Professor Samahon
Civil Procedure
Fall 2014
PERSONAL JURISDICTION
A. In personam
1. Over D herself b/c D has connection w/ forum
a. Valid judgment in personam against D creates a personal obligation (a debt) that P is entitled to cover from D
i. Judgment has to be enforced if D can’t or won’t pay
ii. P can “execute” on judgment by asking court to seize D’s property in that locality and sell at public auction
b. Full Faith & Credit – Article IV, Section I
i. P can institute an action in state 2 and ask state 2 court to enforce state 1 judgment
ii. Once state 2 is satisfied judgment is entitled to FF&C b/c state 1 had valid in personam jurisdiction over D, it will recognize state 1 judgment
iii. P can then have state 2 “domesticate” state 1 judgment & enforce it by seizing D’s property in state 2 & selling it at public auction
B. In Rem & Quasi-in-rem
1. Tangible property (can touch)- includes real property (realty/land)
a. All real property is tangible not all tangible is real
2. Court must have power over D’s property
3. Must take place @ outset of litigation to ensure there is something over which court has power & property is not destroyed or transferred during litigation
4. This is just used to get power over D
a. Different from judgment issued in personam (the judgment is used as a means to pay P after power over P already est.)
5. In Rem: rare—determines ownership interest as to the whole world
6. Quasi-in-rem:
a. 1st type: litigation involves ownership of the property
i. Court has jurisdiction only over the property & its judgment only valid to affect property itself, NOT to impose a personal obligation on D
b. 2nd type: Dispute unrelated to ownership of property but P can’t obtain in personam jurisdiction
i. Court only has power to extent of the value of the property (which is set by the auction), whereas in personam judgment would create a personal obligation that P could enforce by seizing other property of D’s & having it sold at auction
C. The Constitutional and Statutory Analysis of Personal Jurisdiction (overview)
1. Jurisdiction must comport w/ “due process” in Fifth and Fourteenth Amendment
2. Must not only be constitutionally authorized (comport w/ due process), but statutorily authorized as well
a. State legislature is not required to grant its courts the full extent of the constitutional power to exercise PJ
3. Every state grants its courts in personam jurisdiction over Ds who are served w/ process while present in the state, and over persons who reside in the state, and over businesses incorporate in the state
4. Long arm statutes (vary state to state) permit its courts to exercise in personam jurisdiction over nonresidents in various circumstances
5. Each states also have attachment statutes
6. On an exam, you first assess whether the facts of the case fall within a statutory grant of PJ. If they do, you must make the constitutional analysis to assess whether the exercise of jurisdiction on the facts comports w/ due process
D. Traditional Constitutional Analysis for Due Process
1. In personam:
a. Consent (waives)
b. Resident
c. Presence (served w/ process while present)
d. Appointed agent within state if one has business or contract in forum state
2. QIR-2
a. Must be within forum state
b. Attached at beginning of litigation + notice by publication
3. + NOTICE
a. Service
i. Constructive
1. i.e. publication
ii. Personal
4. AND OPPORTUNITY TO DEFEND IN THE FORUM
E. Constitutional Analysis Expanded: International Shoe (GPJ) and MINIMUM CONTACTS & TNFPSJ for in personam (diagram #1)
1. This test assessed two variables
a. The level of activity of D in the forum and
b. Whether the claim asserted against D arose out of this activity in the forum
2. General Jurisdiction
a. When are the contacts so substantial as to justify jurisdiction for a claim unrelated to activities in the forum?
b. Must be substantial and continuous
3. Specific Jurisdiction (Hess)
a. There must be minimum contacts in which…
b. Jurisdiction for a claim arises from or is related to D’s contacts w/ the forum
4. Important to ask if the company or individual “received the benefits and protection of the laws of [the state], including the right to resort to the courts for the enforcement of its rights”
a. Contacts of the corporation’s agents in the forum state while acting on its behalf will be attributed to the corporation
5. There can be significant “relatedness” between that one contact and the claim
6. Did this case supplant or supplement Pennoyer?
a. Burnham (plurality)
i. Minimum contacts test is used only after saying that “D be not present in the forum” to permit more exercises of PJ not previously available
ii. Scalia (+3): Jurisdiction can be based on presence in the forum when D was served w/ process w/o assessment of I.S. standard
1. Not necessary but sufficient
2. D should not have been forced or tricked into going into forum (?)
b. All nine justices agreed CA had GPJ over one who visits a state and served w/ process there for a suit not arising from contacts or activities in that state
F. Constitutional Analysis: Application of Minimum Contacts & TNFPSJ evolves
1. D must have “purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla
2. WWV (Purposeful availment +fairness) Minimum contacts serve two purposes:
a. Protects defendants from litigation in an unduly burdensome forum (TNFPSJ)
i. Five factors for assessing “fairness” (in dictum)
1. Burden on D
2. Forum state’s interest in adjudicating the dispute (McGee)
3. P’s interest in obtaining convenient and effective relief
4. Interstate judicial system’s interest in obtaining most efficient resolution
5. Shared interest of states in furthering fundamental substantial social policies (debates over this have not reached a conclusion)
b. Ensures states do not impinge upon the sovereignty of other states by overreaching their jurisdictional power (minimum contacts-must be est. first)
i. In assessing contact, there must be purposeful availment and foreseeability (that D’s conduct and connection w/ forum state are such he should reasonably anticipate being haled into court there.”
ii. Calder-effects test (contacts)
1. The relevant contact between D and the forum can be est. not only by the D’s going to the forum and doing something there, but by her intentionally causing an effect there (that is more so harmful)
3. Burger King: concentration on fairness (a strong showing of fairness can make up for a small amount of contact)
a. D’s burden to demonstrate unfairness of the forum
b. Mere inconvenience not enough, D must show forum is unconstitutional
c. D must show that litigation in the forum is “so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage in comparison to his opponent” on an unconstitutional magnitude
d. Relative wealth of parties is irrelevant
4. Stream of Commerce (SPJ)
a. Asahi (plurality-not definite holding) (came to no majority on contacts, but did on fairness)
i. Merely putting a product into SOC, even w/ knowledge that it will get to the forum, is not enough
ii. Purposeful availment requires “additional conduct” that indicates “an intent or purpose to serve the market in the forum State”
1. Designing the product for the forum state
2. Advertising in the forum
3. Est. channels for giving advice to customers in the forum
4. Marketing through a distributor who agrees to serve as the sales agent in the forum
iii. Harder under SOC +PA for there to be PJ, so defendant corp. must use this
iv. But P would use Brennan approach that SOC is enough
b. McIntyre (plurality) (little analysis on fairness-more contact focused)
has not been reached
2. Second part of assessing whether D has est. a relevant contact w/ the forum is foreseeability
a. Not about foreseeability of product entering state but whether D could get sued in the forum – WWV
v. After assessing contacts, assess whether exercise of jurisdiction is fair
1. Burden on D (+ other 4)
a. High burden-utilize BK
i. Est. it is unconstitutionally unfair
ii. Wealth of opposing party is not a factor
vi. If case involves in rem or QIR jurisdiction, start w/ Shaffer
1. Pennoyer attachment not enough
2. Cases must also be assessed under I.S. min. contacts
a. QIR 2
i. If the property attached caused the injury of which P complains, the presence of the property likely satisfies the requirement that D’s contacts w/ forum satisfy I.S.
vii. Does the case involve general or specific jurisdiction?
SUPPLEMENTAL JURISDICTION
NOTICE AND OPPORTUNITY TO BE HEARD
· In addition to PJ, due process also requires D be given notice and opportunity to be heard before a judgment can be entered against her
· Two steps in which jurisdiction must give notice
o Rule or statute must provide method for giving notice
o Rule or statute as applied in the case must comport w/ requirements of due process
A. The Constitutional Standard for Notice
1. Mullane (determine constitutionality on a case-by-case basis)
a. Notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections
i. Notice must reasonably convey the required info
ii. Notice must afford reasonable time for D to make appearance
b. Publication notice still appropriate under some circumstances as a last resort
i. Must not be much more likely to fail than other ways of notice
ii. Take into account cost and burden with likelihood of reaching parties
iii. When place of residency is known, threshold for appropriate notice is higher
c. Notice won’t be inadequate simply b/c it fails to reach all interested parties, but if under the circumstances it was not reasonably calculated to reach those who could easily be informed by other means at hand, then it is inadequate.
2. Actual knowledge based upon notice given by the court may suffice, even in the absence of proper service by P
3. Although actual receipt will satisfy due process, Constitution does not require P to provide actual notice and that D actually receive notice, just P’s attempt to provide actual notice – Dusenbery v. United States
a. As long it was reasonably calculated to reach and inform D (Mullane)
b. HOWEVER, if P knows that notice was not received, Due process requires additional step to be taken to give notice (Jones v. Flowers)
B. Service of Process
