What must a summons include?
1. court and parties
2. be directed at D
3. name and address of P's attorney
4. time within which D must appear & defend
5. notify D a failure to appear and defend will result in default judgment.
6. clerk's signature
7. court's seal.
Issuance of the summons
P prepares it and takes it to the clerk's office. The clerk signs it and seals it, and thereby issuing the summons as a document from the court.
Service of the summons
1. Summons and complaint must be physically delivered to each D.
2. By any person at least 18 and not a party.
3. P may request service be made by marshal or deputy marshal or by person specially appointed.
Avoids the formal requisites of service by handling everything by mail. Send the waiver, D signs it and sends it back to P's lawyer. P's attorney files that electronically.
What is the effect of service?
1. Establishes PJ over D.
2. Provides legal notice and how to respond.
Ways to Establish Personal Jurisdiction
4. Minimum Contacts
Prior View- Pennoyer
Facts: Mitchell sued D who didn't live in OR. Mitchell published notice in local newspaper. D didn't file answer. Sheriff seized D's property in that state.
i. Held: Seizure of the land was void because D was not served properly.
i. Whether courts in OR could exercise PJ over a nonresident?
ii. Whether courts in OR could exercise personal jurisdiction over property located in OR but owned by a nonresident?
i. In order for a state to exercise PJ over a non-resident, they must either be served within the state (tag) or must voluntary appear in the court. (consent).
ii. A state may exercise jurisdiction over property located with its boundaries, regardless of where the owner resides.
Stretching Pennoyer- Pawloski
Facts: P(PA resident) drove car through Massachusetts and collided with D. He sued D in Massachusetts.
i. Held: MA law that stated a nonresident who drove a car in MA impliedly gave the registrar his power of attorney to accept service of process, provided registered mail notice was received by D was upheld.
i. Whether a state may acquire PJ over a nonresident merely because that person drives a car on roads within the state and has a collision within the state w/ another car on the roads?
i. A state may declare that all non-residents who use its highways have impliedly consented to the state's jurisdiction for actions related to use of the highways.
Modern- International Shoe
[minimum contacts; continuous and systematic]
Facts: D employed about 12 salesmen in WA, but D had no office or stocks in WA.
i. Held: Jurisdiction over D affirmed, it was reasonable because of the long term, continuous acts that generated substantial business.
i. When may a state exercise PJ over a corporation?
i. A corporation will be subject to PJ in a state if it has certain minimum contacts that make jurisdiction consistent w/ traditional notions of fair play and substantial justice.
ii. Continuous and systematic contacts will result in PJ in a state for all purposes; isolated casual contacts will not result in personal jurisdiction for suits unconnected to the casual presence.
Specific Jurisdiction- Long Arm Statutes
State courts do not have to exercise jurisdiction to the fullest extent permitted by the constitution. Each state can make the decision to assert some or all jurisdictional authority available to them.
i. Numerated- authorizes their courts to exercise jurisdiction over a D for claims that arise from specific types of contacts with the state.
ii. Not numerated- catch all; authorizes jurisdiction to the extent permitted under the federal constitution
[One contact rule]
Facts: CA resident had contract of insurance with TX corp. K was delivered to CA, and payments were mailed from CA.
1. Held: CA had jurisdiction, even on a single contact, because the suit was on that contact, the contract involved a CA resident, and CA had a strong interest in in protecting insured persons in CA. TX did not have PJ.
1.Does making a single contract of insurance constitute sufficient minimum contacts for suit on the insurance contract?
1.For suits based on a K, the K must have a substantial connection with the state and the D must have minimum contacts necessary to assert PJ over the D.
Facts: Donnor went to DE to create a trust fund. Donnor moved to FL, and exchanged communications with the trust co.(D) while in FL. Trust co. sent her money from the trust to FL. Heirs in FL want to sue D in FL.
1. Held: no sufficient contacts because D made no actions to make contacts in FL and had no other contacts with FL.
1.What kind of contacts satisfy the minimum contacts necessary for PJ?
1. The court looks to the non-resident D to see if he affirmatively acted (purposefully availed himself) to benefit by activities in the forum state.
Facts: P had a car accident in OK and tried to sue the seller of the car (NY, NJ resident) in OK.
1. Held: no sufficient contacts. D did nothing to make contacts in OK. Mere foreseeability is not enough.
1. May a resident of a state who has an accident in another state sue the seller of the vehicle in the state where the accident occurred rather than the state where the sale of the vehicle occurred?
1. The D must have chosen to do some act that creates the necessary minimum contacts w/ the forum state.
2. To establish jurisdiction over the D, the minimum contacts must be the D's contacts, not the P's.
iv. Dissent: Brennan
1. The court shouldn't focus only on D's contacts and interests, but on fairness and reasonableness and all relevant interests. The forum state had a strong interest in litigation b/c the accident occurred in OK, witnesses & evidence were in OK, state has interest in enforcing hwy safety laws, and a car dealer has substantial benefits from a nationwide network of hwys, of which OK's hwys are a part. Focused on fairness test.
Facts: P is insulted in a NH magazine. P's residence and magazine's place of business is NY. Magazine was nationwide. P filed suit in NH.
1. Held: D has sufficient contacts in NH and P's contacts are irrelevant.
1. Whether the P must have minimum contacts w/ the forum state or be a resident of the state for the state to have jurisdiction over the D?
1. The focus of PJ is on the D not the P, so the P need not be a resident or have minimum contacts with the forum.
a. Consent- P is always consenting to jurisdiction by filing complaint.
Facts: Florida editor and writer libeled P, a CA resident and famous actress, in a magazine article, which had large circulations in CA. Ds had no other contacts with CA.
1. Held: Harm to P primarily occurred in CA, article was written about P's activities in CA, and the target of the article was a CA resident. CA had PJ over both editor and writer.
1. Whether the writer and editor of an article in a magazine have sufficient minimum contacts to be sued for libel in the state where the P resides and conducts business?
1. Each D's minimum contacts are judged separately.
2. Merely being an employee of a corporation with the minimum contacts is not enough to permit the state to assert PJ over the employee.
3. When a writer and editor direct an article at a person, the harm is to that person in the place where that person lives or does business; this does provide the requisite minimum contacts to make it reasonable for the writer and editor to be sued where harm was inflicted.
Calder Effects Test
1. D intentionally aimed his tortious conduct at the forum state AND
2. he is aware that his intentional conduct would cause harm in forum state.
Facts: D entered into a franchise K w/ P, a FL corporation. D signed the K in Michigan, & operated in Michigan. D sent payments to FL offices and K was governed by FL law.
1. Held: Deliberately entering into a 20 year agreement with a FL corporation, that states it is governed by FL law is enough to establish minimum contacts.
1. In asserting jurisdiction over an out of state D, does the P(state) have to show both minimum contacts and that it is fair for the D to be sued in the state?
1. The P (state) must show minimum contacts. At that point, jurisdiction is presumed to be fair. The D may show special circumstances that would make the particular suit unfair.
iv. Stevens and White Dissent:
1. Jurisdiction was unfair because:
a. D could not anticipate being sued outside of MI
i. He did not do any business in FL, and therefore, didn't purposefully avail himself.
b. He was financially unprepared
i. A franchise is a small local business; neither its revenues nor the geographical range of its market prepares the average owner for the cost of a distant litigation.
Facts: Asahi, a Japanese corporation, sold tire valves to Cheng Shin, a Taiwan corporation, who sold a good bit of them in California. A tire was blamed for an accident in CA.
1. Held: no minimum contacts.
1. Does selling a product into the stream of commerce permit suit against the seller anywhere the products' defect causes injury?
1. Mere placement into the stream of commerce is insufficient to establish minimum contacts; party must intend to serve the forum state.
2. O-Connor- doesn't meet minimum contacts; purposeful direction to the forum state is required.
3. Brennan- it does meet minimum contacts test, but it would be unfair to bring a Japanese corp. to CA: the severe burden on the foreign business outweighs the weakened interests of CA, which are weakened by the fact that P is not even a CA resident.
4. Stevens-Unfairness alone even w/ min. contacts is enough to reject jurisdiction.
1. severe burden on D
2. Forum state only has slight interests
3. P's interest in effective relief
4. the international interests in obtaining the most efficient resolution of controversies
5. State Policy
An internet posting on a web site directs the business advertisement to all states and thereby purposefully avails itself of the privilege of doing business in the state (any state), asserting jurisdiction.
Zippo Dot Com
1. The web site owner must purposefully avail itself of the privilege of doing business in the forum state over the internet for specific jurisdiction (related to the business conducted) to apply.
2. Internet sites are active, passive, or interactive; passive sites that people just log onto do not support jurisdiction.
Mere passive web sites that do not aim the article at a particular state (other than the home state) do not have the minimum contacts to support jurisdiction.
General Jurisdiction- Perkins
Facts: D (Philippines organized corp.) did general business in OH. (meetings, paying salaries, banking, and rehabilitation of co.'s mines.)
i. Held. Jurisdiction is proper, D moved the home office to OH and carried on general business there.
i. When may a foreign corporation be subject to a state's jurisdiction for activities unrelated to the contracts with the forum state?
i. Where general business is continuously and systematically conducted, general jurisdiction exists to adjudicate all matters, including matters that arose elsewhere.
Facts: D engaged in negotiations and purchasing equipment in the forum state.
i. Held: One trip to negotiate a contract, purchasing but not selling equipment, and accepting checks drawn on a TX bank do not constitute jurisdiction.
i. Purchases, even at regular intervals, in the forum state do not constitute the systematic and continuous contacts required for general jurisdiction.
ii. Brennen- would say that where the contacts are related to the claim, even if they did not give rise to the claim, the court should be permitted to exercise specific jurisdiction expanding the scope of specific jurisdiction.
Reasonably Related- Shaffer
(got rid of quasi in rem jurisdiction)
Facts: Ds were not DE residents but had stocks in Greyhound, which was incorporated in DE. P brought suit in DE.
i. Held: D's stock in DE corp. do not provide basis for jurisdiction of a claim not related to the ownership of the stock.
i. The state must have PJ over the owner of the property through minimum contacts in order for the state to exercise jurisdiction personally over a non-resident to decide the P's claim and then apply the P's claim to the property, once the claim is decided.
c. Where the ownership of property is at issue, because the case involves claims to the property itself, the state would have jurisdiction because the property is physically in the state. (in rem) [Contacts or property must be reasonably related to the claim.]
d. Where the property is unrelated to the claims, personal jurisdiction over each D must be supported under the International Shoe test. (quasi in rem)
i. Stevens: make a telling point on the fairness issue as stock ownership would make a person subject to suit in the state of incorporation.
ii. Powell: points out there is a difference between personal property like stock and real estate and a state should always be able to exercise in rem jurisdiction and quasi in rem jurisdiction over real property of the state.
iii. Note: the court states that all assertions of state court jurisdiction are under International Shoe.
Transient Jurisdiction- Burnham
Facts: Husband was in CA on business and visited his children, and his wife served him in CA.
i. Whether a state may exercise jurisdiction over a nonresident who was served in the state while temporarily in the state where the case has nothing to do w/ the reason he was there?
i. Physical presence in the state is all that is required for jurisdiction.
d. Scalia- Historically physical presence was enough. Since physical presence is enough was a well established traditional principle of jurisdiction, it satisfies due process.
e. White- physical presence is widely accepted and therefore does not violate due process.
f. Shaffer's broad statement that all PJ issues are governed by International Shoe is dicta regarding anything but in rem and quasi in rem jurisdiction
Consent- Zapota Offshore
Facts: K specified that all claims related to towing be brought in London. K was negotiated in drafts and all terms were agreed upon.
i. Held: Forum selection clause is binding.
i. Whether a forum selection clause mandating that suit be filed in a particular state is enforceable?
i. A forum selection clause is binding unless the party wanting to file elsewhere shows that its enforcement would be unreasonable, unfair, or unjust.
Carnival Cruise Lines
Facts: P bought a ticket for a cruise ship with a forum selection clause.
i. Held: P must go to FL because a forum selection clause is equivalent to consent.
i. Whether forum selection clauses in Ks are enforceable?
i. Forum selection clauses in a K are generally enforceable.
ii. Forum selection clauses are reviewed for fundamental fairness, which examines both parties' problems and reasons.
Insurance Corp. of Ireland
Facts: D did not provide the necessary info for the court to evaluate its contacts with PA when ordered to do so.
i. Held: For not providing the info, the court assumed D had minimum contacts necessary.
i. Whether a court may impose a finding of personal jurisdiction as a sanction for disobeying a court order to produce info. Relating to the personal jurisdiction issue?
i. Personal jurisdiction is a liberty right and may be waived by word or conduct; conduct may create an estoppel to dispute jurisdiction.
ii. Where the D's conduct prevents the inquiring into personal jurisdiction over that D by no t answering relevant discovery, the court may, as a sanction for that conduct, impose personal jurisdiction over the D thereby estopping by conduct, the PJ issue.
Constitutional Notice Requirement- Mullane
Facts: The only notice given to several Ds was by publication in a local newspaper and the publication did not name all Ds. P had the names and addresses of some of the Ds.
i. Held:Reversed and Remanded for P to give actual notice to Ds he had an address for.
i. When is notice by publication adequate notice of the lawsuit to parties served by the publication?
i. The D must be informed by a method reasonably calculated to provide the necessary information.
ii. Notice of the proceedings must be given in time to assert ones rights (appear and be heard or decide to default).
iii. Where the P has the name and address of the Ds some form of actual notice must be sent to those Ds.
iv. Publication is allowed as a supplement to other forms of notice or where other forms are not reasonably practical.
Facts: Dusenberry claimed he never received notice, although U.S. had sent it to him through certified mail.
i. Held: There does not have to be proof that the party actually received the notice.
i. Must notice be reasonably calculated to give the party the info or must there be proof the party actually received the notice?
i. The notice must be reasonably calculated to appraise the party of the pendency of the case.
Facts: Notice was sent to house, but the package was returned unclaimed. State then published a notice in the local newspaper.
i. Held: Jones was entitled to notice reasonably calculated to reach him.
i. Whether knowledge that notice has failed to be delivered (certified mail being returned unclaimed) requires additional efforts to notify the party?
i. One who knows that the notice has not been delivered, must take additional action, reasonably calculated to actually inform the person to be notified.