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Civil Procedure Outline
–
Fall 2007
Due Process Clauses
I.
Personal Jurisdiction (PJ)
A)
In Personam Jurisdiction
(over the D herself)1)
General In Personam
a.
Can be sued in the forum on a claim that arose ANYWHERE in the world2)
Specific In Personam
a.
D is being sued on a claim that has SOME connection with a forumb.
Arose from
… some incident in the jurisdiction
3)
Constitutional Limits of In Personam
–
Statute & Traditional Basis
a.
Pennoyer v. Neff
–
Raw Power
(i)
Raw physical power, state's power over people and things inside the state; gives us traditionalbasis for PJ
:
(a)
Served with Process in Forum (gen. juris.) - PRESENCE (present at time)(b)
D's Agent was Served with Process in Forum(c)
D is Domiciled in the Forum (gen. juris.)(d)
Consent (can always waive)b.
Hess v. Paloski
–
Implied Consent
–
Service on Agent (sec. of state)
(i)
Rule
:Service of process on State Official for out-of-state D is acceptable when specific jurisdiction exists (ii)
1926 - automobile accident in MASS, D gets out of state; MASS had non-resident motorvehicle act - appointing state official as agent for service of process, spec. juris. - based onPennoyer concept of power; implied consent - SC expanding(iii)
Implied Consent -
i.e. driving in state is appointing agent in state
c.
International Shoe
–
Contacts + Fairness
–
Minimum Contacts (fair play & justice)
(i)
2 Parts to Test
:(a)
Contact(b)
Fairness(c)
“D has such minimum contacts with the forum, exercise of jurisdiction does not offend
traditional
notions of fair play and substantial justice”
(ii)
Int’l Shoe Notes
(a)
SC giving NEW DOCTRINAL FORMULA(b)
Test is
very flexible
- expand PJ, amorphous(c)
Now clear can
serve process OUTSIDE the forum state
(d)
Does
NOT overrule
Pennoyer v. Neff (e)
This is test if
PERSONAL SERVICE does not occur in the state
d.
McGee v. International Life
–
Nature of Contact (1 contact with outside state CA - SCsays PJ)
(i)
Solicited -
D solicited contract from California
(ii)
Relatedness -
Ps claim "arose directly from contact with state (CA)"(iii)
State Interest -
CA had statute to protect citizens
4)
Limiting Constitutional Jurisdiction
a.
Hanson v. Deckling
–
Purposeful Availment
(i)
Purposeful Availment
-To be a relevant, D must "avail" self to D, unilateral act over a 3rdparty (ii)
Donner from Penn, enters trust w/ DE bank, Donner moves to FL, but continues bank interest while in FL, but DE wants PJb.
Worldwide Volkswagen
–
“
Reaching Out to the Forum
”
(if contacts not sufficient)
(i)
Robinsons - move from NY to go to AZ, in OK they have accident, sue in OK - allege that
car was defective, sue 4 Ds, clear that 2 worked, unclear over…
(ii)
Worldwide - only does business in CT, NY, and NJ(iii)
Seaway Motors - only did business in NY(iv)
SC says
NO - B/C no relevant contact, did not "reach out" to OK
, no reaching out tostate(v)
Foreseeability - relevant to PJ, but not enough to see that PRODUCT TO STATE, must beforeseeable that OK could be SUED IN THE STATE(vi)
Foreseeable that car could go into, but must be substantial enough to availc.
Calder v. Jones
-
Causing an Effect
(i)
Causing & Effect in State -
have minimal contact(ii)
D does not need to be in state to have PJ (can have minimaleffect(iii)
Case
–
defamation suit from FL writer to CA stard.
Burger King
–
“So Gravely Inconvenient that Severe Disadvantage”
(i)
International Shoe
has 2 parts -
CONTACT & FAIRNESS
, officially split(ii)
Must have relevant contact BEFORE looking at fairness(iii)
Under case, did have contact (20 year, million dollar deal that allowed FL law, availed)(iv)
D claimed that it wasn't fair for D to go -(a)
D must show -
that forum is so gravely inconvenient that D is at SEVEREdisadvantage in the litigation,
money doesn’t matter
(b)
Brennan wrote this opinione.
Asahi
-
Stream of Commerce Case (1987)
(i)
Positions in Case
(a)
Brennan
: Contact if product goes into stream and reasonably anticipate that it gets toC,D,E(b)
O'Connor
: States interest involved and need more intention than the Brennan analysis;need more than Brennan, PLUS intent to service state C,D,E1.
i.e. Advertising,(ii)
Stream of Commerce - manufacture in state A and ship to state B and they get to C,D,E(iii)
Question: Does state A defendant have contact with state B(iv)
Justices split 4 to 4 - splitting case, Stevens doesn't take decisionf.
Burnham
:
Tag Jurisdiction
–
Split (Tradition v. Int’l Shoe)
(i)
Positions:
(a)
Scalia
–
Historical Pedigree
–
traditional importance of tag jurisdiction (I.S. is notappropriate for this analysis)(b)
Brennan
–
Must apply Int’l shoe (instant case of 3 days in state was sufficient for
specific jurisdiction)(ii)
NJ defendant sued in CA, claim that arose in NJ but want to sue in CA, D is served withprocess while in CA(iii)
Question: Does the traditional basis survive by itself or do you have to assess InternationalShoe? No answer - 4/4 split, 2 approaches(iv)
On traditional basis - they may be good by themselves OR they may be supplemented withcontacts5)
General v. Specific
a.
Helicopteros
b.
Subject to General Juris if
Continuous & Consistent Contacts with the Forum
(i)
i.e Ford HQ in DetroitB)
RECAP
1)
MUST have list of factors:a.
Traditional Basis
–
Question whether traditional basis apply?(i)
If Yes - traditional may be sufficient by itself, but may not b/c of
Burnham
(ii)
If Not - Int'l Shoe Test2)
International Shoe
Test
a.
Break into 2 parts:(i)
Relevant Contact b/t State and Forum
(a)
Purposeful Availment
-D must reach out to forum in some way, make money or useroads or cause and effect (not 3rd party)(b)
Foreseeability -
D could foresee being sued in the forum1.
Marketing to State2.
Zippo
–
elementsActive, passive, middle ground testActive
–
PJ
–
repeated transmission of filesPassive
–
no PJ
–
buried files, stretch to findMiddle
–
o
If level of site requires
o
Marketability of consumer
3.
ALS Test
(referenced in Raju)
Most applied
–
4th circuit (all registered VA)Requires:
o
Target, AND
o
Harm
4.
LL Bean
Virtual Online Store
–
Zippo application5.
Nationwide Jurisdiction
Raju
–
Rule 4(k)(2)
o
Not in federal state, AND
o
Federal Question, AND
o
Not against the Constitution(ii)
If Yes… Fairness
-
fair play and substantial justice
(a)
Convenience for Parties
1.
BK - showed that if convenient then allow PJ(b)
Forum Law
1.
More fair and convenient(c)
Arising From
–
1.
Does the P's claim ARISE FROM contact with forum…
2.
If so - McGee, one contact was sufficient(d)
Relatedness
1.
(e)
Inconvenience
1.
For D and witnesses (BK standard)2.
Must show that he/she is SO inconvenienced(f)
State's Interest
- McGee standard
(g)
P's Interest
–
1.
litigating(h)
Legal System's Interest in Efficiency
1.
Multiplicity of Suits(i)
Interstate Interest in Shared Substantive Policies
1.
Kulko - no PJ b/c of family harmony
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