact. Action arises from that contact. = YES pjd.), Keaton v. Hustler (P(ny) sue in NH to avoid stat of lim. YES pjd: purp avail, contacts buy mags, arise out of buyers- P libeled to them).
(iv)             Stream of Commerce: Gray v. American Radiator (Indirect contact meets purposeful availment and foreseeability)
1.      P IL water heater blew up due to D valve in OH. IL YES pjd. Use of product in ordinary commerce sufficient to justify defense there. State has interest in adjudicating. Even though no availment.
b)      Fair Play and Substantial Justice Test: “With fake presence come fake responsibilities about not offending fairness and justice.”
(i)                 Foreseeability of getting haled into court. Do your actions/contacts make getting called to court in another jurisdiction reasonable and foreseeable?
(ii)               Burden to the Π/∆: Would going to another forum deprive a litigant of his day in court? Asahi, burden on international ∆ too great. Burger King, burden on plaintiff not too great.
(iii)             Interest in the Forum State: Does the state care if this case is resolved in its jurisdiction? Would using its law, but not its venue suffice? Or, is there something more? Asahi, CA had no real interest.
(iv)             Efficiency of Proceedings: Where is it easier to call witness and hold up evidence? World Wide, OK was the site of the injured Π’s and the site of the evidence.
(v)               Shared Interest of the Several States in promoting substantive social policy. (As of yet, a meaningless phrase.)
4)      Shaffer’s Quasi In Rem Type 2: “Now Shoe applies here too.”
a)      These fights are nothing more than ways to get a person to return to a jurisdiction to fight a court battle. Since the person, not the property, is the object of the dispute, then Shoe applies here too. After all, jurisdiction over a person’s thing is the same as jurisdiction over a person’s interest in the thing, which is really the same as jurisdiction over the person.
b)      P attach stock in DE, sue cmp for screwing up cause stock to crash. NO jd: corporated in DE does not mean purposeful availment, forum state no interest, DE law based on connection to stock not fact they are directors therefore action not arise from contact. No jd under quasi in rem 2.
 
à Topic 3: Consenting to or Waiving Challenges to Personal Jurisdiction, How to…
1)      Consent = Not challenging the jurisdiction placed over you.
i.                    If you challenge and fail, you have given your consent.
ii.                  If you do not challenge jurisdiction early on in the proceeding, then you implicitly waive your right to challenge period (no cherry picking).
b)      Voluntarily appoint an agent to accept service. This may be a requirement to do business in the state or to incorporate in the state.
c)      Parties to a contract can agree, as one of the terms in the deal, on the law and the forum to be used if a dispute arises. Burger King, BK’s contract called for FL’s law to be used.
d)     If Π files a claim in another state, then he consent to jurisdiction there for the purposes of that case only.
2)      See challenge PJD topic 10
Actual Service ≠ Good Service
Whether or not you get it is not important as how you get it. Service by luck or chance is not the same as service that is reasonably calculated to inform the other party.
 
 
à Topic 4: Notice:
1)      Constitutional Standard for Adequacy: Any method “reasonably calculated under the circumstances to inform…[defendant]…about the pendency of the action.” –Mullane v. Central Hanover Bank (1950).
2)      FRCP Rule 4: State and Federal Notice laws are narrower than the constitutional standard. A method of service may pass Mullane, but flunk the statute, so test the statue first. Rarely do statues allow broader service standards than the constitution.
a)      4(e) – Service upon Individuals w/in the U.S.: Sets out two ways to serve domestic defendants: (1) pursuant to state laws; or (2) personal service, leaving copies at the ∆’s usual place of abode with someone of suitable age and discretion residing therein.
i.                   
What must a Service of Process contain?
• Summons: what court, where it is, when ∆ must show up…(Rule 4(a,b))
• Complaint: Allegations that require answers. (Rule 4(c)).
• Service cannot be affected by one of the battling parties themselves.
• Instead, a person 18 years old or older must serve. (Rule 4(c))
• Proof of service is usually required. (Rule 4(l))
• Service must take place w/in 120 days of π filing complaint. (Rule 4(m))
NDC v. Triad Holding (1991), wealthy, foreign ∆ challenged service on his apt. (determined to be his usual place of abode) on the grounds that he only spent a couple months there, at most, each year. Court upheld service b/c he was residing at the apt at the time, b/c he never spent more than 50% of his time at any one home, and b/c there were suitable indicia of permanence w/ his NY apt. (remodel, perm wait staff, etc.)
 
ii.                  FDIC v. Scotto (1998), wealthy, NY family falls behind on payments for a tony, upstate summer home. Unable to find ∆ anywhere else, ∆ serves the summer home’s caretaker. ∆ challenges service, claiming summer home is not their usual place of abode. Court rejects it by listing off the indicia of permanence and saying that permanence in one residence does not lessen or replace permanence in another.
iii.                U.S. v. Mensik (1972), Feds want back taxes out of ∆. After ∆ escapes from prison, feds serve his usual place of abode (prison). Court rejects this method of service b/c ∆ is not coming back willingly. Therefore, prison to either an ex-con or an escapee is not a usual place of abode—they’ve ended their permanence there.
b)      4(f) – Service Upon Individuals in a Foreign Country: Sets out three ways to serve international defendants: (1) any international agreed means; (2) by any manner permitted by the laws of the foreign country, or with permission of the foreign country, or with personal service in a foreign country; (3) Other means prescribed by the court upon request from π.
i.                    RIO Properties v. RIO Intl Interlink (2002), 9th Circuit rules that there is no hierarchy to rule 4(f), meaning that a π can, at any time, ask the court for permission to use alternate methods of service of process.
ii.                  Smith v. Afghanistan (2001), NY federal court allows π to use alternate methods of service (massive international publication and personal service on an official of a foreign govt.). Essentially, the

, Mrs. Mas’s citizenship determined to be her birthplace (MS). Even though she had resided in IL and LA, she had never made her permanent home in either. In fact, she only stayed in LA for school, always going back to MS for holidays and during school breaks.
c)     
Principle Place of Business = Total Activities Test (Balance all below)
1)       Nerve Center Test
a)        Where are all of the important corporate and financial decisions made?
2)       Muscle Center(s) Test
a)      Where do the revenue generating activities occur?
b)      Where is the corporation’s property located?
Determining Citizenship of Corporations: The citizenship of corporations has been defined by statute, 28 § U.S.C. 1332(c)(1). Under that law, corporations are citizens of…
 
i.                    The State of their incorporation, AND
ii.                  The State of their principle place of business.
iii.                J.A. Olson v. City of Winona (1987), 5th Circuit held that Winona, MS is Olson’s ppb after running the total activities test. MS’s muscle center outweighed Chicago’s nerve center, especially b/c MS also performed some nerve center duties. 
Furthermore, for the purposes of attaining Diversity of Citizenship, both places of citizenship must be diverse from the other party. (ex. Greyhound = MA & AZ, diversity of citizenship is met if π is not a citizen of either MA or AZ.)
d)     Determining Citizenship of Non-Incorporated Businesses: A non-incorporated business is considered a citizen of all the states of which its members are citizens. This rule applies to both general and limited partnerships. Bellville Catering v. Champaign Market Place L.L.C. (2003)
e)      Determining Citizenship in Class Actions and Representative Suits:
i.                    Class Actions: The citizenship of the representative in a class action will be used to determine the class’s citizenship for purposes of DoC.
ii.                  Representative Suits: Minors, retards, and dead people cannot, themselves, bring suit. A representative must bring their claims. However, for DoC purposes, the citizenship of the minor, retard, or dead person is the one that counts.
f)       No Fraud: Don’t try to manufacture DoC or prevent it by improperly joining non-diverse parties.
i.                    Fraudulent Assignment of Claim: 28 U.S.C. § 1359 gives courts the power to refuse DoC if π improperly assigned his claim to a diverse party just to manufacture DoC.
ii.                  Fraudulent Joinder: “The Pete Rose Rule.” For the purposes of DoC, the citizenship of the parties at the center of the dispute will be used, not the citizenship of parties intended to kill DoC (that is what Pete Rose did).
g)      Amount in Controversy: π must plead a prayer that is in excess of $75,000.  Mas v Perry – good faith amount. Plead a total ($$) that avoids a legal certainty that you cannot recover the disputed amount!! à Can you aggregate claims to meet the required total? Depends…
i.                    1π vs. 1∆ — Aggregation of any and all claims (related or not) allowed for DoC.
ii.                  Many π’s vs. Many ∆’s – Aggregation of claims (no matter how related) disallowed for DoC.
iii.                1π vs. 2+∆’s – Aggregation allowed only where there is one cause of action, the π sues ∆’s jointly and where either/any of ∆’s can be liable for the whole award amount. (Here, there’s really just one claim, not an aggregated claim. The court is merely deciding to whom to attach liability.)
iv.                Class actions – Each member in the class must meet the $$ requirement individually. The aggregated total will not suffice.
Equitable (or Injunctive) Relief – Not suing for money! How to meet $$ requirement? Quantify the unquantifiable!! Either by asserting the π’s harm/detriment in the absence of the equity award would exceed 75k, or by asserting that the cost to ∆ in compliance with the equity award would exceed 75k.