Civil Procedure – LevinJessica Sherman
Outline
For a judgment to be valid, the parties must have adequate notice, the court must have had territorial jurisdiction and subject-matter jurisdiction, and venue must be proper.
I. PERSONAL JURISDICTION: in what states can pl. sue def.?
A. Basics
1. The Court must have power over something to give it personal jurisdiction, to render a binding, enforceable judgment defining or declaring rights and duties of the parties (substantive due process):
a) The defendant himself
b)Power of defendant’s property
2. Three types of personal jurisdiction
a) In personam: the court’s power is over the defendant himself
b) In rem: power over def. property
c) Quasi in rem: power over an out-of-state def. property
3. Statute must also give power to hear the case
a) Just because it falls within the Due Process clause, does not mean state has jurisdiction – state must have a statute [First thing to ask is whether a statute allows for personal jurisdiction (ex. long arm statute); then ask whether it falls within the Due Process Clause]
b) such a statute allows the courts of a state to obtain jurisdiction over persons not physically present within the state at the time of service.
4. Once jurisdiction over the parties is gained, it continues during the entire litigation. At each new step of the litigation process, notice and opportunity to appear must be given
B. In Personam jurisdiction
1. General v. Specific
a) General in personam jurisdiction: def. can be sued in the forum on a claim that arises anywhere in the world
i) continuous systematic or substantial ties with the forum general jurisdiction
ii) ex. domicile; place where incorporated
iii) makes Burnham seem unfitting
b) Specific in personam jurisdiction: def. can only be sued in the forum for a claim that has some connection with the forum
c) Perkins v. Benguet Consolidated Mining: where there are systematic and continuous minimum contacts, a state may assert jurisdiction over a defendant even for causes of action arising outside the jurisdiction (stockholder sued Philippine mining co. in Ohio based on the company president’s presence and activities there)
d) Helicoptros Nacionales de Colombia v. Hall: general in personam jurisdiction requires sufficiently substantial and continuous minimum contacts with the forum state (Decedents’ representatives sued owner of helicopter that crashed in Peru. Court said not enough contacts)
i) def. purchases in the forum state, even if they occurred regularly, will not be sufficient to establish the requisite minimum contacts
2. Constitutional Limits
a) Pennoyer v. Neff:boundary theory: state has power over people and property within its physical boundaries; Traditional bases of jurisdiction:
i) def is served with process in the forum (presence) General Jurisdiction
ii) def. agent is served with process in the forum
iii) def. is domiciled in the forum (General Jurisdiction)
- State courts have in personam jurisdiction over all domiciliaries of the state, wherever they are residing and wherever they are served with process. Milliken v. Meyer (pl., sued def, a Wyo. domiciliary, in Wyo. court, but served him in Co. where he was vacationing)
- Rationale: a state which accords privileges and affords protection to a person and his property by virtue of domicile may exact reciprocal duties
iv) consent by def.
- Adam v. Saenger: if you bring suit in a state court in which you are not a resident, you consent to counter-suit in that state.
- Carnival Cruise Lines v. Schutte: forum selection clause validly establishes jurisdiction by consent and will be enforced so long as they are fundamentally fair (pl. injured by fall that occurs on the cruise ship and sues in Wash, when contract selected Florida for suits)
- M/S Bremen v. Zapata Off-Shore Co.: reasonable forum-selection clauses in contracts establishes jurisdiction by consent, even if leads to foreign court (pl. sued def. in Fla. fed. court for damage to its rig, def. moved to dismiss b/c forum selection clause mandated jurisdiction in London)
v) Nationality: US citizenship is probably sufficient contact with the US to subject citizens abroad to in personam jurisdiction of Am. courts without violating due process. Blackmer v. United States (US citizen in France refused to comply with a subpoena and was convicted in absentia for contempt)
vi) DIFFICULT to get in personam jurisdiction over non-residents…. so S.C. expands
b) IMPLIED CONSENT: Expanding personal jurisdiction: Hess v. Palowski: Pa. citizen in Mass. and gets into car accident in Mass. Mass. statute appoints secretary of state as agent for service of process for anyone using hwys in Mass. and gets into car accident. Def. not served while in Mass. Long-arm statute = consent; expands notion of consent from actual to implied
c) International Shoe v. Washington: doctrinal shift
i) “There is jurisdiction if the def. has such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”
ii) more flexible standard than Pennoyer and has led to an expansion of jurisdiction
iii) you can get in personam jurisdiction over a non-resident WITHOUT serving process in the forum, as long as def. has minimum contacts with the forum (here, solicitation of orders w/in the forum state is sufficient)
iv) Does not overrule Pennoyer; it is the test if def. is not present in the forum
v) Two part test (1) contact; (2) fairness – balance of interests (burden of defending in a foreign state v. extent of corporate contact)
d) McGee v. Int’l Life Insurance (1957): TX corp. sells one contract in CA; it gets sued in CA. CA had a statute granting jurisdiction over companies writing insurance policies on California residents, even though the statute was enacted after the policy in question was written. Court says one contract is enough for jurisdiction
i) def. solicited the contract from CA (mailing premiums)
ii) RELATEDNESS: pl. claim arose from the def. contact w/ CA.
iii) STATE’S INTEREST: Ca. had an interest in the case
iv) this case represents the least contact with the forum state that has been approved by the Supreme Court
e) Hanson v. Denkla: Pa. woman sets up trust in DE, then moves to Fla. She continues to do business in Fla. and Del. Woman dies in Fla. Court says Fla. has no jurisdiction over Del. Bank b/c bank did not avail itself of Fla. jurisdiction
i) to be a relevant contact under test, it must result from def. purposeful availment of the forum
ii) Del. Bank had no ties w/ Fla. except that woman moved there
f) World Wide Volkswagen: family buys car in NY, move to Az. and drive though OK and get into car accident there. Family wants to sue WWV, who only did business in NY, CT, NJ and Seeway, who only does business in NY. Court says no purposeful availment and thus, no jurisdiction.
i) foreseeability is relevant; but not foreseeability that the car will get there. IT MUST BE FORESEEABLE THAT DEF. WOULD BE HAILED INTO COURT IN OKLAHOMA
ii) def. did not make any effort to serve directly or indirectly market for its products in Oklahoma
iii) unilateral activity of pl, here, an isolated occurrence
g) Kulko v. Superior Court: A state cannot exercise jurisdiction over a def. who did not personally avail himself to the benefits of the state, even if the state has a strong interest in the litigation (NY Father sends kids to live with mom in CA, and mom sues him in CA; jurisdiction struck down; plane ticket purchase insufficient)
h) Burger King: franchisees in Mich., corp. in Fla. Corp. sues franchisees in Fla. Court says that there was jurisdiction.
i) emphasizes that there are two parts of Int’l Shoe
ii) must have relevant contact with the forum b/f fairness looked at
iii) if there is a lot of fairness, lesser showing of contact okay
iv) Court said there was contact: franchisees purposefully reached out to Fla. Court said that it was fair too – the burden is on the defendant to show that the forum is unconstitutional (grossly unfair); wealth of the parties is irrelevant
v) def. had fair warning that a particular activity could subject thtem to jurisdiction of a foreign sovereign
j) Asahi Metal: stream of commerce case (Seller 1 in state A sells his parts to manufacturer in State B, who incorporates them into his product and sells them to state C and D)
i) NO LAW that comes out of the case 4-4 split
ii) Brennan approach: it is a contact if def. puts the product into the stream of commerce and reasonably anticipate that it will reach the other states -- FORESEEABILITY
iii) O’Connor: you need Brennan’s requirement, and also and INTENT to serve the other states
iv) In stream of commerce question, talk about both theories
k) Burnham v. Superior Court: NJ def. sued in Ca. by his wife (for divorce) and served with process in Ca. while on vacation (but stopped to visit his children), but claim did not arise in Ca. Did Ca. have general jurisdiction?
i) NO LAW that comes out of the case, 4-4 split
ii) Scalia: jurisdiction b/c of history; service of process in the forum is sufficient; in-state service of process sufficient
iii) Brennan: jurisdiction; but “minimum contacts” must be applied; simply by being in Ca. for three days, def. had availed himself to be subject to general jurisdiction (but never says how much time is enough)
iv) Grace v. MacArthur (1959): service on an airplane flying over the forum state is valid, since the plane was present in the state.
l) When applying minimum contacts analysis of a foreign company, its not whether the company has minimum contacts with the country, but with the forum state (DeJames v. Magnificence Carriers: def, Japanese Co., negligent in manufacturing boat in Japan. No office in NJ where sued. Court says no jurisdiction)
3. Statutory Basis (ask this question first)
a) every state has statutes covering the traditional basis
b) every state has a non-resident motorist statute (Hess v. Palowski), which gives SPECIFIC jurisdiction
c) every state has a long-arm statute; two models
i) CA approach: we have jurisdiction to the extent of the constitution
ii) Laundry list statute: lists certain things that will subject a non-resident to jurisdiction. Almost always SPECIFIC jurisdiction.
d) vary from state-to-state
e) the same language can mean different things in different ways
i) ex. “we have jurisdiction if the def. commits a tortuous act in the forum”
- If, def. sells products to one in state A, product blows up in state B
- Gray v. American Radiator: injury in state B constitutes a tort in state B
f) Keeton v. Hustler: Pl. sued in NH b/c most lenient long-arm statute. SC upheld jurisdiction b/c sale of thousands of magazines in a state are not random, isolated, fortuitous. Pl. lack of contacts with the forum state will not block jurisdiction.
4. Recap of Constitutional analysis
a) Does one of the traditional basis apply (Pennoyer); they still may be alive, may need minimum contacts (Burnham)
b) International Shoe test:
i) Must relevant contact with the def. and the forum
- PURPOSEFUL AVAILMENT of the forum; def. must reach out to the forum in some way
- FORESEEABILITY: must be foreseeable that def. would be hailed into the forum
ii) Fairness
- relatedness of claim and forum(McGee); OR
- continuous and substantial ties with the forum
- inconvenience for the def. – but burden is on def. to show that its unconstitutionally and grossly unfair (Burger King – tough to show)
- state’s interest in case
- not much done with these
- pl. interest
- legal system’s interest in efficiency
- shared substantive policies of the states
C. In Rem and Quasi in rem: property
1. Difference b/w in rem and quasi in rem
a) in rem: dispute itself about who owns the property
b) quasi in rem: the lawsuit has nothing to do with who owns the property; it is one that would be in personam if it could be
i) Pennoyer v. Neff – quasi in rem was okay if court had attached (seized) the property at the outset of the case
2. Must have an attachment statute
a) every state has an attachment statute
b) “We can attach property that a non-resident owns”
c) Before 1963, quasi in rem action had to be commenced in a state court
d) Rule 4(n)(2): federal quasi-in-rem jurisdiction may only be used if the law on the state in which the federal court sits permits such jurisdiction
3. Constitutional (?)
a) Tyler v. Judges of the Court of Registration: personal notice to all adverse claimants is not required in a motion in rem to quiet title to property (pl. claimed an interest adverse to property at issue and sought a writ prohibiting judges from adjudicating an application to quiet title); in rem jurisdiction only requires power over property
b) Pennington v. Fourth Nat’l Bank: in rem jurisdiction requires seizure of property within the borders of the forum state (Pl. objected to exercise of in rem jurisdiction over his personal intangible property); tangible and intangible property the same
c) Harris v. Balk: its okay to attach even intangible property (ex. debts); the situs of a debt travels with the debtor
d) Schafer v. Heitner: EVERY CASE HAS TO MEET MINIMUM CONTACTS. Minimum contacts must exist for in rem jurisdiction. (H brought shareholders derivative suit against officers and directors of Greyhound by attaching their stock; reversed)
i) in most cases, property’s presence in the forum will meet minimum contacts for in rem jurisdiction
ii) quasi in rem, have to show that def. meets the minimum contacts test of International Shoe
II. NOTICE AND OPPORTUNITY TO BE HEARD
A. Service of Process [Rule 4]
1. Process consists of a summons and a copy of complaint
a) summons is from the court as an official notification of the suit; 4(a) and (b)
b) service on the def. must be made within 120 days after filing the complaint [Rule 4(m)]
2. The defendant must have adequate notice of the action against him and an opportunity to be heard as required by procedural due process
3. Process can be made by any non-party at least 18 years old; Rule 4(c)(2)
4. Rule 4(e)(2); Can serve individual by:
a) personal service: hand it to defendant anywhere in the state through a procedure reasonably probable to reach the defendant
b) substituted service: must be done at defendant’s usual place of abode, and must serve someone of suitable age and discretion who resides there
i) Rovinski v. Rowe: Service was left with the def. mother at an address he had given in an affidavit in a prior state action against him based on the same incident; court held “usual place of abode” should be constructed liberally – service upheld
c) serve the defendant’s agent
i) Insurance Co. of North America v. Hellenic Challenger: service upon a corporation is effective when delivered to anyone so integrated with the organization that he knows what to do w/ the papers, even if not expressly authorized to receive process
d) State law: Rule 4(e)(1) allows pl. any method for serving process that is allowed by state law, either the state where the federal court sits OR where the service is effected (ex. mailing)
e) if the defendant cannot be sued in any state (i.e. a foreigner), Rule 4(k)(2) allows a federal question suit to be brought if the exercise of jurisdiction is consistent with the Constitution and laws of the United States.
f) Pennoyer v. Neff: cannot give notice by publication upon a non-resident; defendant must be served w/ process w/in the state in which the court is sitting.
5. Waiver of service [Rule 4(d)]: send summons, complaint, waiver form, and SASE, and if def. sends it back, then def. waives service
a) DO NOT CALL waiver by mail
b) MD State Firemen’s Assoc. v. Chaves [MD]: a plaintiff must strictly comply with service provisions, even if the def. has actual notice of the lawsuit (default judgment entered against def.; service sent by first class mail to the address on the def. letterhead)
c) incentives:
i) if the def. grants waiver, he gets 60 days following the date on which request for waiver was sent which to answer (compared with 20 days from service of process)
ii) if the def. does not waive service, the court shall impose the costs subsequently incurred in effectuating service [4(d)(2)]
iii) a def. who grants waiver will not be deemed to have waived any objection to venue or personal jurisdiction overhim.
6. Geographic limits [Rule 4(k)(1)(A)]: you can serve process throughout the state in which the federal court sits, and can serve process out-of-state ONLY if the state court in which the federal court sits could (where long-arm statute of the state in which the district court sits permits)
a) two exceptions
i) by federal statute: there may be a federal statutory exception [ex. statutory interpleader 4(k)(1)(c) and (d)]
ii) Bulge rule: you can serve process out of state without a state statute as long as it is within 100 miles of the federal courthouse [Rule 4(k)(1)(b)]; DOES NOT APPLY to an original defendant – ONLY applies to PARTIES JOINED LATER [Rule 14 (third-party defendants), Rule 19 (indispensable parties)]
7. Nationwide service of process: 28 U.S.C. § 1391(e): permits service by registered mail anywhere in the country in a suit against federal officers and agencies
8. Other requirements
a) person making service must make proof of service by promptly filing an affidavit with the court setting forth the manner in which service was made.
b) service of process must be made w/in 120 days of filing the complaint or the action can be dismissed
B. Constitutional Standard for Notice
a) Mullane v. Central Hanover Bank: notice must be reasonably calculated under all of the circumstances to apprise the party of the proceeding (Bank petitioned for a judicial settlement and provided notice by publication)
i) watch out for notice by publication (constructive notice); almost never good under Mullane, but not automatically invalid
ii) Mullane upheld notice by publication for some people who couldn’t be found and were unidentifiable; invalid where the names and addresses of the parties is known
iii) test under due process is whether reasonable effort has been made, not whether it succeeds.
b) If you meet Rule 4, generally no constitutional problem
c) Dusenbery v. United States: (FBI sent certified mail to Dusenbery where he was incarcerated, Def. never received it; default judgment upheld); courts have never required actual notice as long as attempt complied w/ Rules