Select Page

Civil Procedure I
University of Oregon School of Law
Coles-Bjerre, Andrea

Andrea Coles-Bjerre
Civil Procedure
Fall – 2010
In Personam
STEP ONE: Does the ∆ meet any of the traditional bases of jurisdiction?
Traditional Bases of Jurisdiction (See Pennoyer v. Neff)
·         1) Physical Presence and Transient Jurisdiction
o    Is the ∆ located in the forum state?
o    Transient Jurisdiction – ∆ could be tagged w/ process no matter how fleeting their presence in the state, even as to lawsuits that bore no relationship to the state. (Burnham v. Superior Court of CA)
·         2) Voluntary Appearance in Court
o    A ∆ submits to the court’s jurisdiction by voluntarily appearing to defend a lawsuit.
·         3) Consent to Service on an Agent: Express and Implied Consent
o    Express Consent
§  A ∆ executes a document designating a particular individual or entity as her agent to receive process in suits brought against her in the forum state.
o    Implied Consent
§  In a commercial setting, if the ∆ did not appoint an agent in the State to receive service of process, the State may provide that service may be made upon a public officer designated for that purpose.
·         4) Domicile (= current dwelling place + intent to remain indefinitely)
o    The state of a person’s domicile may exercise personal jurisdiction over them. (Doesn’t matter if the ∆ isn’t currently living there…did the ∆ intend to return to the forum state?)
Corporations and the Traditional Bases of Jurisdiction
·         Courts adapt doctrine developed in the context of individuals.
·         Domestic Corporations
o    States usually require domestic corporations to designate a person in the state as their agent to receive service of process.
o    If consent isn’t given…States could justify taking jurisdiction over a corporation on the theory that its legal domicile was in the state of its creation.
·         Foreign Corporations
o    Some foreign corporations may have expressly consented to service on an agent in the forum.
o    If no express consent, and didn’t voluntarily appear in court, the only other traditional basis for jurisdiction is in rem or quasi in rem jurisdiction based on attachment of the corporation’s property in the forum state (See below)
STEP TWO: (If NO to Step One) Does the State have a Long-Arm Statute? (See International Shoe Co. v. State of Washington)
·         Long-Arm Statutes
o    ∆ may not be served outside of the forums state UNLESS the forum state has enacted a long-arm statute allowing the court to obtain jurisdiction over persons not physically present within the state.
STEP THREE: (If YES to Step Two) Is the assertion of jurisdiction Constitutional?
Long Arm Jurisdiction and the “Minimum Contacts Test”
1)      Does the ∆ come within the terms of the applicable state long-arm statute? (See above)
2)      Does the ∆ have “minimum contacts” with the forum state such that the assertion of jurisdiction would not violate the Due Process Clause?
a.        Has the ∆ “purposefully availed” itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of the state’s laws?
              §  ∆ must have purposefully sought to benefit by conducting activities in the forum state. It is not enough that the ∆s out-of-state activities had an effect or caused an injury in the forum state…instead, the ∆ must have deliberately aimed its activities toward the state.
b.       Does the lawsuit arise out of or relate to the ∆s purposeful contacts with the forum or, if it does not, are the ∆’s forum contacts so extensive that no such relationship is necessary?
              §  Unless the ∆s contacts with the forum are so extensive as to support “general jurisdiction” the lawsuit must normally “arise out of” or “relate to” the ∆s purposeful contacts with the state, i.e., the case must be one of “specific jurisdiction.”
3)      Would Exercise of Jurisdiction be unfair and unreasonable, taking into account the interests of the ∆, the forum state, the π, and other states that may have an interest in the matter?
Element (2a) – The “Purpose Availment” Requirement
·         Did ∆ purposefully avail himself to the benefits and protections of the forum state?
The “Contractual Relationships” Theory
·         NOTE: ∆ who enters into contractual relationships with forum residents.
·         Hanson v. Denckla
o    Ms. Donner (PA) opened trust with DE bank. She later moved to FL and dies in FL> Could the DE bank be subject to jurisdiction in FL?
o    RULE: No Jurisdiction. The DE bank had no relevant contacts with FL and did not purposefully avail itself to FL. The only connection it had to FL was through Ms. Donner’s unilateral move there.
·         Burger King Corp. v. Rudzewicz
o    ∆ started a Burger King in MI and had contract with Burger King Corp. in FL. It was agreed in the contract that all problems that arose would be solved in FL. ∆ argues no jurisdiction (emphasis on physical presence.)
o    RULE: Jurisdiction because ∆ entered into a contract with a FL corporation. In addition, the contract said that all disputes would be settled in Florida.
o    NOTE: Other applications
§  ∆ had continual contact with the forum state. Contacts High and Relatedness High.
§  It’s reasonable to assume that the ∆ shouldn’t have been surprised that it’s possible to be haled to court in FL. (Reasonableness requirement)
The “Stream of Commerce” Theory
·         NOTE: Did ∆s products enter the forum through the ordinary “stream of commerce”
·         World-Wide Volkswagon v. Woodson
o    Π lived in NY and bought an Audi to drive to AZ. Car blew up in OK and sued in OK
o    RULE: No Jurisdiction…no contacts with the forum state (OK). Because of it’s inherent design, it’s foreseeable that the car could be in OK, however, not foreseeable that ∆ would reasonably expect to be haled to court there. The company didn’t Purposely avail themselves to the benefits of the forum state (OK)
§  Mere collateral relationship insufficient
§  Mere ability of use is insufficient – must be directed.
o    DISSENT: The Company shouldn’t have been surprised to be haled to court because of their product. IT IS foreseeable that their products can make it to

nt (3) The Reasonableness Requirement
·         The burden shifts to the ∆ to show that exercising jurisdiction would be so unreasonable and unfair as to violate the due process clause.
·         Different Factors taken into account:
o    Π’s interest
o    Forum State’s interest
o    Interstate judicial interest
o    Efficiency.
    §  Asahi Metal Indus. Co. Ltd., v. Superior Court of CA (Part II)
§  1. High degree of burden on the ∆ to travel to CA.
§  2. Π has low interest.
§  3. Forum state’s interest is minimal because trial involves Japanese and Taiwanese companies.
§  4. Interstate judicial interest is minimal because trial involves Japanese and Taiwanese companies.
§  5. Inefficient due to language barriers, witnesses and evidence in Japan or Taiwan.
    §  Nowak v. Takhow (Part II)
§  RULE: even though the incident didn’t have interest in the forum,, they have an interest in protecting their residents because Takhow solicited in the forum state…necessity?
·         Governed by FRCP 4
Step 1 – Comply with Service Rules
·         1) Request for Waiver of Service – Rule 4(d)
o    “Waiver of service” provision allows a π to send a copy of the complaint to the ∆ by first class mail or other reliable means, accompanied by a “Notice of Lawsuit and Request for Waiver of Summons” and a “Waiver of Service of Summons”.
o    This tries to induce waiving of formal service
§  Puts service cost on ∆ if they won’t waive without good cause.
§  Gives 60 days to respond to the complaint.
o    SUMMARY: π sends letter to ∆ to determine whether or not she will object to service by mail. If ∆ waives notice – mail service is okay; if she does not waive notice – you must personally serve the ∆.
·         2. Formal Service of Summons and Complaint
·         A. Serving Individuals – Rule 4(e)
o    Ways to serve:
§  1) In person – 4(e)(2)(A)
·         Delivering a copy of the summons _ complaint to the individual personally
§  2) At their dwelling – 4(e)(2)(B)
·         π allowed to leave a copy of summons + complaint at the individuals dwelling or usual place of abode w/ someone of suitable age and discretion WHO RESIDES THERE.
·         NOTE: 4(g) refers to minors and incompetents. (Minors and Incompetents cannot save formal service of process)
§  3) To appropriate agent – 4(e)(2)(C)
·         Delivering a copy of Summons + complaint to an agent AUTHORIZED BY APOINTMENT or BY LAW to receive service of process.