Terms in this set (38)
Personal Jurisdiction Umbrella
3. In Rem
4. Quasi in Rem
"Road Map" for analyzing Civil Pro Problems
1. Personal Jurisdiction ===> Make sure Court has Personal Jurisdiction
Check: Defendant had minimum contacts with the forum state.
2. Defendant received such notice and opportunity to be heard.
3. Venue - Proper geographic location
4. Subject matter jurisdiction? one of the following must be true
3 kinds of Jurisdictions over the parties
1 of these must be present
1. In Personam: Jurisdiction over the Defendant's "Person" gives Court power to issue judgement against her personally. All person's assets may be seized.
2. In Rem: Jurisdiction over a thing. Court has power to adjudicate claim about a piece of property or about a status.
3. Quasi in Rem Jurisdiction: Action begun be seizing property owned by person, or a debt owed to the Defendant, within the forum state.
EXAMPLE: Property attachment and garnishment.
"Minimum Contacts" requirement and lack of...
If jurisdiction is in Personam or Quasi in Rem, the court may not exercise that Jurisdiction unless Defendant has "minimum contacts".
"Purposefully directed" towards the forum state:
Requirement for Minimum Contacts means that Defendant has taken actions that were purposefully directed towards the forum state.
*Lack of connections with forum state will violate Defendant's 14th Due Process right for a court at forum state to exercise in Personam Jurisdiction.
Specific Personal Jurisdiction
Court's personal jurisdiction to hear a claim related to, and arising out of, the Defendant's voluntary contacts with the forum state.
All that is required is that the Defendant have "minimum contacts", even relatively small degree of voluntary connection amounts to "minimum contacts".
General Personal Jurisdiction
Court is exercising in Personam Jurisdiction to hear a claim that does not arise out of or relate to the Defendant's contacts with the forum state.
*Much more extensive contacts between Defendant and the forum state.
Where Defendant an individual, a court may exercise General Jurisdiction over that Defendant only if the Defendant is domiciled in, or personally served with process in that state.
Long Arm Statute
Defendant may not be served outside the forum state unless statute allows court's to obtain jurisdiction over person's not physically present within the state.
1. Ownership of property in state
3. Commission of a Tort inside state
Criteria which will enable Court's to take personal jurisdiction (Long Arm)
1. Presence within the forum state
2. Domicile or residence with forum state
3. Consent to be sued in forum state
4. Driving a car within forum state
5. Committing a Tortious Act within the state
6. Ownership property in forum state
7. Conducting business in forum state
8. Being married in, or living while married in forum state
*Requires that individual have minimum contacts with forum state.
How is "minimum contacts" established?
Regular / Casual contacts (EXAMPLE)
1. Incorporated in the state (not)
2. Physical presence in the state, show rams (no)
3. Employees in the state (no)
4. Inventory kept in state (none)
5. Orders processed in the state (none)
6. Paying taxes in the state? Workers comp. in state? (no)
Systematic and Continuance EXAMPLES
1. Revenue processed in the state
2. Selling products in the state, salesman living in the state.
3. Renting rooms to show product
4. Injury occurred in state, product brought to state.
International Shoe Co. v. Washington (ANALYSIS)
Forum state may exercise personal jurisdiction over the corporation only if there are "minimum contacts" with the forum state "such that the maintenance of the suit does not offend" traditional notions of Fair Play and substantial justice:
*Corporation voluntarily sought to do business in Forum state.
Minimum contacts (McBee Example)
Minimum contacts with the state if purposefully availed itself to do business in the forum state.
Ex. McBee ===> insurance company offered policy to someone who knew was resident of forum state.
Personal Jurisdiction in Products Liability
1. Suit will be "SPECIFIC JURISDICTION"
2. Purposeful availment required ===> Defendant must be shown to have conscious effort to market in Forum state. Likelihood that a product will find its was into forum state not sufficient court must find that Defendant had enough "conduct and connection to forum state" to cause him to reasonably anticipate bing haled in court there.
(A) Effects directly or indirectly to market products in forum state.
*Example: knows substantial amounts flows to state.
Unfair Despite minimum contacts
Even if "minimum contacts", connection may be so minor that it's unreasonable and unfair. Likely if Defendant is a foreign operation.
"Asahi medal industry v. Superior court"
Individual and corporation
Individual ===> General jurisdiction if domiciled
Corporations ===> Defendant must have extensive contacts
a. Incorporated in forum state
b. Principal place of business in state
To determine whether a Federal Court has Personal Jurisdiction over the Defendant, you must check three things:
1. Territory for service:
whether service took place within the appropriate territory
2. Manner of service:
whether the service was carried out in the correct manner; and
whether the Defendant was "amenable" to the federal suit.
Territory for Service
Both in diversity actions and federal question cases, service of process may be made only:
1. within the territorial limits of the state in which the district court sits; OR
2. anywhere else permitted by the state law of the state where the district court sits.
Territory for service: 100-mile bulge
A special 100-mile bulge provision (FRCP 4(k)(1)(B)) allows for out of state service sometimes, even if local law does not permit it. When the provision applies, it allows service anywhere (even across a state boundary) within a 100-mile radius of the federal courthouse where suit is pending. The bulge provision applies only where out of staters will be brought in as additional parties to an already pending action. There are two types of parties against whom it can be used.
Who can get served within the bulge?
1. Third party defendants (FRCP 14) may be served within the bulge.
2. Indispensable parties, persons who are needed in the action for just adjudication, and whose joinder will not involve subject-matter jurisdiction problems - may also be served if they are within the bulge.
Manner of service
Manner of Service
service on an individual (rule 4(e)) may be made in any of several ways
a. Personal: serving him in person
b. Substitute: by handing the summons and complaint to a person of "suitable age and discretion" residing at Defendant's residence;
c. Agent: by serving an Agent appointed or designated by law to receive process. (Example: many states designate the Director of Motor Vehicles as the agent to receive process in suits involving car accidents):
Manner of service:
-Local state law
Local state law:
By serving Defendant in the manner provided by either:
1. the law of the state where the district court sits, if that state has such of provision, or
2. the law of state where the person is being served.
EXAMPLE: Plaintiff brings an action against Defendant, a resident of California, in New Jersey federal court, and wishes to serve him by certified mail. Service will be possible if either the courts of New Jersey or California allow certified mail service.)
Manner of service
Local State law
Service of a Corp. may be made by leaving papers with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive process for the Corporation. FRCP 4(h)(1).
Local State law:
As with individuals, service on a Corporation may also be made in the manner provided by the local law of
(i) the state where the action is pending or
(ii) the state where the service is made. FRCP 4(h)(1)(A)
Manner of service:
Waiver of service
Waiver of Service:
Rule 4(d) allows Plaintiff to in effect serve the summons and complaint by mail, provided that the Defendant cooperates. Plaintiff mails to Defendant a "request for waiver of service", if Defendant agrees, no actual in-person service is needed.
Incentives: Defendant is free to refuse to grant the waiver, in which case Plaintiff must serve the summons by the in-person methods described above. But, if Defendant refuses the waiver, the court will impose the costs subsequently incurred by Plaintiff in effecting service on Defendant unless "good cause" is shown for Defendant's refusal. (FRCP 4(d)(2)).
Jurisdiction over things:
In Rem jurisdiction
No Personal Liability:
In rem actions, no judgment imposing personal liability on anyone results - all that happens is that the status of a thing is adjudicated.
In a quiet title, a determination is reached that A, rather than B, is the owner of Blackacre. This is an in rem action, and does not result in the imposition of Personal Liability on anyone.
Jurisdiction over things:
In rem jurisdiction:
2. Effect from Shaffer
The landmark case of Shaffer v. Heitner, discussed below, has no effect on in rem suits. Shaffer holds that there must be minimum contacts before a quasi in rem action may proceed; but no minimum contacts are needed for the court to adjudicate the status of property or some other thing located in the state, even though it affects the rights of an out of state Defendant.
Jurisdiction over things:
Quasi in rem jurisdiction:
Requirement of minimum contacts
Quasi in rem action is one that would have been in persona if jurisdiction over Defendant's person had been attainable. Instead, property or intangibles are seized not as the object of the litigation, but merely as a means of satisfying a possible judgment against Defendant. Defendant has no liability beyond the value of property or intangibles seized.
REQUIREMENT OF MINIMUM CONTACTS (SHAFFER):
Quasi in rem jurisdiction over Defendant cannot be exercised unless Defendant had such "minimum contacts" with the forum state that in personam jurisdiction could be exercised over him. This is the holding of the landmark case of SHAFFER V. HEITNER.
The court may not proceed unless Defendant received adequate notice of the case against him.
In order for Defendant to have received adequate notice, it is not necessary that he actually have learned of the suit. Rather, the procedures used to alert him must have been reasonably likely to inform him, even if they actually failed to do so.
Leave at dwelling
All states, and the Federal system, allow "suitable service" in most instances. "Substitute service" means some form of service other than directly handing papers to Defendant.
Leave at dwelling: Most common substitute service, allow to leave papers at home, at Defendant's dwelling within the state, if Defendant is not home. These provisions usually require the papers to be left with an adult who is reasonably likely to give them to Defendant. (Ex. FRCP 4(e)(2) allows the papers to be left with a person of "suitable age and discretion who resides there")
Some states and the Federal system, allow service to be made by ordinary First class mail. However, usually this method is allowable only if Defendant returns and acknowledgment or waiver for to Plaintiff's lawyer. If Defendant does not return the form, some other method of service must then be used.
See FRCP 4(e)(1)
Service on Out-of-Staters
Where Defendant is not present in the forum state, he must somehow be served out of state. Remember that in a state court suit, this can only be done if the state has a long-arm statute covering this type of case and defendant in question. Once the long-arm covers the situation, the out of state Defendant must still be given some sort of notice.
a. Mail notice: many states allow notice by registered or certified mail for out-of-stater Defendants.
b. Public official: sometimes, service can be made by serving a state official, plus giving by mail to Defendant.
c. Newspaper publication: If Defendant's Identification and residence is unknown, but this is only when Defendant cannot be found reasonably. Some states allow service by newspaper Publication.
a. Corporate Officer: Many states require to designate a corporate official to receive process for suits against the company. Service to the corporate official is considered Adequate service.
b. Federal Rules and the rules of many states, are more liberal, that they allow service on any person of the CORP who is sufficiently high placement. Thus FRCP 4(h)(1) provides that service on a CORP may be made by giving the papers to "an officer, a managing or general agent, or to any agent authorized by appointment or by law to receive service of process.
Opportunity to be Heard
Defendant must not only be notified of the suit against him, but must also be given an opportunity to be heard. Before his property may be taken, he must be given a chance to defend against the claim. This "opportunity to be heard" must be given to Defendant not only when his property will be taken forever, but even before this is any significant interfere with his property rights.
OPPORTUNITY TO BE HEARD
Pre-judgment remedy protects Plaintiff against the Defendant's hiding or squandering his assets during litigation. Two common forms of pre-judgment remedies are the attachment of Defendant's bank account and the placing of a LIS PENDENS against her real estate.
OPPORTUNITY TO BE HEARD
Three Part Test
The court will weigh 3 factors against each other to determine whether due process was violated when Defendant's property was interfered with through a pre-judgment remedy:
a) First, the degree of harm to Defendant's interest from the pre-judgment remedy
b) Second, the risk that the deprivation of Defendant's property right will be erroneous (especially if the state could have used additional procedural safeguards against this but did not_); and
c) Third, the strength of the interest of the party (Typically Plaintiff) seeking the pre-judgment remedy.
(Connecticut v. Doehr)
Defenses to Claims of Jurisdiction
Defendant appears in the action with the express purpose of making of jurisdictional objection. By making a special appearance, Defendant has not consented to the exercise of jurisdiction.
Most courts allow a Defendant who has unsuccessfully made a Special Appearance to then defend on merits, without losing his right to appeal the jurisdictional issue.
Defenses to claim of Jurisdiction
Defendant has not consented to jurisdiction.
Defendant has a motion to dismiss for lack of jurisdiction over the parties.
-Defense of Fraud or Duress:
Example: love letter to force to make appearance at forum state.
-Immunity ===> while in state to attend a trial.
"Specific" Personal Jurisdiction
Specific ===> Court's personal jurisdiction to hear a claim related to, and arising out of, the defendant's voluntary contacts with the forum state.
All that is required is that Defendant have "minimum contacts", even relatively small degree of voluntary connection amounts to "minimum contacts".
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