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

Jurisdiction – Fall 2017



What is jurisdiction

A court’s power to hear & decide a case or issue a decree, or geographic area over which court has power

Power to decide subject matter of case (SMJ)
Power to bind parties personally (PJ)

SMJ + PJ +Venue

Deciding where to file

Choosing state or federal


Personal Jurisdiction (In Personam) – Jurisdiction over defendant party or property

A court’s power to bind parties and enforce its decision
There is always PJ over a defendant where the defendant lives
Case can be brought against defendant

Def needs to defend on the merits

If default judg entered, it can be enforced against def in that state & other states (FFC Cl)

Due Process (5th & 14th Amendment) = limitations – must have opp and notice to be heard
A court can assert personal jurisdiction only if the exercise of power is authorized by statute and is consistent with the DP clause.

Types of Personal Jurisdiction

In Personam – Jurisdiction over the person and his assets wherever he is located
In Rem – Jurisdiction over property for purpose of declaring ownership or interest in property (Subject Matter can be considered property i.e. bankruptcy IP)
Quasi In Rem (2 types)

Type 1 – Jurisdiction over property is the focus of claim

Decision binding on parties only
Ex – Foreclosure

Type 2 – Juris over prop NOT focus of claim; focus is providing remedy in unrelated action

Defendant liability is limited to value of property attached
Ex – Attaching a car to pay a tort judgment
Not used much anymore bc PJ almost always needed; PJ existsàQIR2 almost useless

Special v. General Appearance

Special Appearance – Appearing specially to argue that state does NOT have jurisdiction

Participating in the case without submitting to the court’s PJ
If a defendant uses this opportunity to argue any of the merits of the case (i.e. anything other than PJ) he consents to General Jurisdiction

General Appearance – Submitting to the court’s jurisdiction

Implied consent v. presence theory (early ways to think about jurisdiction)

Implied Consent theory presupposed that a co could transact business in a state in which it was not incorporated only with that state’s consent (Bad law – Hess overruled)

Under this theory, a state could require a foreign co, as a condition of doing bus there, to consent to service of process through the appt of an in-state agent to receive process

Presence theory is the notion that a corporation engaged in activity within a state established a presence there for jurisdictional purpose

A foreign co is amenable to process, if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there

Under each approach, first question to ask was whether the co was doing business w/in the state

Pennoyer (Traditional) Territorial Approach (Pennoyer v. Neff)

Each state has exclusive jurisdiction over persons/property within its territory
State’s PJ lmtd by Due Proc Cl (Need process of law to deprive person of life, liberty, or prop)
No state can exercise juris over persons/property outside its territory (w/few exceptions)

States don’t have PJ over non-res D unless that D is served in the forum state
Unless an exception applies – (1) Appearance; (2) Consent

Pennoyer Territorial Approach for Traditional Categories of Jurisdiction

In personam – Juris over person/prop

For PJ, non-resident must be served personally & w/in confines of forum state

In rem – Juris over prop (for anybody w/an interest in the prop)
Quasi in rem – Juris over personal interest/liability in prop
For In rem or Quasi in rem:

Must attach the land within the state AND;
Attachment must occur before the suit begins

Post-Pennoyer – Expanding the bases of personal jurisdiction

State can exercise PJ over non-res via implied consent through use of an agent (to accept service)

In advance of a non-resident’s use of its highways, a state may require the nonresident to appoint one of the state’s officials as his agent on whom process may be served in proceedings growing out of such highway use (Hess)

State allowed to exclude people until they appointed someone to represent them (Cane)

Req’d aff. act à can’t drive here unless you have appointed an agent to act on your behalf

International Shoe – Changed PJ approach; Rejected Pennoyer territorial approach

For a state to have PJ over a non-res D, DP reqs that D has “minimum contacts” w/the forum state such that maintenance of suit does not offend “traditional notions of fair play & substantial justice”
Elements – (1) Sufficient contacts with the state, and (2) PJ must not offend traditional notions of fair play and substantial justice

Enough context that it’s “fair & just” for def to be req’d to defend suit in the forum state

Two ways to establish sufficient contacts

Specific Jurisdiction – Juris arises out of D’s actions in or contacts with forum state

The Cause of Action (COA) arose out of defendant’s contact w/the forum state

D had minimum contacts with the forum–i.e. purposefully availed itself
The claim arose from those contacts
PJ is consistent with the notions of fair play and substantial justice

General Juris – For suits where COA did not arise from D’s contacts w/forum state

Also, if COA didn’t arise out of D’s contacts, but D’s contacts w/ forum are so continuous & systematic that it would be reasonable for there to be PJ over the D

Long-Arm Statutes

LAS authorize the exercise of power over non-residents who cannot be found in the forum
LAS specify when a state can have personal jurisdiction over a non-resident
Today every state has a long-arm statute
Specificity of statute varies by state

Some list s

Individuals at home – Domicile test
Corporations – At home where

Place of incorporation
Principal place of business (HQs/Nerve Center)
Not arising out of contacts req but there are “Continuous & systematic contacts such that D is essentially ‘at home’ in forum state” & is “Consistent w/notions of fair play & substantial justice”

physical presence
high volume of sales (w/ no physical presence)

Principal place of business (PPB) – Continuous corporate operations w/in a state can be so substantial and of such a nature as to justify suits against it on causes of actions arising from dealings entirely distinct from those activities (Perkins)

Even if temp, company PPB satisfies Gen Juris

Reasonable mere purchases (or mere contacts), even if occurring at regular intervals, are not enough to warrant state’s assertion of in personam jurisdiction to satisfy the requirement of the due proc clause over a nonresident corporation in COA not related to those purchase actions (Helicopteros)
A company’s continuous activity of some sort w/in a state is not enough to support the demand that the company be amenable to suits unrelated to that activity (Goodyear)
A company that operates in many places can scarcely be deemed at home in all of them (Daimler)
Agency theory not enough on its own to impute contacts from subsidiary to the corp; the company is not at home in every state with which it has continuous and systematic contacts (Daimler)

Jurisdiction through technology (internet) –

Use Zippo framework for websites & PJ

Passive Website – Insufficient contacts (No Juris)
Active Websites (National sales and virtual stores) – Sufficient contacts (Yes Juris)
Interactive Websites – Maybe enough contacts (Maybe Juris)

Determined by analysis of level of activity & commercial nature of exchange of info

Commercial nature – did money change hands, etc.
Level of interactivity of website – was the website interactive to a degree that reveals ‘specifically intended interaction’ with residence of that forum state

In general, where there is PJ in an internet case:

Contacts are not unilateral, random, or fortuitous
Nature and quality of the contacts matter
Reasonableness factors should be applied to determine if the business had a reasonable belief that the technology utilized would avail them to the forum
Must have a substantial (tangential) connection between COA and instate contact.