Getting the Defendant Into Court

GETTING THE DEFENDANT INTO COURT

Personal Jurisdiction

I.  Overview

a.  Definition – geographical limitation on where a P may sue a D to litigate a claim. This is a right or defense and is waivable.

b.  Full faith and credit

c.  Limitations on PJ – statutory (state statute needs to grant court power over the parties) and due process clause (must have contacts such that exercise of jurisdiction would be fair and reasonable, and must be given appropriate notice and opportunity to be heard).

i. Federal courts – Rule 4: must exercise PJ as if it were a court of the state in which it is located.

d.  Three types:

i. In personam jurisdiction – power of the D’s person.

ii.  In rem jurisdiction – authority over property w/in the state.

iii.  Quasi in rem jurisdiction – (two types)

1.  Court has power to determine if individuals own specific property in court control.

2.  Permits the court to adjudicate disputes other than ownership based on the presence of the D’s property in the forum.

e.  Types of service

i. Personal service – directly delivered to the D

ii.  Substituted service – sending papers by registered mail

iii.  Notice by publication – publish in newspaper.

Constitutional Limitations on In Personam PJ

= contacts with the forum + notice

Contacts with the forum and fairness

II.  Traditional Rule: Physical Power Theory of PJ (states have power over things in borders)[1]

a.  Historical bases for personal jurisdiction:

i. Consent (you show up in court)

1.  Implied Consent; Hess v. Pawloski – court comes up legal fiction of “implied consent” so that nonresident motorists are served via agent.

2.  D responds to court claim in state.

ii.  Presence

1.  In the state

a.  If make “special appearance” to contest jurisdiction then not presence.

2.  Property

iii.  Citizenship

b.  Notice – doesn’t matter if put on notice.

III.  Modern Due Process Standard: Contact and Fairness via International Shoe

a.  The concept of power by which a state could enforce judgments was expanded by the Supreme Court in International Shoe in part sparked by modern economy / rise of corporations / technology.

b.  Int’l Shoe test: To subject a D to judgment in personam if he be not present in the territory of the forum, he have certain minimum contacts with the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

See class notes, some hypothetical don’t know the answer too – do the traditional notions last as well as minimum contacts (minimum contacts only for out of state who doesn’t meet traditional notions?).

Connections with the Forum State / Cause of Action
Continuous and Systematic / Arises out of Instate Activities
â / â
Isolated incident / Does not

Int’l shoe = continuous and systematic + instate

Hess = isolated act + arises instate

Specific jurisdiction = isolated act + arises instate

General jurisdiction = sufficient contact to assert jurisdiction over all matters

IV.  Modern Due Process Standard: Minimum CONTACTS. The court looks to purposeful availment and foreseeability to determine if there are minimum contacts.

a.  Purposeful availment – A D’s contacts with the forum must result from her purposeful availment with that forum. Contacts cannot be accidental. D must reach out to the forum in some way, such as to make money or use the roads there, or “invoke the benefits and protections of its laws.” Hanson v. Denckla.[2]

i. Examples of purposeful availment:

1.  McGee v. International Life Insurance Co – send only one insurance policy into forum. Also considered that California has manifest interest in providing effective means of redress for residents when insurers don’t pay claim.

2.  Burger King v. Rudzewicz – franchisees reach out to state of franchise.

3.  Keeton v. Hustler Magazine – advertising is purposeful availment.

ii.  Examples where there is no purposeful availment:

1.  Kulko v. Superior Court [3]– Purposeful act outside of the state that causes effects in state is NOT purposeful availment. where does effects test come to play in all of this?

2.  WW Volkswagon v. Woodson – P buy car in NY, get in accident in OK. D did not reach out to OK. Unilateral activity of the Ps.

3.  The unilateral activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum. Hanson v. Denckla.

iii.  Grey area – Stream of commerce

1.  Gray – where does this fall in SOC dispute? If you are a manufacturer and you put your product out there, where-ever the stream of commerce comes out you need to go and defend the injury (where the tort occurred) you have caused; this is the cost that comes with being a manufacturer. (Gray v. American Radiator – this is according to Illinois, but it is a well respected theory). If tortuous act didn’t occur in the state then the statute wouldn’t apply.[4]

2.  Split among the justices in Asahi Metal Industry Co. v. Superior Court:[5]

a.  (Stream of commerce) Placing the item in the stream of commerce, with the knowledge that it would end up in a particular forum, constitutes purposeful availment. VERSUS

b.  (Stream of Commerce plus) There would have to be a showing that the D took some additional step to purposefully avail itself of the forum.

b.  Foreseeability – must be foreseeable that the D’s activities make her amendable to suit in the forum. The D must know or reasonably anticipate that her activities in the forum render it foreseeable that she may be “haled into court there.” Keeton v. Hustler Magazine.

V.  Modern due process standard: FAIRNESS, the traditional notions of fair play and substantial justice

Connections with the Forum State / Cause of Action
Continuous and Systematic / Arises out of Instate Activities
â / â
Isolated incident / Does not

a.  Relation of Claim to Contact

a.  Specific jurisdiction: If in state activity is less than systematic and continuous (isolated act), the PJ will be proper if arise out of instate activities.

1. General jurisdiction: If the D engages in systematic and continuous activity in the forum state, the court will likely find this activity a sufficient basis for exercising PJ for any cause of action by the D, whether it arose in or out of state. Perkins v. Benguet Consolidated Mining Co.[6]
2. Example of general jurisdiction – Perkins is the only case; question is how far does this go?
3. Example of not general jurisdiction; i.e. continuous and systematic:
4. Helicopteros Nacionales de Colombia v. Hall – not satisfied in Texas for wrongful death case against a Colombian corporation whose contacts consisted of only one trip to Texas by the CEO, acceptance of checks from Texas bank, purchases in sate. Claims not related to Texas activities.

b.  Convenience – forum is constitutionally acceptable unless it is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.” Burger King. Hardly ever met.

c.  Forum State’s Interest

1. Legitimate interest in providing redress for residence. McGee – strong interest in protecting citizens from alleged misfeasance by insurance companies.
2. No legitimate interest. Asahi – even though placed defective good in stream of commerce that might get to California, it would be unreasonable for California to exert jurisdiction considering severe burdens on Asahi defending foreign legal system, slight interest of Taiwanese manufacturer and California in jurisdiction, and international interest in subjecting alien corporation to US jurisdiction. NOT FAIR.

d.  Other Factors – see 9 if interested

VI.  Modern due process: NOTICE – reasonable method be used to notify the defendant of a pending lawsuit so that she may have an opportunity to appear and be heard. Due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Mullane v. Central Hanover Bank.

a.  Traditional methods satisfy due process:

i. Personal delivery to the D

ii.  Leaving papers with a responsible person @ D residence

iii.  Delivery to agent appointed to accept service

iv.  Delivery by registered mail, return receipt requested.

1.  Does not require receipt, due process satisfied if the placed in mail.

b.  Requirements that Agent notify defendant

c.  Multiple and unknown parties, Mullane[7] – beneficiaries whose address were known could be notified by mail, those unknown could be notified by publication.

d.  See SERVICE OF PROCESS, for how notice is delivered.

VII.  Modern STATUTORY STANDARD – most states have statutes that grant courts in personam jurisdiction in the following situations:

a.  Physical Presence in the State at time of Personal Service. Burnham v. Superior Court. There are exceptions:

i. Service by fraud or force

ii.  Immunity to parties and witnesses – most states grant immunity from PJ to nonresidents who are present in the state solely to take part in judicial proceedings.

Is this transient jurisdiction too? Even though Shaffer says everything needs to comport with International Shoe, by mere presence in the state he can be served. Takes us back to the historical notions only just changed a little: (1) citizenship; (2) consent; (3) presence of property [changed by Shaffer]; (4) Presence of person in state [Pennoyer / Burnham] and presence of person out of state [International Shoe].

b.  Domicile?

c.  Consent – express and implied

i. Express consent

1.  Contract – forum selection clause, Carnival Cruise

2.  Appointment of Agent to Accept Service of Process

ii.  Implied consent – Hess v. Pawloski

iii.  Voluntary appearances – if contest the case w/o challenging personal jurisdiction (special appearances) then consenting. Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee.[8]

d.  Long-arm statutes – courts have PJ over nonresidents who perform or cause to be performed certain acts w/in the state; extend jurisdiction across state borders.

i. Unlimited long arm – give the courts power over any person or property over which the state can constitutionally exercise jurisdiction.

ii.  Limited (or Specific) Long Arm – specify in detail the situations in which their courts can exercise jurisdiction.

1.  Tort vs. tortuous act, see Gray read “tortuous act” to be the place where the tort occurred.

iii.  What they can cover:

1.  A D who conducts general activity in the state.

2.  Commission of any series of enumerated acts w/in the jurisdiction.

3.  Commission of act outside the jurisdiction causing consequences w/in it.

Some language in Gray notes that I don’t understand about legislature making long arm shorter than the constitutional limit and judicial activism?

VIII.  In rem jurisdiction – adjudicates rights of person’s w/respect to property in the state. Binding not on the parties but the disposition of the property. Hulk case??

IX.  Quasi in rem jurisdiction à permits a court w/o in personam jurisdiction to determine certain disputes between a P and D regarding property when the property is located in the forum state. Shaffer v. Heitner

a.  Two types – one involving property in state, the other unrelated to property in state (severely limited by SC – court sold basis of jurisdiction is the property; judgment can only be satisfied out of the property).

b.  Until Shaffer (1977) a D w/no other connections to the state could be sued there simply because he owned property there.

c.  Shaffer[9] – minimum contacts standard is applicable to every exercise of jurisdiction. Mere presence of property is not enough; quasi-in-rem is only proper when minimum contacts exist making exercise of jurisdiction fair and just.

i. If on property – then property is enough due to close connection to litigation = minimum contacts.

ii.  Unrelated to property – must have minimum contacts. Rare. Only use this to fill the due process gap?

X.  Personal Jurisdiction in Federal Court – Rule 4

a.  How the Federal Courts get personal jurisdiction:

i. 4 (k, 1, A) – “Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant (A) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located.

1.  Using the state long arm

2.  Need to have a statute (long arm, or, tag them while in the state) + satisfy due process

3.  Do this to limit the number of federal courts a P can hail a D.

ii.  4 (K, D) à “Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant (D) when authorized by a statute of the United States.”

1.  Nation wide long-arm, very limited provision (because if not it would undermine the above).

2.  (K,2) à only use if “not subject to the jurisdiction of the courts of general jurisdiction of any state.” I.e. intended for foreign defendants that have minimum contacts with the US but no specific state. Only use this if you can’t show that there is another state that will hear the case.

XI.  Challenging Personal Jurisdiction – Rule 12

a.  Be aware of rules 12B, 12G, and 12H

b.  Importance: MUST challenge personal jurisdiction FIRST. If you don’t and you file something else, then you’ve waived jurisdiction which is the same as consenting to jurisdiction.

Service of Process

I.  How service is made – FRCP 4 – personal service or service left at the D’s usual place of abode w/one of suitable age and discretion residing therein, or service upon an authorized agent of the D, is valid. Alternatively service may be made under state rules or, under waiver of service provision of Rule 4(d), by mail.

a.  State rules 4(e) – where federal court sits or where service is to be effected. Regardless of whether its diversity or not, federal courts use state long arms.

b.  Waiver of service = service by mail, enticing to do this because otherwise D has to pay the costs. See Maryland Fireman’s Association.

c.  Federal Rule 4(e)(2): Delivery to an Agent Authorized by Appointment, National Equipment Rental Ltd. v. Szukhent.[10]