Personal Jurisdiction

Long Arm General JMinimum Contacts (Stream of commerce?)5 Fair play+ sub. justice factors
Pennoyer v. Neff: Power, notice and consent. Rule: PJ if personally serve D in forum state (Burnham)
Long Arm Statutes: Some states have same PJ as constitutional max (CA), others narrow reach (FL)
Gibbons: Negligent driving, negligent directions cases. Ds prior filing of a lawsuit in FL was not
substantial and not isolated activity required by the FL long arm statute to establish PJ
Pro= Judicial economy, Con= Pockets of immunity (valid claim), Con= State interest (wronged in state)
General Jurisdiction: D may be sued for any claim in a state where Ds activities are continuous and
systematic. (ex. domicile for individuals, Hertz state of incorporation or nerve center for corporations)
Goodyear: General jurisdiction over corporation with multiple plants in NC, no general jurisdiction over
foreign subsidiaries in NC. General stream of commerce does not create general jurisdiction.
Perkins: General jurisdiction over Philipines mining company that based operations in OH during the war
Helicopteros: No general jurisdiction for Peruvian helicopter company in TX, contracts with TX company,
trips to TX not enough for continuous, systematic contacts
Burnham: Plurality holding suggests personal service is always enough for general jurisdiction. Brennan
dissent suggests court must assess D.P. in each case, but D.P. generally satisfied b/c D benefited from
states roads, emergency services, and economy. Not settled law whether 15 minutes in state enough.
Specific Jurisdiction (Intl Shoe)= Sufficient minimum contacts in the state related to the claim so as not
to offend traditional notions of fair play and substantial justice
Hanson says that minimum contacts requires some purposeful availment by the defendant. In McGee,
the defendant purposeful availed itself in California by mailing an insurance offer to a California
customer. In Hanson, there was no personal jurisdiction because the defendant insurance company had
not solicited the plaintiff in Florida or availed itself to the Florida market in any other way.
WWVW showed that minimum contacts with a state requires a direct effort to the serve the market
(such as advertising in the state or having dealerships or salespeople in the state) or an expectation that
products would end up in that state through the stream of commerce
Brennan and Ginsburg plurality opinions in Asahi and Nicastro suggest foreseeability test so that PJ
could be established by putting item in stream of commerce with knowledge that item will end up in
forum state (possible given Alito and Breyers concurrence in Nicastro)
In Rem sometimes enough for specific jurisdiction: Sufficient contacts for PJ over claims arising from Ds
property in forum state (Ex. PJ in CO if P(NY) is injured on Ds (CA) property in CO)

Shaffer v. Heitner: Owning stock in DE business is not sufficient contacts for jurisdiction over trustees of
DE corporation. Rule: No quasi in rem jurisdiction for claims not arising from interest in property.
Contracts Cases
McGee: TX life insurance co. purposefully avails itself in CA by soliciting contract in CA with Ps husband.
Hanson: DE trust did not purposefully avail itself in FL by signing contract with PA woman who moved to
FL. Unilateral conduct with FL is not enough, D must invoke benefits and protections of FL laws.
Burger King: MI franchisee purposefully availed himself in FL by soliciting franchise contract with FL
corporation. D knew he would have to deal with BK in FL, though most of contact w/ MI regional office.
Rule: Purposeful availment in Chattels Cases:

Evidence that D directly trying to serve the market; or maybe

Delivers products into stream of commerce w/ expectation they will be purchased in state

Intl Shoe: Sufficient minimum contacts for MO corporation employing salesmen in WA and directly
marketing their product there. Employed salesperson is valid agent for service.
Worldwide Volkswagen: NY distributor sold P car in NY, car crashes in OK. D did not purposefully avail
itself in OK, no direct marketing in OK. Audi and VW America do not challenge PJ because they advertise
to OK market. Rule: Foreseeable to be haled into court if D places items in stream of commerce.
Calder: Natl Enquirer profited from article designed to harm Shirley Jones in CA, so PJ in CA. Rule: PA if
D knows conduct harms P in state= exception to Pavlovich for intentional torts
Zippo Sliding Scale for Internet Case:

PJ: D enters into contracts with consumers

Maybe: Users exchange info with host computer (weigh level of interactivity, commercial nature
of exchanged info)
No PJ: Passive activitysimply posting online

Pavlovich: D (TX) posted link to DVD-burning software not knowing that technology was licensed to P in
CA. No PJ because D did not know P was in CA. Rule: Knowledge of passive harm to industry in state is
not itself enough for PA.
Nicastro: England manufacturer targeted US market in general, but did not purposefully avail itself in NJ.
Concurring opinion only makes it clear that a single isolated sale is not enough purposeful availment.
Fair play and substantial justice factors (WWVW says weigh these factors after establishing sufficient
minimum contacts): 1) Inconvenience to D; 2) Convenience to P; 3) Forum states interest in
adjudicating claim; 4) Judicial systems interest in efficient resolution; 5) Shared interest of states in
furthering social policies
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Consent
Carnival: P slipped on ship, PJ in FL b/c forum selection clause constitutional; clause on ticket and D in FL
Goals: 1) Limit litigation to a single forum (cruise ship carries passengers from around the country), 2)
limit confusion about where a case can be brought (reduces expense and judicial resources litigating
jurisdiction), and 3) reduced litigation results in lower prices for consumers
Maybe not enforceable if: 1) Forum particularly inconvenient (clause meant to discourage claims); 2)
party did not have notice of the clause; or 3) agreement was obtained through fraud or overreaching
Notice: Required with either Power or Consent to enforce PJ
Mullane: Ps had interest in common trust fund, had K right to object to management of fund. Ds notice
in newspaper insufficient, notice must be reasonably calculated under all the circumstances to notify
and give opportunity to object. Can mail to members of group with common interest, OK if notice fails
to reach everyone b/c represented by those that were notified. Must use at least means that a person
who wanted to reach the party would use. Publication OK if 1) missing/unknown, 2) future interest
Note: no distinction between in rem and in personam for notice.
Object to service (Rule 12)

Rule 12(b)(4) insufficient process (ex. service did not have date to appear)
Rule 12(b)(5) insufficient service of process (ex. served to 6 yr old, not proper age/discretion)
Resolution Without Trial

Claim and Issue Preclusion (consider stare decisis as alternative)

Res Judicata: 1) same claim, 2) same party, 3) FJOM (not all FJOM actually decided, ex. involuntary dis.)
Restatement View (Dominant): Claim precluded if it arose from same occurrence or transaction

Matters related in time, space, originclaims involve the same events in the real world

Frier v. City of Vandalia: D.P. claims precluded because same claimarose from same transaction of city
taking Ps cars. Dissent argued IL standard is same cause of action, different facts needed to prove
D.P. claims (proper service of notice vs. issue of who owned car) so claim should have been precluded
In Privity= same interests (exists when 2nd party is so closely related to 1st partytreated as same party)

Substantive legal relationships (ex. Successive owners of property, beneficiary and trustee)
Agreement to be bound by decision
Procedural representation (guardian and child)
Underlying belief that interests are the same, so 2nd party should be barred b/c another party
with the same interests already litigated the case

Searle Brothers v. Searle

1st case: Divorce proceeding awarded home to wife, despite fact that home owned 50% by
partnership of husbands sons
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2nd case: Sons sue mother for interest in home. Rule: In privity if mutual or successive
relationship to rights in property. Not precluded b/c not same party, sons partnership
independent of father and existed before the 1st case began.

Taylor v. Sturgell

1st case: Airplane enthusiast fails in FOIA suit against FAA for airplane plans
2nd case: Same suit by president of first Ps airplane club. Claim not precluded because not same
party, not in privity because 1st court did not take care to protect Ps interests in 1st case.
Rule: In privity if adequately represented in 1st case: 1) same interests and 2) 1st P knew he was
representing 2nd P, or ct took care to protect nonpartys interests (not shown)

Gargallo v. Merrill Lynch:

1st case: State court ruled on federal securities issue with exclusive federal jurisdiction.
2nd case: Federal court, claim not precluded b/c no FJOM in 1st case because state court lacked
subject matter jurisdiction

Collateral Estoppel: Issue precluded if 1) same issue, 2) actually litigated and determined by 3) valid
and final judgment, and 4) issue essential to the judgment (+ fairness factors for OCEParklane)
1) Issue requires same underlying facts decided under the same standard
3) Final Judgment= 12(b)(6) after chance to amend, failure to comply with discovery, voluntary dismissal
after answer, default judgment(not actually on merits), summary judgment, trial judgment, JML or JNOV
Illinois Central v. Parks:

1st case: Wife recovers for injuries, railroad wins for husbands loss of consortium claim
2nd case: Husband sues for injuries. No DCE because husbands damages not actually litigated
and determinedno FJOM on injury claim b/c LoC claim in 1st case could have been decided b/c
of husbands contributory negligence rather than no injury (not essential to the judgment)

Offensive nonmututal collateral estoppel: Later Ps can preclude D from re-litigating same issue

1st case: W v RR, RR negligent

2nd case: H v RR, H can estop RR from re-litigating negligence

Parklane v. Shore (Fairness Factors):

1st case: Stockholder class v. Parklane on whether proxy statement false and misleading
2nd case: S.E.C. judgment against Parklane on same issue resolves while 1st case in progress
Rule: For offensive nonmetal collateral estoppel, consider 1) whether P could have joined
prior action, 2) whether D had incentive to fully litigate the prior case, 3) whether there were
several inconsistent prior judgments, and 4) whether D would have procedural opportunities
in the subsequent action
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P allowed to collaterally estop Parklane from re-litigating issue, could not have joined S.E.C. and
not unfair to D (Court could disallow estoppel if Ps strategically waiting or D at disadvantage)

Defensive mutual collateral estoppel: D can preclude further claims by same P (or P in privity if due
process satisfied by having interest heard in ct) against other facets of Ds organization for same issue

1st case: W v RR, W loses

2nd case: W v. train conductor: train conductor can estop W from litigating same issue again

Defensive nonmutual collateral estoppel: D cannot preclude same issue against different parties

1st case: B v RR, B loses

2nd case: J v RR, RR cannot estop J from litigating same issue b/c different party= own day in ct

State Farm Exception: Warehouse fire case, D cannot estop separate Ps. 2 decisions for P, 1 decision for
D, then 13 Ps file complaint identical to winning P Rule: No OCE if inconsistent judgments.

Jurisdiction
Personal Jurisdiction
Limits: Due Process (5th and 14th amendment); Full Faith and Credit clause; state law
How do you dismiss if its missing? => Do it EARLY. Dont want to consent.

Dont show up. Super risky strategy. Fight juris when P tries to collect.
Special appearance (in some states)
Rule 12b2: Lack of personal jurisdiction => Very beginning
o Rule 12g2: Must join a 12b2 motion.
In the answer
Rule 12c: Judgment on the pleadings => After pleadings, before delaying trial
Appeal?
o Fed: Have to wait until after trial (1291)
o Some states: Appeal right away

Due Process
Pennoyer elements: (case for unpaid lawyer fees; published notice in newspaper)
1. Power
2. Consent
3. Notice

Types of suits:

In personam => Lawsuit against a person

Quasi in rem => Lawsuit against a person w/ property in juris
In rem => Lawsuit against a thing (asset forfeiture/unpaid property)

Power
Sue first. P has all the power in forum selection.
Sufficient Minimum Contacts (International Shoe) => Establishes presence
WA employment fund. Agents in WA, business in MO. Agents only set up exhibitions and refer. Min
contacts.
Test: Does these contacts give rise to the suit?
Consider quality and nature of contacts

Contacts

No Contacts

Casual or
Isolated Contacts

Single Act

Jurisdiction

No Jurisdiction

No Jurisdiction

Specific
Jurisdiction if of
right quality &
nature
McGee
(Biz soliciting &
benefitting)

Cases

Hanson
(unilateral choice
to be in FL)

Systematic and
continuous but
limited
Specific
Jurisdiction

Substantial or
Pervasive

Intl Shoe

Perkins
(Mining co in OH
for war)

Test: Purposeful availment => Did you enjoy the benefits and protection of the laws of that state?
(Shoe)
(Hanson: Will created in DE w/ DE company. Move to FL, try to litigate there.)

Purposefully avails itself of the privilege of conducting activities within the forum State.
(WWVW)
Need to have idea that youll be sued in that place. Doesnt consider P.
Products
o World-Wide Volkswagen (P buys car in NY. Driving to AZ. Crash in OK. No juris)
Serving market
Advertising (not calculated to make it to state)
Sales
Services
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General
Jurisdiction

Wholesale in that state

Expectation that theyll be bought in that market
Not mere likelihood product will make it into state
DISSENT: (Brennan) More focus on states interest in litigating. Evidence there.
Dealer intends for drivers to go places
Is placing in the stream of commerce, knowing it would end up in state, enough?
Open question
Nicastro: Sends metal shearing overseas to OH. 4 in NJ. D injured.
o Plurality: Need actions, not expectations
o Dissent: Stream is enough. D is trying to make sales ANYWHERE.
o Concurrence: One sale isnt enough. Consider:
Forum state customers who attend trade sales
Extent of same type of business in forum state
Asahi: Malfunctioning tire.
o OConners 4: Look at Ds conduct. Stream isnt enough.
o Brennans 4: Benefitted from stream. Foreseeable suits.

Commercial Activity
o Burger King (D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)
Knowledge that youre negotiating with someone in forum state
o Jones (Natl Inquirer article about Jones. Know that it will have impact on him. Juris)
If know it will cause harm of KNOWN third party in forum, juris.
MUST BE SPECIFIC. General not enough (Pavlovich: DVD copying)
o Hanson (will in FL)
NOT unilateral
o McGee (Insurance in California)
Solicitation
Modern transportation and communication has made it much less
burdensome for a party sued to defend himself in a state where he engages in
commercial activity.
Caveated by fair play and substantial justice
Internet
o Pavlovich (releases code of DVD copying protection while in IN. Moves to TX. Sued in
CA)
File transfer to another state intentionally => Jurisdiction.
Just posting information that just happens to be accessible => No jurisdiction
(PAV)
Interactive website where user can exchange information with host computer
=> ???

International Shoe: Min contacts for corporate in personam.

Shaffer: Min contacts for quasi in rem (suit of corporate execs in DE because stock issued there. No juris)

Forces P to file a lot of different lawsuits in a lot of different jurisdictions

General Jurisdiction: Contacts SO continuous and systematic, subject to juris even if unrelated suit.
Must, in essence, become corp in that state (Perkins: During war, comp moves to OH. Juris)

Contractual agreements and frequent trips not enough (Helicopteros: visiting TX)
Stream of commerce of tires not enough (Goodyear: Crash in France. Suing Euro subsidiaries. No
juris)
Continuous activity of some sorts isnt enough (Goodyear)
Is individual presence enough? Open. (Burnham: Lives in NJ. CA to visit kids. Serves him. Juris)

Scalias 4: Presence has always been enough

Brennans 4: Where do you draw line for presence?
o In this case, availed self to benefits of state by being there. Made trips there before, etc.

Will it offend traditional notions of fair play and substantial justice? (Intl Shoe)
AFTER finding minimum contacts, consider this. (Burger King)
Apply all. Dont worry about delineating.

Interests to consider: (Shafer) => EVEN IF ALL OF THESE, still need min contacts. Federalism (WWVW)

The inconvenience to the defendant

State's interest in applying its law to controversy
Convenience of litigation (records and witnesses will be in the state)

BK Interests to Consider: Allows fewer minimum contacts (Maj: Brennan => WWVW dissent.)
(D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)

The burden on D
Forum states interest in adjudicating
Efficiency of resolution
Furthering fundamental substantive social policies

Consent
Gives jurisdiction when lacking minimum contacts. Usually set by K.

Elements to allow K of adhesion: (Carnival: Cruise ticket said suit in FL. Sues in WA. Upheld)
1. Needs notice
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 Carnival upholds ticket saying subject to K, then K including it

2. Cant be unfair / bad faith
Does NOT mean it cant make suit unfeasible. Just need good intentions.

Rationale:

Dispels confusion
Cheaper tickets
Makes suits for manageable for company

Notice
If improper, Rule 12b5
Due Process
1. Personal notice inside state => Always adequate
2. Outside state => "Notice, reasonably calculated, under all circumstances, to appraise parties
and afford opportunity to present their objections." (Mullane: Trust fund. Merges. Post notice in
newspaper.)
Token gestures are not enough
Mail is enough
i. Dont have to make sure everyone receives it
ii. Have to make sure most people are reached => Those people protect all
interests.

When is publication enough?

When no address/location known. No alternative.

When supplemented with attachment (MAYBE) => If whereabouts known, may need personal
service.
When interests are conjectural or future

Long-Arm Statutes
What state can D be sued in? (Not Constitutional. State statutes)
Some states provide LESS jurisdiction than Due Process allows; cant grant MORE
Considerations

How clogged up are courts?

How much control does state want?
How concerned is state about convenience for residents?
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Order (Gibbons: Car crash. P sues Mr. Later, Mrs. sues P. Says P availed self to state. P wins)
1. Make sure youre within long-arm
2. Make sure there are sufficient minimum contacts

PERSONAL JURISDICTION
Basic Constitutional Framework: Pennoyer
*Personal jurisdiction concerns where D can be sued whereas subject matter
concerns what court can hear a certain case
*matter of due process and what is fair to D in terms of power, notice, and consent
Pennoyer (ideas behind it)
power
*no state can issue jurisdiction over people or property not w/in its
boundaries/territories
*exception for contracts made in one state (can be enforceable in another state)
notice-dependent upon type of jurisdiction being asserted
*in personam jurisdiction
-jurisdiction over a person rather than property
-there must be notice through personal service of that person in the state
publications are not enough
*quasi in rem jurisdiction
-based on property rights of a person absent from the jurisdiction
-publication sufficient
-seizure of the property to attach to the law
*in rem jurisdiction (focuses only on the property rather than the person but no
longer important)
consent
*parties can consent to jurisdiction in places where they wouldnt have it normally
*contract out of due process personal jurisdiction requirements
Modernizing the Framework-International Shoe, McGee, and Hanson
12b2 motion challenges personal jurisdiction but may also be presented as a defense
International Shoe v. Washington (ideas behind it)
specific jurisdiction
*D must have such minimum contacts with the state so that exercising jurisdiction
would not offend traditional notions of fair play and substantial justice
*must be a sufficient connection between the contacts w/ the state and the
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underlying action in the case; mere presence no longer enough

general jurisdiction
*when D continuously operates w/in a state (continuous and systematic presence)
*conduct that is basis of suit need not be connected to the state at all, does not have to do with their
behavior in that state
*D was benefiting from state protection
-able to resort to state court for enforcement of rights
-the underlying action comes from the statute from this protection
*not just casual presence or isolated activities
McGee v. International Life Insurance Co. (ideas behind it)
Minimum contacts
*A state courts personal jurisdiction qualifies under minimum contacts when it is
based on a contract with a substantial connection with that state (especially with
insurance companies
*no presence at all but minimum contacts still found
*P (CA) purchases life insurance from D (office in TX) and dies
*Ps beneficiary sues D for failure to pay
*there is personal jurisdiction for D in CA b/c low burden for them to defend claims
in a state they are corresponding with/conducting business with
Hanson v. Denckla
Minimum contacts
*Does not qualify when P only has unilateral activity with a non-resident
*there needs to be some act by which D purposely avails itself of the forum states privileges (somehow
benefits from states protection/laws as in Shoe)
*P had trust in Delaware and moved to FL where she died
*If jurisdiction in FL, one daughter received all; if jurisdiction elsewhere, all three
would share equally
*deceased was only sending money to Delaware and not receiving anything back;
thus, the bank (D) had no office and did not transact any business in FL
Modernizing the Framework-Shaffer
Shaffer v. Heitner
Property and Minimum Contacts
*When the only contact with the state is property, minimum contacts analysis
must be applied (International Shoe)
-must be connection to the suit
-property can be used as evidence of sufficient contacts
*property alone is enough if it is the source of the underlying controversy
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*P owns 1 stock, files shareholder suit in Delaware; none of D lives in Delaware

*attaches stock in Delaware to assert personal jurisdiction
*lawsuit was over improper conduct rather than about the stocks
themselvesminimum contacts not satisfied
Applying the Framework-World Wide Volkswagen
World Wide Volkswagen v. Woodson
*do not look at foreseeability but rather reasonability given Ds ties and relations to
the state
*focus on Ds conduct and connection with the forum state (minimum contacts)
*did D avail itself of the states privileges?
1) advertising in forum state
2) expectation of product being in state through stream of commerce
*only if minimum contacts are almost clearly established should other interests be taken into account
-states interest in the adjudication
-Ps interest in obtaining convenient/effective relief
-interstates interest in obtaining most efficient resolution
-shared interest of the several sates in furthering social politics
*car bought in NY, driving from NY to AZ and car accident in OK
*claim brought in OK
*protecting D from burdensome litigation top priority
*no advertising in OK
Applying the Framework-Burger King and Pavlovich
Burger King Corp. v. Rudezwick
*unless there is evidence of grave hardship to D, if D has business relationship with
a corporation who has substantial connection w/ that forum state, jurisdiction may
apply
*sliding scale
-if minimum contacts are established, look at issues of fair play and substantial
justice
-Volkswagen rejected sliding scale analysis, wording made it appear that minimum
contacts are absolutely necessary and should not be compromised
*D signed contract with P to open a franchise in MI; Ps principal office in FL
*contract said that FL law would govern so D was benefitting from the forum state
*dispute had to be resolved with FL office, not MI
*problem: issues of fair play and substantial justice b/c contract of adhesion and P
had a lot of bargaining power

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Pavlovich v. Superior Court (Internet)

*Personal jurisdiction if D is entering into contracts/transferring files from one side
to you
*No personal jurisdiction if you are simply posting information
*Possible personal jurisdiction if there is an exchanging of information (level of
interactivity and commercial nature of the exchange)
*D (TX) made website that would defeat copyright technology and knew that it
would affect a company, but had no idea where that companys principle place of
business was (CA)
*based on nature of his website, CA does not have personal jurisdiction; however, if
he had knowledge that his conduct would harm industries in the state, this could be
relevant in determining personal jurisdiction
McIntyre Machinery v. Nicastro
*4 judges say that purposeful availment is key-look at Ds actions to determine
*3 judges say that foreseeability is enough-looking at purposeful availment could
shield foreign Ds from jurisdiction by dealing with third party distributors
*2 judges say that one sale is not sufficient contacts
General Jurisdiction
*Ds connections/presence is continuous and systematicestablishing minimum
contacts unnecessary
*if you are a citizen of the state
*principle place of business, place of incorporation
*split among internet sites and stream of commerce cases
Goodyear Dunlop Tires v. Brown
*kids die in France, P sue USA company and 3 foreign companies in NC
*Holding-stream of commerce insufficient unless there are signs of continuous and
systematic presence
Burnham v. Superior Court
*P (NJ) visited CA on business and then visited kids who were with his wife
*wife filed for divorce in CA
*Holding
-all that is necessary is that D be in the state when he is given service
-Pennoyer says that presence is enough and other analyses (International Shoe)
necessary only when D is not presence
-concurrence: using minimum contact analysis, there is personal jurisdiction b/c D
availed himself of the states privileges by coming to the state

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Consent
Parties can consent to litigation in a forum state through a contract (Pennoyer)
If contract is not one of adhesion/not in bad faith
Carnival Cruise Lines v. Shute
*P purchased cruise tickets in WA for ship owned by D
*terms and conditions-litigation concerning travel agreement to be in FL
*Holding
-wanted to limit the fora; also, P benefitted from reduced rates that were result of
the limited fora
-traditional notions of fair play and substantial justice
-no evidence of bad faith
-notice of forum provision
-makes sense for it to be FL (ships depart there)
Notice
What is the amount of notice that is constitutionally owed to D?
Pennoyer
-personal notice if person in state
-notice in newspaper w/o attachment not enough for property
Further Protections for Defendant (beyond power, consent, notice)
Long Arm Statutes
*whether or not a state can assert jurisdiction over D from another state
*cannot reach further than personal jurisdiction requirements allow
*reasons
-economic: states want fewer defendants who could have personal jurisdiction
-protection: states want to protect its citizens but also have interest in being able to
adjudicate things that happen within in
Gibbons v. Brown
*D (TX) sued P (FL) in FL for car accident (general jurisdiction); 2 years later P sues
D in FL (case in question)
*Holding
-long arm statute said that D must be engaged in substantial activity w/in the state
(doesnt matter if the claim arises from that activity)
-suing someone in a state not substantial activity and so D has not engaged in
substantial activity

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