John Sobieski – Fall 2011 – Civ Pro I
I. Personal Jurisdiction – In what states can π sue the Δ?
a. In Personam- power over Δ himself (FEDERAL COURTS IS THE SAME AS THE STATE COURTS)
i. General: Δ can be sued in that forum on a claim that arose anywhere in the world (unrelated)
1. If the Δ has continuous and systematic or substantial ties with the forum Δ is subject to general jurisdiction (often only if there is no other forum available = jurisdiction by necessity).
a. Domicile in the forum
b. Corporation incorporated in the forum
ii. Specific: the Δ is being sued on a claim that arises from the activities in the forum
1. Discreet and insular contact (car accident) – claim arises out of and related to the contact with the forum.
iii.
Pennoyer v. Neff (1877): the state has power over people and property inside its boundaries; very physical determination gives us the traditional bases of in personam (territorial) jurisdiction.
Coastal video v. Starwell (1999): copyright infringement; Δ based in CA but sold videos and advertised in VA; copyright violation did not arise out of contact with VA – is there specific or general jurisdiction in VA? Court says it needs more information about the extent of Δ’s contact with the forum state in order to determine whether they are subject to general or specific jurisdiction.
Constitutional test:
1. Traditional basis of in personam jurisdiction:
a. Presence: If Δ severed process in the forum, gives forum general in personam jurisdiction.
b. Agent: Service of process on the Δ’s agent in the forum creates general jurisdiction.
c. Domicile: Δ is domiciled in the forum gives general jurisdiction.
d. Consent: Δ consents to specific jurisdiction
i.
Carnival Cruise Lines, Inc. V. Shute (1991): adhesion contract term requiring passengers to consent to suit in FL; court held that you can waive your constitutional protections and that minimum contacts are not necessary when there is consent; efficiency argument to prevent cruise line from defending in whatever state passengers are from (cost passed on to consumers)
· POLICY Issues:
I. In terms of fairness the cruise line is better able to afford distance defense
II. Purposeful availment – did the cruise line advertise in Δ’s home state?
III. Unconscionability – unequal bargaining power in adhesion contracts.
Implied consent: no-resident motorist statutes.
2. “Minimum contacts” and “Traditional notions of Fir Play”
a. It is clear that you can serve process outside the forum state so lona s he has such minimum contacts . . . etc. (Substituted Service)
b. Two part assessment (1) contacts (2) fairness
c. did not overrule Pennoyer- implying that presence int the forum state is still enough.
d. “Such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.” Factors in assessing minimum contacts: (Int’l Shoe)
· Presence in the state
· systematic and continous activities within the state
· enjoys the benefits and proections of the state lawas
· Whether it is reasonable to expect Δ to defend itself in that state “Relatedness” and “purpuseful Availmant” (sufficiency of contacts)
3. “Relatedness” and “Purpuseful Availment” (sufficiency of contacts)
a. π’s claim was related to contact with forum (contacts create specific jurisdiction)
i. Claim arose out of the contact with the forum state.
b.
McGee v. Int’l Life: (1957) TX ins. Co. sued in CA; only had one contact inCA but court said that was enough because (1) Δ solicited that business (2) court noted that π’s claim arose from the Δ’s contact with the forum, call “relatedness” (3) state’s interest in protecting its citizens from out of state companies.
Purposeful Availment
i. Activities must be directed at state and citizens
ii. Contact must purposefully avail π of the privilege of conducting business in the forum state – thus invoking benefits and protections of its laws
iii.
Hanson v. Denckla (1958): PA woman has rust fund with DE ban before she moves to FL; she dies and the question is, does FL have jurisdiction over that DE bank? NO- because that bank had not relevant contact with FL; contact must result from Δ’s “purposeful availment” of that forum and NOT BASED ON UNILATERAL ACTION OF A PARTY
1. Manifest Interest of Forum State
a. Fair to Δ
i. Extent of burden (reasonably convenient)
ii. Allows Δ to predict/foresee where they might defend a lawsuit
Reasonable anticipation: Give Δ some awareness of where they can be brought to court.
4. “Foreseeability”
a. π has purposefully availed himself of a forum when it is foreseeable that he could be haled into court there as a results of the contact
i. “Stream of Commerce” – not enough by itself
ii.
Asahi Metal Industry v. Superior (1987): victim of motorcycle accident brought suit in CA court against Taiwanese tire-tube make who cross-claimed against Japanese MFG of the tube valve assembly. When a company puts a product into the stream of commerce with the expectation that it will reach the forum state are minimum contacts satisfied? No majority opinion so two theories emerge:
· O’Connor approach (decision): We need more than just a reasonable anticipation that a product will reach the forum state; we need that plus the intent to serve the forum state (advertise, customer phone line, distributors).
· Brennan: it is a contact if you put the product in the stream and could reasonably anticipate that it would get to a state
Worldwide Volkswagen v. Woodson (1980): Family lives in NY and is moving to AZ; they buy a car in NY, got in accident in OK that car was defective; there was jurisdiction over Volkswagen nationally but is there jurisdiction in OK over the regional distributor and the NY retailer? – NO: because there is no relevant contact or “purposeful availment” because the Δs took the car to OK.
Court says foreseeability is relevant but only foreseeability that the Δ could get sued in that forum.
5.
Pavlovich v. Superior Court (2002) Website gave info to decrypt data on DVDs to permit copying copyrighted info; a website that only makes information available is not grounds for personal jurisdiction even if harm in the forum is foreseeable; exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information.
The “effect test: Can you reasonably expect to have an effect in the forum which would expose you to lawsuit (defamation in newspaper)
6.
Burger king v. Rudzewicz (1985): two franchisee of a BK store in MI are sued for breaching the franchise agreement in FL; Δs claim it is too burdensome to defend in FL and it violates due process; court says there is jurisdiction in FL because the Δs should have anticipated when they entered into the franchise agreement that they would have to defend in FL. Factors: (1) convenience to Δ (2) effective relief for π (3) forum state interest (4) sister state interest (5) efficiency.
(2 contract options: choice of law and choice of forum)
The Fairness requirement of Due Process
a. You must have a relevant contact before we even are concerned with fairness.
b. The burden on the Δ to show that the forum is unconstitutionally unfair – so gravely inconvenient that you are at a severe disadvantage (due process ≠ convenient forum)
7.
–
o Is there a WA statute?
§ Traditional basis statute won’t work here
§ Long arm statute? suppose it says that WA has jurisdiction over non-residents who commit a tortuous act in WA
· Ill rule – yes there was a tortuous act in WA because π was injured in WA
· NY rule – no because there was no tortuous act in WA; if there was negligence it’s where the clock was made in OR.
o Constitutional Validity?
§ No traditional Pennoyer basis (presence, consent, domicile)
§ Contact?
· Purposeful availment – clock got into WA because of the unilateral act of a third party (like in WW Volkswagen); but what if the shop is on the interstate highway two miles from the border or Δ advertises in WA (like McGee)
· Foreseeability – again an issue of the facts.
· Relatedness? Yes, no need to worry about Goodyear because it is specific jurisdiction.
§ Fairness
· Burden on Δ – these are neighboring states, he went there already, this is not a severe burden
· State interest in protection citizens from defective products from other states.
· π interest?
· Efficiency?
· Shared substantive policies.
Landlord disputes where the landlord is absent.
II. Notice-
a. Service of Process – RULE 4
i. Process consists of summons and a copy of the complaint
ii. Service can be made by any nonparty who is at least age 18 (4(c)(2))
iii. How do we serve an individual?
1. Rule 4(e)(1) – incorporates states law; federal court incorporates methods for serving process allowed by the state in which the federal court sits or in the state in which service is actually effected. (usually this is where service by mail comes in)
2. Rule 4(e)(2)
a. Personal Service – hand the process to the Δ anywhere in the state
b. Substituted Service – at the Δ’s usual abode and you must serve someone of suitable age (16, 18, 13? Flexible) and discretion AND who resides there
c. Agent – you can serve the Δ’s agent
iv. How do we serve a corporation? Rule 4(h)(1)
1. Serve an officer or a managing or general agent (someone with enough responsibility to be considered reliable for passing along important documents)
v. Waiver of service by mail – Rule4(d)
1. Does NOT allow service of process by mail (only allows service by mail if states rule is incorporated under 4(e)(1)
2. If Δ does not return waiver form then she will be formally served and she may have to pay for service
3. 30 days to respond within US. 60 days if outside .
vi. Geographic limitations – Rule(4)(K)(1)(a) – we can serve process throughout the state in which our federal court sits but we can serve process out of sate only if a court in this state could do so (such as long arm statutes); Exceptions:
1. Federal statutes allows for nationwide service of process for federal courts 4(k)(1)(c) and (d)
2. Bulge rule-4(K)(1)(b) – a federal court can serve outside the stat in which it sits within 100 miles of where it sits; does NOT apply to original Δs only to parties being joined later in the case under Rule 14 or Rule 19
