I. Personal or Territorial Jurisdiction – the power or authority of the court to affect the rights of the defendant or the property within the action.
1. Pennoyer v. Neff—Need to bring the person into the jurisdiction of the court at the outset of the suit. The court only had jurisdiction over the property, not the person, thus the case should have been in rem instead of in personam. If the property would have to have been attached before the commencement of the trial, would have had jurisdiction. The court cannot even proceed in the action unless they have the power to do so and that is determined when the action is filed, not later.
2. Two principles in Pennoyer:
1. Every state possesses exclusive jurisdiction over persons and property within its territory
2. No state can exercise direct jurisdiction and authority over persons and property outside its territory.
3. Types of Territorial Jurisdiction.
a. In personam: jurisdiction over an individual
A. if someone is physically present in the state, the state can serve them process.
b. In rem: jurisdiction over person’s property (the case is about the property)
c. Quasi in rem (case is unrelated to the property – Couldn’t get in personam, but D left property → attach the property).
1. Quasi in rem Type I – the object of the action is to determine an interest in the very property that is the subject of the action.
2. Quasi in rem Type II – property is unrelated to the cause of action, merely used to obtain jurisdiction.
1. Implied Consent—a legal fiction to avoid the problem of presence.
1. Hess v. Pawloski,1927 (Expanded Pennoyer Principles). If you drive a car into state, you have impliedly consented to be under that state’s jurisdiction.
2. Minimum Contacts and the end of presence.
1. Minimum contacts required to assert jurisdiction rather than any sort of presence.
2. Minimum contacts is a due process. Due process and full faith and credit are the underlying constitutional areas that uphold the minimum contacts test. The concept of minimum contacts is to protect ∆ against the burdens of litigating in a distant forum and it acts to ensure that the States, through their courts, do not reach beyond their limits.
1. International Shoe. For a state to subject a non-resident ∆ to personal jurisdiction, due process requires that he have certain minimum contacts that do not offend traditional notions of fair play and substantial justice.
A. Are minimum contacts Consistent and Systematic or Isolated and Sporadic?
B. Is the cause of action Related or Unrelated?
2. Is the jurisdiction according to traditional notions of fair play and substantial justice?
3. The Unilateral Act. World-Wide Volkswagen—Plaintiff’s Audi, purchased in NY, is rear-ended and causes a fire in Oklahoma. P. sues the regional distributor and the Retail Dealer in New York. (Selling a car is not a sufficient purposeful availment of the benefits and protection of the laws where the car is unexpectedly driven to constitute the requisite “minimum contacts.”) The court decides that the ∆ had no “contacts, ties, or relations” that constitute as “minimum contacts” so the state has no jurisdiction over the defendants.
1. Unilateral Act of the plaintiff—no jurisdiction. Foreseeability is not enough to establish MC. Must ask: Is it foreseeable that the defendant should reasonably anticipate being haled into court at the forum state?
2. A company must reach out to make sales. If the company puts a product into the stream of commerce expecting to sell them in the state, then the state has jurisdiction, but if a consumer just takes it there by his unilateral act, then no jurisdiction and state is overreaching its sovereign authority.
1. Five factors to check:
a) Defendant’s activity in forum state
b) Sales and services there
c) Availing themselves to privileges and benefits of forum state law.
d) Solicit business (salespeople or advertising)
e) Serve or seek to serve the forum state market
4. General and Specific Jurisdiction. Helicol v. Hall.— specific jurisdiction case
1. General Jurisdiction is found when the contacts are so systematic and so continuous that a forum has jurisdiction over D on any action brought against them (because “presence” is not doubted when the activities of a corporation are continuous and systematic and it seems fair to sue it there on any claim. It is uncommon.) Personal or territorial jurisdiction exists if the contacts of the ∆ to the state are so substantial that the state can establish jurisdiction on any issue. (When a state exercises personal jurisdiction over a ∆ in a suit not arising out of or related to the ∆’s contacts with the forum, the state exercising ‘general jurisdiction.’)
2. Specific Jurisdiction is found when the contacts are not necessarily continuous and systematic but are related to the action so jurisdiction over that action can be found. Some relationship between the contacts and the claim – this relationship is what puts the ∆ on notice and makes it reasonable to require it to defend in the forum state. When the contacts are unrelated, it is doubtful that the ∆ will be on notice that it might be haled into court there. (When a state exercises personal jurisdiction over a ∆ in a suit arising out of or related to the ∆’s contacts with the forum, State exercising ‘specific jurisdiction.’)
Isolated & Sporadic
Continuous & Systematic
State does not have jurisdiction (Hess v. Paulowski)
May have Jurisdiction and may not; Can be either way depending on other factors
subject corporation to jurisdiction of the state
The state has jurisdiction because of the minimum contacts test in relation to due process
5. Two prong test for minimum contacts. Burger King v. Rudzewidcz—R and M in Michigan take out a Burger King franchise. BK located in Florida. R never goes to Florida. But he personally avails himself of the franchise by entering into the contract. Court holds “where a ∆ ‘deliberately’ engages in significant activities or has created ‘continuing obligations’ between himself and residents of the forum State, he has availed himself of the privilege of conducting business there, and because his activities are protected by ‘the benefits and protections’ of the forum’s laws it is not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Two prong test for minimum contacts:
1. Purposeful availment—there must be minimum contacts directed at the state.— (i.e., Did the D purposely avail themselves to the rights and benefits of the forum state)? For a contract, look at:
A. Prior negotiations.
B. Contemplated future actions
C. Terms of the contract
D. Actual Course of dealings
2. Reasonableness—fair play and substantial justice.
1. Burden on the defendant.
2. Plaintiff’s Interest in obtaining relief.
3. State’s interest in adjudicating the case.
4. Efficiency of the interstate judicial system.
5. Shared interest of several states in their substantive social policies.
B. Choice of law clause – determines which states laws will govern if a dispute arises.
C. Forum Contract Clause – pre-negotiated agreement that designates where a suit is to be filed if a dispute arises concerning the contract.
6. Stream of Commerce Theory— Purposeful Availment (minimum contacts theory). Asahi v. Superior Court—Zurcher (Ca.) sues Shin (Taiwan) who makes a third-party claim for indemnification from Asahi (Japan). Asahi not doing business directly with CA, but knew that some of its products they entered into the stream of commerce ended up in CA.
A. Four Justices against Stream of Commerce Theory (O’Conner): The fact you can foresee an item getting to the forum is not sufficient to maintain minimum contacts. Must have some additional conduct: (Foresee item getting to the forum PLUS)
1. intent or purpose to serve the market,
2. design the product for a specific state,
3. advertise in the state,
4. establish channels providing service to customers in that state, [1-800 #s or internet?] or
5. marketing the product through someone who has agreed to be their distributor in that state.
B. Four Justices for the Stream of Commerce Theory (Brennan). There is purposeful availment if you can reasonably anticipate or foresee that the item sold will get to that forum
C. (Stevens), the outsider, says he doesn’t know and would look at the number of units sent into the stream. If 100,000 units over several years, then the state would have jurisdiction.
Stream of Commerce theory only comes into play where ∆ has manufactured or distributed a product and entered it into the stream of commerce knowing that it will end up in a specific jurisdiction. Minimum contacts sufficient to sustain jurisdiction are not satisfied simply by the placement of a product into the stream of commerce together with an awareness that its product would reach the forum state.
The point: Simply entering into the stream of commerce is not enough. There must be more showing that the business intended or had purpose to serve the market in the forum state. If there is stream of commerce plus additional conduct stated by O’Conner, then have at least eight justices (is law); if only stream of commerce but no additional conduct then have 4 judges—then look and see if have over 100,000 units annually over a period of several years, if do then have 5 justices and is law, if don’t then have four justice and is not law.
Thus the regular old minimum contacts purposeful availment test (regardless of stream of commerce) will be applied. Stream of commerce theory ONLY comes into play where the ∆ has manufactured or distributed a product and entered into the stream of commerce knowing that it will end up in a specific jurisdiction.
II. Subject Matter Jurisdiction – the power or authority of the court to resolve a particular kind of dispute.
III. State Long-arm statutes—the statutory authorization for the exercise of jurisdiction over non-residents. (Allows the state to reach beyond the boundaries for personal jurisdiction.) Look at long-arm statute first—the long-arm statute gives power and authorizes a state to exert jurisdiction; Due Process (14th amendment) limits or checks a state’s ability to exert jurisdiction over ∆s. First must assert jurisdiction and if they determine that they have jurisdiction, then they see if it follows due process (minimum contacts.) If no jurisdiction, then no question of due process because there is no jurisdiction to evaluate. Some long-arm statutes are enumerated (like the one in Bensusan) and give a list of situations in which jurisdiction can be exerted. If the ∆ does not fall within the long-arm statute, then there is no personal jurisdiction—even if it would have been allowed by Due Process according to a minimum contacts test.
a. State long arm statutes from the legislature are the authorization to the courts of power to have jurisdiction over anyone. Two types:
1. Authorize jurisdiction to the maximum extent allowed by due process. → (minimum contacts and BK).
2. Restrict jurisdiction to specific enumerated cases.
1. First, check jurisdiction against the long-arm statute.
2. Next, Due process check (minimum contacts and BK).
1. ∆ must fall within both long-arm statute and the Due Process minimum contacts test.
2. Bensusan v. King.—the Blue Note in NY sues the Blue Notre MO. Here, don’t even need to look at 14th because jurisdiction doesn’t even comply with the state long arm statute.
a. To determine jurisdiction: Check states long-arm statute allows state to exert personal jdx over a ∆.
b. Determine whether minimum contacts has been established (due process component) meaning the ∆ purposefully availed himself to the benefits and protections of the forum state.
c. Then, if the first two steps have been satisfied, do a reasonable test with 5 factors from Asahi.
IV. SERVICE of Process? Territorial Limits of Effective service (federal)— FRCP 4k:
1. Go to the rules of Civil Procedure to see whether jurisdiction is authorized.
A. Rule 4k. Limits on the states sovereignty is limited by the boundaries of the state, but the limits on the federal sovereignty are not limited to the states boundaries. Personal jurisdiction is limited by this rule. If service of summons or waiver is served, then jurisdiction over a defendant in a federal court is found if:
a) Rule 4k1A—can establish jurisdiction over the D. in the state where the district court is located. The personal or territorial jurisdiction of the federal district courts in a state is the same as the personal or territorial jurisdiction of the state courts in that same state. If the state can’t establish jurisdiction over a person, the fed courts can’t either. (Check long-arm statute of the state and then due process. Contacts are with the entire state rather than with the federal district where the district covers less than the whole state—Ex: Eastern D of CA) EXCEPTIONS: federal courts can serve process beyond the limits of the State courts when authorized by a statute of the U.S. (antitrust laws, securities laws, etc.)
B. Two questions in regards to Service of Process: What do your local rules require? (Rule 4 answers this) What is required by due process? (constitutional minimum) (Mullane answers this)
V. Challenging presence as sufficient for personal jurisdiction.
Shaffer v. Heitner (1977): The shareholder attaches Ds stock in Delaware at the outset to bring them into jurisdiction. Supreme court says the presence of property is not enough for Due Process— Delaware could not hear the suit because the defendant’s sole contact with the State (ownership of property there) was unrelated to the lawsuit. Contact must be related to the suit.
1. Quasi in rem type 2 actions as a means of getting jurisdiction are invalid.
a) The mere presence of property within a state is not sufficient to confer jurisdiction on a court over a ∆ that has no ties, contacts, or relations in that state.
b) An action against a thing is really an action against the person, thus, minimum contacts must apply to in rem proceedings also. “Assertions of state court jurisdiction must be evaluated according to standards set forth in International Shoe and its progeny.”
c) States still have attachment standards. Many plaintiffs still attach the defendant’s assets at the beginning of a suit—not to get jurisdiction but as a security to make sure that the assets stay in the state.
i. (Note: Pennoyer and Harris were overruled as a result of this case.)
VI. Presence sufficient for personal jurisdiction over a foreign defendant who is served in the premises of the forum.
1. Burnham (1990): Ex-husband went to CA on business and to take the kids out. Ex-wife served with process once he was there. SC said that his presence was enough to maintain jurisdiction, but had different opinions.
a) Scalia + 3: All you need to have is to be personally served in the state.
b) Brennan + 3: All rules of jurisdiction, must satisfy due process (minimum contacts standard).
c) Stevens: This is “a very easy case.” Agrees jurisdiction should be found.
d) THE POINT: Don’t agree with the reasoning but ALL NINE agree that if personally served process while in the state, then there is personal jurisdiction.
2. Personal Jurisdiction valid if served in the state UNLESS:
a) Fraudulently induced to enter the state to be served in the state (w/out knowledge they’re going to be served)
b) Appear in the state SOLELY to be part of a case pending in that state (as a witness or for a special appearance).
VII. “Notice reasonably calculated to reach interested parties—within the limits of practicability.
1. Mullane (1950): A Common trust fund is being settled—The Trust Co. performs service by publication in a local newspaper when most of the beneficiaries are out of state. Supreme Court rules that:
1. Notice by publication not adequate notice – it is a last resort.
2. Must at least mail notice to them when reasonably practical (if you have the address and names of affected people, you must mail notice), if you do not have this information, notice by publication is reasonable. (A reasonable effort has to be made to find info)
3. best means of service (personal) not required by due process
4. Publication is allowed by due process only if unreasonable to mail
5. Reasonable investigation is required
IX. Who can serve federal process?
1. 4c1--P is responsible for serving process with the (1) copies of the summons and (2) complaint within the time of 4m
2. 4c2—Service can be performed by anyone who is (1) not a party and, (2) is over 18.
X. How to serve process on an individual within US judicial district—FRCP 4e.
a) Pursuant to the law of the state in which the district court is located OR
b) Pursuant to the law of the state in which service is effected OR
c) Personally serve summons and complaint according to provisions in Rule 4:
i. 4e2 - Personal service - by delivering to individual personally OR
ii. 4e2—Substitute service - by leaving copies at individual’s house with some person of suitable age and discretion and residing therein OR
iii. 4e2—Agent service - by delivering to an agent authorized to accept service of process.
XIII. How to serve process on Corporations and associations—FRCP 4h.
1. Pursuant to state law where court is located OR
2. Pursuant to state law where service is effectuated OR
3. Deliver to an officer, a managing or general agent, or any other agent authorized to accept service (they must know the significance and be able to take appropriate action.)
XIV. How to serve process on the United States, —FRCP 4i.
Service upon the United States (must serve to at least two people):
1. a) personally serve the US attorney for the district in which the action is brought and attorney general of the U.S. OR
b) personally serve an assistant US attorney or clerical employee designated by the US attorney in a writing filed with the clerk of the court OR
c) by sending s&c by registered or certified mail addressed to the civil process clerk at the office of the US attorney; AND
2. ALSO send by registered or certified mail a copy of the summons and of the complaint to the U.S. Attorney General in D.C. (John Ashcroft) and civil process clerk of the US attorney for the district; AND
3. in any action attacking the validity of an order of an officer or agency of the US who is not a party in the action, by ALSO sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency. (EX: You sue an officer who enforces an order from the EPA, but the EPA is not a party in the suit, then send to EPA too.)
Service upon an officer, agency or corporation of the United States:
1. Serve the United States as stipulated above (1–3); AND
2. Send a copy of the summons and the complaint by registered or certified mail to the officer, agency, or corporation.
Other principles to know with serving the US:
1. If the plaintiff has effected service on either the US attorney OR the Attorney General, then the court should be merciful and allow the plaintiff to cure a failure to perform multiple service on the officers, agencies or corporations.
2. NO WAIVER of service available for the United States, its officers, agencies or corporations. (Waiver of service means the ∆ is saying “I agree not to be served.”)
XV. Time LIMIT for service —FRCP 4m.
1. Service must be made within 120 days after the filing of the complaint
1. If you miss it, the court will dismiss the action OR will direct that service be effected within a specified time by giving new deadline
2. If the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. If you don’t have a good cause, the court may give you more time. Up to the ct. → don’t count on it.
3. This doesn’t apply to foreign service.
Waiver of Service (Rule 4):
Different methods of service are provided for different categories of defendants:
1. Individuals in the US – rule 4(e) –
a. According to the law of the state in which the district court is located or which service is actually made. If service in Utah, follow Utah law.
b. By delivering a copy of the summons and complaint to the individual personally or by leaving copies at the person’s home - can’t take the service to their place of business and leave it with the secretary.)
2. Individuals in a foreign country – rule 4(f) –
3. Infants or incompetent people
4. Corporations and Associations – rule 4(h) –
a. According to the law of the state in which the district court is located or which service is actually made OR by delivering a copy of the summons and of the complaint to officer or agent to receive service of process. Can also mail copy.
5. United States (Agencies, Corporations, Officers, Employees)
a. By delivering copy of the summons and the complaint to the US attorney for the district in which the action is brought. Can serve the US by registered mail (must be addressed properly to the civil process clerk)
b. AND by sending a copy of the summons and of the complaint by registered mail to the Attorney General of the United States in DC
* Waiver of Service:
o By first class mail or other reliable source
o Notice and request ∆ waive
o Copy of complaint
o Must tell consequences of not waiving; inform ∆ of consequences of compliance or failure to comply with waiver
+ If they sign the waiver, get 60 days to answer complaint, up to 90 if you are foreign – depends on state law
+ Tell them they have a duty to waive service, and if they fail to waive, the court will impose costs of service on ∆.
o Allow them a reasonable time to return (30 days US / 60 days for foreign)
o If defendant signs and returns, you must file waiver with the court. Service is completed when you file the signed, returned document with the court.
TERRITORIAL JURISDICTION – concerns the authority of a court to require a person or thing to submit to binding adjudication. (∆ may fail to make an objection to want of territorial jdx thereby subjecting himself to the authority of the ct.)
SUBJECT MATTER JURISDICTION – concerns the authority of a court to adjudicate a particular type of suit.
(Are we going to state or federal court?)
State Courts: Have general jurisdiction - the power to resolve any type of dispute unless the law specifically states a jurisdiction and they don’t have that jdx. Can hear cases arising under federal law (unless Congress or state prohibits it).
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