CONSTITUTIONAL FRAMEWORK FOR U.S. LITIGATION

  1. Personal Jurisdiction – Under 14th amendment, this due process and equal protection power applies in all courts. PJ applies to individuals and corporations.

Apply the facts of a case to a fairness standard.

(a)14th amendment - minimum contacts (Rule 12b2); AND

(b)notice – service of process FRCP 4 (Rule 12b4/5). Reasonably calculated method of service and an opportunity to be heard.

  1. Subject Matter Jurisdiction – Under Article III, the power of only federal courts to decide certain kinds of cases. Focuses on limiting the role of federal government.
  2. Venue – does not dismiss the entire suit, rather the court allows the case to be transferred to the appropriate location.
  3. Full Faith and Credit – state A is required to recognize and enforce judgments of state B, only if the court rendering them had jurisdiction to do so.
  4. Supremacy Clause – Under Article IV, the U.S. Constitution and federal laws “shall be the supreme Law of the Land”
  1. Personal Jurisdiction – The Cases

A)Sources of authority

  1. Authorizing Statute
  2. Constitutional Requirement of Due Process

B)3 Types of Personal Jurisdiction

  1. In Personam Jurisdiction: permits the court to enter a judgment that is personally binding on the defendant, either ordering him to refrain from doing a certain act (equitable or injunctive relief) or decreeing that the plaintiff may collect a certain amount of damages from the defendant (legal relief).
  2. In Rem Jurisdiction: permits a court to adjudicate the rights to a specific piece of property. True in rem decide ownership as to the whole world; quasi-in-rem type 1 adjudicate ownership between litigants.
  3. Quasi In Rem Jurisdiction: Court may lack personal jurisdiction over the defendant, but has jurisdiction over property belonging to the defendant; use property to gain personal jurisdiction. Property will be seized and used to satisfy the claim if the plaintiff prevails.

a)Judgment limited to value of land

b)Harris v. Balk: Debt in debtor is considered property and can be attached; you can sue wherever debtor is and collect from him

  1. Whole premise of International Shoe is at odds with quasi in rem’s justificaiton

C)The Old Approach: 3 Bases for traditional juridiction

  1. Presence – Pennoyer V. Neff

a)Has never been overruled in its entirety.

b)Physical presence is most traditional basis of jurisdiction —a state can assert jurisdiction over anyone within its borders

c)Applies even if they are only in the state on a transitory basis (Burnham)

d)No state can exercise direct jurisdiction and authority over persons or property outside its territory (No in personam in Pennoyer).

  1. To get in rem jurisdiction, must attach property at beginning (seizing of property is assumed to give sufficient notice).

  1. Consent—If the defendant agrees to it, court has jurisdiction

a)Express Consent: (in contracts there are often express consent to jurisdiction clauses: Choice of Law clauses).

b)Implied Consent: a defendant’s activities in the forum state may be sufficient to justify the service of process for suits related to activity [Hess v. Pawloski] (statute stated that if you drive in the state, you appoint registrar of motor vehicles as agent. If there’s accident, Pl. can serve them).

  1. Usually, a foreign corporation (as a condition of doing business in the state) is regarded as having consented to suit in the state where it registered, even if suit not related.

c)Waiver: the defendant can consent by not asserting a jurisdictional defense.

  1. Domicile—State offers citizens protection and benefits, can exact reciprocity

a)Domicile determined by two factors (Mas): physical and mental

b)The court can enter a personal judgment against a domiciliary absent from the jurisdiction (Milliken).

c)Availability of domicile as a proper forum assures that there is one place in which a defendant always may be sued (Milliken v. Myer).

d)Domicile is determined at the time the suit was instituted and is not changed if the defendant moves before or during suit (Mas).

D)The Modern Approach

  1. International Shoe v. Washington

Int’l Shoe employed people and maintained a showroom in WA but didn’t pay WA unemployment compensation; WA sues. Served process on IS employee in WA and mailed copy of process to company HQ in St. Louis. IS claimed that Washington had no personal jurisdiction. Supreme Court’s rule:

International Shoe Rule: Can get personal jurisdiction w/o serving in forum if

Def has such sufficient minimum contacts with that forum (to get PJ if not present w/I forum)

Suit/assertion of PJ cannot offend traditional notions of fair play and substantial justice.

[Convenience Arm of Minimum Contact Rule]

To determine whether Due Process satisfied, look to the nature and quality of the acts. To the extent that a corporation exercises the privilege of conducting activities w/in a state, it enjoys the benefits and protection of the laws of that state.

[Sovereignty Arm of Minimum Contact Rule]

  • If systematic and continuous activity, General Jurisdiction
  • If single, isolated act and claim arises from it, Specific Jurisdiction
  • If single, isolated act and claim isn’t related, No Jurisdiction

International Shoe moved Personal Jurisdiction over corporations from “is it there?” to “is it fair?”

Court has never said exactly what any of this means, so look to cases after

E)REFINING MINIMUM CONTACTS – Look to Def’s Acts in Forum

1.McGee v. International Life: One contact—the mailing of the renewal info for insurance—was sufficient to find minimum contact, because claim arose from that act. Relatedness. State also had strong interest in providing for its citizen who was ripped off by TX insurance company. Look to the N&Q of the act. Court considered that Int’l Life solicited biz by mailing renewal.
2.Hanson v. Denckla: Limits to McGee and minimum contacts. Court stressed N&Q of Def’s act. Cannot look at Pl’s unilateral activity. Did Def. purposefully avail itself of privilege of conducting activities in the forum state? Here, NO—bank doesn’t have minimum contacts in forum state. No specific J
3.Gray v. American Radiator: Where Def. put product into the stream of commerce, knowing where it would end up, jurisdiction.

F)Worldwide Volkwagen v. Woodson

  1. Need MC and conduct and connection with the forum state such that one would “reasonably anticipate being haled into court.”
  2. The only relevant foreseeability is that of a Def. whose conduct and connection with the forum would justify anticipation of jurisdiction so as to not offend fair play and substantial justice.
  3. Look to N&Q of Defendant’s acts, not others’ unilateral activity
  4. Court looks to other factors impacting choice of forum

a)burden on the defendant;

b)forum state’s interest in adjudicating the dispute;

c)plaintiff’s interest in convenient and effective relief;

d)interstate judicial system’s interest in resolving controversies;

e)several states’ interest in furthering social policies

G)Minimum Contacts Applies to Individuals! Kulko

  1. Facts: Mom moved to CA when separated, Dad had custody. Dad sent kids to live with Mom at children’s request. Mom filed suit in CA wanting more dinero. Did CA have J over nonresident parent.
  2. SC examines under due process clause and denies jurisdiction, because Dad didn’t have a sufficient connection to the forum state. No “purposeful availment” of the benefits of the forum state. Dad acted in interests of family harmony; didn’t avail himself of CA law; couldn’t foresee going to court there.
  3. This is an example of “furthering social policies,”—family harmony.
  4. Note: Mom going after child support/alimony from out-of-state, needs PJ
  5. Court distinguished between this type of case and commercial cases

H)Whose Contacts are We Talking About Here? Calder

  1. Enquirer story. Lessons: Def. knew that impact of story would be in CA, even if they’re located in FL. If Pl. has sufficient contactsin forum state (CA), can get away with fewer contacts on the Def. side. But examine the acts of EACH DEF!

I)Or, if Suing Larry Flynt, Plaintiff Doesn’t Need Any Contacts!

  1. Keeton v. Hustler Magazine in NH b/c long statute of limitations
  2. Single Publication Rule. Because magazine sold in NH, jurisdiction good. Plaintiff doesn’t need to have minimum contacts. Hustler had purposefully availed itself of the benefits of the forum state by selling magazines there.

NEED TO ADD IN ABOUT OKLAHOMA’S STATUTES HAVING REACH OF CONSTITUTIONAL DUE PROCESS; LONG-ARM STATUTE

J)Reformation of Minimum Contacts—Shifting to Focus on Fair Play?

  1. Burger King
  2. Dispute between BK HQ in FL and franchisees in MI; Negotiations in FL; supervision from FL; K from FL (saying FL law would govern) Contract stipulation said Fl.
  3. Pl. burden to show Def’s minimum contact with forum through 1) Substantial Connection, 2) Purposeful Availment, and 3) “Contract Plus” (negotiations prior to signing of K)—then burden switches to Def. to prove that jurisdiction unreasonable (offends fair play).
  4. Must have relevant contact before examine fairness prong. Def. has burden to show that forum is unconstitutional-that def. would be at disadvantage if litigated there. Def. enters into long-term K, and relationship. Court can extend jurisdiction when nonresident purposefully derives benefit from their interstate activities. Forum state has interest in providing its residents with a convenient forum for redressing injuries inflicted by nonresidents.
  1. Asahi v. Superior Court

a)Indemnity claim for tire valves involved in product liability claim over valve for tire tube for motorcycle. All parties settle except Asahi. CA court upheld jurisdiction based on long-arm statute. Asahi objects to PJ in CA—no consent, not served in state.

b)Plurality opinion. Personal jurisdiction is unconstitutional even though it satisfies the minimum contacts test—fails the fairness test.

c)Plurality opinion; no law. Split as to what activities qualify the Def. w/r/t stream of commerce.

d)O’Connor: Need knowledge AND intent/purpose to serve forum state. Purposeful act (market, target audience);

e)Brennan: It is a relevant contact if Def. put product into stream of commerce and was aware where might end up.

K)General Jurisdiction

  1. Helicopteros

a)U.S. citizens died in crash in Peru while working for TX corp. Families sued the Colombian co. TX; Contacts w/Texas: Prez of Co. went once for K; 80% of fleet purchased from TX, trained staff in TX. Not registered to do business in Texas, no empl’ees there. COF in K=Peru.

b)If cause of action doesn’t relate to forum, can subject corp. to personal jurisdiction only if corporation has minimum contacts in the forum =gen’l J. B/c no continuous or systematic activities, No J. Purchasing anything from anywhere is never enough to constitute general jurisdiction because it will never be systematic and continuous.

  1. General Jurisdiction Always Applies:

a)Individuals: State of domicile

b)Corps: Location of HQ?

  1. Problems with General Jurisdiction

a)S. Ct. has never defined “systematic and continuous”

b)Spectrum: Helicopteros to Perkins (Filipino co. OH)

L)Jurisdiction by Consent

  1. Waiver Consent: Waive right to contest PJ—12g&h
  2. Pre-Dispute Consent: Choice of law clauses in contracts
  3. Post-Dispute Consent: Consent by conduct; strategic decision not to challenge PJ
  4. Statutory Consent: Like Hess v. Pawolski—if drive in MA, consent to appointing Secretary of State as agent for in-state service of process. # of state courts still recognize “consent statutes”
  5. Sanction/Punishment: Sup Ct said can find PJ as punishment/sanction for refusing to engage in good faith discovery (Insurance Corp of Ireland v. Compagnie Bauxite).

M)Transient Presence

  1. Burnham—Service in State is Still Good Law

a)Burnhams separated; Dad in NJ, Mom in CA. Dad visited kids/did biz in CA for three days. During the visit, served P with divorce petition. Dad claimed no MC.

b)Plurality opinion. Is presence alone sufficient?

c)Scalia: Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system—standard of FP/SJ developed by analogy to presence. Pennoyer is alive; territorial jurisdiction was never rejected in IS; IS created an alternative through contacts-based jurisdiction. Presence in state is enough.

d)Concurrence: (Brennan) Personal service in the state is a contact, this combined with other contacts may be enough to satisfy min contacts. Still need MC. Extreme interpretation: Subject to PJ wherever you travel

N)In Rem and Quasi-in-Rem Jurisdiction

  1. In-Rem. Dispute itself is over who owns property, court has power over property
  1. Quasi In Rem. Where lawsuit has nothing to do with property ownership. Suit that would have been in personam if could gotten personal jurisdiction. Should attach property at beginning.
  1. Shaeffer v. Heitner—Application of MC to in rem jurisdiction

a)Overrules Harris v. Balk (Debt travels with debtor) and part of Pennoyer

b)Heitner sues corporation (Incorp in DE, PPB in AZ, suit is over acts in OR) and its directors in derivative suit. Heitner sues in DE, though no director or property there; under a DE statute, stocks “located” where incorporated. Court sequesters director’s shares. Def. object to jurisdiction.

c)To get Personal Jurisdiction in state court, need to have MC with property too! Assertions of J evaluated w/r/t/ “fair play.” When property not related to cause of action, property not sufficient for jurisdiction. Presence of property in a state alone doesn’t give jurisdiction (overrules part of Pennoyer)—Property must be related to claim.

d)Shaeffer did not eliminate in rem jurisdiction, just QIR

e)Traditional in rem jurisdiction will almost always have PJ since claim was tied to land

f)Exceptions to Shaffer: Is property ever enough?

  • Where need jurisdiction over absent owner for injury claim arising from land, and cause of action related to rights and duties of ownership.
  • If no other jurisdiction would have MC.
  • Where claim is the ownership of the property, the property is enough.

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O)Personal Jurisdiction and the Internet

  1. No new law. Same jurisdiction that applies in other contexts.
  2. Internet commerce: same as doing biz by mail, phone—contacts based.
  3. Is Internet a contact? Courts still figuring out. May depend on whether the site is interactive, what did the individual do, did the company search out for her business or was the cite passive?
  4. Green Note (Blue Note)

a)NY entity sues MO entity’s web cite. NY’s theory would be that posting this info on the net, the MO business was entering NY and doing commerce in NY. Anyone who has a website, have they purposefully availed themselves for the world? Court says this is not an interactive website. This was the case about the club, there was no jurisdiction – it was not interactive. Focused on what the MO did

  1. Zippo

a)Lighter company sues the news services. The news service has advertisements, memberships. There is a group of people in PA who subscribe. Zippo sues in PA. Jurisdiction is proper because they serve people in PA. Perhaps the interactivity component, perhaps volume.

P)Personal Jurisdiction and Long-Arm Statutes

  1. Flint v. Gust, Gust v. Flint
  2. Jurisdiction under long-arm statute also depends on MC
  3. Jurisdiction over non-resident if conducts business in state.
  4. Advertisements are not enough

Q)Challenging Personal Jurisdiction

  1. Collateral Attack – If you think you are not subject to personal jurisdiction, the simplest but riskiest course is to do nothing. You can decline to appear, suffer a default judgment, and attack the judgment only when the other party seeks to enforce it in a subsequent proceeding.
  2. If you challenged PJ, overruled, then lose on merits, can’t go back and argue no PJ.
  3. Direct Attack – Raise and argue jurisdictional objection, you must raise the defense in a pre-answer motion or as a defense in her answer. This issue must be raised and litigated promptly.
  4. Special vs. General Appearance, Limited Appearance (not used much)
  5. STUDY FRCP RULE 12 AND COMPARE TO OKLAHOMA!!!
  6. Can’t raise SMJ on appeal in collateral attack

NOTICE AND OPPORTUNITY TO BE HEARD (FRCP 4/ 12 O.S. §2004)

Even if the court has authority to judge the dispute, the court may not proceed unless defendant received NOTICE. Notice is the requirement that a reasonable method be used to notify defendant of the pending lawsuit, so that she may have an opportunity to appear and be heard. Mere gesture isn’t enough

Spectrum of Methods

Personal Service ------Publication

Everything in between depends. Mullane provides minimum requirement for constitutional notice.

Must use means reasonably calculated to reach parties and convey information, affording defendant a reasonable amount of time to appear. Be practical under the circumstances.

Service by publication okay if don’t know names, addresses—or when it’s unreasonable to do anything else; but when have names, must give them notice. Court considers nature of action, whether the party’s whereabouts are known or unknown.

Federal and Oklahoma Rule 4 is given very liberal interpretation

A. How is Notice Given? By Service of Process:

  1. Summons shall be served with copy of the complaint!
  2. By Whom?
  3. Oklahoma: By marshal or other person designated by the court. At least three days before trial.
  4. Federal: Anyone over 18 who isn’t a party to lawsuit.
  5. Sunday service is voidable, but must contest
  6. Where to serve?
  7. Federal: Can serve throughout forum state, and can reach outside of forum if state court could do so.
  8. 2 exceptions:
1.Can serve outside state even if no long-arm statute but only w/I 100 miles from courthouse . “Bulge Rule”
2.Doesn’t apply to original defendant; only those joined parties under FRCP 14, 19
  1. Broad Strokes on Notice
  2. select method that is reasonably calculated to inform defendant of suit. Doesn’t matter that Def. didn’t learn of it, as long as means were reasonable.
  3. Notice by publication is adequate for unknown beneficiaries, but inadequate for known beneficiaries. Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them an opportunity to present their objections.
  4. The notice must be of such nature as reasonably to convey the required information concerning the nature of the action.
  5. The notice must afford a reasonable time for those interested to make their appearance.
  6. Return of Service = proof of service
  7. Service of Process and Statutes of Limitations
  8. Federal: within 120 days of filing complaint, or court will dismiss w/o prejudice (get extn) Rule 4m (6b)
  9. Oklahoma: within 180 days of filing petition, or court will dismiss w/o prejudice (get extn) Rule 4m (6b)

B. Types of Service