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Civil Procedure I
West Virginia University School of Law
Bowman, Gregory W.

Jurisdiction (the authority to speak)

· Capias ad Respondendum- bodily seizure. Directed sheriff to arrest ∆ and bring before court. Physical expression of power of jurisdiction.
· In rem- State has jurisdiction over all tangible property located within its borders. Dispute over titleàin rem jurisdiction to adjudicate conflicting claims of ownership of property.
· Quasi in rem- Jurisdiction which allowed seizure of a ∆’s property even when the property was not related to the claim before the court. Can adjudicate unrelated claim against ∆ and if ∆ lost order judicial sale of property to satisfy the judgment.
· In personam- An action against a person seeking to impose personal liability
· Three types of jurisdiction:
o Prescriptive- Authority of government to legislate
o Enforcement- Authority of government to sanction (through fines, arrest, jail) a person for noncompliance with lawfully prescribed laws
o Adjudicatory- Authority of a government to hear a case. Power of courts to hear a case.
§ Personal Jurisdiction- Power over parties. General & Specific.
§ Subject matter jurisdiction- Power over legal issues involved in case. Limited= subject specific. General = geographic.

I. Due Process & Jurisdiction: The Limits of State Power over Persons & Property

Due Process
· 5th Amendment- actually federal. Cannot be deprived of life, liberty or property w/out due process of law. 14th amendment- applies to states. “no state shall deprive any person of life, liberty, or property, w/out due process of law.”
· Full Faith & Credit Clause; Article IV, Section 1. Three Requirements for Full Faith & Credit Clauseà Must be personal jurisdiction, notice (Rule 4), and subject matter jurisdiction
· 2 Types:
o Substantive- Substantive Rights (not the focus of this course).
o Procedural- Notice & opportunity to be heard. “fundamental fairness”àDue process in courts, but also applies to agencies, federal and state government employees. Feeling that one “did not get day in court.”
· Supreme Court frames question of jurisdiction in constitutional due process terms.

In Personam Jurisdiction: If a ∏ sues a ∆ in a state where the ∆ does not reside and seeks to impose personal liability on the ∆, and not just on the ∆’s property in that state, the ∏ must establish that the court has personal jurisdiction over the ∆.
· Three Steps to Evaluate Personal Jurisdiction
1. A Long-Arm Statute Must Authorize Service of Process
2. Assertion of Personal Jurisdiction Must Comply With Constitutional Limitations in the Due Process Clause: Minimum Contacts Analysis
3. ∆ Shows Even if There Are Minimum Contacts, Assertion of Personal Jurisdiction Would be Unfair: Exercise of Personal Jurisdiction Must Comport with Traditional Notions of Fair Play & Substantial Justice
o Court Will Consider:
§ The Burden on the nonresident ∆
§ The Forum’s Interest in Adjudicating the Dispute as Compared to the ∆’s Home Forum
§ The ∏’s interest in obtaining convenient and effective relief
§ The Judicial System’s interest in Obtaining the Most Efficient Resolution of Controversies
§ The Shared Interest of the several states in furthering Substantive Social Policies (BK & WWV factors)

· Pennoyer v. Neff
Ø Rule: A party’s presence within the territorial jurisdiction of court was a prerequisite to its rendition of a judgment personally binding that party. State has personal jurisdiction over people & property in the state and goes to the state’s borders.
Ø The core of Pennoyer personal jurisdiction consisted of:
o Presence- Neff was not present in Oregon
o Property- the property in question was not attached by Mitchell at the beginning of suit #2
o Consent- Neff did not consent to OR jurisdiction
Ø A judgment entered without obtaining personal jurisdiction over the ∆ is invalid and void.
Ø Judgment entered without jurisdiction was unenforceable even by the state that rendered it and even on property w/in the state’s borders.
Ø Formalistic Approach/Bright Line Rule. Predictable & “Objective” test. However, it is inflexible and unable to lead to results consistent with the changes in society.
Ø Rule of Pennoyer broke down because of changes to the national economy and the rise of big corporations.

Minimum Contacts

· International Shoe Co. v. Washington (Rapid expansion of personal jurisdiction)
Ø Due process does not necessarily require the State to adhere to the unbending territorial limits on Jurisdiction set forth in Pennoyer. Rule of Pennoyer overruled.
Ø Rule: For a state to subject a nonresident ∆ to in personam jurisdiction, due process required that he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
Ø Reasoning: If ∆ is not present within the territorial jurisdiction, must have minimum contacts w/the territory such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
Ø Contacts must make it reasonable to require a ∆ corporation to defend the suit brought there. Quality and nature of activity should be systematic and continuous.
Ø Legal Realismà idea is look at what the law is meaning to do rather than its formalism. International Shoe not physically in the state, but what they are doing is the same as if they were physically in the state.
Ø Functionalist Approach: Less predictable & “subjective.” Flexible; able to achieve results consistent with evolving desires of courts & society as country changes.
ü How to Analyze:
1. Assessment of Minimum Contacts
2. Does suit arise from those minimum contact
3. Fairness
a. Fair Notice (Foreseeability/warning)
b. Fair Hearing (homecooking?)
c. Ease of Access/Convenience?
· General vs. Specific Personal Jurisdiction
o General- Substantial Continuous and Systematic Contacts
o Specific- Continuous & Systematic; Isolated Contacts


Suit Arises from Contacts

Suit doesn’t arise from Contacts

Substantial, Continuous, and Systematic Contacts



Continuous and Systematic Contacts (small, but regular stream of business in state)


NO JURISDICTION- more contested

Isolated and Minor Contacts

Sometimes Specific Jurisdiction

No Jurisdiction

No Contacts- Not Sufficient Minimum Contacts

No Jurisdiction

No Jurisdiction

General: Substantial continuous and systematic contacts
Specific: Continuous and systematic/minimum contacts

State’s Long-Arm Statutes
One Step- asserts that the state courts have jurisdiction to the limits of due process. Whatever constitution permits, is what state will do.
Quasi-Two Step- Other states list conditions under which a court will have jurisdiction. On its face, seems to reduce jurisdiction, but practically whatever constitution permits, is what state will do.
True Two Step Process- do not interpret their long-arm statututes to be coterminuous with the 14th amendment.
Two prong test:
1. Does state’s statute permit jurisdiction? If no, do not need to go to step 2
2. If so, is constitutional due process satisfied?

Minimum Contacts & Foreseeability

· World-Wide Volkswagen Corp v. Woodson
– Shoe Rule- A state court may exercise personal jurisdiction over a nonresident Δ only so long as there exist “minimum contacts” between the Δ and the forum state.
– “Petitioners have no contacts, ties, or relations” with the state of OK.
– WWV incorporated and located in NY. Do no business in OK.
– Question of foreseeability—when is a lawsuit sufficiently foreseeable as to not limit due process?
– Functions of Min. Contacts: 1. Protect Δ against the burdens of litigating in a distant or inconvenient forum 2. Acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
– Purposeful Availment: Δ must purposefully avail itself of the benefits and protections of the laws of the forum state. WWV did not purposefully avail themselves of any of the privileges and benefits of OK law. WWV would have had to advertise in OK or purposefully direct their products to the state.
*Concept of placing product into a St

te, you have contacts analogous to being in the forum state.
§ Satisfy due process b/c it’s historically correct. Obvious & universal standard.
o Concurrence/Brennanà Subjective standard of fairness. Apply minimum contacts.

Persons & Property in Cyberspace
· Assess Minimum Contacts
· Ask Whether Suit Arises From Those Minimum Contacts
o Sliding Scale
· Ask about Fairness
o Fair Notice (foreseeability or warning)
o Fair Hearing (homecooking)
o Ease of Access (convenience)

· Zippo Mfg. Co. v. Zippo Dot Com
o Court has personal, specific jurisdiction over Δ.
o Reasoning:
§ PA’s long arm statute allows court to exercise personal jurisdiction.
o Three Prong Test:
§ The Δ must have sufficient “minimum contacts” with the forum state [Sliding Scale] § the claim asserted against the Δ must arise out of those contacts
§ the exercise of jurisdiction must be reasonable.
o First prong: whether Δ purposefully established contacts w/the forum state, if Δ reached out beyond one state and created continuing relationship and obligations with citizens of another state, and if the Δ’s conduct and connection w/ the forum state are such that he should reasonably expect to be haled into court there.
o Reasonableness prong: Exists to protect Δ’s against unfairly inconvenient litigation. Exercise of jurisdiction will be reasonable if it does not offend “Traditional notions of fair play and substantial justice.”
· Court has noted that jurisdiction could not be avoided merely b/c the Δ did not physically enter the forum state (Burger King)
· Sliding Scale of Personal Jurisdiction
o VERY ACTIVEàsituations where a Δ clearly does business over the Internet—if the Δ enters into K w/residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is property
o TOTALLY PASSIVEàSituations where a Δ has simply posted information on an internet web site which is accessible to users in foreign jurisdictions. A passive website that makes information available to those interested is not grounds for the exercise of personal jurisdiction
o Middle Ground: Interactive websites where user can exchange information w/the host computer. Exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website.
§ Purposeful availment/ actions purposefully directed still a factor in jurisdiction
§ Bowman says: the numbers matter….plus the nature and quality of contacts
o Court distinguishes from a consumer of online services as opposed to a seller…court more willing to find jurisdiction if it is a company or in a commercial context
· Δ has done more than simply post information accessible to PA residents, has done more than create an interactive website. This is a “doing business over the internet” case.
· Issue: We are being asked to determine whether Dot Com’s conducting of electronic commerce with PA residents constitute the purposeful availment of doing business in PA. We conclude it does.
o Δ has contracted with 3,000 individuals and 7 internet access providers in PAàsubject matter being downloaded form the basis of this suit in PA (SPECIFIC JURISDICTION)
o When a Δ makes a conscious choice to conduct business with the residents of a forum state, “it has clear notice that it is subject to suit there.”
o Supreme Court has made clear that even a single contact can be sufficient—Test focuses on the “nature and quality” of the contacts w/t the forum and not the quantity of those contacts.