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Civil Procedure II
University of South Carolina School of Law
Holley-Walker, Danielle R.


Civil Procedure II

Spring 2011

Major Constitutional Issues w/I jurisdiction:

-Article III section 2 (applies to subject matter jurisdiction)

Federal Jurisdiction:

1. Treaties

2. Ambassadors

3. Admiralty

4. U.S is a party

5. Btw states

6. State & citizen of another state

7. Citizens of different states

8. Citizens of same state claiming land under grant of diff states

9. Citizens and foreign states

-Article IV section 1

Full faith and credit clause (applies to both subject matter and personal jurisdiction)

-Faith and credit given to every other state (prevent escaping judgment & to create a sense of trust and respect for the decisions rendered in other states)

-14th Amendment- Due process clause (applies to personal jurisdiction)

Hawkins v Masters Farms (subject matter jurisdiction case)

-car accident case

-Mr. Creal estate v Masters

-when Mr. Creal was killed he was in process of moving from Missouri to Kansas

Issue: Of what state was Mr. Creal a citizen when he died, Kansas or Missouri?

-if he was a citizen of Missouri he would be able to bring suit in Fed court b/c of diversity of citizenship.

-Def. filed a 12b(1) motion to dismiss case b/c of lack of citizenship

-Diversity jurisdiction is created by Art. 3 sec II (must be over $75,000)

Why Fed. Ct?

-slower docket in state court

-get larger jury pool

-get a life-time tenure judge to hear case (may be a fairer hearing)

Issue: Where is Mr. Creal a citizen?

Where is person “domiciled”

-means where is the person (1) physically present and do the (2) intend to remain there

Best evidence for him being in Kansas:

-moved in with wife in Kansas and stopped returning to stay with mother in Missouri

-moved most of his possessions (more than just packing a bag)

-death certificate listed Kansas as place of residence

Best evidence for Missouri:

-still had a Missouri drivers’ license

-was getting mail in Missouri

-listed Missouri as place of residence on his life insurance policy

*Subject matter jurisdiction can never be waived. If it is later found that there’s no subject matter jurisdiction the case will be dismissed no matter at what point in the litigation it takes place*

Personal Jurisdiction

Pennoyer v Neff

1st case:

-Neff hired Mitchell as lawyer, then refused to pay his legal fees

-Mitchell sued Neff in Oregon state ct.

-Couldn’t find Neff b/c he lived out of state

-Neff was noticed by publication and never showed up for ct

-Mitchell obtained a default judgment against Neff.


-Neff later obtained a parcel of land in Oregon

-Mitchell moved to take the land and received a sheriff’s deed

-Mitchell then sold the land to Pennoyer

2nd Case:

-Neff sues Pennoyer in Oregon Federal ct to get land back (quiet title)

Central issue of case (2nd suit):

Whether the 1st lawsuit extinguished Neff’s title to the land?

Was judgment valid?

-Question becomes one of personal jurisdiction

Oregon Statute regarding gaining jurisdiction over a defendant:

1. defendant is a resident of state

2. constructive notice/ attach property

3. defendant to appear in court

4. personally serve him w/i state of Oregon

Public Law Principles:

1. State Power (resident, property owners)

a. since you enjoy the protections of the state, it has jurisdiction over you

b. Since your property is protected by the state, it has jurisdiction over you

c. *as a sovereign state it has power of certain aspects of law

2. Territoriality/ limits on state power

a. To truly recognize state power, that means that this power must stop at the boarder. Each state’s power must be recognized equally.

Non-residents and state power:

3 types of Personal Jurisdiction for non-residents:

1. In Personam- personal service w/i the boarders of the state

2. In rem- suit about land or property owned by non-resident owner (attach land)

a. Attach property wh

7. There is personal jurisdiction b/c Pennoyer gives exception for divorce

8. There is not jurisdiction MN can decide status (divorce or not) but not child support questions

How do you assert a claim for lack of personal jurisdiction?

-file a 12(b)(2) motion. This is a special appearance, meaning that you are not submitting to jurisdiction you are just moving to dismiss the case.

-ignore case, then when they try to enforce the judgment collaterally attack it

Problems on p 73

A) Yes, it was waived per 12(G)(2) & 12(H)(1)(A)

B) Yes, it was waived per 12(H)(1)

C) No, it wasn’t waived per 12(h)(b)

D) yes, it is waived b/c it was a second motion

E) yes, it was waived b/c it was a second motion

F) no, b/c the first motion wasn’t a Rule 12 motion. However, some courts feel that this is the same as 12(b)(3)

Themes in Modern Jurisdictional Cases

1. Jurisdiction as power (state and territorial power)

2. Notice

1. Consent- if you consent to jurisdiction (appoint an agent for service)

3. Presence

1. Transient presence- people just passing through a state

International Shoe Co. v Washington

-Washington wants International Shoe to pay into the unemployment compensation pool in the state.

-This amount was determined by how many employees they have working in the state

-But the business has no real ties other than the salesmen who worked there. It was based in Missouri and was a Delaware corporation

-Suit was filed in Washington

-Shoe argues Washington needs personal jurisdiction over the corporation, not just the individual salesmen. They assert 12(b)(2) (or a special appearance)