Civil Procedure Unit 3: Specific Jurisdiction

Lecture: Pennoyer
A. 3 Necessary Condition for Validity of Judgment
a. Court has territorial jurisdiction (proper geography)
b. Subject matter jurisdiction
c. Fair notice of litigation to defendant
B. Strategy
a. Plaintiff considerations: close to home, jury selection, familiarity with the court, court
sympathies, favorable laws
b. Hurdles to being in preferred court: territorial jurisdiction, subject matter jurisdiction, venue,
doctrine of convenience grounds or transfer
C. Concept of Territorial Jurisdiction
a. Connection between defendant and forum exercising jurisdiction
D. Pennoyer: boundaries as a source of power
a. States are all-powerful within their boundaries and have no boundaries outside of them
b. On the basis of your contacts with the state, is it fair and just to put you under their jurisdiction
E. Pennoyer
a. Portland during the 1860s: frontier setting
b. P= Neff
c. D= Pennoyer
d. Court: federal district court
e. Action: ejectment and trespass
i. Based on Neff’s claim that he owns a piece of land; Pennoyer is logging it and doesn’t
own it
ii. Neff has deed from US gov’t—federal grant issued to encourage settlement
iii. Pennoyer: no, I own the land
1. Bought it from a dude named Mitchell after a sheriff’s sale (property seized as
result of judgment of trial court in a different action—Mitchell v. Neff—which
cut off Neff’s ownership)
2. Trial court must honor Mitchell v. Neff
a. Judgment in this act was actually void
b. Court had no power to render binding judgment
F. Mitchell v. Neff
a. Action for break of contract for services rendered
b. Oregon state court
c. Notice by publication (published in Pacific Christian Advocate 6 times)
d. Default: Neff fails to appeal
e. Default judgment for Mitchell
i. Mitchell has sheriff seize as a result of the judgment
G. Neff v. Pennoyer
a. Tresspass
b. Oregon federal court
c. Who owns the land?
i. Is the judgment in action 1 valid or void?
H. Questions:
a. Does the state intend to exercise jurisdiction
b. Is that compliant with the constitution (is it consistent with federal law?)
c. Neff doesn’t even get deed until court is done and over with
I. SCOTUS
a. Invalid because OR law forbid it
b. Notwithstanding OR law, was the title void?
i. Yes. Tial court lacked territorial jurisdiction’
ii. No legal effect of judgment (Neff gets his $$ back)
Civil Procedure Unit 3: Specific Jurisdiction

c. Why is the decision wrong

i. In personum—contract and tort law
ii. Why to get good decision: in-person service within the state
1. Within the state because that is where the power of the state begins and ends
2. Serving outside the state is ineffective because state has no power over you
d. Holding 1: no inpersonum jurisdiction because he was not served within the state
i. He could have also submitted to jurisdiction by showing up and participating in the
litigation (consent)
e. Holding 2: Property
i. Property was not seized at the outset of the case, must be in order to give fair notice to
the defendant
ii. Had the land been seized at the outset, Neff would have had opportunity to defend
himself
iii. Jurisdiction on basis of property should be indicated by the court and justified at the
outset of an action (in order to confirm the court does indeed have jurisdiction
f. Rule 1: concerning in personam, person must be served within the state or consent by
appearance
i. Types of actions
1. In rem: concerning the rights of all the people in the world
2. Quasi-in rem: 2 types
a. rights of specific person
b. In personam claim where property is the basis for jurisdiction
g. Court—although there may have been property in the state, it was not properly seized at the
outset
h. Physical presence of person or property is key to the exercise of territorial jurisdiction
i. Neff was not in CA and his property was not properly seized
J. What makes Pennoyer a federal law concern?
a. Recognition (Neff says you don’t have to because its void; Pennoyer says yeah you do because
you have to follow Oregon law and a court ordered this)
K. Full faith and credit clause: State court judgments have to be recognized as if they were ordered sin the
state
L. Statute requiring full faith and credit to an out-of-state judgment
M. Why doesn’t full faith and credit win here?
a. Judgments rendered with improper territorial jurisdiction are exceptions to full faith and credit
b. HOLD: not entitled to full faith and credit because the case was improprer territorial jurisdiction
c. Further, the 14th Amendment forbids it—due process doesn’t happen when the court doesn’t
have jurisdiction
d. “No state shall deprive life, liberty, property, etc. of another without doe process
N. Territorial jurisdiction is not just an exception; now it is a precondition based on enactment of due
process in 13—Amendment
O. Takeaways:
a. Most lasting part of case is the dicta:
i. Territorial jurisdiction is exception to full faith and credit
ii. Procedural fairness—territorial jurisdiction as violating due process
b. Working theory of the time is territorial—state has full power within its boundaries and no
power outside
i. Not workable in a mobile society
c. Modes of exercising jurisdiction as presence based
i. Serving (or consenting) within the state
ii. Property within the state
d. Concern for Notice in this opinion
i. Use of publication serving could lead to “constant fraud and oppression”
Civil Procedure Unit 3: Specific Jurisdiction

ii. But court has no solution to this problem because they are still working under the
territorial theory that would render it invalid once the notice crossed state lines
e. “Nothing we say here should disturb any of the other rules”
i. Mostly status rules, e.g. state can divorce you even if your spouse is many miles away
f. Concern with corporations
i. Not physically present anywhere (or they’re everywhere)… how should a territorial
theory respond to this
1. Fictive presence of a corporation?
Lecture: International Shoe
A. In personam: proceedings identify a person individual as party to the lawsuit; places the individual under
the court’s jurisdiction and allows the court to lodge a judgment implicating the individual
B. In rem: allow the court to obtain jurisdiction against the property, not the wrongdoer, under the fiction
that the property is literally guilty of a crime
a. The subject is the property itself
b. notice is supposed to be served to all persons who have an interest in the property; they may
then file a response as a claimant, and be heard in a proceeding where the court decides which
party has the better claim to the property
C. Pennoyer recap
a. 14th Amendment’s due process invoked to restrain the exercise of state power
i. Made jurisdiction less of an issue of full faith and credit (which would only happen after
the judgment)
ii. Makes available objections at the outset of the proceeding
b. In rem vs. in personam—neither were applicable
i. Reasons for each are different
ii. …
D. Intervening years
a. Defendant drives to MA, has an accident, then drives away. Under Pennoyer, MA wouldn’t have
jurisdiction over him because he was not present in the state when served with notice. SCOTUS
adopted doctrine of implied consent. By driving into MA and using their roads, protected under
their laws, he also consented to obligations of MA drivers.
b. When is a corporation present for international Shoe cases and when is it absent for the purpose
of jurisdiction?
E. International Shoe Co. v. Washington
a. Context: unemployment insurance during the depression
b. Facts
i. Insurance Commissioner of Washington against International Shoe Co for
unemployment insurance for salesman in Washington
ii. Originally not in a court; in an administrative agency of Washington; determines Shoe is
subject to jurisdiction and taxes
iii. Moves to state court on appeal based on jurisdictional objections
iv. SCOTUS—question is whether under the due process clause Washington can exercise
jurisdiction over Shoe
1. In personam suit—not about property being seized; about a personal obligation
v. Corporation’s defense is they don’t have a presence in the state of Washington so there
is not basis for jurisdiction
1. During the years in question they had agents in the state but those agents had
no decision making power; the salesmen were only showing shoes and taking
orders—mere solicitation, not presence
vi. State’s response: it was more than solicitation; they rented rooms for solicitation, were
residents of the state, and had continuous and ongoing activities in Washington
c. SCOTUS
Civil Procedure Unit 3: Specific Jurisdiction

i. “Presence” can be determined by “minimum contacts”

1. Due process requirement of minimum contacts so that the maintenance of the
suit does not offend “traditional notions of fair play and substantial justice”
2. Physical presence historically grounded in the state’s power over a person
3. Person’s presence in a state gives the state power over the person
4. New forms of acceptable notice make the change for minimum contacts
requirement acceptable
5. We don’t need physical power over the person any more because of the
change in notice requirement—we don’t need presence anymore, due process
says presence is no longer necessary (though it is sufficient) for notice and
exercise of jurisdiction; all that is necessary is minimum contact
6. Shoe’s employees have carried out “continuous and systematic” activities in
the state of Washington
7. Those activities were under the instruction and authorization of the company
itself (it was purposeful). They are benefiting from these activities, and as such
have certain obligations within the state as well (reciprocity argument)
ii. Issue of service
1. Shoe claims notice was inadequate—served notice on a representative of the
company and sent through registered mail to headquarters in MO
2. SCOTUS: “it is enough that appellant has established such contacts with the
state that the particular form of substituted service adopted there gives
reasonable assurance that the notice will be actual” (it’s going to work; they
knew of the suit)
d. Justice Black—not upset with the result but takes issue with the reasoning
i. Sure now this due process standard is being used to empower the state but it could be
used to disempower states in future litigation
ii. May limit the state’s ability to protect its citizens, functions of policing and social
welfare may be inhibited
iii. “reasonableness” “justice” “fair play” and “convenience” are arbitrary standards
F. What do we need when the cause of action arises from dealing entirely distinct from activities within the
state?
a. Continuous and substantial activities, “of such a nature” (e.g. suing Shoe in MO for an accident
from one if its drivers passing through a foreign state would likely be okay because that is where
its headquarters are and they have continuous and substantial activities there, even though
much of them are unrelated to the traffic accident)
G. Specific jurisdiction: Jurisdiction where the claim arises out of or relates to the forum contacts (contact
and claim are specifically related)
H. General jurisdiction: claim is unrelated to the contact. Level of contact must be much higher than in
specific jurisdiction
Now we have this from Pennoyer
A. In personam
a. Minimum contacts requirement
i. Specific jurisdiction
ii. General jurisdiction
B. In rem

Lecture WWVW
A. Pennoyer
Civil Procedure Unit 3: Specific Jurisdiction

a. Distinction between n personam and in rem

b. In personam: presence and consent, supplemented (not overruled) by minimum contacts in
international Shoe
i. Minimum contacts: claims arise from contacts (specific jurisdiction) or claims unrelated
to the contacts (general jurisdiction)
B. WWVW = specific jurisdiction
C. 1945-1981 jurisdiction cases
a. Outer limit of court’s jurisdiction—Lulu v. McGee
i. McGee’s son buys insurance policy from company A, acquired by company B
ii. Son dies, McGee tries to collect on policy. Insurance company says they don’t have any
contacts with CA (located in TX, McGee only CA customer)
iii. CA court says it does have jurisdiction because minimum contacts were established
through customer McGee in CA. CA has a large interest in protecting its citizens
D. WWVW
a. Facts
i. Robinsons are residents and citizens of NY. Purchase Audi from NY dealer. Audi
manufactured in Germany, sold to VW of America, sold to WWVW (tri-state area,
nation’s 2nd largest distributor), distributed to Seeway, who sold to Robsinsons.
ii. Robinsons drive westward to AZ. Accident in OK. Speeding car collides with their rear,
gas tank catches fire, suit brought agains Seeway, WWVW, VW of America, and Audi in
OK based on strict liability or negligence for defect in car. Breach of warranty
iii. Audi VW USA  WWVW  Seaway
b. Why inclusion of Seaway and WWVW so important?
i. Seaway and WWVW are residents of NY, so as long as they are named in the suit the
suit isn’t “complete diversity” which would make it a federal case because Audi and VW
of America are foreign citizens
ii. If suit were brought in OK state court, since foreign citizens alone, VW and Audi could
move for removal of case to federal court. Federal court less sympathetic to plaintiff
than federal
iii. Strategy to prevent removal
iv. Seaway and WWVW citizens of NY so they destroy diversity (NYers on both side of the
suit)
c. Why not sue in NY?
i. Seaway and WWVW would have been subject to jurisdiction there no problem
ii. Creek Co., OK especially sympathetic to plaintiffs
iii. Convenience factors—doctors and car (evidence) all located in OK
d. Interlocatory appeal
i. Objection to trial court’s exercising jurisdiction over us
ii. Decision to continue a case after jurisdictional objections makes appeal a special
circumstance
iii. Requires you go to court of appeals naming judge as respondent—writ of prohibition—
requesting reversal of trial court’s ruling
iv. “real party” (Robinsons) argue that the judge did the right thing; judge doesn’t file brief
in his own name
e. OK court upholds jurisdiction on WWVW and Seaway
f. SCOTUS: they fall into the sort of case that the defendant has no contacts with the state
(mentioned only in dictum in International Shoe)
i. Dissent: there IS some form of contact—two different takes
1. It was foreseeable that some of their Audi’s would enter into OK
2. They entered into a nationwide network of sale and service of cars, which
subjects them to jurisdiction
g. Rightly decided?
Civil Procedure Unit 3: Specific Jurisdiction

i. Seaway is part of a national network for servicing cars—doesn’t that establish minimum
contacts?
ii. BUT they don’t conduct any business activity in OK—no sales, no advertising directed
there
iii. Commonality of benefits and obligations argument in International Shoe and second
dissent (Marshall) of WWVW—my favorite argument
1. WWVW and Seaway enjoy the economic benefits of national business dealings,
in fact they encourage those activities. Likewise, they should be subject to the
obligations associated with those States they benefit from
iv. These companies are not the “little guy” that the courts mention as cases whose
jurisdiction would have gone the other way had the court recognized the
“foreseeability” principle the petitioners put forward
h. Why didn’t Audi or VW of America contest jurisdiction? Would such contestation have been
successful?
i. Audi and VW are different because, although they may not be doing business
themselves in OK, they are targeting the OK market
ii. P. 194 2nd paragraph: “When a corporation ‘purposefully avails itself of the privilege of
conducting activities within the forum State’… it has clear notice that it is subject to suit
there, and can act to alleviate the risk of burdensome litigation by procuring insurance,
passing the expected costs onto consumers, or, if the risks are too great, severing its
connection with the State.”
iii. If you are trying directly or indirectly to serve the OK market and your cars end up there
then you can be sued
iv. No due process violation if a corporation “delivers its products into the stream of
commerce with the expectation that they will be purchased by consumers in the forum
State” THIS is the protection for mom and pop shops for being sued in a foreign state
i. Relation to Justice Black’s concerns—defeating jurisdiction even if jurisdiction is clearly fair on a
broader scale (e.g. Boomer v. Sooner)
E. Boomer v. Sooner
a. P=OK resident
b. D= OK resident
c. OK has much stronger interest in exercising jurisdiction to protect its own residents
d. P’s interest is much stronger, but still there likely will not be justification for exercising
jurisdiction
e. Last paragraph of section II on P. 192- justification for no jurisdiction
i. Must find minimum contacts with the state in order to even begin considering other
factors
F. Calder v. Jones
a. “Causing an effect in a state by an act done elsewhere”
b. Facts
i. Jones, an entertainer, subject of interest for National Inquirer and other publications.
They publish article saying she has a drinking problem and that is why she isn’t working.
Suit brought in LA court. NI easy target because they distribute there regularly.
However, editor and writer based in FL.
c. SCOTUS says they can be sued in CA.
d. Actions were “expressly aimed” at CA (element of purposefulness, by serving a market and
aiming harmful conduct there—they knew where she lived and that she would suffer damage
there)
e. New rule: purposefulness can run through targeting
i. Implications: will this apply to infringements or privacy concerns? What happens when
the plaintiff is a corporation?
f. What if the targeting occurs over the internet? Where is the good jurisdiction then?
Civil Procedure Unit 3: Specific Jurisdiction

A. Review of Specific Jurisdiction

a. No contacts, ties or relations to OK so no jurisdiction
b. Accident occurred there but this wasn’t a purposeful contact
i. New stipulation: purposeful contact
ii. Foreseeability does not equal purposeful contact
iii. Why purposeful?
1. Marker of foreseeability of being hailed to court there
iv. Underlying policy
1. Protection of jurisdictional planners against unfair surprise
2. You should only be able to be sued where you can expect to be sued (gives you
opportunity to buy insurance and take other precautions)
v. What would give rise?
1. OK plaintiff or defendants
2. Even if those are present, court says there would still be no specific jurisdiction
3. Absent some level of awareness of potential of being sued no jurisdiction
vi. Purposeful availment
c. Caulder v. Jones: purposeful direction
i. Purposefully directed libelous story at Jones
ii. Intentionality feeds into purposeful direction, that they intentionally aimed at CA where
Jones lived and knew it would affect her most
iii. Immorality and tortious conduct make you less qualified for jurisdictional protections
B. How does the internet factor into specific jurisdiction?
a. E.g. what if Caulder was done over the internet? CA jurisdiction
i. Test: do they know where she is? Do they know where she will suffer injury the most?
ii. CA based website  strongest case for jurisdiction
iii. Jones is most affected by public entertainment dissemination. Entertainment hub (TV
production etc) is in CA
b. What if internet story, CA statute of limitations run out, NH hasn’t… jurisdiction?
i. No relation to P, D, or the dispute in general but could be viewed in NH
1. No “targeting” of NH, incidental that it could be viewed there
ii. More non-Californians are able to view than residents (by virtue of sheer numbers)
iii. May have a better case in NY bc of her contacts there
iv. As it stands now, NH probably would not have been able to establish jurisdiction
c. Why isn’t visibility of false story in a state enough?
i. Meaningful contacts?
ii. Does the forum have a vested interest?
iii. Many courts: too much to treat the internet as a purposeful contact with everywhere.
iv. Or maybe if you do, few states would still be able to establish an interest (e.g.
protection of their residents)
v. As people gain more control over how their information is disseminated and who can
view it, maybe courts will change their mind
1. As it stands now, visibility is not enough to create purposeful contact. You need
a little more (e.g. in Caulder, knowledge that the person is in the state and will
suffer the most harm there)
d. Pennoyer: in personam
i. Presence
ii. Consent
iii. When you’re served, you always have the option not to show up. In that case, default
judgment entered against you. This can be taken to other states and is entitled to “full
faith and credit” (as long as it is established that the state did indeed have jurisdiction
over D) so if D has property there, the property can be seized
Civil Procedure Unit 3: Specific Jurisdiction

e. International Shoe: minimum contacts

i. Specific
ii. General
iii. Requirement of “continuous ,systematic, and substantial” contacts
C. General Jurisdiction: distinguishing general from specific
a. International Shoe (dicta): forum contacts must be “continuous, systematic, and substantial” in
order to have jurisdiction when the claim does not arise out of forum contacts (this is general
jurisdiction)