Forum Selection Flashcards
What is personal jurisdiction?
The ability of a court to exercise its power over a particular defendant or piece of property
What is the two step personal jurisdiction analysis?
(1) the forum state’s statute must be satisfied
(2) the Constitutional (due process) requirements must be satisfied
What are the five situations under which state statutes usually grant their courts personal jurisdiction?
(1) defendant is voluntarily present in the forum state and is personally served
(2) defendant is domiciled in the forum state
(3) defendant is a citizen of the United States (unclear extent of this)
(4) defendant consents to jurisdiction
(5) defendant comes within the long-arm statute of the forum state
How do you handle the state statutory personal jurisdiction element on the MBE/MEE?
Because each state is free to have its own personal jurisdiction statute, they are not testable on the MBE (usually are the same as the Constitutional test anyway). On the MEE, all that is necessary is to mention the requirement of a state statute before moving on to the Constitutional analysis.
What is the Constitutional personal jurisdiction analysis?
Does the defendant have “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice”? This is determined by application of three factors: contact, relatedness, and fairness.
What is the contacts requirement for personal jurisdiction?
There must be relevant contact between the defendant and the forum state based on two factors:
(1) purposeful availment – the contacts are not accidental, but rather the defendant purposefully availed themselves of the privilege of conducting activity in the state
(2) foreseeability – defendant must know or reasonably anticipate that their activities in the forum render it foreseeable that they be brought into court there
How is purposeful availment determined in stream of commerce cases?
Generally, persona jurisdiction over a defendant if the defendant, in addition to placing a product in the stream of commerce, knows or hopes a product will wind up in a particular forum and does some other act to show intent to serve a particular state.
How is purposeful availment determined in internet cases?
The maintenance of a passive website, without further activity in the forum state, is insufficient for general jurisdiction, but may be sufficient for specific jurisdiction where the defendant targets readers within the forum.
The maintenance of an active website may be sufficient if the forum has general jurisdiction over the defendant
What is the relatedness factor?
Where the plaintiff’s claim is related to the defendant’s contacts with the forum, then the court is more likely to find jurisdiction fair. If this is not the case, jurisdiction will only be fair if there is general jurisdiction (defendant could be sued in that forum for anything they did anywhere/they are “at home” in the forum).
What is the difference between specific and general jurisdiction?
Specific: plaintiff’s claim is related to the defendant’s contacts with the forum,
General: defendant is “at home” in the jurisdiction and can be sued there about anything they do
Where is a person “at home”/subject to general personal jurisdiction?
A human is “at home” in the forum where they are domiciled – where they maintain their permanent home
Where is a corporation subject to general personal jurisdiction?
Corporations are subject to general jurisdiction in the state where they are incorporated and the state in which they have their principal place of business
When and how are fairness factors analyzed in personal jurisdiction analysis?
Fairness is only analyzed in specific jurisdiction cases, and uses three factors:
(1) the burden on the defendant and witnesses (does not need to be the most convenient forum for the defendant – constitutionally acceptable unless defendant can show a severe disadvantage in the litigation)
(2) the state’s interest (if the plaintiff is a citizen, the forum state has a strong interest in providing a courtroom for citizens harmed by out-of-staters)
(3) the plaintiff’s interest
What is in rem jurisdiction?
Presence of property in state is constitutionally sufficient
(applicable to distribution of estate assets, condemnation proceedings, etc)
No in rem where property is out of state or brought in state by force
Notice required to interested parties whose addresses are known
What is quasi in rem jurisdiction?
Two types:
(1) disputes between parties over their rights to property in the state: apply minimum contacts and connection between litigation and contact is sufficient
(2) Disputes unrelated to property: apply minimum contacts but mere presence of property in state not enough, there must be more – e.g., sufficient contacts such that personal jurisdiction over defendant would be proper
What is defendant entitled to in addition to personal jurisdiction?
Notice – as a Constitutional matter, must be “reasonably calculated under all circumstances, to apprise interested parties of the action”
What does notice consist of in a typical lawsuit?
Service of process: (1) a summons (formal court notice and time for response) and (2) a copy of the complaint
Who can serve process?
Any nonparty who as at least 18 years old
When should process be served?
For parties in US, no more than 90 days after filing. Can only be extended for good cause.
How can process be served on an individual in the United States?
(1) Personal service – process server personally delivers to the defendant at any location
(2) Substituted service – process server serves it at the defendant’s usual abode on someone of suitable age and discretion who resides there
(3) Service on agent – process server can deliver the process to the defendant’s agent if receiving service is in the scope of their agency
(4) By any other means of serving process permitted by either the state law in which the federal court sits or where service is made (e.g., if state law allows for service by mail)
How can process be served on a business or organization in the United States?
(1) delivery to an officer, managing or general agent
(2) any methods permissible by state law in which federal court sits or where service is made
How can process be served on a minor or incompetent in the United States?
Any method permitted by the state law where the service is to be made
How can process be served in a foreign country?
As directed by the American court, or, where reasonably calculated to give notice:
(1) method allowed under the law of the foreign country
(2) method directed by a foreign official in response to a letter of request by the American court
(3) personal service in the foreign country unless prohibited by its law
(4) mail sent by the clerk of the American court requiring signed receipt unless prohibited by its law
When/how is service of process waived?
Plaintiff can mail the defendant a notice and request to waive formal service including a copy of the complaint and 2 copies of a waiver and a prepaid return envelope. If the defendant executes and returns the waiver in 30 days (60 if outside US), then formal service of process is waived. P files the waiver in court and it becomes effective. This does not waive a subsequent defense of lack of personal jurisdiction.
If defendant does not return the waiver form, they must pay the cost of subsequent formal service of process
How is service of process proved?
The process server files a report with court. Civilian servers file by affidavit.
Does failure to file an affidavit of service affect the validity of service?
no
When is a party immune from service of process?
If defendant’s presence in the state of service is as a party, witness, or attorney in a different civil case
What is the geographic reach of service of process?
Process may be served in the state in which the federal court sits and outside the state to the extent state law allows
How are other documents besides process served?
Other pleadings, motions and discovery get served but do not require formal service or summons. Usually done by delivery or mail to the party or attorney. Can be by mail if the party agrees. Service by mail is deemed complete when mailed.
How much time does a party have to respond to served documents (other than process) if response is necessary?
30 days. Plus an extra 3 if the requests were mailed.
What if a defendant’s agent is served but fails to notify the defendant?
if the agent was appointed by plaintiff under a contractual right benefiting the plaintiff or if the appointment is by operation of law, then failure to notify prohibits jurisdiction
What is the notice requirement for cases involving multiple or unknown parties?
best practical means available
if certified mail used and returned unopened, then plaintiff cannot proceed where other practical means of notification exist
What is subject-matter jurisdiction and what are the two types in federal court?
The court’s jurisdiction over the case (not the parties)
(1) Diversity of citizenship
(2) Federal question
Can parties consent to subject matter jurisdiction?
No
What are the requirements for diversity of citizenship jurisdiction?
(1) Complete diversity at the time of filing (every plaintiff must be from a different state than every defendant)
(2) amount in controversy exceeds 75,000 exclusive of interest and costs
When is diversity of citizenship determined?
at the time of filing
What is alienage jurisdiction?
A form of diversity jurisdiction: a suit between a U.S. citizen and an alien (no federal jurisdiction for suits between aliens though they may appear as additional parties on both sides of a controversy)
Is alienage permitted if a green card holder is domiciled in the same state as a litigant on the other side of the case?
No
How is a natural person’s citizenship determined?
The permanent home to which they intend to return/domicile (child has same citizenship as parents)
