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Civil Procedure II
University of South Carolina School of Law
Stravitz, Howard B.

Civil Procedure Spring 2008 ~ Stravitz
Requirements for Jurisdiction over the Parties:
There are two distinct requirements which must be met before a court can be said to have jurisdiction over the parties:
The court must have the power to act, either upon given property, or on a given person so as to subject him to personal liability. This is a requirement of substantive due process.
The court must have given the defendant adequate notice of the action against him, and an opportunity to be heard. This is a requirement of procedural due process.
Definition of personal jurisdiction: personal jurisdiction is a court’s power over the parties to the case. If a court does not have personal jurisdiction over a party, any order or judgment that the court may render will not be binding on that party.
Subject matter jurisdiction distinguished: Personal jurisdiction is separate and distinct from subject matter jurisdiction. A court must have both personal and subject matter jurisdiction to hear a case.
Constitutional requirement: Personal Jurisdiction is a constitutional requirement for both state and federal courts. A judgment rendered against a person over whom the court has no personal jurisdiction violates that person’s right to due process.
Two categories of personal jurisdiction: Courts have traditionally distinguished between two distinct categories of jurisdiction
In personam:
Jurisdiction in personam is jurisdiction over the defendant herself
In rem:
Technically, jurisdiction in rem is not jurisdiction over a person but over a particular item of property owned by a person. Practically speaking, however, it allows the court to adjudicate the rights of one person or many people in the property.
True In Rem
A “true” in rem action is one in which the main purpose is to adjudicate competing legal interests in the property in question. The quiet title action and mortgage foreclosure actions are forms of true in rem actions
Quasi In Rem: actions brought for purposes other than determining competing rights to property are deemed quasi in rem. Quasi in rem actions are sometimes divided into two subcategories
Type 1: if the claim before the court arises out of or is otherwise related to the property, then the action is type 1
Type 2: if the claim before the court is unrelated to the property, the action is sometimes referred to as type 2. In these cases, the property mainly serves as an asset to satisfy any judgment that the court may enter against the owner. This type of jurisdiction was extremely limited by Shaffer. 
How jurisdiction is obtained
In personam jurisdiction is obtained by serving the defendant personally with process. 
In rem jurisdiction is obtained by seizing the property. Although notice to the defendant was not historically required in in rem actions, more recent decisions require the π to notify the D directly if the D can be found
Effect of Judgment
In personam
If in personam jurisdiction exists, the judgment binds the defendant personally. The judgment winner can have certain assets owned by the D seized and sold in order to satisfy the judgment.
In rem
A judgment in an in rem case affects only the property, and accordingly, is limited to the value of the property. The π cannot use the judgment to seize other property owned by the D. Moreover, although the judgment victor can sue the personally to recover any deficiency, the prior judgment is not binding on the D in the second suit.
Service of process: proper service of process is also necessary before a court may exercise personal jurisdiction over a D. Any judgment rendered without reasonable notice violates the Ds due process rights and therefore is invalid. Statutes and rules provide various means of serving process.
Capron v. Van Noorden
Capron sued Van Noorden for trespass on the case and the court held that there was no subject matter jurisdiction.
While personal jurisdiction can be waived by appearing, subject matter jurisdiction cannot be waived because of the constitutional requirements.
Tickle v. Barton
Personal Jurisdiction. If someone is not within the borders of the state, they can’t be served with process. We can’t trick them into coming in the state to serve them process.
In WV Tickle, is attempting to serve Barton
Barton filed a plea in abatement similar to current 12(b)(2) or 12(b)(5)—dismissed for a defect in procedure, not on the merits.
Tickle filed a demurrer in response to the plea in abatementà code analog to the 12(b)(6); all the well pleaded facts are taken as true and the legal sufficiency of the complaint is challenged. 
First attempt at service was pursuant to a nonresident driver statute, but because the accident occurred on private property rather than a public highway, they decided to do a second service of process
Subsequently the attorney called the D and purported to be calling on behalf of a junior high school football banquet host committee to invite him to the banquet. 
Said can’t trick them into coming into the jurisdiction for the purpose of service of process
Minimum Contacts Required
Regardless of which type of jurisdiction over the parties is involved, a court may not exercise it unless the defendant has “minimum contacts” with the state in which the court sits.
In brief, the notion is that the D must have taken actions that were purposefully directed toward the forum state
These might include selling goods in the state, incorporating in the state, visiting the state, etc.)
Without such minimum contacts, exercise of jurisdiction would violate the defendant’s federal constitutional right to due process
Balancing test:
Furthermore, even if the defendant has the requisite “minimum contacts” with the forum state, the court may not exercise jurisdiction if considerations of “fair play and substantial justice” would make requiring the defendant to defend an action in the forum state so unreasonable as to constitute a due process violation.
This might be the case for example if the burden to the defendant of defending in the in the forum state was unusually great, and the interests of the plaintiff in having the controversy heard in the forum state were very slight. (Asahi v. Superior Clurt)
Generally, however, if the defendant has the requisite minimum contacts within the forum state, it will not be unreasonable for the case to be tried there, and there will thus be constitutionally exercisable jurisdiction over him.
Long Arm Statutes
Even where the above due process requirements (i.e. minimum contacts) are satisfied, the defendant may not be served outside the forum state unless the forum state has enacted a statute authorizing out-of-state service under certain circumstances. 
Such a statute allowing the courts of a state to obtain jurisdiction over persons not physically present within the state at the time of the service are called “long-arm statutes.”
Long-arm statutes allow jurisdiction on the basis of certain links between the defendant and the forum state, such as domicile there, ownership of property in the state, commission of a tortious act inside the state, etc.
The term long arm statute refers to a statute which permits the courts of a state to obtain jurisdiction over persons not physically present within the state at the time of service. Such statutes may allow jurisdiction on the basis of factors such as citizenship in the forum state, in-state property ownership, in-state tortious acts, etc.
Continuing Jurisdiction
Once jurisdiction over the parties is gained, it continues during the entire jurisdiction.
But at each significant new step in the litigation process, notice and opportunity to appear must be given
In Personam Jurisdiction
Jurisdiction over Individuals
Individual’s presence
Jurisdiction may be exercised over an individual by virtue of his presence within the forum state
Originally chief basis
Originally presence within the state was the chief, if not the sole basis for personal jurisdiction
Pennoyer v. Neff: stated that “the authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established.”
Since the state’s power only extends to the edge of its borders, Pennoyer held, “process from the tribunals of one state cannot run into another state and summon parties there domiciled to leave its territory and respond to proceedings against them.
Presence Still Enough
Today presence within the forum state is only one of numerous ways to get jurisdiction

y any other method that is reasonably calculated to give him actual notice. 
Schaffer v. Heitnerà may imply that the Ds mere domicile in the forum state is not always enough to constitutionally confer jurisdiction over him. The Supreme Court held in Shaffer that it is unfair to subject a D to jurisdiction over his property located in the forum state if he does not have minimum contacts with the state. It would be equally unfair to make the D personally liable in the forum state merely because he was domiciled there, if he has subsequently moved his residence somewhere else but has not established a new domicle.
Mas v. Perry
Jurisdiction over a party can be exercised by virtue of his consent, even if he has no contacts whatsoever with the forum state.
Consent by filing an action
A π is considered to have submitted to the court’s jurisdiction by filing an action. A counterclaim may therefore be filed against him, by service on his attorney. He cannot escape jurisdiction by dismissing the action, or by failing to prosecute it. 
Consent before claim arises
A party may agree to submit to the jurisdiction of a certain court even before any cause of action has arisen. This is often done as part of a commercial contract between the parties
Forum Selection Clausesà some Ks go further than just an agreement to submit to the jurisdiction of a particular court—they obligate each party to litigate in one particular court. Such forum selection clauses will be enforced provided that they are fundamentally fair. 
Zopata Case:
Court upheld the forum selection clause bargained for between two sophisticated commercial entities
Carnival Cruise Line Case: Court upheld the clause written on the back of a cruise ticket even though π did not know about it until after receiving the ticket. Zopata not limited to Ks between two business entities. Stravitz questions the fairness and economic analysis used to decide this case. 
Implied Consent
Certain state statutes recognize the doctrine of implied consent, by which the D is said to have impliedly consented to the jurisdiction of a state over him by virtue of acts which he had committed within the state.
General Appearance
If a suit is brought seeking personal liability over a defendant, his appearance in the court to contest the case on the merits constitutes consent to the court’s jurisdiction, even if jurisdiction would not have otherwise been valid. Such an appearance on the merits is called a general appearance. 
Non-Resident Motorist Statutes
Many states have statutes allowing their courts to exercise jurisdiction over non-resident motorists who have been involved in accidents in the state. Formerly this jurisdiction over non-resident motorists was based on the fiction of implied consent (Hess v. Pawloski).
The modern trend in non-resident motorist statutes is to reject the theory of implied consent, in favor of a theory that the states have the right to use their police power and their court system to protect their own citizens who are injured by the automobile, a dangerous object.
Most of the non-resident motorist statutes provide for in-state service of process on a designated state official, such as the Director of Motor Vehicles, and for registered mail service on the D himself.
In-State Tortious Acts
Many states have statutes allowing their courts jurisdiction over persons committing tortious acts within the state.