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 assumed to be waived and cannot be brought back up.
5. Minimum Contacts with the Forum State (International Shoe) – First the court must look to the long arm statute and see if applies and then if it violates due process under 14th amendment:
a. Long-Arm Statutes
i. The reason long-arm statutes are necessary is because the 14th amendment doesn’t actually confer jurisdiction on courts it simply limits, so the constitution says “ok states define your jurisdiction just don’t over reach).
ii. Examples of Long-Arm Statutes and the Application
1. Transacting Business Within State or Contracting to Supply Goods or Services in the State
a. A (a nonresident) contract to sell a good to B and something happens to that good which gives you a cause of action, statute applies.
b. A sells boots to B in Iowa and sells boots nowhere else, you move to Washington and while there the boots break down, you try to bring suit in Washington but the statute would not allow you to do this.
2. Causing Tortious Injury by an act or omission in the state(or acting out of state which causes injury in state)
a. A visits forum state and injures B while there, the tort
the defendant to have to answer for the claim in this forum?
2. Based on the Worldwide VW factors:
a. Interests of plaintiff in having a local forum,
b. The inconvenience this causes the defendant
c. The interest the state has in providing residents a local forum and regulating the conduct on which the suit is based
i. Are there any particular statutes that state an interest?
c. Stream of Commerce Problem
i. Products will often simply be placed into the stream of commerce (e.g. part sold and incorporated into another product) and the manufacturer has no idea or control over where the product is going to end up.
1. Where the product was brought into the forum state by the unilateral action of individuals there will be no personal jurisdiction.
ii. There are two recognized formulations for determining minimum contacts in stream of commerce cases based on Ashai:
1. O’Connor Formulation (Stream of Commerce Plus)
a. There must be something more than merely putting the product into the stream in order to assert personal jurisdiction. This is based on the Burger King notion that the company must purposefully avail itself.
b. Additional conduct may include designing the product for the market in the Forum State, advertising in the Forum State, establishing channels for providing regular advice to customers in the Forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the Forum State.
2. Brennan Formulation (Stream of Commerce)
a. Merely placing the product in the stream and knowing that it may end up in the Forum State is enough. (Adopting a foreseeability approach) (Gray v. American Radiator)
iii. In order to decide a stream of commerce case in a particular jurisdiction you have to know whether the court has adopted O’Connor or Brennan.
