Civil Procedure Outline
Prof. Mullenix – Fall 2007
Personal Jurisdiction
Because of the 14th amendment due process clause a court can’t exercise jurisdiction over you without the right to do so, to do otherwise would deprive you of life, liberty, or property without due process of law.
Traditional Basis from Pennoyer v. Neff (State Sovereignty)
1. Physical Presence – when a person is served while in a state.
a. Domicile
i. An individual may always be sued in the state in which they have permanent residence.
ii. Corporations
1. Corporations are considered to be residents of the state in which they were incorporated (very often Delaware or New Jersey)
2. A state that would support general in personam jurisdiction (discussed below) is essentially also the domicile of the corporation for personal jurisdiction.
b. Transient or Tag Jurisdiction
i. You are temporarily in a state and are formally served with process.
ii. Examples:
1. A New York resident is served with process for California proceedings while visiting his children in California. (Burnam v. Superior Ct.)
a. Tag jurisdiction was upheld on the basis that this is a very traditional method of asserting personal jurisdiction. Thus fitting into the International Shoe language of “traditional notions of fair play and substantial justice.”
2. You are a resident of Oregon, while on a trip you have to change planes in Chicago. While in Chicago waiting for your plane you are served process to appear before an Illinois state court.
2. Voluntary Appearance – Rarely Happens, Why Would You Do It?
a. If you show up in court other than in a special appearance then you have voluntarily appeared before the court and are subject to its jurisdiction.
3. Consent
a. Implied by Statute
i. Many states have statutes which require those driving on state roads as out of state residents to have to automatically assign a state agent (e.g. registrar) as their own agent for incidents arising out of driving in the state. (Hess v. Pawloski)
b. Implied by Failure to Comply with Discovery Proceedings
i. If a defendant fails to comply with court ordered discovery proceedings relating to their challenge of personal jurisdiction, then there is the assumption by the court that the defendant has consented to jurisdiction.
c. Express Through Choice of Forum Clause
i. Presumptively enforceable unless fundamentally unfair or there is no communication.
1. Unfair should be taken with a grain of salt but where communication is lacking the court may invalidate, but even then often not if the party could have found out (e.g. clause is on the back of a ticket)
ii. Many commercial contracts contain choice of forum clauses which bind those parties to a specific court for any disputes arising out the contract. (M/S Bremen v. Zapata Off-Shore)
1. Policy Considerations
a. Predictability for Business Parties
b. Reduction in Litigation over Personal Jurisdiction
iii. The Supreme Court has also upheld consumer contracts which are seemingly adhesive, which contain a choice of forum clause as a valid basis for personal jurisdiction.
1. A Washington couple buy passage on a cruise liner, on the back of the ticket in tiny print is a choice of forum clause. (Carnival Cruise Lines v. Shute)
d. Express Through the Appointment of an Instate Agent (Pennoyer v. Neff)
4. When Due Process is Waived
a. Under Rule 12(h)(1) of FRCP if a defendant fails to raise a jurisdictional defense in the first responsive papers filed it is assum
n (Recognized in Helicopteros)
i. Affirmative Purposeful Contact or Availment (Hanson v. Denckla)
1. Did the nonresident defendant purposefully direct its activities at the forum or residents of the forum or purposefully avail itself of the privilege of conducting activities within the forum state, thereby invoking the benefits and protections of its laws, or was the contact based on the unilateral action of the plaintiff or a third-party?
2. Should the defendant have reasonably foreseen being “hailed into court” in the Forum State. (Worldwide VW)
ii. Relation to the Cause of Action
1. Did the contact in question have a substantial relation to the claim or give rise directly to the claim or was it isolated and unrelated?
a. If Isolated and unrelated then we don’t have specific personal jurisdiction.
i. But if there are systematic (non trivial) and continuous (continue of an extended period of time) contacts (substantial) then we could have general jurisdiction, whereby that forum can assert personal jurisdiction even when the action doesn’t arise out of the contacts.
1. This is often shown by having an office or agents working in the state.
This is distinct from 1332(c)(1) stating that a corporation is a domiciliary of a state where it has a principal place of business, although they will often be the same (i.e. support general in personam jurisdiction and diversity jurisdiction).
