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Civil Procedure: Jurisdiction
University of Toledo School of Law
Kilbert, Kenneth

Civil Procedure: Jurisdiction—Fall 2017—Ken Kilbert

Survey of the Civil Action

Three considerations when deciding to sue someone

Whether legal relief is available
What the probability of wining the lawsuit is
Whether what would be won is worth the burden of litigation

Tactical Factors used to determine where to file

Identity of the Judge
Court’s calendar
Procedural Differences

Jury trial availability
Composition of jury
Required level of agreement for verdicts
Applicable rules of evidence

Client characteristics
Substantive Law the Court applies

Selecting a proper court

Need jurisdiction over:

Subject matterà power to decide that case (Does this court have the power to deiced this case?)

A defect in the court’s jurisdiction of SMJ cannot be waived

Personà subject/amenable to suit in the state in which the court in located so that judgment may be entered against him (Is the court lawfully permitted to exercise power over this D?)

Proper venueà with SMJ and PJ, is this the right local to decide this case? (statutory)

Jurisdiction over parties of their property

Personal jurisdiction: the power of a court to enter judgment against a person or thing

If the court has PJ, the D must defend on the merits of the case because default judgment can be used against D in that case in different states.
Retrained by Due Processà 5th and 14th Amendments

Pennoyer Territorial Approach

Each state has exclusive jurisdiction over persons/property within its territory
Generally: no state can exercise jurisdiction over persons/property outside its territoryà with a few exceptions
State’s exercise of PJ is limited by the Due Process Clause of the Constitution
Due Process in Pennoyer

Limit on Oregon State’s court powers
Full faith & credità there must first be a valid judgment

D appears or consents to being tried in that court
There is an agent in that stateà corporation
Adjudicating status of one of that state’s citizens, even if they are not physically in that state at that time

PJ is limited by due process

If the person is in that stateà that state has power of that person
In the person is not in that stateà the state can’t reach out to that person (absent long-arm statutes)
Without DP the P can “require” D to defend suit anywhere P decided to bring it
Also permits D to ignore P’s cause altogether and collaterally attack the resulting default judgment if the P tries to enforce it in P’s home state

Traditional Categories of Territorial Jurisdiction

In Personam: personal jurisdiction

Court can impose judgment (indebtedness) to the fullest extent of the wrong done to the P.
If that judgment can’t be fully satisfied in that stateà P may collect the rest in another state the D has assets in

In Rem: the court exercises power over property, the court can exercise power over all the people that have a share in that property

Act upon (dispose of) the thing (res), rather than to act directly upon the individual rights

Quasi In Rem: the court exercises power over property, but the amount is limited to the value of the property that is in that (jurisdiction) only

Can be used to adjudicate personal obligations

Additional Tips

Service by publication does not work in territorial jurisdiction, it does work in personal jurisdiction even if the person is only temporarily in that state
The question is always if the court has jurisdiction over the D, the P consented to be sued in a state that they bring a suit in

Waive right to object to PJ

New Theory of Jurisdiction

A corporation was treated as a domiciliary of the state of its incorporation and was subject to that state’s jurisdiction (assuming proper service inside or outside of that state).
Territorial Approach: 2 principles that were not chartered by the forum stateà consent & presence

Consent theory: presupposed that a corp. could transact business in a state in which it was not incorporated, only with that state’s permission or consent
Presence theory: a corp. engaged in activity within a state, established a presence there for jurisdictional purposes

A foreign corp. is subject to process if it is doing business within a state in such a manner and to such an extent as to warrant the inference that it is present there
Court loses power when business is no longer conducted there

Specific Jurisdiction and State Long-Arm Statutes

Minimum Contacts: A State may subject a corp. to in personam jurisdiction where the corp. has such minimum contacts with that state as to make it reasonable to require the corp. to defend a suit there

Activities must be continuous and systematic
Absent consent, waiver, or personal service in the forum, minimum contacts between the forum and the D are necessary to make P’s choice a constitutional forum
A nonresident D can have contacts with the forum state sufficient to support PJ when those contacts are either related or unrelated to the controversy at hand

The Development of Long-Arm Statutes: provide PJ over nonresident Ds who cannot be found and served in the forum state

Predicate jurisdiction over a nonresident D’s general activity in the state, or the commission of any one of the enumerated acts within a state, or the commission of a certain act outside of the state/ jurisdiction causing consequences within it
PJ does not require personal service in forum state
Laundry-list approach: attempts to specify factual circumstances (very specific)
Blanket approach: conferring all jurisdiction permitted by state and federal constitutional laws (to the fullest extent of DP)
Mixed approach: enumerated rights/circumstances & DP

Hess v. Pawloski

D “appeared specially”à appeared to challenge PJ, not consenting to jurisdiction
Affirmed Pennoyer service rule, that you can’t run from service

Agent can be served, here implied appointment of agent (can’t have implied agents when dealing with individuals, only Corps. à due to the privileges and immunities clause)

risdiction over foreign corps and other nonresidents

Hanson v. Denckla

However minimal the burden of defending in a foreign forum, a D may not be called upon to do so unless he has the minimal contacts with that state (D must purposely engage in contacts with the forum state)
The unilateral activity of those who claim some relationship with a nonresident D cannot satisfy the requirement of contact with the forum state (must be a substantial connection)

Minimum contacts, AND
Traditional notions of fair play and justice (DP now means more)

DP places territorial limits on the power of the states
2 theories:

Power theory: submission to suit is a fair exchange for the benefits and protections a nonresident D receives from the forum state
Logic/Convenience Theory: looks at the burden on D, degree of difficulty of P in suing elsewhere, possible interest of forum state in holding suit there

World-Wide Volkswagen v. Woodson

Foreseeability that matters isà D’s conduct and connection with the forum state are such that he should reasonably anticipate being hailed into court there
Mere unilateral activity of those who claim some relationship with a nonresident D, cannot satisfy the requirement of contact with the forum state
State interests are not irrelevantà realted to abilities and limits of states to keep federal systems clean

Evaluating PJ over nonresidents TEST:

Look at long-arm
Establish DP

Min. contacts
Fair, just, and reasonable

Keeton v. Hustler Mag.

General and specific jurisdiction are simply opposite ends of a sliding scale, by which the quantity and quality of the D’s contact and relatedness of the contacts to the claim are inversely related
Sell enough to product to purposely avail itself to suit
PJ is not focused on “best” court/jurisdiction, just one that is allowed

Calder v. Jones

P’s lack of contact will not defeat otherwise proper jurisdiction, but they may be so manifold as to permit jurisdiction when it would not exist in their absence

Kulko v. Superior Court

Effects test should be limited to commercial activity, not domestic, or to wrongs done outside the states

Evolution of “Contacts Plus” Test:

International Shoeà contacts are systematic and continuous
Hansonà D must have purposefully directed its activities at the forum state, making purposeful availment important