Civil Procedure Flashcards
what is tag / transient jurisdiction?
a forum may exercise personal jurisdiction over a non resident defendant that is served process while physically in the forum.
What is general jurisdiction?
Allows a defendant to be subject to personal jurisdiction within a state based wholly on contacts having no relation to the underlying claims
How to determine general jurisdiction for individuals
citizenship
How to determine general jurisdiction over a corporation?
Principal place of business (nerve center), state of incorporation, in a state where the corporations activities render them “at home” in a state.
Define “nerve center” (principal place of business)
the place where the corporations high level officers direct, control, and coordinate the corporations activities
Burnham
example of tag / transient personal jurisdiction
Carnival Cruise Lines
example of consent personal jurisdiction
Consent personal jurisdiction
Forum selection clause
So long as a forum selection clause is unaffected by fraud, undue influence, or imbalance of power, a court is able to exercise personal jurisdiction.
Must evaluate the reasonableness and fairness of a forum selection clause but otherwise, its accepted.
-Is there any indication that the petitioner set a specific forum as the setting for disputes to be resolved as a means of discouraging the people from pursuing legitimate claims.
Shaffer
example of property personal jurisdiction
shoe minimum contacts test
for a forum to have personal jurisdiction over a non-resident defendant, the defendant must have minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice
Purposeful availment requirement for purposeful contact
there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within that state thus invoking the benefits and protections of its laws”
ensures defendants will be on clear notice regarding where their conduct will and will not subject them to personal jurisdiction.
Calder effects test
Merely being able to foresee that one’s actions will cause injury in the forum is not sufficient to establish jurisdiction
The conduct must be expressly aimed at the forum state and the brunt of the harm caused by the actions is suffered in a manner that connects the defendant with that state.
unilateral activity
purposeful availment cannot exist on the basis of unilateral activity of the plaintiff or 3rd parties - jurisdiction must be based on the actions of the defendant.
Stream of commerce plus
the mere placement of a product into the stream of commerce is insufficient to establish minimum contacts in a state where the product ends up and causes harm. There must be something more that demonstrates “purposeful availment” of that states market.
contract plus
entering a contract with a forum resident can constitute purposeful availment under the contracts plus analysis, must consider place of negotiation, execution, and performance of the contract to determine whether these factors support a finding of purposeful availment..
Personal jurisdiction based on internet contacts
typically courts focus on whether contacts mediated through the internet are specifically directed at the forum.
zippo classified websites as passive, active, or interactive where jurisdiction is proper where the website is active and reserving judgment for sites that are interactive.
General jurisdiction for unincorporated entities
Courts are split on how to determine:
- Some think its their principal place of business (nerve center)
- Some think its based on the citizenship of the members.
Rule 4(k)
Federal court personal jurisdiction
Constitutional notice requirement
notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
Checklist for notice
- Adequate information: does the notice convey sufficient information to notify the party of how and by when it should respond?
- Timeliness: Does the notice allow reasonable time to appear under the circumstances ?
- Method: Is the method of giving notice a method that “one serious of actually informing the party might reasonably adopt to achieve actual notice?
Was the most reasonable method available under the circumstances employed?
Rule 4(e)
Service of process (notice) rule.
Who cannot be served?
minor, incompetent person, someone who has waived service
Who can serve process?
Anyone 18+ and who is NOT a party
When must service be made?
within 90 days of filing the complaint
Rules for serving a minor or incompetent person
a minor or incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made.
Rules for serving a corporation, partnership, or association
in a manner prescribed by Rule 4(e)(1)
by delivering a copy of the summons and the complaint to an officer, managing or general agent, or any other agent authorized by appointment.
Rule 4(f)
serving an individual in a foreign country
- by an internationally agreed upon means of service that is reasonably calculated to give notice (like Hague convention)
- If there is no international agreement, by means reasonably calculated to give notice:
a. As prescribed by the foreign countries laws for service
b. As the foreign country directs in response to a latter of request.
c. unless prohibited by the foreign country’s law by,
i. delivering a copy of the summon and complaint to the individual personally.
ii. using any for of mail that the clerk addresses and sends to the individual and that requires a signed receipt. - By other means not prohibited by international agreement, as the court orders.
How much time does a defendant get to answer after they file a waiver of service?
60 days if in the US, 90 days if outside the US
How much time does a defendant get to answer after being served with process?
21 days if they did not waive
What happens if a defendant fails to waive, and is therefore required to be formally served with process ?
the defendant is imposed the expenses incurred in making service including the reasonable expenses like attorney fees
