Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

Chapter 2: Personal Jurisdiction

D. The Constitutional Requirement of Notice
Assignment 7: Consent and Notice (just Mullane)

Mullane v. Central Hanover Bank & Trust Co.

United States Supreme Court (1950)
Facts
 Appellee bank and a trust company established a common trust fund, which pools
multiple small trusts into one large fund for easier administration, that complied with
N.Y. Banking Law Section 100-c.
 Appellee petitioned for a settlement of its first account as a common trustee (settles
every 3 years). Upon the filing of the petition, appellant (Mullane) was appointed the
special guardian of beneficiaries of the trust who had not appeared in response to the
notice, and he objected that the notice was inadequate to provide due process.
 The only notice given to the beneficiaries was by a publication in a local newspaper that
was in strict compliance with the minimum requirements of Section 100-c.
 Upon the filing of the petition, appellant (Mullane) was appointed the special guardian
of beneficiaries of the trust who had not appeared in response to the notice
 Appellant objected, contending that the notice and statutory provisions for notice to
beneficiaries were inadequate to afford due process.

Procedure
The New York Court of Appeals overruled the objection
Appellant sought review of a decision that held that the statutory notices to the trust
beneficiaries was adequate to afford due process under the 14th Amendment.

Issue Were the statutory notice requirements in NY Banking Law adequate to afford due
process under the 14th Amendment?
Whether publication in a local newspaper is sufficient notice of the pendency of an account
settlement to beneficiaries of a common trust.

Holding The Court held that because the New York banking law permits notice by publication
even to parties whose addresses and interests are known to the trustee, it is incompatible with
the Fourteenth Amendment’s due process provision (it did not provide for a means to contact
those who could easily be informed by other means.)

Reasoning
Rule: The constitutional requirement of notice
1. Notice must be reasonably calculated under all the circumstances and must be reasonably
certain to inform interested parties of the pendency of the action and gives them the
opportunity to be heard.
2. If this is not available, the method chosen cannot be substantially less likely than other
available methods to give notice.
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

 Here, under the circumstances, the notice was reasonably calculated to notify
potentially interested but unknown parties and gave them sufficient opportunity to
come forward with their claims. The number of beneficiaries and their identities were
difficult or impossible to track. There were numerous unknown beneficiaries, and the
rights were likely often transferred to other parties. The cost of tracking down these
numerous beneficiaries for personal notice was enormous, and this burden should not
be placed upon Central Hanover. Mullane adequately represented the interests of the
parties who could not be identified, and the notice given in the newspaper was
sufficient under the circumstances.

 However, notice by publication does not satisfy due process where the beneficiaries’
addresses and interests are known to the trustee. Here, the trustee has the names and
addresses of the income beneficiaries represented by Mullane. There is no reason why
the trustee should be permitted to dispense with a serious effort to inform these parties
personally.

Disposition Reversed and Remanded

Significance/ Notes
The court got rid of the distinction between constructive notice (for in rem cases) and personal
service (for in personum cases). Instead it said that all cases required a form of notice that was
sensible under the circumstances and reasonably likely to actually inform the D of the lawsuit.
The court suggested that due process did not always require personal service of process.
The court made the doctrine for constitutionally required notice into the same “it depends on all
the circumstances” principal that Shoe used for jurisdictional power.
Mullane completes conceptual renovation of Pennoyer. Which posited 3 central categories for
thinking about judicial authority: power, consent, and notice.
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

2. Personal Jurisdiction
E. Self-imposed Restraints on Jurisdictional Power: Long-Arm Statutes, Venue and Discretionary
Refusal of Jurisdiction.
* Up until now we just assumed the only relevant questions were constitutional power and notice. Assumption the
court could assert jurisdiction if it was constitutionally permissible. Situations in which Legislature or courts have
framed rules that restrict where a lawsuit may take place- even when the Constitution would pose no obstacles.
1.Long-Arm Statutes as a Restraint on Jurisdiction
Assignment 8: Long-arm Jurisdiction: State Statutes and the Federal Equivalent
A court may exercise jurisdiction over a defendant only when the state or federal government
authorizes it to do so (and the authorization must be constitutional as applied to the case in
question).
Many states began to authorize service (sometimes by mail) on defendants beyond their borders.
Because Pennoyer had conceived of such extensions of state court jurisdiction as near-physical
exertions of state power, statutes authorizing courts to reach beyond their own borders came to
be known as “long-arm” statutes: States were extending their jurisdictional “arms.”
Some statutes authorize jurisdiction so long as it’s not inconsistent with the constitution. Other
states statutes limit jurisdiction to specified occurrences (more narrowly than the constitution
itself and the statutes of the former states.) We deal with such a state in next case.

Gibbons v. Brown
Florida District Court of Appeals (1998)

Facts
 Gibbons (defendant), a Texas resident, and the Browns, Florida residents, were driving
in Montreal, Canada.
 Gibbons was giving Mr. Brown directions, but she gave Brown wrong directions and
Brown collided head-on with an oncoming vehicle on a one-way street.
 Gibbons sued Mr. Brown in Florida for injuries she sustained (1995, only Mr.), and Ms.
Brown (P) later sued Gibbons in Florida for injuries she alleged were caused by Gibbons’
faulty directions (1997).

Procedure
Appellant, a defendant in a personal injury action, sought review of an order from the Circuit
Court for Duval County (Florida), denying her motion to quash service of process and,
alternatively, to dismiss the complaint for failure to allege ultimate facts sufficient to establish
the exercise of the long-arm jurisdiction of the court over appellant under Fla. Stat. ch.
48.193(2).

Issue Whether bringing a prior suit under the same subject matter is a sufficient basis for
jurisdiction over the same party as a defendant under a long-arm statute.

Holding No. The Appellants filing a prior action in FL court does not, by itself, satisfy any of the
alternative grounds/ prerequisites for jurisdiction set forth in the FL long-arm statute.
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

Reasoning
Rule: In order to acquire jurisdiction over a defendant under a long-arm statute, the
plaintiff must allege sufficient jurisdictional facts within the coverage of the long-arm
statute and must show sufficient minimum contacts with the state to satisfy due process.

Rule: Florida Long-arm Statute: 48.193 (2) A defendant who is engaged in substantial
and not isolated activity within this state, whether such activity is wholly interstate,
intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether
or not the claim arises from that activity.

*Activity in question in this case is the 1995 suit NOT the accident itself.

 Mrs. Brown alleged as a basis for Florida jurisdiction over Gibbons that Gibbons had
subjected herself to the personal jurisdiction of Florida courts with respect to any
“lawful orders” that were entered subsequently re: “the subject matter of the action.”
by bringing the prior lawsuit about the accident against Mr. Brown. Gibbons notes she
had had filed her suit two years prior to Ms. Brown filing hers. Moreover, Ms. Brown
was not even a party to Gibbons’ suit.
 Ms. Brown made no other showing that Ms. Gibbons is engaged in any activity in FL
whatsoever other than defending the present suit, making the jurisdictional standard of
the FL statute unsatisfied.
 Court notes that a D’s prior decision to bring a suit in the state shouldn’t “act
indefinitely as a sword of Damocles hanging perilously over the head of that D if she
later challenges jurisdiction in a separate suit.” (even if arising from the same subject
matter)

Disposition Order reversed, and the trial court directed to dismiss Mrs. Brown's complaint.

Significance/ Notes
Brown and cases like it represent situations where a state legislature has chosen not to go as far
as the constitution permits. In these states 2 questions should be asked:
1. Does the long-arm statute in this state allow court to exercise jurisdiction in such
circumstances? If not, the case ends there (as in Brown)
2. If so, is asserting jurisdiction on the facts of this case constitutional? (Brown court didn’t
need to address this.)
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

Gee v. Reingold
Court of Appeals of Georgia (2003)

Facts
 A corporation (Apex) sued Gee, a cable supplier, in WI.
 Gee contacted Reingold (D), an attorney practicing and licensed in TN, who initially
informed Gee that the WI complaint send to him via federal express was insufficient
service under GA law. 1-2 weeks later Gee received service of WI action by sheriff’s
deputy. D contacts Apex attorney as Gee’s attorney asking for an extension of time to
answer the complaint. Gee repeatedly tried to contact D over phone and in person but
never received a response or saw him.
 No answer was filed in WI action and a default judgement was entered against Gee.
 Apex filed complaint in GA to domesticate judgement against Gee.
 Gee then filed a third-party complaint against D for breach of contract, negligence, and
breach of fiduciary duty, for D’s role in allowing a default judgment.

Procedure Trial Ct. granted D’s motion to dismiss for lack of PJ. Gee appealed.

Issue Whether the lower court was correct in concluding that it did not have PJ over the
nonresident attorney D with respect to P’s third-party claims against him for for his role in
allowing default judgment to be entered against his client.

Holding Yes, the court was correct: GA state courts do not have PJ over D, pursuant to GA’s
Long-Arm Statute, with respect to P’s third-party action against D.

Reasoning
Contract Claim:
Rule: In a breach of contract action jurisdiction over a nonresident defendant may be exercised
by the courts of this state only upon a showing that the nonresident defendant transacts any
business in this state. OCGA 9-10-91

Rule: Jurisdiction over a nonresident exists on the basis of transacting business in this state only
if: (1)the nonresident has purposefully done some act or consummated some transaction in this
state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if
the exercise of jurisdiction by the courts of this state does not offend traditional fairness and
substantial justice. (ETS Payphone v. TK Indus. 1999)

Rule: Negotiating the terms of an agreement in state counts as “transacting business” within
the meaning of GA statute.

Rule: Nonresidents telephone or mail contacts in state or even visits to state are alone
insufficient to show the minimum contacts necessary for PJ in GA. (Burt v. Energy Services
Investment Corp.)
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

 the only contacts between client and attorney with respect to action in which default
judgment was entered were telephone conversations and facsimile transmissions
initiated by client, and bills mailed by attorney to client in State; there was no evidence
that attorney and client negotiated any contracts in State, and D’s services performed in
TN and pertained to non-GA matters (lawsuit filed and default judgement given in WI).
 D’s contact with P in GA does not show that D “transacted business” in GA within the
meaning of the state’s long-arm statute and therefore the court was correct in
concluding it lacked PJ with respect to the contract claim.

Tort Claims (Negligence and breach of Fiduciary Duty):

Rule: OCGA 9-10-91(2) provides for jurisdiction over a nonresident who commits a tortious act/
omission within GA. Damage from tortious act no sustained in GA simply because P is a resident
of the state. A tort occurs when and where the actual injury or accident takes place, and not at
the place of the economic consequences of that injury.

Rule: OCGA 9-10-91(3) commits a tortious injury in this state caused by an act or omission
outside of GA if the tort-feasor regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or consumed or
services rendered in this state.

 We must conclude from the record that Reingold did not maintain an office in GA,
advertise in GA derive a substantial income from services rendered in GA, or engage in a
persistent course of conduct within the state. Altogether D had no more than 10 cases
in the state over the course of his 40-year legal career.
 D has “done none of the acts set forth in the GA long-arm statute which are necessary in
order to subject him to PJ of a GA court.” The court correctly concluded it also lacked PJ
over D with respect to the tort claims.

Disposition Affirmed
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

Mwani v. Bin Laden

United States Court of Appeals, District of Colombia Cir. (2005)
Facts
 A 1998 truck bombing outside an American embassy in Kenya killed 200 people and
wounded 4000 others.
 The Kenyan victims, their family members and businesses harmed in the attack sued D
Bin Laden and D Al Qaeda for orchestrating the bombing under the Alien Tort Claims
Act (ATCA)(p. 2 bottom of P1.) and D Afghanistan for providing logistical support.

Procedure District court dismissed claims against Bin Laden and Al Qaeda for lack of PJ. Victims
and family members appealed.

Issue Whether the district court has PJ over Bin Laden and Al Qaeda, absent foreign defendants
for orchestrating terrorist attack outside of an American Embassy in Kenya that killed and
wounded Ps/family members.

Holding the court held that the district court had PJ over Bin Laden and Al Qaeda because the
claims arose under federal law (ATCA), the summons was served by publication under Fed. R.
Civ. P. 4(f), and there was a constitutionally sufficient relationship between them and the
forum.
Reasoning
Court considers: (1) the appropriate burden and standard of proof for establishing PJ over an
absent D at this stage in the litigation and (2) whether the Ps satisfied those requirements.

1.Appropriate Burden/ Standard of Proof?

 District court required Ps to show preponderance of the evidence said P’s would have
to meet higher evidentiary standards. Present court rejects this. Absent defendant is the
reason for default hearings in the first place. If anything, this situation calls for greater
flexibility towards Ps who cannot obtain discovery, there is no reason for district court
to insist upon evidentiary hearing.
 In the absence of an ev. hearing, the appropriate burden on Ps is to establish prima
facie showing and the standard of proof is lower than what’s required by the district
court’s standard.
 These principles don’t place an unreasonable burden on the D. Default judgements
aren’t a courts final say, 60 (b) loophole. Also, free to challenge default judgement on
jurisdictional grounds in a collateral proceeding.

2.Did Plaintiffs satisfy those requirements?

Sources of Authority
DOC’s Long-arm statute does not confer PJ over D’s. (P.6, Col 1.[a])

Rule: 4(k)(2) permits a federal court to exercise personal jurisdiction over a defendant (1) for a
claim arising under federal law, (2) where a summons has been served, (3) if the defendant is
Civil Procedure Date: 10/9-12 Assignments 7 (in part) and 8

not subject to the jurisdiction of any single state court, (4) provided that the exercise of
federal jurisdiction is consistent with the Constitution (and laws) of the United States.

1. And 2. Here, the claims arise under federal law (the ATCA), and the summons was served by
publication pursuant to Rule 4(f).
3.D not subject to Jurisdiction of any single state court.
Rule: Whether the exercise of jurisdiction is "consistent with the Constitution" for purposes of
4(k)(2) depends on whether D has sufficient contacts with the United States as a whole to
justify the exercise of personal jurisdiction under the Due Process Clause of the Fifth
Amendment.
In determining whether D is subject to jurisdiction in the courts of any state, present court
adopts the 7th Cir. view that "so long as a defendant does not concede to jurisdiction in another
state, a court may use 4(k)(2) to confer jurisdiction"
Defendants bin Laden and al Qaeda have not conceded to the jurisdiction of any state.

4.Constitutionally Consistent
Rule: “Where a forum seeks to assert SJ over an out-of-state defendant who has not consented
to suit, the 'fair warning' requirement is satisfied if the defendant has 'purposefully directed'
his activities at residents of the forum," and “ litigation results from alleged injuries that 'arise
out of or relate to' those activities. Absence of physical contacts does not preclude PJ.

 There was no doubt that Bin Laden/ Al Qaeda engaged in “unabashedly malignant
actions directed at the United States, as they orchestrated the bombing not only to kill
both American and Kenyan employees, but to cause pain and terror in the United
States.” (P.9)
 D’s decision to purposefully direct their terror at the United States, and the fact that the
plaintiffs' injuries arose out of one of those terrorist activities, should suffice to cause
the defendants to "reasonably anticipate being haled into" an American court.(P.10)

 Here, the defendants purposefully directed their activities at forum residents, and the
fact that the plaintiffs are Kenyans who were injured in the process is not a
consideration that would render the assertion of American jurisdiction incompatible
with substantial justice.

Disposition Reversed in part (other part out of scope)