PERSONAL JURISDICTION

1. Aspects of Personal Jurisdiction a. Power defined in terms of the sovereign state i. In Personum a court can impose a personal liability or obligation on a defendant, or require a defendant to act or refrain from acting. (over natural persons or corporations) 1. Need Minimum contacts ii. In Rem declares the rights to all persons over things (claim of title) iii. QUASI IN REM 1. Quasi In Rem I a. Related to property, issue b/t A & B as to who has title (J is good b/t 2 parties) 2. Quasi in-Rem II + Minimum Contactsa. COA is unrelated to property b. Person has property in jx so given as J J is limited to value of property c. This must meet the Intl shoe, minimum contacts test!! iv. Traditional JX Pennoyer 1. State resident or non-residents w/o property in the state before litigation, or presence in state b. Presence i. Transient Jurisdiction (TAG Jurisdiction) a defendant served with process while physically present within a state is normally subject to the personal jurisdiction of the trial courts within that state.

1. exception is if the defendant was forced or induced by fraud into the jurisdiction
ii. An agent of you or your corporation can be served iii. Service on an airplane flying over the jurisdiction is sufficient iv. Burnham v. Superior Court of California - the Court upheld the constitutionality of transient jurisdiction, obtained y service on a non resident temporarily within the state [may not hold true if presence is involuntary] even though the business trips were unrelated. v. Immunity from Process witnesses, attorneys on unrelated matters, parties and public officials on official business. c. Domicile (residency with intent to remain) d. Consent i. Express 1. Forum selection clause you give consent where you form a contract 2. Choice of Law clause (Burger King) entering into an ongoing contract via the internet communications usually

should suffice to support jurisdiction at the forum of either party for an action alleging breach of contract against the other. ii. implied consent a defendants in state activities are sufficient to justify service 1. for suits related to the activities, despite doubts about the power to forbid them. 2. Hess v. Pawloski driving within a state is implied consent to suit in that state on claims arising from that driving. Appointed a state officer as agent of driver must still be given notice. iii. Waiver 2. Minimum Contact Standard [expanded in personum jurisdiction] a. International Shoe Co. v. Washington held that to subject a defendant to a judgment in personam, due process requires only that he have certain minimum contacts with the forum, such that the maintenance of the suit does not offend traditional notions of fair play and justice. i. Purposeful availment there are limitations there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. ii. Reasonableness 1. Does the exercise of PJ comport with fair play and substantial justice? Is it reasonable? a. 5 factors (World wide VW) i. inconvenience to defendant, ii. forum states interest in the matter, iii. plaintiffs interest in the forum and iv. location of the evidence, v. interstate interest in efficient resolution, vi. interests of the several states in furthering social policies 2.

No Contact

The Shoe Spectrum Casual/ Isolated Contact Single Contact

Continuous Contact

Substantial Contact

No Jurisdiction

Specific Jurisdiction

General Jurisdiction

Helicopteros Nacionales de Colombia v. Hall

Plaintiffs sued in Texas to recover for the deaths of workers killed in a helicopter crash in Peru. The helicopter was operated by defendant, a Colombian Co. The parties conceded that the claims did not arise out of defendants contacts with Texas, and so there was no basis for specific jurisdiction. Neither did the court find a basis for general jurisdiction

A. Long Arm Statute (1) statute (2) constitutional

1. General Statute (sky is the limit) states allow the exercise of jurisdiction whenever it would not violate the constitution. In such states, the only question that need be considered is the constitutionality of jurisdiction. Do not need to look at statutory interpretation as long as activities are so substantial as to not violate the concept of traditional notions of due process and fairness. Specific Statute specific acts warrant the exercise of jurisdiction - - - arising from a. The transaction of any business within the State b. The commission of a tortuous act within the State c. Ownership, use, or possession of real property, or risk located in the state at the time of contracting d. The maintenance of marital domicile in the state in an action for divorce Gray v. American Radiator The court read the Illinois statutes provision of jurisdiction for the commission of a tortuous act within this state to cover the manufacture in Ohio of an allegedly defective valve that was shipped to a manufacturer in Pennsylvania and incorporated into a boiler made there. [they stretched the stream of commerce approach here.] World Wide VW v. Woodson - under due process, there must be foreseeability that one will be under jurisdiction. [Plaintiffs bought a car in New York and drove it to Oklahoma, where they were in an accident and suffered sever injuries allegedly caused by a defective design and placement of the cars gas tank. This action by plaintiffs did not establish a contact between the New York retail seller and Oklahoma.] *Defendants conduct and connection with the forum state are such that he could reasonably anticipate being hauled into court there Hensla v. Denkla there must be purposeful conduct on the part of the defendant. Purposeful availment, some voluntary action by the defendant establishing a relationship with the forum. Gives notice of jurisdiction, that they can be hauled into court - - - benefit is protection.

2.

3.

4.

5.

B. Stream of Commerce presence +

1. placing a product in the stream of commerce is not sufficient and that some additional conduct by which the defendant indicates an intent to serve the forum state is essential. The circumstances under which a manufacturer will be found subject to jurisdiction in a state because its product is sold there remain unclear. a. 2.. Began by looking at traditional notions of fairness Asahi look at the reasonableness

2.

3.

4.

a. burden on defendant b. interest in the forum state c. plaintiff interest in obtaining relief Burger King v. Rudzewicz A Michigan defendant entered into a 20-year franchise agreement with a Florida fast food corporation that required him to adhere to a detailed set of specifications in the operation of his franchised restaurant, to send payments to Florida, and to agree to the application of Florida law in construing the contract. The Court stated that Florida jurisdiction was proper because the defendant reached out beyond Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits that would derive from affiliation with a national organization. a. long-term relationship with forum state can constitute minimum contact b. as a commercial actor (sent payments and notices) this constitutes a purposeful availment c. must balance minimum contacts and other elements to determine reasonableness of suit d. Once minimum contact is established defendant must prove that forum is so unreasonable that he will be at a gross disadvantage But For Test they cannot benefit but for the laws of the state (adopted through statute by the state)

C. Property Based Jurisdiction

1. Shaffer v. Heitner the minimum contacts test applied in International Shoe can be applied to property but liability is limited to the amount of the property a. Statute passed after Shaffer: every non-resident who accepts appointment as a director, trustee, or member of the governing body of a corporation organized under the laws of this state is deemed to have consented to appointment of the registered agent of such corporation as his agent upon who the service of process may be made in all civil actions or proceedings brought in this State by or on behalf of, or against such corporation, in which any action for, trustee, or member is a necessary or proper party, or in any action against such director, trustee or member for violation of his duty in such capacity.

D. F. Choice of Law [Why?!?] 1. Convenience 2. Values and Bias 3. Procedural Advantages 4. Choice of Law

A. Personal Jurisdiction Technical Defenses 1. Affirmative Defenses i. Immunity of parties cannot be served if in state for judicial reasons

ii. Fraud or duress Cant entice someone or fraudulently pull someone into jurisdiction 2. Affirmative Defenses i. Immunity of parties cannot be served if in state for judicial reasons ii. Fraud or duress Cant entice someone or fraudulently pull someone into jurisdiction Procedural Challenges Look at pleadings section i. Counterclaims under Rule 13 1. If they are compulsory - 13(a) courts have held that D is not waiving PJ if he brings this up as well 2. If they are permissive 13(b) courts have held that D is waiving PJ defense b/c D is asking court to rule on an issue inconsistent with lack of juris. request. ii. FRCP LOOK TO RULE 12 Must raise most defenses at once iii. Within 20 days you must make a motion or an answer the seven 12b defenses can be raised either in the answer or in a motion. 1. Personal Jurisdiction defense automatically waived if Defendant omits in 12b motion OR is not made in the answer to the complaint iv. Special appearance only in some jurisdictions in state court D can object w/o subjecting himself to PJ showing up for the hearing is not basis for PJ and you cannot serve someone who shows up to make special appearance 1. Limited to contesting PJ 2. Abolished in fed. ct. only possible in state court 3. Some courts allow D who loses special appearance to defend on merits w/o losing right to appeal juris. issue 4. Other courts require D to default or attack collaterally after or defend on merits and then appeal juris. issue 5. MUST BE CAREFUL NOT TO WAIVE PJ dont argue anything on the merits v. D must raise in answer AND follow up as a motion to dismiss (see Rule 12c) Collateral attack default in original suit and then defend when P attempts to enforce much more available i. D may argue that first court lacked PJ or SMJ over him ii. Ds failure to appear was due to Ps fraud or duress iii. Loses right to challenge on the merits Direct Attack Challenge to the jurisdiction ruling is made on appeal either interlocutory or after the final judgment

3.

4.

5.

Five options for Personal Jurisdiction defenses: 1. D appears, defends on the merits and loses court enters judgment for the P D has waived defense of lack of PJ he can appeal the case only on the merits 2. D makes a special appearance 12b2 motion to dismiss for lack of PJ court agrees and says it lacks juris. either dismisses or orders P to fix (give proper service) P may then refile in court with proper PJ if SOL has not run 3. D makes a special appearance 12b2 motion court disagrees and upholds juris. D then defaults enforcing court must enforce because the court has already rendered a decision about PJ D can only appeal this decision 4. D loses on objection to PJ defends on the merits and loses he appeals

NOTICE & Procedural Due Process

1) Rule - Due Process required be given proper notice and a chance to be heard a. Look @ content of notice & how notice is given b. Statutory Service of Process FRCP 4 i. Process consists of summon and a copy of the complain (two pieces of paper), summons is an official court governmental notice that you get from clerk of the court ii. Rule 4(c) Service of process can be made by any non party who is at least 18 years old (very liberal) iii. How do we serve an individual? 1. Start with rule 4(e)(2) three alternatives which are always okay a. Personal service you hand it to the person and it can be anywhere in the state b. Substituted service you are serving a substitute, its okay if its at usual abode or dwelling house AND you must serve someone of suitable age and discretion who resides there (babysitter would not work) c. Serve the s agent you can appoint the agent by contract or by law 2. 4 (e) (1) allows us to use any method for serving process that is allowed by state law (even though this is federal court) a. Depends on the state in which the court is located or the area in which service is effects b. Fed rules say to look at state laws to determine what is acceptable iv. How do we serve a corporation 4(h) we have to serve and officer or managing or general agent of that corporation [4 (e)(1) also applies here] v. Waiver of service of process Rule 4(d) 1. This is NOT service of process by mail, its a waiver of service of process 2. If returns it, it gives an extra 40 days to file so if you would rather only give them 20 days then you need to serve in person 3. If she does not waiver service then she may have to pay for personal service of process 4. just has to show they acted in good faith to get it to the vi. Geographic limits of service of process 1. 4(k)(1)(a) we can serve process throughout the state

a. A federal court in lower CA can serve process through the entire state of CA b. A federal court can only service outside the state, if a state court could (we incorporate the state long arm statute to serve process outside the forum) 2. 4(k)(1)(b) bulge rule, but only for ADDING parties, but not available to serve process on a regional basis 3. 4(k)(1)(d) long arm statutes 4. 4(k)(2) DEFAULT rule serving summons establishes personal jurisdiction in federal court over a who is not subject to jurisdiction in any court of general jurisdiction of any state vii. 4m Time limit for service after youve filed you get 120 days

c. Constitutional standard for serving process

i. Pennoyer v. Neff (todays version) 1. Publication notice would not have been adequate 2. If P could prove that N was avoiding him then the court may have allowed for publication service 3. Differences in facts lead to competing ideas about when this is fair ii. Mullane (Unreasonable notice) 1. Compilation trust published in paper just the names of the trusts even though they had previously sent things in the mail to people 2. Due process constitutional minimum - Notice must be reasonably calculated under all the circumstances to apprise the of the suit a. All of the rules under 4 are constitutionally sufficient even though the may never have gotten the notice (since they are all considered to be reasonably calculated) b. Reasonable is going to differ with the nature of the case (but there will be a minimum level) c. Reasonableness is part of great balancing on SCOTUS i. Takes s individual interest into account ii. cant put unreasonable obstacles in front of 3. notice must be of such nature that it reasonably conveys the required information, and must afford a reasonable time for those interested to make their appearance 4. To those beneficiaries who are known and represented by appellant, but whose whereabouts can not be ascertained by due diligence publication within the statutory notice requirement is sufficient. 5. There are some cases where publication may be okay but it should be a last resort 6. At the minimum you need an opportunity to be heard iii. Green v. Lindsay (unreasonable notice) 1. Eviction notice left on door 2. D knew that notices were sometimes removed from doors 3. The reasonableness of the notice provided must be tested with
reference to the existence of feasible and customary alternatives

4. The statute does not provide that one must make a second attempt
for personal service but failure to do so on the first try hardly suggests that the tenant abandoned his interest in the apartment 5. Mail would have been an efficient and inexpensive alternative 6. J for P b/c Defendants failed to afford Plaintiffs adequate notice of the proceedings against them before issuing final orders of eviction iv. Dusenberry (Notice was sufficient) 1. Inmate claims he did not receive the certified mail notice sent to him in prison & sent to his mom 2. Court says a State must attempt to provide actual notice, not that it must provide actual notice. v. Jones v. Flowers (Insufficient notice - send another form of notice) 1. P lost his home b/c he didnt pay prop taxes. State send multiple notices that were returned undelivered 2. If an individual actually desires to provide notice learns that his method of serving the notice has failed, then that person would follow up with a different method. Failure to do so would be unreasonable, despite the fact that the first method was reasonable determined to provide service.

Procedural Due Process

i. Goldberg v. Kelly (Statutorily determined rights- Notice &
hearing)

3. A welfare recipients benefits were terminated without an evidentiary hearing. 4. Certain entitlements (e.g., welfarepayments, government pensions,

professional licenses), are a form of "new property" that require predeprivation procedural protection, doing away with the traditional distinction between rights and privileges. 5. the recipient must be provided with timely and adequate notice detailing the reasons for termination, and an effective opportunity to defend by confronting adverse witnesses and by presenting his own arguments and evidence orally before the decision maker ii. Matthews v. Eldrige (statutorily determined rights & Procedural due process) 6. Ps social security benefits were terminated w/ no hearing 7. SS is a statutorily determined property right b/ must determine how much due process is due 8. In determining the amount of process due, the court should weigh three factors: a. The interests of the individual in retaining their property, and the injury threatened by the official action b. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards; (concern about accuracy)

c.

The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

SUBJECT MATTER JURISDICTION

A. Concurrent jurisdictioncases arising under federal law can be brought either in state or federal court B. Exclusive JurisdictionCongress has made federal court the exclusive forum for certain actions such as bankruptcy and antitrust cases C. Diversity of Citizenship28 USC 1332(a)(1) creates federal court jurisdiction over controversies between citizens of different states and citizens of a state and foreign citizens (codifies Art III 2) where amount in dispute is > $75,000 i. Citizens of different states 1. Complete diversity rulethere is no diversity if any P is a citizen of the same state as any D (Strawbridge v. Curtiss) a. Diversity across the v. b. Article III sec 2 only requires minimal diversity 2. Citizenship a. US citizens are citizens in the state of their domicile (only one domicile at a time, everyone has one, retain old domicile until you get a new one) i. Presence in the state ii. Intent to make that state your permanent home b. Foreign Citizens: i. 28 USC 1332(a) was amended in 1988 to provide that an alien admitted to the US for permanent residence is deemed a citizen of the state in which he is domiciled. ii. US citizens who reside in foreign countries may not claim diversity jurisdiction. c. Citizenship of a corporation: defined by statute 1332(c)(1) i. All states where it is incorporated

ii. One state where it has principle place of business (only one principle place of business) Nerve center test d. Legal Representatives 1332 (C)(2) i. Legal representatives of an estate acquire citizenship of person representing 3. Rationale: people would have themselves represented by people in favorable jurisdictions D. Fed. Ct. Forum Shopping to create diversity i. USC 1359 A district court shall not have jurisdiction over parties improperly or collusively made ii. Rule 17 a Every action shall be prosecuted in name of the real party in interest 1. e.g. Rose v. Giamatti Rose wants to sue MLB in Federal Court but cannot because MLB has members in all states. He sues manager and brings in MLB. Improper under Rule 17 2. a. E. Amount in Controversy 1332(a)(1) i. amount must exceed $75,000 not counting interest and costs (must be $75,000.01)does include punitive damages ii. Courts view the allegations in the pleading as controlling and do not speculate about the likelihood of P collecting what is asked for; must appear to legal certainty that claim is for less than statutory amount to dismiss. St. Paul Mercury Indemnity v. Red Cab Co. 1. Ps ultimate recovery is irrelevant to jurisdiction 1332(b) may have to pick up the other sides costs if the judgment is under $75K iii. Aggregationadding two or more claims to exceed amount in controversy 1. Aggregate claims if it is one P versus one D (even for unrelated claims) a. But NOT if there are multiple parties on either side 2. Mutiple Ps with a common interest or single title/ right are aggregated (total value of interest in the amount in controversy) iv. Counterclaims: 1. Compulsorymay be heard regardless of amount when s claims meets statutory requirement 2. Permissiverequires independent basis for jurisdiction (supplemental under 1367) II. Federal Question28 USC 1331 A. Article III sect 2 federal question need only be an ingredient in the case B. Case must arise under federal law (federal statute or Const. claim)

i. Well Pleaded Complaint Rule 1. look only at the Complaint 2. it is the Ps claim that must arise under federal law ii. For exam, ask: 1. is plaintiff asserting a federal right? 2. If a state based COA, does it depend on the application or interpretation of federal law where a SUBSTANTIAL federal interest is at stake? a. Lousiville Nashville v. Motley (1908): husband and wife settled for lifetime passes on the RR; Congress passes a statute that says RR cannot give lifetime passes (federal law); they said the fed rule the RR will assert does not apply to them; are the Motleys enforcing a federal right? Notheir claim is simply breach of contract, the federal issue is an anticipated defense; Alleging that a defense will be based on federal law is not sufficient to raise a federal question Federalizing Warpquestion that arises under state law but contains federal interest or turns on interpretation of federal law may be allowed in federal court. 1. Declaratory judgmentfederal courts can hear cases where a P seeks a declaration of rights a. If the parties were reversed and the D had made that claim, would a federal question arise? iv. Other circumstances of original jurisdiction 1. Patents, copyrights, trademarks, unfair competition, 1338 2. Note: This grant is not as expansive as it may appear. Many of these issues revolve around contract disputes, not federal question. a. e.g. Harms v. Eliscu Dispute over ownership of copyrighted material. Original cause of action was contract, not copyright. 3. Civil Rights 1343 4. US as P 1345 5. III. Supplemental Jurisdiction 28 USC 1367when a federal court has proper original jurisdiction over a claim, it may hear all other claims that form part of the same case or controversy including cases involving joinder or intervention. A. Federal claim must support federal question jurisdiction B. Federal and non-federal claims must arise from the same nucleus of operative facts such that they can be tried in one proceeding. United Mine Workers v. Gibbs ( ): is a citizen of TN; is a citizen of TN; has two claims against the same one is FQ the second is a state law claim Claim #1 is a federal question (qualifies for federal court) iii.

Claim #2 does not invoke federal question because its based on state law and no diversity Supreme Court said federal court can hear Claim #2 because it has supplemental jurisdiction (pendant) over that claim because it shares a common nucleus of operative fact with Claim #1 (similar to same transaction or occurrence) i. Discretionary factors: 1. Issue of state law predominates over issue of federal law 2. Judicial economy and fairness to the litigants (prejudicial)

Jin v. Ministry of State Security (2003): federal RICO claim and state defamation claim (no diversity b/c foreign on both sides) - share a common nucleus of operative facts, supported by judicial economy, convenience and fairness C. TEST: when we see a non-federal claim i. Does 1367(a) grant supplemental jurisdiction? Yesif it meets the Gibbs test of common nucleus of operative fact 1. Gibbs Test a. Step 1: Original claim (anchor claim) must invoke either federal question or diversity jurisdiction b. Step 2 (Gibbs): Additional claims must arise from a common nucleus of operating fact. i. Rationale: Must arise out of same case (and controversy) c. Step 2.5 (when working with p-party, Aldinger, Owen) Look at congressional intent to determine if jurisdiction should apply to additional claim. d. Step 3 (Gibbs): Apply additional considerations? i. Were federal claims dismissed before trial? ii. Do state issues predominate? iii. Is the sate claim closely tied to questions of federal policy? (Justifying F. pre-emption) iv. e.g. F. law predominates on workers issues, i.e. Gibbs v. Will addition of claims confuse the jury? e. ii. Does 1367(b) remove supplemental jurisdiction? 1. if original jurisdiction is based on diversity: no supplemental jurisdiction over claims by against persons made parties under 14, 19, 20, or 24

D. Exercising Supplemental Under USC 1367 Step 1. Does it meet the requirements of (a)? (a) Shall, except as provided in (b, c), have supplemental jurisdiction over all other claims that are so related that they make up same case or controversy. Step 2. Is it limited by (b)? (b) In diversity cases, courts shall not have supplemental jurisdiction over claims brought by plaintiffs under rule 14 (3 party e.g. Kroger),19(joinder), 20(permissive joinder), 24(intervention), (all devices by which parties are added) or by people seeking to be joined as plaintiffs under rule 19, or seeking to intervene as plaintiffs under rule 24, when exercising s/j would be inconsistent with the jurisdictional requirements of 1332 (when it beats diversity) 1. Rationale: a) Concern is about plaintiff defeating diversity b) D can still implead others because he did not get the benefit of choosing the parties and the forum. 2. Hypos: a) Will s/j extend to third party claim against P? Yes. B only applies to P. b) What if P counterclaims against third party (no FQ, no Div.)? Probably not. When P in position of D, he is still barred from s/j Step 3. Should the district court decline under the factors in (c)? May decline if: 1. Raises novel or complex issue of state law (*not in Gibbs) 2. State law claim predominates 3. DC has dismissed all claims over which it has jurisdiction 4. Exceptional circumstances providing other compelling reasons (*not in Gibbs) Note: Congresss use of word other indicates that the additional reason is along the same lines as 1-3. Executive Software (4. is the exception, nut the rule, court must clearly articulate, not just say that is an exceptional circumstance)

2. Liklihood of jury confusion from hearing cases jointly IV. Removala D in state court can have the case transferred to federal court if the case could have originally been brought in fed. Court. A. 1441 i. (a) Removal is a one way street. D cannot remove from F. court to S. court ii. Only Ds can remove. (all Ds must join) P cannot remove on counterclaim (1441(a) iii. Case can be removed only to the federal district embracing the state court where the case was filed (1441(a) iv. If the matter is of diversity, D cannot remove if any D a resident of state where suit originally brought (1441(b)) v. If the matter if of federal question, D has a right to remove irregardless of citizenship (1441(b) vi. If the case contains a separate and independent claim based on FQ, D may remove the whole case. B. 1446 i. Notice of removal must be filed within 30 days of service (1446(b)). ii. If a case becomes removable, the case may be removed within 30 days of the date is becomes removable, but not more than one year after it was brought in state court. C. Error! Hyperlink reference not valid. : i. (c) motion to remand must be filed within 30 days except if its because of lack of SMJ which can be remanded any time ii. (d) remand order is not reviewable by appellate court iii. (e) if after removal seek to join s that would destroy SMJ the court can deny joinder or permit and remand to state ct D. Rules of Removal: i. Supplemental: dist court has discretion to hear Caterpillar v. Lewis (1996): If the Dist Court fails to remand a case where removal was improper, the judgment will be upheld if the federal jurisdiction requirements are met at the time judgment is entered; considerations of finality, efficiency and judicial economy

PERSONAL JURISDICTION
IN PERSONAM JURISDICTION court has power over herself
d. Tickle v. Barton (fraud) i. 2 modes of service 1. 1st attempt of service was on a non-resident motorist on a public highway, b/ issue was whether the accident actually happened on private property and therefore falls outside of statute 2. 2nd issue was the means by which D was served the second time alias process a. Alias process- sheriff served barton in W. Va b. Tickle sued in W. Va., but Barton is from Va c. D responds to this sort of service of process by filing a plea in abatement( procedure that allows a party to challenge the form or timing of ??? a way to raise objections to personal jx) (raised objections to personal JX) stating that he was tricked into going to W.Va for a ceremony where he was served so he claims he was served using fraud. d. Court does not like the use of trickery e. Trial court overruled the demurrer and founds that service was not proper b/c it was induced by trickery.An interlocutory appeal was placed f. Appellate court does not like the trickery b/c it undermines the process, the appellate court also thinks that the service was fince however does not want to rule that way b/c the trickery undermines the process. 3. Insufficient Service of process vs. Insufficient process (summons w/ defective content) a. ISP Refers more to the Lack of personal jx (courts ability to bring b. e. Pennoyer (Traditional Jx) i. power of the state to have power over people and the property within its boundaries, still important b/c it gives us ii. Traditional basis of personal jurisdiction 1. is served with process while in the forum give general jurisdiction (presence 2. s agent was served in the forum 3. is domiciled in the forum gives general jurisdiction 4. consents to jurisdiction (you can waive jurisdiction and consent) iii. How could you fight this in federal court? 1. 12 (b)(2) motion to dismiss for lack of jurisdiction over the person 2. This can be alone or with other motions but it must be in the 1st motion you submit to the court 3. Once you submit any other motions youve waived the question of jurisdiction

4. Anything other than 12(b) 3, 4, or 5 it forfeits your chance to file them later 5. State rules call this a special appearance f. Millikan v. Meyer i. is a permanent resident of WY and sues him in WY but serves him outside WY ii. Under Pennoyer this doesnt work since service has to be in the state iii. Once we get to IS, it doesnt matter where the person is served, residency or domicile in the state would be enough g. Hess v. Powloski (Single meaningful contact, Specific jx, Long arm statute) i. Court wants to expand it and so it expands basis (H is in a car crash and gets out of the state before hes served but MA has a statute non resident motorist statute if you drive into the state and get into a crash youve consent to the secretary of state as your agent for process in the state) ii. It is consistent with Pennoyer iii. There was service of process in the forum on the s agent iv. The agent was appointed by operation of law v. Expands consent to IMPLIED consent as a state agent for the service of process h. International Shoe (Minimum contacts, Continuous & systematic Specific Jx) i. Lawsuit for back taxes for company selling shoes out of state ii. Shift from territory (Pennoyer) to contacts iii. courts exercise of jurisdiction over a nonresident comports with due process so long as the nonresidents activity in the forum state gave rise or relate to the lawsuit and maintenance of the suit would not offend traditional notions of fair play and substantial justice. iv. TEST (2 parts) 1. Minimum Contacts a. One unrelated act not enough to be sued b. One sufficiently related contact may be enough fro specific jurisdiction c. Several related contacts enough for specific jurisdiction d. Systematic and continuous contact yes for general jurisdiction 2. Fair Play & Substantial justice once weve established contacts then we want to start looking at fairness a. Evaluate burden on D b. Forum states interest in adjudicating the issue c. Ps interest in obtaining convenient & effective relief d. Shared interest of several states in furthering fundamental substantive social policies

Nature of contacts Continous & systematic Isolated & sporadic

Related Jurisdiction Specific Jx if purposeful availment & reasonableness requirement satisfied

Unrelated General Jx if contacts are substantial (any claim) No jx

i.

j.

v. Holding the contracts b/t int shoe & MA were continuous and systematic throughout the years and resulted in a large volume of interstate business which the company received the benefits & protection of the laws of the state vi. The nature & quality of contacts w/ the state- are they meaningful enough to justify the establishment of PJ? vii. If contacts were casual & isolated, it may not be enough however, it is a qualitative not quantitative a single meaningful contact may count to establish PJ. viii. General v. Specific Contacts/JX 1. General JX- sufficient contacts to warrant JX on all matters (intl shoe) 2. Specific JX contacts have to be significant and related to the suit (ex. Hess v. Pawlaski) Gray v. American radiator (Long arm statute) i. Ohio company makes radiator that injures someone in Ill ii. Ill has a statute saying If there is a tort committed in the state then they can grab D iii. D argues that they did not commit a tort in Ill, and if they did anything wrong it was in OH not Ill so the statute doesnt reach them iv. Ill says the harm happened in Ill so the tort was committed in Ill v. What type of contact is this? Court says there is no record of how many valves make it to Ill bu the court also assumes that there is substantial use of this product in the state and that D is enjoying the benefit & protections of the state and therefore they can exert jx 1. McGee (1957) (single meaningful contact) i. defendant reached out to CA resident by mailing the

ii. solicited the K from P in CA (it reached out) iii. s claim arose from s contact with CA relatedness iv. CA had an interest in providing for remedy for its citizens v. Court says there is so much more business occurring across state lines b/c of mail & telephone making it easier to reach across state lines and enjoy the benefits so it makes no sense to limit contacts for only in person contacts vi. It was constitutional for CA to exercise jx over a non-resident by soliciting the relationship from CA, and accepting the payments from CA, also court

contract to California forum and by accepting premiums from California resident Suit was for breech of K so related

had a strong regulatory interest in regulating that area evidenced by the statute. 1. k. Hanson (1958) (Unrelated isolated contact- no jurisdiction, i. Decedent had trust w/ Delaware company & moved to FL where she died. Suit over will is brought in FL ii. Does FL have personal jurisdiction over the DE bank, and SC says NO iii. Banks activities didnt give rise to litigation & Bank had no relevant contacts with FL iv. No contact because there is no purposeful availment, this was unilateral contact v. In order to have a contact, the must reach out to the forum in some way and here the DE bank did not reach out to FL (ms donner moved to FL, the bank didnt reach out) l. World Wide Volkswagen NO jurisdiction, No stream of commerce i. The only question was did OK have jurisdiction over the regional distributor that ONLY did business in CT, NY, NJ and did they have jurisdiction over the retailer that only did business in NY SC said no personal jurisdiction ii. Analysis 1. Has the D purposefully availed themselves of the forum state? a. No b/c they dont have a bizness in OK, they dont ship or sell to OK, no agents or office in OK, and dont advertise in OK 2. What type of contact is this? a. This is an isolated contact, too fortuitous. D did not affiliate itself purposely 3. Why is foreseeability not enough? a. Forseeability is helpful b/ we need more.. the hypothetical possibility is not enough, you need an indirect or direct marketing to the state. They couldnt reasonably anticipate being held in court in OK 4. Does stream of commerce argument fit here? a. No b/c Unilateral activity of a 3rd party cant be imputed to the D. The consumers here are not seen as part of the stream of commerce. D couldnt control where they went or predict where they would go. b. This is different from a component part manufacturer as far as a valve that is manufactured to go into a product they can predict who they are seling to and where the product will end up m. Calder v Jones (Intentional tort, purposefulness) i. Hollywood actress gets article published in national enquirer about her drinking problem & sues in CA ii. The writers say they are from FL so there is no PJ iii. Court says this is an intentional tort, and they wrote the story intentionally, aimed at a CA audience, CA is their second biggest market, They relied on

n.

o.

p.

q.

CA sources, they wrote their article about the actresses life in CA, and where the actress suffers reputational harm is in CA iv. Express Targeting test (Calder) did the non-resident expressly target the forum and was the brunt of the harm felt there? Keaton v. Hustler sued in NH because it was only place with open statute of limitations ( lived in CA) i. Court allowed due to single publication rule ii. Hustler sent magazines to NH and knew it could be sued there iii. Doesnt even try to look at s contacts w/ state Kulko Mother sued father (NY) for child support in CA i. Contacts with CA = marriage happened in CA, gave permission to daughter (bought a one way ticket), daughter received educational benefits of CA) ii. No jurisdiction on CA 1. Marriage was a fleeting contact 2. Permission was the unilateral act of child 3. Any benefits gets are benefits of daughter not being in NY, not of daughter being in FL 4. Overwhelming public policy argument in favor of not allowing jurisdiction iii. Might have been different if it was jurisdiction by necessity iv. Court only looked at fairness to , not overall fairness Burger King (1985) (contract, Jurisdiction) i. It was brought in FL, they sued two franchisees who were running it up in MI and it was ruled that FL does have jurisdiction (choice of law was FL, not necessarily FL) ii. Court makes it clear that IS does have two parts contacts and fairness (two separate pieces) iii. You MUST have a relevant contact before we even look at fairness 1. All the fairness in the world will not give you jurisdiction if you dont have contacts 2. After you get contacts you still need fairness iv. Fairness the s argued that jurisdiction in FL was unfair and SC rejected the argument 1. The burden is on the to show that its unconstitutional 2. Showing its unfair is not enough 3. The court made it difficult 4. It has to be so gravely inconvenient that youre at a severe disadvantage in the litigation 5. Relative wealth of the parties does not matter Asahi (1987) (stream of commerce ), i. makes valve in state A and ships them to a manufacturer in state B and that manufacture puts the valves into his widgets and sells them in state C, D, E and so valves get to c,d,e, but didnt send them there. Does have relevant contacts in C, D, E. ii. If you get a stream of commerce on the exam you need to talk about minimum contact iii. Opposing views for stream of commerce (look @ jx to decide) 1. 4 justices said it is a contact is I put my product in the stream and reasonable anticipate it will get to C, D, E Brennan

r.

2. 4 other justices (led by OConnor) say thats not enough say you need that plus the intent or purpose to serve state C, D, and E (advertising, customer service, something else). Without availment its unilateral and its like WWV iv. Here fairness trumps (unusual case) 1. Court says it would be inconvenient to haul the foreign D into CA for this suit when the suit is B/t a taiwanse & Japanese company.. CA doesnt care about this part of the suit Perkins (Foreign country/ General jx)) i. corporation is located inphillipines & sued by non-resident of Ohio in Ohio court ii. Company is run out of Phillipines during war but Head of company runs company from house in Ohio (holds directors meetings, business correspondences, paying employees, & banking in Ohio) iii. Because the president lives in Ohio, and he is the highest level official, the presence of the company defacto is in Ohio iv. Issues whether due process clause prohibit Ohio from excercising PJ over this foreign company that has essentially relocated physically to Ohio even though the issue has nothing to do w/ Ohio No

s. Goodyear tires v. Brown (Foreign /No General jx) i. in France, bus overturns and kills 2 boys from North Carolina, parents sue for wrongful death ii. foreign subsidiaries contest JX b/ goodyear USA doesnt b/c they have plants in NC, and employees in NC so there is general jx of the company in NC but what about the foreign subsidiaries? iii. Tires manufactures by foreign subsidiary in Turkey 1. If there was general jx they have to prove that it was continuous & systematic 2. Tires made it in NC through the goodyear NC plant so it was in the stream of commerce so they are like a local player 3. However, subsidiary was not registered in NC, didnt advertise in NC, only small percentage of tires made it to NC b/c they are usually custom ordered iv. Court says there is no general jx b/c they are not a home town player t. Pebble Beach v. Patty (2006) (No specific JX) i. D runs a small inn in England called Pebble beach, has a website .UK where people can check out info about the inn & Pebble beach is a golf course in CA & sue Patty in California ii. P aregues that Ds site can be viewed in CA and is therefore availing itself of the states laws & protections & of the market. iii. Express Targeting test (Calder) did the non-resident expressly target the forum and was the brunt of the harm felt there? 1. Court finds no PJ b/c he didnt do something more a. Didnt send anything (letter) to the state that suggests that it availed itself of the laws ( If Pebble beach had written Patty a letter to stop, and Patty responded with their own letter saying no)

b. Wesite was not interactive so CA residents could not actively use it iv. Points to look at for Specific JX: relatedness inquiry (does it justify a forum bringing a non-resident in?),Purposeful availment/connection (calder testtells you about fair warning), fair play (Is it inconvenient for D to come there, is it in the best interest of the state?) v. This was just a website, and D did not expressly reach out to CA residents with site & actions so no specific JX vi. Internet contacts 1. the view that just b/c you have a site that can be viewed in all 50 states is not enough to give PJ over a site operator. 2. Site operators are immunue from liability of information posted by others except for IP and their participation in a federal crime. u. Helicopteros (No General Jx, Not Home player) i. Helicopter crash in Peru ii. No jx based on general jx 1. b/c corp was not authorized to do bizness in Tx 2. they dont operate an office in Texas 3. Their only reason for being in Tx was to purchase products and train pilots and CEO traveled there but that is not enough. We must look at the following indicia: a. Authorized to do bizness? b. Physical shop? c. Employees? d. Can we see them as being present? 4. Just buying something in large quantities from a state is not enough. Even though employees trained in TX they werent there permanently 5. Need continuous and systematic contacts need strong presence to justify brining the non-resident into court

IN REM AND QUASI IN REM

a. less important but not irrelevant (here the power is over the property, land, wristwatch, car) b. In rem the dispute is over who owns the property? (quasi in rem type I) c. Quasi in rem (technically quasi in rem type II) it has nothing to do with who owns it, the owns it i. Pennoyer v Neff Neff had left real property in OR and Pennoyer used that to get jurisdiction even though dispute was about attorneys fees and not about land (it just needs to be seized at the outside) d. Two step analysis i. Statute an attachment statute (not a long arm) the court can seize or attach property in the forum ii. What about the constitutional test 1. Pennoyer said all you needed to do is seize the property e. Harris v Balk (Quasi in-rem / full faith & credit)

i. intangible property is seized debt is seized when another debtor was in town ii. Epstein attaches debt of Harris who owes Balk who owes Epstein iii. Court allows for attachment of intangible property for iv. NC had to honor MDs J f. Shaffer v Heitner (quasi in-rem) i. P tried to sue D b/c they had shares in a Delaware corporation ii. Court says, quasi in-rem alone is not enough, you still must asses whether the has contacts with the forum and the analysis is still the minimum contact tests (overrules Harris v Balk) iii. However, For pure in rem when its about who owns the property then it may be enough & the property being in the state satisfies the minimum contacts test. 2. The state has an interest; by claiming property in the state, the defendant avails himself of state benefits; and the evidence (recording, use of the land, etc.) will be located in the state making it convenient forum g. Burhnam (Prescence, Transient jx, tagging)) i. (NJ is served with process in CA for a CA lawsuit, the claim on which hes sued has nothing to do with his activities in CA, so if there is jurisdiction it has to be general jurisdiction) ii. Does service of process within the forum still give you general jurisdiction OR instead do we need to apply minimum contacts iii. We dont know because again the justices split iv. 4 led by scalia say that service in the state does give general jurisdiction because of its historical pedigree (we dont need minimum contacts because the traditional basis lives by itself since IS gave us a test to use when is not present when served) v. 4 led by brennen say historical pedigree is irrelevant and it must be assessed under IS test and we need to look at contacts (it would have to be general) vi. There is no law based on this, even though everyone in the end agrees that there is vii. What happens if you werent in the state volitionally? 1. If you trick someone into forum it wont work h. Ireland (Waive PJ/ Consent by Estoppel) i. has business interruption insurance from which wont honor, sues in fed court and asks for an injunction in England which tells the US court to stop ii. In order to know if there are enough contacts we need discovery iii. claims the court doesnt have jurisdiction to run discovery iv. Does the court have jurisdiction to determine if it has jur? 1. Jurisdiction is a person right which can be waived either expressly on implicitly 2. By not complying with discovery, court has discretion to penalize and chooses to do that by allowing discovery 3. You can not waive SMJ, but you can waive PJ (because its a person right, unlike SMJ) i. Carnival Cruise (Consumer Contracts / Forum Selection Clause)

Woman slips and falls during cruise, sues in WA, CCL removes to FL saying it was on ticket as a forum selection clause ii. Courts holds it was enforceable because it was 1. Done in good faith and fairly main place of business in FL, ships leave from FL, reduces confusion, benefit to passengers since lower cost of tickets 2. Not by fraud 3. And there was notice possibly it wasnt good enough notice but here conceded the point 4. From plaintiffs perspective, it reduces the cost of suit. 5. Second, it reduces surprise (do you think Eulala and Russell agree)? 6. Finally, consumers benefit because the reduced costs are passed on to them in consumer savings. iii.

i.

PERSONAL JURISDICTION
I. Constitutional Foundations and Requirements A. Full Faith and Credit Clause: States must recognize judgments from other states 1) May collaterally attack jurisdiction, but not the merits. a) McGee v. Intl Life Insurance b) Hanson (FL ct. did not have PJ over D. FL did not have sufficient state interest in the family trust held by DE corp. FL decision not entitled to FFC.) B. Due Process Clause: Exercise of jurisdiction must comport with traditional notions of fair play and justice. International Shoe DP does not confer jurisdiction, only outer limits. Long Arm statutes, given rise by minimum contacts, establish jurisdiction 2) Requirements of DP a) Nexus (Bases for jurisdiction) b) Notice II. Categories of Jurisdiction: A. In Personam 1) Jurisdiction over/action against a person B. In Rem 1) Adjudicating status of a property (ie. dispute over ownership of land) 2) Any one may have an interest (everyone has an interest) ie. clarification of title 3) Quasi in rem: judgment for/against a person but recovery limited to value of property. a) Uses land as an anchor b) You cannot get jurisdiction by attaching the property III. Nexus Derived from territorial principle of Pennoyer. A. Traditional Pennoyer Traditional bases, presence, domicile, consent, property Constitutional principles Hess - Express implied/appointing agents. B. Modern standards 1. Minimum Contacts. International Shoe May no be casual or isolated Must look at quality and nature a) Two functions: i. Fairness to D ii. Ensure appropriate balance of state power and sovereignty c) Specific Jurisdiction: Cause of action arises out of D activities in forum i. May be an single event d) General: Cause of action does not arise out of D activities in state i. Must be continuous and systematic Courts not consistent on this issue. See Perkins v. Benguet ii. Arise out of / related to (Helicopteros Dissent - Brennan / sub relevance (prof) iii. Must be more than sales and promotion by nonexclusive sales reps Fisher Governor v. Superior Court

iv. Must be more than purchasing of equipment and training. Helicopteros v. Corporation may be subject to jurisdiction by actions of another corporation acting in an agency relationship. Frummer v. Hilton Hotels vi. Court may consider that P also is non resident and is forum shopping. Ratliff v. Cooper (non residents chose state for statute of limitations to sue non res drug co) - Similar to Keeton v. Hustler, opposite outcome e) Must be directed towards forum state. i. WWVW f) D must purposefully avail of benefits Relevant when D has NO physical presence Safeguard against accidental/inadvertent contacts i. May not be brought by a unilateral act of P. Hanson v. Denckla (Opposite finding of McGee, DE trust in FL) ii. Must be directed. Kulko v. Superior Court (fathers children are given plane ticket and sent to CA) g) D must foresee possibility of being hailed into the forum state. i. Purchases, visits not enough. Helicopteros ii. Intentional tort, req. easily met. - Calder (D editor defamed P in his forum state/state of residence) Effects test D directed at Ps state. Could have anticipated being hailed. iii. Out of state business seeks franchise, req. easily met. BK h) Contact based on contract as opposed to tort. (McGee, Hanson, Carnival, BK) ii. Contracts alone insufficient. McGee ( No Jurisdiction. D did not direct) BK (Yes Jurisdiction. D directed) Choice of law clause Bargaining power considered iii. Choice of forum clause i) Stream of commerce cases (distribution through a third party). INCONSISTENT i. Asahi (Japanese D manufacturer sold to use through D2 Taiwanese distributor. P (CA) sued for tort) Low state interest, international parties. OConnor awareness insufficient. Must be other factors, ie marketing. Stevens or Brennan? Volume was enough ii. Gray (D manufacturer sold to forum state through third party. P sues for tort) Court determines substantial activity sufficient. Volume irrelevant.

Fairness (focus on defendants due process rights) must comport with traditional notions of fair play and justice Fairness is irrelevant absent minimum contacts Some argue that this is D veto on P forum choice Must be a strong showing of unfairness a) Five factor test WWVW (OK court did not have MC because did not purposefully avail and other factors not strong enough. P not OK resident. Little state interest) i. Burden on D (Most important factor) Some focus on actual burden. WWVW (Brennan dissent) D must show that it is unconstitutionally fair (Burger King) i. Interest of forum in adjudicating the dispute ii. P interest in convenient and effective relief iii. Interest of inter-state judicial system in efficient resolution of controversies iv. Shared interest of several states in furthering substantial social policies b) Different Approaches i. One part test. WWVW (Activities not directed, state interest low non res. P) ii. Two part test c) International corporations i. Great care and reserve should be exercised in extending US notions of PJ to foreign Ds Asahi, OConnor 3. Technological contacts REVIEW THIS a) Challenges i. Concept of physical presence becoming irrelevant iii. World wide reach. What is purposeful availment? D who initiates contact via telephone or internet purposefully avails. Bellino v. Simon iv. Low levels of contact v. Too much P autonomy. D can be hailed anywhere. b) Zippo test based on levels of activity (interactive, active, passive) C. Jurisdiction Over Property 1. Historically, quasi was sufficient for jurisdiction a) Prevents D from taking assets outside of the reach of the court - Harris v. Balk A(NC) owed B(NC) owed C(MD). C served A in (MD) - Debts follow you wherever you go 2. Property in forum, alone, is not sufficient ground for PJ (Unless pure in rem min contacts would be met) Property is itself a contact a) Minimum Contacts Applies to ALL ASSERTIONS OF PJ and does not depend on classifications of in rem/in personam. Shaffer v. Heitner (Note: bad case to apply contacts analysis to)

2.

Shaffer v. Heitner (P owned share of stock. D, company exec, owned stock as benefits. D brought action against P for mismanagement, tried to use stock as an anchor) Property permanently within the state (real property) should confer jurisdiction. Concurrence, Brennan NOTE: Shaffer does not eliminate in rem Counter argument. Policy reasons. Shaffer Dissent - State interest in restitution of business incorporated in state - State interest in regulating business where cause of action is relative to state - State interest in jurisdiction over corps established under its law b) In rem, even with overlay of minimum contacts will usually support jurisdiction (meets test) D. Jurisdiction Outside Minimum Contacts 1. Domicile a) A states authority is not limited by fact that D is elsewhere domiciled. May service outside of state. Milliken v. Meyer (WY resident domiciled in CO. Served in CO for WY court) PRE-Intl Shoe 2. Presence (Tag Jurisdiction) a) Mere physical presence in a forum state is alone sufficient. i. Burnam v. Superior Court (D on business in CA also visits children. Avoided divorce, served with divorce while in CA) Scalias view: Minimum contacts applies to absent defendants. Historical tradition sufficient for application of jurisdiction based on presence. Brennans view: Must still be based on fairness in consideration of all other factors. In either view, presence will generally suffice. Note: This case is similar to Kulko (Ds wife sent plane tickets to children. He visited and was served? Not sufficient contact). Facts made difference. 2. Consent Personal jurisdiction is a personal defense. As such, it may be waived expressly or by actions inconsistent with the defense. a) Implied i. Plaintiffs who bring action in state are subject to jurisdiction. Adam v. Saegner (Conterclaim) ii. By challenging jurisdiction you agree to jurisdiction and must comply with discovery Insurance Corp of Ireland v. Compagnie (D challenged jurisdiction and did not comply w/

i.

discovery. Court said failure to comply was admission of error) - In this case, you must hear out case and challenge jurisdiction on appeal. You cannot direct attack later if you did not try case on merits. Baldwin This is resolved by failing to assert a defense. You can collaterally attack later b) Express Usually by contract Courts generally unwilling to intervene in contracts. See above. i. Forum selection clause Must be fair amount of bargaining power negotiable Enforcement promotes international business. Would not be wise to force intl corps to be subject to our courts on basis of minimum contacts irrespective of selection clauses. Bremen v. Zapata Carnival v. Shute (Court upheld FSC despite Ds contacts in other states) - Clients come from many locales - Judicial efficiency in reducing confusion and litigation - Fairness bargain. FSC allowed prices to be low. E. PJ in Federal Courts Constitutional limits found in DPC of 5th amendment 1. Compared with state court assertion of P/J a) Stronger issues of inconvenience, still presents problem of burden on D b) Federal courts 2. Rule 4 Federal courts have jurisdiction: a) 4(k)(1)(a) to the same extent of the state in which it resides b) 4(k)(1)(b)- (100 mile bulge rule) over parties joined under rule 14 or 19 served within 100 miles from where summons issued (courthouse) i. Extends beyond long-arm. Helpful in adjoining states c) 4(k)(1)(c)- Federal interpleader jurisdiction under USC 1335 permits nationwide service over a third party d) 4(k)(1)(d)- When authorized by statute of US e) 4(k)(2) Limited federal long arm catch all. Applies when not subject to any state but has minimum contacts with US. 3. Burden of demonstrating amenability of suit a) Some courts say on P (like minimum contacts) b) Others on D once prima fascia showing made by P c) 7th Circuit approach: D who wants to preclude 4k2 must show a more appropriate forum Note: D may not want to do this for fear of submitting to jurisdiction in future cases 3. Application a) Most courts say minimum contacts applies. Others, only fairness.

IV. A. B.

C. D. V.

A.

B.

C.

Waiver of Service: Duty to save costs of service Simplifies process of tracking down D 4(d)(1) Waiver of service does not waive objection to venue or jurisdiction 4(d)(2) Waiving party has duty to avoid costs. P notifies D and requests waiver 1. D has an incentive to sign waiver a) 4(d)(2) to return, has at least 30 days from date request sent, or 60 days if outside us and has 4(g) 60 days (RATHER THAN 20) after date on which waiver request sent or 90 days if outside US b) If D loses, does not have to pay costs of service 4(e) Persons not waiving. Depends on state law (personally or dwelling with person of suitable age and discretion (80 yr. old drunk will not suffice 4(f) Service in foreign country. By internationally agreed means (see if part of Hague agreement) or in manner of law applied within country. Challenging Jurisdiction Note: D who appears and challenges merits has waived claim of no jurisdiction Direct Attack 1. Special appearance a) If D raises any objection or argument regarding the merits, court may conclude waiver of jurisdictional objection b) In most states, a person who challenges at beginning and loses my try on merits without waiving. Can later appeal on grant of jurisdiction. Collateral Attack 1. Ignore suit entirely a) Judgment will be made by default. If wrong, lost chance to defend. b) FFC Clause requires states to honor judgments. i. Exception: Enforcing court may always inquire as to whether the rendering state had jurisdiction in original action. If D raises this claim in another state: Collateral Attack. ii. D may not reopen on merits. Waived on failure to appear. iii. D may not challenge p/j if already done so (unsuccessfully in another court) 12(b)(2) Motion to dismissal for lack of personal jurisdiction 1. Must file immediately: If D answers on merits and later concludes p/j is lacking, he will have waived jurisdiction. 2. May also file 12(b)(6) motion for failure to state a claim without waiving jurisdiction