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Civil Procedure II
University of Toledo School of Law
Pursley, Garrick B.

Pursley – Civil Procedure II – Spring 2011


a. DEFINITION: power of a court to enter a judgment against a specific defendant, geographical limit on where P can choose to sue D for a particular claim

b. DUE PROCESS REQUIREMENTS: Court can assert PJ only if it is AUTHORIZED by statute AND does not exceed the limits of the DUE PROCESS CLAUSE

i. In personam jurisdiction + notice and opportunity OR

ii. Minimum contacts + fairness + notice and opportunity

iii. Why: P is not free to bring a suit where it chooses- these limits are intended as a matter of basic fairness to prevent P from suing a non-resident D in a state UNLESS that D has established a relationship to that FS that would reasonably lead to D anticipating being sued there

iv. DP has morphed throughout time due to changes in social and economic systems. Civil justice should function in a fair way for both plaintiff and defendant

c. Personal Jurisdiction in Federal Courts

i. 14th am: state courts may only exercise PJ over parties who have formed a relationship to that FS

ii. 5th am: D need only have an appropriate relationship to US (being found or domiciled in US, minimum contacts in US that give rise to the claim)

iii. Congress has the power to authorize federal courts to exercise nationwide jurisdiction to require parties with contacts anywhere in US to respond to suits brought in any federal district court

d. Old Themes of Personal Jurisdiction-Formalism Adjudicatory Method – Pennoyer

i. Pennoyer

1. Every state possesses exclusive jurisdiction and sovereignty over person and property within its territory.

2. No court can exercise jurisdiction and authority over person or property outside its territory

3. Court can render money judgment and/or order defendant to perform/refrain from acting

4. Judgment enforceable in another jurisdiction under Full Faith and Credit

5. State can impose stricter requirement than the constitution but cannot be more expansive than the constitution

ii. IN PERSONNAM JURISDICTION: jurisdiction over the person


a. Expansive jurisdiction over person/individual

b. Able to adjudicate all rights pertaining to an individual

c. Requires notice and opportunity

d. All person’s assets may be seized to satisfy the judgment

2. Granted:

a. D is present in FS

b. D is served with process in FS

c. D is domiciled in FS

d. D consents to jurisdiction

i. Express: contract

ii. Implied: driving in state, committing a tortious act

iii. Waiver: fails to assert jurisdiction defense, submitted to jurisdiction

iv. Choice of law clause: forum selection clause in contract

e. D committed a tortious act within FS long arm statute

3. Corporations: resident of FS where incorporated and have principal place of business

a. Foreign corporation must have minimum contacts, no in personnam jurisdiction

4. Defendant’s consent analysis

a. Via contract: if process served on an agent in FS, and the parties previously agreed that the person would be an agent for service of process, then the jurisdiction of FS is valid even though defendant is absent from FS

b. Forum selection clause: presumptively valid and should be enforced unless enforcement is shown to be unreasonable under the circumstances. Fraud, undue influence, disproportionate bargaining power, serious inconvenience to the party, two domestic parties selecting foreign forums

c. BUT: Carnival Cruise Lines severely limited what it means to be “unreasonable”-disproportionate bargaining power doesn’t lead to automatic unenforcement, inconvenience must be severe, fraud by itself may be sufficient, context is important-routine transaction or reason to suspect bad faith?

iii. IN REM JURISDICTION: jurisdiction over property/things located within physical borders of FS

1. Good against the world (don’t seek to impose personal liability on anyone, but instead seek to affect the interests of persons in a specific thing)

a. Probate court action, actions to quiet title to real estate or foreclose a lien up on it, admiralty actions concerning title to a ship, actions for divorce

2. Obtained if the non resident owns property within the state AND that property is attached pre-judgment

3. Judgment cannot be sued upon in any other court

4. Constitutional limit: NEXUS and NOTICE

a. NEXUS: State has great interest in adjudicating the rights of all the world regarding this property. Therefore, the presence of property in the state is constitutionally sufficient for the exercise of jurisdiction over the property

i. No jurisdiction if property not located in state

ii. No jurisdiction if property brought into FS by fraud or force

b. NOTICE: persons whose interests are affected and whose addresses are known must at least be notified by ordinary mail

5. Harris: property in the state is sufficient for obtaining jurisdiction if notice is reasonably calculated to alter all interested parties of the litigation. Notice by publication for unknown parties, but for known parties must be by mail or personal service. Minimum contacts isnt an issue. With notice all parties are bound by the decision because the property is physically located within the FS.

6. Shaffer/modern approach: International Shoe standard must be applied. Jurisdiction is being asserted over the property, not the person. Minimum contacts is therefore not an issue. Thus, Shaffer, arguably leaves the old method of pure in rem analysis (Harris) undisturbed.

iv. QUASI IN REM JURISDICTION: permits a court without in personnam jurisdiction to determine certain disputes between P and D regarding property located in FS

1. Property unrelated to the cause of action but serves as the basis of state court jurisdiction is insufficient to satisfy due process. Now, QIR has little or no purpose-if the test is the same as in personam a plaintiff would prefer in personam because the courts power to award damages under QIR is limited. QIR may still be useful in cases where minimum contacts are satisfied but the state long arm statute for in personam is smaller than the constitutional box and thus doesn’t allow jurisdiction

2. Statutory limits

a. Type I: dispute between parties over their rights in property within FS. Court has power to determine whether particular individuals own specific property within court’s jurisdiction.

i. Court cant determine ownership against the world – only goods against the parties in the suit

b. Type II: disputes unrelated to the in state property and has been severely limited by SCOTUS

c. P is unable to obtain PJ over D, but D has property in FS that P attaches. Court then adjudicates the dispute between the parties on the basis of its power over the property. Since the court’s sole basis of jurisdiction is the property, any judgment against D can be satisfied ONLY out of that property AND judgment cannot be enforced against any other property that D owns outside of FS jurisdiction

3. Constitutional limits: minimum contacts + attachment of property + notice

a. Harris: “metaphysical presence”-court had PJ over individual simply because that individual owned property in the FS. Intangible property, like tangible property (debt) may be seized in order to obtain jurisdiction. A legal fiction that debt is located where the debtor is and not where the creditor/owner is

b. Shaffer: min

y be held accountable for the consequences of those voluntary contacts

iii. Burger King: PJ is presumed reasonable when D has purposefully directed activities to the FS. Therefore D must make a compelling argument that other considerations made the exercise of PJ unreasonable


i. Is there a traditional basis of jurisdiction? If YES, have PJ. If NO, continue

ii. If there is no traditional base, does state long arm statute apply? If YES, continue. If NO, no PJ and analysis OVER

iii. If there is no traditional base, and the state long arm statute applies, is the long arm statue constitutional? If YES, have PJ. If NO, no PJ

e. MINIMUM CONTACTS: Determining whether such contacts with FS are fair and reasonable: Purposeful Availment and Foreseeability

i. Purposeful availment: Ds conduct and connection with FS are such that he should reasonably anticipate being haled into court there. Ensures D will not be haled into a jurisdiction solely on the result of a random, fortuitous, or attenuated contact or by the unilateral activity of another party or 3rd person.

1. Substantial connection test: D deliberately engaged in significant activity within FS, or has created continuing obligations between himself and resident of FS-“benefits and protections”-so not unreasonable


a. Is there deliberate contact between D and FS: if YES, continue. If NO, then no PJ

b. Would the exercise of PJ comport with fair play and substantial justice (other factors not sufficient if minimum contacts lacking)

i. Interest of FS in providing redress to its citizens

ii. Interest of FS in enforcing its substantive law or policy

iii. Extent of inconvenience to D if forced to defend far away from home (fairness)

c. Burger King: D, MI resident, contracted to send franchise payments to FL, FL would govern any dispute = purposeful availment

d. American Radiator: D manufactures widgets in AL, markets them in MS; P, resident of MS, purchases widgets from D; D accepts order and ships them to P in MS; if widget explodes and P is injured then P can probably sue D in MS

e. Kuhlko: D, resident of NY, didn’t avail self of CA law by sending daughters to live with mom in CA, that act was not a contact

f. WWVW: D, NY dealer, didn’t avail self of OK law b/c D didn’t know car would be driven in OK, so D didn’t purposefully avail self of privileges or protection of OK

3. Stream of commerce causes Ds goods to reach FS

a. Party at beginning of stream of commerce did not import the product into FS, it is sold to others who did. That party may know that such resales take place in FS, may think it highly likely, or may not know or care about the ultimate destination of its products

b. Its ALWAYS relevant who brought the item into FS-manufacturer or distributor v individual

i. Asahi: court split on questions of whether the mere act of selling goods outside FS that would likely to be imported into FS for resale suffices to support jurisdiction