Attack Sheet - Personal Jurisdiction PDF

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This is a personal jurisdiction attack sheet for civil procedures at GWU...

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Master Attack Sheet

PERSONAL JURISDICTION PART I: DOES THE COURT HAVE THE NECESSARY POWER OVER THE DEFENDANT? (same analysis for state and federal court in that state, since the federal courts are bound by jurisdictional statutes of the state in which they sitrule 4k1a) -for federal courts, if there is no special federal statute authorizing jurisdiction, look to the state statute to get jurisdiction Must object to lack of personal jurisdiction at beginning of suit (can enter special appearance) or you have given implied consent 3 types of personal jurisdiction: 1: in personampower over person -an in personam judgment against a defendant creates a personal obligation on D and is entitled to full faith and credit in other states (so if D is ordered to pay money to P, P may enforce that judgment against D’s property in any other state where the property is located) 2: in rempower over property; lawsuit is about who owns the property and court has power to adjudicate rights of all people in the world with respect to a particular item of property within the forum state (the property which is used as the jurisdictional basis) -examples are claims to title, settlement of decedent’s estates, condemnation cases, eminent domain, etc. 3: quasi in rempower over property; lawsuit is not about the property attached (this form of jurisdiction is basically dead now) -cannot be enforced against any of D’s other property ***still must be a state statute authorizing in rem or quasi in rem ***after Shaffer, IS test (minimum contacts and fairness) must be met for in rem and quasi in rem as well so the constitutional analysis for all three types is the same -but for in rem the property itself is a sufficient minimum contact, while for quasi in rem (and in personam) the property can be a consideration in analyzing minimum contacts as long as it’s related to the suit

STEP ONE: Is there a statute in the state authorizing jurisdiction? If no, there is no jurisdiction. If yes, proceed to step two. *Note: for in personam jurisdiction these are statutes authorizing traditional bases and long-arm statutes, whereas for in rem and quasi in rem they are attachment statutes -every state has statute authorizing traditional bases (the four listed under Pennoyer) -every state has long-arm statutes allowing nonresidents to be sued in the state -type 1: CA has long-arm saying the state has jurisdiction to full extent of the constitution (so no separate statutory analysis from constitutional analysis in CA) -type 2: most states most states have specific lists of what acts will give specific jurisdiction (for example, specific jurisdiction over D who transacts business in the forum) which vary widely from state to state

-long-arm statutes with same language can be interpreted in different ways (for example, states disagree about whether “tortious conduct in the state” means the negligently manufactured product was made in the state or simply that the injury to the plaintiff had to occur in the state) *note: all states have nonresident motorist long-arm statute for implied consent (like Hess) -most states have statutes for when D conducts business in the state, contracts to supply goods/services anywhere in the state, D owns/uses/possesses any real property in the state -watch out for statutes requiring D to have conducted substantial business in the state versus any business in the state -every state has similar attachment statutes authorizing court to seize property in state that D owns or claims to own (as Pennoyer says, attachment must occur at beginning of suit, and as Schaffer says, attachment alone without minimum contacts is insufficient)

STEP TWO: Is that statute constitutional under DPC? If yes, move on to step three. If no, you do not have personal jurisdiction.

Step 2a. Determine if it is specific or general jurisdiction. Step 2b. look to see if there is a traditional basis of jurisdiction ***split under Burnham about whether the fact that it is a traditional basis of jurisdiction is enough -Scalia sets bright line rule saying yes, these four bases set out under Pennoyer are sufficient for general jurisdiction and we do not need to look further than that -Scalia sees International Shoe test as being an alternative test if traditional bases are not met (so for Scalia IS test is only for specific jurisdiction???) -Brennan says traditional basis of presence still needs to comport with minimum contacts and fairness, so he wants to apply International Shoe test (minimum contacts and fairness) to general jurisdiction cases arising out of traditional bases too (not just to specific jurisdiction cases) 1. D served with process in forum 2. D’s agent served with process in forum 3. D domiciled in forum (even if not present when served) -domicile refers to place where D maintains her permanent home (if she has legal capacity her domicile if the place she has chosen through presence even for a brief time coupled with intent to make that place her home – if she lacks capacity she is domiciliary of custodian’s state) -a US citizen, even if domiciled abroad is subject to personal jurisdiction in the US – but this is unclear since no state has attempted to pass a law enabling court to obtain jurisdiction solely on basis of citizenship) *note: this category was limited severely after Good Year and Daimler (before those cases Ds were subject to general jurisdiction anywhere they conducted continuous and systematic activity, but now they are only subject to general jurisdiction where their continuous and systematic activity renders them at home)there has to be some physical presence for general jurisdiction -for an individual, they are domiciled in only one state -for a corporation they are domiciled where they are “essentially at home” (aka state where they are incorporated and state where they have their PPB) -court has left open possibility that MAYBE another place if they do almost 100% of their business there (but we don’t have a case like that)

4. D consents to jurisdiction -can be express or implied (implied when state has substantial reason to regulate a certain activity like Hess, or express like a forum selection clause in a contract or contractually appointing an agent to receive process) -also, you can directly say “I consent” -if you appear in court (not a special appearance) and do not include complaint in initial pleading, that is consent

Step 2c. If there is no traditional basis (or I am explaining the Brennan test under Burnham as it applies to traditional basis of presence) then I need to have minimum contacts 1. Are there relevant contacts between D and forum? a. purposeful availment (reach out to forum, target forum...does not include P or third party’s unilateral activity since contacts must be voluntary) -D did not have to set foot there, just target the forum and cause harm there -compare Walden (no PJ with airport money seizure) to Calder (D intended to commit the harm in CA) -contacts cannot be isolated or casual, but one contact, if strong enough and the claim arises out of it, may be sufficient b. stream of commerce argument leads to split between Brennan and O’Connor approaches (Asahi) -Brennan: if I put item into stream of commerce (component valve in Asahi or giant machine in McIntyre) and can reasonably anticipate it will get to forum, that is foreseeability and purposeful availment -4 justices adopted this view in Asahi when D made component valve, sent it to the manufacturer who sent it to CA in the finished motorcycleD reasonably knew it would get to CA and that is enough -reason these justices decided no jurisdiction was the fairness issue, but they did think minimum contacts were met -4 justices (two concurring and two dissenting) essentially adopted this view in McIntyre when English company made giant machine, sent it to Ohio company, and Ohio sent it to NJ -concurring said: -dissent said: -O’Connor: something more is required than putting item into stream of commerce and being able to reasonably anticipate it will get to forum is not enough…must target/reach out/show intent to serve product in that forum state (maybe by advertising there, having employees there, having offices there, having customer service there, etc.) -4 justices adopted this view in Asahi (D made a component part and while they could have foreseen it getting to CA, they did not do “something more” to target CA) -4 justices adopted this view in McIntyre (something more was required, so no purposeful availment and thus no minimum contacts – D targeted US as a whole but not NJ specifically) c. reasonable foreseeability (not foreseeability that product may end up in state but foreseeability that they will be sued there) -Brennan/O’Connor divide about stream of commerce also applied to foreseeability, since purposeful availment is typically what leads being sued in forum to be reasonably foreseeable to D -WWVW: P unilaterally bringing product into state is generally not foreseeability

2. Substantial Relatedness: Did the claim actually arise out of those contacts? This is required for specific jurisdiction, so if yes move on. If there is not specific jurisdiction, then there must be general jurisdiction or there is no in personam jurisdiction.

Step 2c. If there are minimum contacts out of which the claim arises, look for fairness: do the contacts comport with traditional notions of fair play and substantial justice? *note: fairness is assessed only after minimum contacts…if no minimum contacts, fairness is irrelevant…it is also a super high bar to prove and usually only works if minimum contacts are borderline *note: court does not tell us how to weigh these factors 1. burden on D (under BK case once minimum contacts have been proven, D must show extreme constitutional unfairness to have to litigate in forum – high bar and almost impossible to meet, but since DPC designed to protect D this is probably most important) NOTE: DPC does not guarantee most convenient or even pretty convenient forum, just one that is not constitutionally impermissible for grave inconvenience *Asahi: the burden on foreign D too great (too far, different legal system) 2. forum’s interest (state wants to provide forum to provide relief to injured citizens) *Asahi: forum had literally no interest in litigating between two foreign corporations since original injured plaintiff who was a CA citizen had settled out with all other Ds) 3. P’s interest in relief (maybe P is injured and cannot travel to where D lives) *Asahi: there was no reason this P needed to be in CA court 4. Legal system’s interest in efficiency (maybe all witnesses or evidence is in this forum) *Asahi: nothing efficient about having case in CA *WWVW: efficiency of witnesses/evidence would be in favor of OK jurisdiction 5. shared substantive policies of states (court doesn’t talk about this much) *Asahi: involves procedural considerations and policies of other nations

Part II: WAS PROPER NOTICE GIVEN TO D SUCH THAT THEY WOULD HAVE REASONABLE OPPORTUNITY TO BE HEARD? STEP THREE: Does notice fulfill statutory requirements? If yes, move on to steps 4 and/or 5. SERVICE OF PROCESS (RULE 4)six things to know: 1) process consists of summons and copy of complaint (both required) -summons is signed by clerk -complaint tells D what claims are 2) service can be made by any non-party who is at least 18 (rule 4c2) -some state courts require a court officer, but federal rules do not -court does not need to appoint the person under federal rules 3) how to serve an individual personrule 4e2 gives three choices for how to serve: a) personal service: walk up and give it to them anywhere b) substituted service: given to someone else who is not D – can only be done at D’s dwelling or usual abode, which courts interpret reasonably, like if it is summer and this is their summer home that will work…must serve someone of suitable age and discretion who resides there

c) serve D’s agent: maybe they appointed directly by contract or implied appointment by law like with nonresident motor-vehicle statute in Hess ***4e1allows you to use any method of service permitted under state law (so you can choose federal or state options) -many states allow service by certified mail, so if your state allows that you can use it in federal court too 4) how to serve process on a business4h1 tells us we can serve an officer or managing or general agent (courts are commonsense about this) -officer is clearly someone high up like president -managing/general agent doesn’t really look at job title…more someone with sufficient responsibility that we would expect them to transmit the important papers ***4e1 applies here tooallows you to use any method of service permitted under state law 5) waiver of service rule 4dwaiver by first class mail…P mails to D process and two copies of a waiver form as well as a self-addressed and stamped envelope…if they sign waiver and mail it back within 30 days to waive formal service of process -cheaper for P and D is not waiving any defenses -D then gets longer to submit answer (if served formally you have to respond within 21 days, but if you waive formal service you get 60 days) -if D does not return waiver form and does not have good cause for that, then D must pay cost of service 6) geographic limitation rule 4k1awe can serve process throughout the state in which federal court sits or outside the forum IF a state court could do so as well -this is why we look at long-arm statutes of the state for service of process

STEP FOUR: Was notice actually received? If yes, even though you could technically file a motion that notice was improper, you got it so it was probably sufficient and you have jurisdiction. If no, move on to step 5.

STEP FIVE: Whether notice was actually received or not, was notice given under statute reasonably calculated to actually inform D? If yes, you have jurisdiction. -GOLDEN RULE OF NOTICE: Give notice onto others as you would if you actually needed their response to proceed! -BUT heroic efforts are not required, although if you give notice in a reasonable way and KNOW it is not received and there are further steps you can take to give reasonable notice that are not heroic efforts, you must do so -court analyzes cost/effort of giving notice here in determining what is reasonable versus heroic A. Issues with Publication: -in general, we start with the presumption notice by publication is insufficient since it is unlikely to give actual notice -if D’s name and address are not known and cannot be reasonably ascertained through due diligence, publication will be sufficient B. Attachment of Property:

-Pennoyer says this would be sufficient for in rem since it assumes D or D’s agent is actively monitoring his property, but in light of Mullane this would probably not be enough C. Other Considerations: -amount in controversy (Mullane was a very small amount whereas Jones was in danger of losing the whole house) -whether other protections are in place (in Mullane there was a guardian and other people who would get notice and would be able to bring suit against bank, whereas in Jones there was no extra level of protection) -when there are multiple Ds, it seems reasonable that their interests would have to be aligned for notice not to need to be sent to all Ds -likelihood of success (in Dusenbery they were not really expecting a response because he had no chance of getting his property back, whereas in Jones it’s unlikely someone would abandon an entire house based on 2G of property taxes)

STEP SIX: Was there an opportunity to be heard? In normal cases, the summons/complaint will inform D of case and summons will say what D has to do and when to avoid default judgment This usually comes up with a buyer purchasing item on installment plan (pay X amount per month and if buyer does not pay, seller repossesses) -used to be very easy for merchants to do this (they would just send sheriff to the house) -not as easy any more Various due process factors to safeguard buyer (because maybe buyer did not pay but has perfectly legit reason for not paying)…not clear what exact combo of factors is required, but here are some of the factors which in some combination will provide enough protection to D to allow possibility of prejudgment seizure of property: 1) seller must give affidavit of his claim 2) affidavit must allege specific facts showing P is entitled to property (not just blanket conclusory allegation) 3) must be order from a judge (not sheriff or clerk) 4) P usually must post bond to cover D’s costs if D wins 5) at some point D needs to get hearing on the merits (MANDATORY UNDER FUENTES) 6) D may get property back pending litigation...