In order to exercise jurisdiction over a non-resident defendant, a state must have the CONSENT of the defendant or the POWER over the person of the defendant. This is relationship analysis.
STEPS TO TAKE:
1. NOTICE – The due process clause requires not only acceptable jurisdictional basis but also adequate notice to the defendant of the action and an opportunity for him to be heard. No matter what sort of jurisdictional basis exists, any judgment rendered against a defendant who does not receive proper notice will be invalid.
a. Mullane two-part test –
i. Is the METHOD of notice chosen reasonably likely to reach those affected?
ii. If circumstances do not permit such notice, is the method chosen just as likely to give actual notice?
iii. Notice by publication is a tip-off to a problem – but it may satisfy the second element if persons with legal interests are unknown and otherwise unreachable.
b. Personal service gives notice no matter where it is accomplished, but it only serves as a basis for GENERAL jurisdiction if it is executed within the forum state.
c. FRCP 4
d. Burden on the plaintiff
2. CONSENT – If the defendant consents to jurisdiction, this serves as a substitute for power and jurisdiction is proper.
a. Before International Shoe, the term consent was used to denote consent implied from presence or what Shoe would refer to as contacts.
b. Since Shoe, analysis concerning the concept of consent centers around express consent and specific agreements consenting to agreement.
i. In Carnival Cruise Lines, the Court upheld a forum selection clause located on the back of a cruise ticket as determinative of consent to jurisdiction.
1.Forum Selection Clauses are subject to judicial scrutiny for fundamental fairness.
a. Was clause intended to discourage legitimate claims?
b. Was consent to the clause obtained through fraud or overreaching?
c. Did the other party have notice of the forum selection clause?
3. STATE LONG ARM STATUTES – If the defendant does not fall within the State’s statutory requirements for the exercise of jurisdiction, then the court does not have power to adjudicate even if Constitutional due process indicates that jurisdiction is permissible. A state can require more than the US Supreme Court does.
a. Many states have broad long-arm statutes – authorizing the exercise of any jurisdiction that is constitutional. (Ex: CA)
b. Other states are more narrow in tailoring their statutes – limiting jurisdiction to specific occurrences. (Ex: NY and FL)
c. In Gibbons v. Brown – example of Florida narrowly tailored long-arm statute.
4. DUE PROCESS ANALYSIS – The Due Process clause places limits on the power of a court to exercise personal jurisdiction over a non-resident defendant.
a. Pennoyer v. Neff
b. The International Shoe decision provides framework for modern personal jurisdiction cases. A court has power to exercise jurisdiction over a non-resident defendant when the defendant has had minimum contacts with the forum state and exercising jurisdiction will comport with notions of fair play and substantial justice. “quality and nature” of defendant’s form related activity.
c. MINIMUM CONTACTS – When a defendant invokes the privileges and protections of the forum state, the nature and quality of his conduct is sufficient to create obligation to defend suit there.
i. General Jurisdiction – Under what circumstances is a non-resident defendant subject for ALL claims – even those with no connection to the forum state?
1. Domicile and US defendants – there will always be a state in which suit may be brought for all claims.
a. Corporations – place of incorporation, primary place of business
b. Individuals – state of domicile
i. An individual does not lose his domicile until he establishes a new one. A person can only have one domicile at a time.
2. Coastal Video – A court may still exercise jurisdiction over a non-resident defendant if the requisite minimum contacts between the defendant and the forum state are fairly extensive.
a. Traditional business contacts can extend to internet usage:
i. Amount of sales generated in the state by or through an interactive website.
ii. How many times a website has been accessed by individuals or businesses located in a specific state.
3. General Jurisdiction and Presence
a. Under Pennoyer, presence within the state was the primary basis for personal jurisdiction.
b. Burnham – TAG jurisdiction – Unanimous.
i. So long as the defendant voluntarily travels to the forum state, and is served while he is present there, the state will have personal jurisdiction over him – even though the defendant may have no other contacts with the state apart from the visit during which he was served.
1. Scalia Opinion – suggests this is a revival of a traditional basis for jurisdiction and Shoe did not apply. All Shoe cases involve defendants not present in the state. This does not.
2. Brennan Opinion – Jurisdiction is permissible under Shoe analysis.
i. Transient presence + service of process = good enough
ii. Specific Jurisdiction – If the defendant has had isolated contact with the forum state that would lead to reasonable anticipation of forum state litigation, such contact is sufficient only to sustain causes of action stemming from that contact.
1. McGee –
a. The court held that a single transaction with a plaintiff residing in the forum state– an insurance contract – was a “substantial” connection with the state and supported the exercise of personal jurisdiction.
i. Perhaps the least amount of contact found to be permissible under due process.
a. Foreseeability of suit in the forum state is, alone, insufficient.
b. Unilateral activity is also insufficient. A defendant must hav
ii. Middle ground – users can exchange information with host computers – personal jurisdiction is analyzed on the level of interactivity and commercial nature of the info exchange
iii. Completely Interactive – allows users to contract – jurisdiction is proper (Ebay, Amazon)
b. EFFECTS TEST for Purposeful Availment
i. The effect of a defendant’s conduct felt by the forum state is sufficient to establish jurisdiction when he acted from another state. There is also a purposeful availment prong. The defendant must have intended to affect the forum state with his conduct.
ii. Knowledge that conduct MAY harm a forum is insufficient to meet the aiming requirement of the effects test.
2. Yahoo! –
5. VENUE – Like jurisdiction, venue determines where litigation will take place – not just in a particular state, but in a particular district. Venue is purely STATUTORY.
a. §1391 (a) and (b) – where any defendant resides or where a substantial part of the events or omissions giving rise to the claim occurred
b. § 1391 (c) – a corporation resides wherever it is subject to personal jurisdiction
c. § 1391 (d) – alien corporation may be sued in any judicial district
d. Dee-K Enterprises –
i. In cases where you have both foreign and domestic defendants and you apply 1391(d), its application could prevent there being a proper venue because a domestic defendant could then be sued in any jurisdiction – so we have to apply 1391(b). 1391(d) is really broad.
ii. In situations where you have a Clayton Act lawsuit, but you have both foreign and domestic defendants, 1391 trumps.
6. DECLINING JURISDICTION – Both state and federal courts have the power to decline to exercise their jurisdiction for reasons of JUSTICE and EFFICIENCY. (State long-arm statutes are an example.)
a. Forum Non Conveniens – Dismissal for re-filing in another state or country.
i. Piper Aircraft
1. A court should weigh the public and private factors to determine if the alternative forum is more appropriate. Also, foreign plaintiffs should be given less deference in their choice of the U.S. courts as a forum.
2. Public Interest Factors:
a. Complexity/Ambiguity for a jury (the less the better)