M3: Personal Jurisdiction

Question 1

What are the three types of personal jurisdiction?

Answer 1

In Personam: virtue of the defendant’s relationship with forum state
In Rem: defendant owns property in in forum state
Quasi Rem: defendant owns property in forum state

Question 2

H: Mitchell sues Neff in Oregon, alleging that Neff hired Mitchell to perform legal services in Oregon and failed to pay Mitchell the resulting legal fees. This suit arose after International Shoe was decided. Mitchell found Neff in California and served Neff with process in California. Would it be constitutional for the Oregon court to exercise personal jurisdiction over Neff?

Answer 2

Yes, because Neff had contact with Oregon and the claim arose out of Oregon.

Question 3

Demo (a PA company) sends one of its products by mail to Paula, a California citizen. The product injures Paula in California and she sues Demo in California.

Would it be constitutional for a court to exercise in personam jurisdiction over Demo?

Answer 3

Yes, because Demo made a deliberate contact with Paula, a citizen of California. The claim arose out of the voluntary act with the state.

Question 4

Demo (a PA company) sends one of its products by mail to Paula, a California citizen. Paula then moves to Arizona and sues Demo there.

Would it be constitutional for a court to exercise personal jurisdiction over Demo?

Answer 4

No to general jurisdiction, because Demo does not appear to have sufficient contacts with Arizona.

No to specific jurisdiction because the claim does not arise from a contact with Paula in Arizona.

Question 5

Did the state of Washington have both general and specific jurisdiction over International Shoe? If not, which one was it able to exercise?

Answer 5

Specific Jurisdiction: contacts through Washington through reps who sold shoes. Ongoing sales and moving of product to Washington, but not enough to support general jurisdiction.

Question 6

Why is personal jurisdiction (vs. subject matter jurisdiction) so easily waived?

Answer 6

Personal jurisdiction is a defense that is personal to the defendant, whereas subject matter jurisdiction implicates systemic concerns.

A party can raise SMJ for the first time long after a case has begun, or even on direct appeal.

Question 7

True or false: The Constitution automatically confers personal jurisdiction on the courts of a state.

Answer 7

False. The state legislature does this! Each state specifies how expansively its courts can exercise personal jurisdiction (as long as it is within constitutional bounds).

Question 8

True or false: The Constitution automatically confers personal jurisdiction on the courts of a state.

Answer 8

False. The state legislature does this! Each state specifies how expansively its courts can exercise personal jurisdiction (as long as it is within constitutional bounds).

Question 9

True or false: Courts can exercise personal jurisdiction ONLY IF it has the constitutional authority to do so and the relevant statute authorizes it.

Answer 9

True. A case must fall into both circles (long arm statute and permitted by the Constitution) for a court to have authority to hear it for in personam jurisdiction.

Question 10

H: Lowell Franklin purchased an insurance policy from International Life Insurance Co. while living in North Carolina, then moved to California a week before his death. The beneficiary of the policy had always lived in California.

If the insurance company had no other connection to California, would a California court have authority to exercise personal jurisdiction over the insurance company if the company makes a timely objection?

Answer 10

No. Personal jurisdiction in this case would probably be unconstitutional.

California’s long arm statute: “foreign corporations to suit in California on insurance contracts with residents of that State even though such corporations could not be served with process within California’s borders”

Here, the California statute is valid because Franklin moved to California before his death. However, in personam jurisdiction is unconstitutional because the purposeful contacts are not met.

Question 11

H: You are a New Mexico citizen traveling to Arizona. You enter a local hardware store looking for a chainsaw. You tell the owner that you intend to bring the chainsaw back to New Mexico and the owner sells you a chainsaw. You return to New Mexico and are injured by the chainsaw, filing a lawsuit in New Mexico against the hardware store. Would it be constitutional for the New Mexico court to exercise personal jurisdiction over the store?

Answer 11

No. The claim does not arise out of the defendant’s contacts with New Mexico.

There would not be personal jurisdiction because the defendant did not direct the chainsaw to New Mexico. The defendant did not otherwise avail itself of the privilege of doing business in the state.

Question 12

H: Imagine that during a driving trip to Pennsylvania to Maine, Donald takes a wrong turn and, unbeknownst to him, drives to Vermont. Before Donald discovers his error, he hits Penelope. Penelope sues Donald in Vermont and Donald moves to dismiss the case for lack of personal jurisdiction. Assuming Vermont’s long-arm statute authorizes jurisdiction over the action, the motion should be…?

Answer 12

Denied, because the case arises out of Donald’s contacts in Vermont.

A Vermont court would have a strong interest in hearing the case. All of the witnesses would likely be in Vermont. Fairness favors Vermont because the plaintiff is located there.

Purposeful availment doesn’t have to mean that Donald intentionally drove to Vermont (he didn’t!), but instead means that Donald purposefully drove his care into an area that happened to be Vermont.

Question 13

H: Keeton sues Hustler Magazine for libel in New Hampshire. Keeton is a citizen of New York whose only connection to New Hampshire was that the libelous magazine had been distributed there. New Hampshire was also the only state where the statute of limitations for her claim had not yet expired.

Keeton’s libel claim alleged damages to her reputation in New Hampshire and nationally, though her damages in New Hampshire were relatively small.

How would the court rule with regards to personal jurisdiction?

Answer 13

There is personal jurisdiction because the claim arises out of Hustler’s contact with the state of New Hampshire. Keeton’s contact with the state has nothing to do with the test!

Specific jurisdiction constitutional only when:
1) Defendant had deliberate and purposeful contact with the forum state;
2) Plaintiff’s claim arose out of those contacts;
3) Personal jurisdiction is reasonable based on a consideration of the these factors
+ Forum state’s interest
+ Plaintiff’s interest
+ Interstate judicial system’s interest

Question 14

H: Dudley, a Georgia citizen, works in security at an airport in Atlanta, Georgia. While at work, Dudley stops Lucky, a Nevada citizen, who was at the airport for a brief layover during his trip home to Nevada after vacationing in Puerto Rico.

During the layover, Dudley confiscated a significant amount of cash from Lucky, who claimed to have won it while gambling at a Puerto Rico casino.

Lucky returned home to Nevada without his money, while Dudley filed an affidavit in Georgia as part of an effort to have the money forfeited to the government. Dudley knew that Lucky was on his way home to Nevada at the time Dudley confiscated the money. Dudley also knew that Lucky was in Nevada at the time Dudley filed his affidavit.

Lucky sues Dudley in Nevada state court, alleging Dudley’s affidavit was knowingly false. Assuming Dudley moves to dismiss the Nevada case on personal jurisdiction grounds, the motion would likely be…?

Answer 14

Granted because Dudley did not purposefully direct any contact to Nevada.

Question 15

True or false: Choice of law provision within contracts necessarily gives personal jurisdiction to courts of the state whose law is specified in the contract

Answer 15

False. Choice of law provision is usually binding but it does not automatically grant personal jurisdiction to the chosen state in the agreement.

Choice of law adds weight to an argument between parties in a dispute re: personal jurisdiction (you agreed to avail yourself in that state), but it’s not conclusive.

A more binding contract provision: forum selection clause, would lessen the arguments over personal jurisdiction.

Question 16

Paula (a California citizen) sues David (an IL citizen) in federal district court in California. Paula alleges that while she was living in IL, David shot off fireworks that set Paula’s house on fire.

• -> Paula’s claim is based on a state law cause of action and the alleged damages exceed $75K.
• -> David has never set foot in California and California’s long-arm statute reaches as far as the Constitution allows.

David moves to dismiss for lack of personal and subject matter jurisdiction. How should the court address David’s motion?

Would it be different if Paula files suit in IL state court for $50K? The IL long-arm statute reaches as far as the US Constitution allows. If David filed for dismissal, what would the court say?

Answer 16

If filed in CA federal court, the court should grant David’s motion regarding personal jurisdiction and thus cannot hear the case.

Subject Matter Jurisdiction exists: Two citizens from different states and AIC exceeds $75K. But personal jurisdiction is lacking since David has no contacts whatsoever in California.

If filed in IL state court, there is personal jurisdiction and subject matter jurisdiction. State courts are not subject to the $50K AIC. Personal jurisdiction would be met, since David lives in IL and his actions were in IL.

Question 17

Eugene (Idaho citizen) buys a computer from Nectarine (Delaware corp, main place of business in Mass), which his shipped to him from Nectarine’s plant in Mass. The computer catches on fire, causing Eugene to lose all of his valuable data. Eugene sues Nectarine and Trellis (Delaware corp, Delaware business) in Idaho state court, alleging the fire was due to a defective Trellis battery.

Trellis moves to dismiss for lack of personal jurisdiction.

Assuming Idaho’s long-arm statute reaches as far as the Constitution allows, what would the US Supreme court actually hold regarding the stream of commerce method for establishing personal jurisdiction?

Answer 17

The US Supreme Court has left unresolved whether the Idaho state court would have personal jurisdiction over Trellis.

Marks rule: No single rationale –> the holding of the court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.

Question 18

If you were representing a corporation in a stream of commerce case, what would you argue to an out-of-state jurisdiction to convince it that it should not be subject to specific jurisdiction?

What if you represent the plaintiff suing multiple parties in a stream of commerce case?

Answer 18

Defendant: Use O’Connor’s opinion from Asahi, Kennedy’s from McIntyre ==> Component part manufacturers do not direct their activity to any given state. Narrow approach, since the liberal approach is problematic (judicial economy, certainty)

Plaintiff: Use Brennan’s opinion from Asahi, Ginsburg’s from McIntyre. Liberal approach to stream of commerce (fairness, faith in the legal system)

Question 19

Peter is injured in Indiana by a product that Damage Inc. (incorporated and principal place of business in Ohio) designed, manufactured, and sold in Indiana. Peter sues Damage in Ohio, because he recently moved to the state. Does the Ohio court have PJ (general or specific) in this case?

Answer 19

Specific jurisdiction: No. The claim did not arise out of anything that Damage Inc. did in Ohio.

General jurisdiction: Yes. Damage is HQ’d and does its business in Ohio, so they’re essentially “at home” in the state. Here in Ohio, a court has personal jurisdiction over any claim that a plaintiff might have against Damage, even if it arose in Indiana.

Question 20

When is a company considered to be “at home” in a state for purposes of general jurisdiction? Is the at home test narrower than “continuous and systematic” test? If so, how?

Answer 20

At home = whenever it has its principal place of business or place of incorporation. Daimler exceptions mentioned: Perkins, where a company moved from overseas to Ohio due to WWII loss.

At home test is narrower and more difficult to satisfy. A company can have continuous and systematic contacts with many states but not be at home in any of them.

Larger companies are now subject to general jurisdiction in fewer states than when the test “systematic and continuous contacts”

Question 21

True or false: After Daimler, a company can be sued in a state where its contacts give rise to claim but cannot be sued where it has its principal place of business or place of incorporation

Answer 21

Part true, part false.

Specific jurisdiction: a company can be sued in a state where its contacts give rise to claim.

General jurisdiction: a company CAN be sued where it has its principal place of business or place of incorporation.

Question 22

Why does a change in general jurisdiction matter? And to whom does it matter?

Answer 22

Similar to Daimler, where a defendant is a foreign company that has its principal place of business + incorporation abroad –> when claims against the company arise out of conduct that occurred abroad, specific jurisdiction is not possible in the U.S. That makes general jurisdiction the only option.

Also, it makes recovery for the injured party more inconvenient.

Question 23

Penelope buys a hot coffee at McDonald’s in Florida and spills it on herself, causing third-degree burns. Upon returning to her home in Georgia, Penelope sues McDonald’s in a Georgia state court for negligence, alleging that the store sold excessively hot coffee and caused her to suffer damages.

The Georgia long-arm statute reaches as far as the Constitution allows. McDonald’s is incorporated in Delaware, with its principal place of business in Illinois. They have 75 stores in Georgia.

If McDonald’s moves to dismiss the case on personal jurisdiction grounds, what will the court say?

Answer 23

Grant the motion, since McDonald’s has its principal place of business and place of incorporation outside of Georgia, so a Georgia court cannot exercise general jurisdiction in Georgia because they’d not be “at home”

Even under the most liberal definition of “arising out of”, this case does not arise out of contact that McDonald’s had with Georgia, so there is no specific jurisdiction.

Before Daimler, the court may have denied the motion since general jurisdiction would have been allowed.

Question 24

True or false: If a lawsuit has nothing to do with the forum state and the defendant is an individual, the defendant can’t be subject to general jurisdiction if the defendant is domiciled there.

Answer 24

False. General jurisdiction for individuals is based on wherever the individual is domiciled.

Question 25

Larry (Arkansas citizen) purchases swampland in Florida. Carrie claims that she is the rightful owner of the swampland and that the land was sold to Larry without her permission.

Carrie brings a claim in Florida state court, asking the court to declare that the land belongs to her and not Larry. She files her suit and asks the court to issue an attachment order.

Does the court have in rem or quasi in rem jurisdiction in this case?

Answer 25

Attachment order: filed at the registry of deeds to give notice to potential buyers that Carrie has a claim pending that might affect Larry’s ownership of the property.

By attaching the property at the outset of Carrie’s case, Florida court establishes quasi in rem jurisdiction. They can determine who has the better claim between Carrie and Larry (vs. in rem == who the true owner is against anyone else in the world)

–> this quasi in rem jurisdiction only applies to the specific plot of swampland, not every plot around the world that Larry owns

Question 26

Patty sues Donald for negligence in Texas, where Donald is subject to in personam jurisdiction. The jury awards Patty monetary damages. Donald decides not to appeal and after final judgment, he refuses to pay Patty.

What can Patty do to collect from Donald?

Answer 26

Patty can ask a Texas court to attach (post-judgment) any assets that Donald owns in Texas, including bank accounts or real estate. The Texas court can even sell Donald’s real estate to ensure that Donald satisfies the judgment against him.

The Texas court could also garnish Donald’s wages.
–> Both are in rem or quasi in rem jurisdiction

If Donald does not have assets to fully satisfy the judgment, Patty can take the Texas judgment to another state where Donald does have adequate assets. Other state court is bound by Full Faith and Credit Clause. –> Neither in rem or quasi in rem, but a way to get your money on a valid judgment entered by a court that had in personam jurisdiction

Question 27

True or false: Under Pennoyer, a court could exercise jurisdiction based on the presence of a defendant’s property in the forum state, even if the debtor was not subject to personal jurisdiction in that state.

Answer 27

True!

Ex: If a debtor left a car in the state or piece of land, the court could seize and sell that property to satisfy debtor’s debt.

Question 28

Pietra has a claim against Donnor, a California citizen, that arose out of a car accident that occurred in California. Pietra is a citizen of North Carolina and asks a North Carolina court to attach a money market account that Donnor owns in the state and that he opened while visiting the state.

Pietra then seeks to litigate the car accident case in North Carolina, resigning herself to recover only the funds in Donnor’s North Carolina money market account.

Pietra’s claim is unrelated to the funds in Donnor’s money market account. Beyond the money market account, Donnor does not have contacts with North Carolina that subject him to personal jurisdiction.

Most courts would probably…

Answer 28

Pre-Shaffer
Exercise quasi in rem as long as the state court attached Donnor’s account at an appropriate time

Post-Shaffer
Not exercise quasi in rem because Donnor lacks sufficient contacts with the state

Question 29

Jaime (North Carolina citizen) has a claim against Ryan (a California citizen) that arose out of an injury that Jaime suffered while jogging on a rental property in North Carolina that Ryan owned.

Jaime sues Ryan in North Carolina and asks the North Carolina court to attach Ryan’s property at the outset of the case in an attempt to establish quasi in-rem jurisdiction. Ryan’s property is valuable enough to cover Jaime’s damages if he wins.

Ryan purchased the property only to rent it and has never been to North Carolina (the purchase was made through online resources). Ryan has no other contacts with North Carolina. Ryan moves to dismiss for lack of personal jurisdiction.

A court would probably…

Answer 29

Deny the motion, because this case arises out of Ryan’s contacts with North Carolina.

Shaffer: Whether personal jurisdiction would exist under the Shoe contacts framework?

Does Ryan have any contacts in North Carolina sufficient to give jurisdiction? YES! He rents out North Carolina land for profit and the claim arises from activity that took place on that property.

Question 30

Can a plaintiff obtain personal jurisdiction over an out-of-state corporation by serving the company’s executive while she’s traveling in the forum?

Answer 30

No. A plaintiff cannot obtain personal jurisdiction over a corporation by serving an officer of that company who happens to be in the forum state.

A corporation has legal status that is distinct from the legal status of its employees.

Question 31

Is it constitutional for a court to exercise personal jurisdiction over a partnership if one of the partners is served in the forum state?

Answer 31

Yes. Partnerships do not have a legal status that exists independently of the individual partners.

Partnerships ==> citizen of every state where an individual is domiciled

Question 32

True or false: Many states require companies that do business in the forum to appoint an in-state agent for service of process.

Answer 32

True. If such a statue exists and a plaintiff wants to sue a company in that forum, a plaintiff can serve the in-state agent that the company has designated.

Why? Because the company itself consents to being sued in the forum by appointing an agent. (not the same as transient jurisdiction)

Question 33

True or false: There are no exceptions to the transient jurisdictional rule

Answer 33

False. Luring someone into a forum state under duress or fraud will not “count” towards transient jurisdiction

Question 34

Pangea (NV citizen) suffers injuries in Maine after colliding with a car driven by Denny, a Maine citizen. Pangea returns home to Nevada and sues Denny in a Nevada state court.

Denny has never set foot in Nevada, but shortly after Pangea files her lawsuit, Denny flies to California to visit relatives. While flying over Nevada’s airspace, another passenger (process server) serves Denny with Pangea’s complaint and a summons to appear in the Nevada court.

Denny moves to dismiss the case on personal jurisdiction grounds.

Explain why Denny’s motion should be granted (or not) and why you have reached that conclusion.

Answer 34

p. 302: Two possible analyses

No. Only two ways to establish personal jurisdiction, which would be through specific or transient jurisdiction. Since specific jurisdiction is not applicable here (no contacts with the state of NV), we have to look at transient jurisdiction.

The flight is the only plausible way to establish personal jurisdiction would be through the flight/airspace, but this was not a purposeful contact in Nevada. The case has nothing to do with the flight.

Moreover, the concept of transient jurisdiction also must assume that serving someone in the forum state aligns with fair play and substantial justice —here, Denny didn’t intend to enter Nevada and likely didn’t give any thought to whether or not the plane would fly over the forum state on the way to California. This entering the forum state was neither intentional nor voluntary.

Use Brennan opinion from Burnham to back you up.

Yes. Only two ways to establish personal jurisdiction, which would be through specific or transient jurisdiction. Since specific jurisdiction is not applicable here (no contacts with the state of NV), we have to look at transient jurisdiction.

During the flight, Denny was present in Nevada and served process. This is a tried and true (and constitutional) way to establish transient jurisdiction. Look at Burnham and the Supreme Court’s concurrence.

Question 35

What are the ways a party can consent to personal jurisdiction?

Answer 35

1) Don’t raise the issue
2) Through conduct
3) Prior to suit (ex: forum selection clause)
4) Engage in forum-related conduct

Question 36

How is a waiver of personal jurisdiction different from consent?

Answer 36

Waiver is similar to consent, but waiver typically results from a party’s failure to raise an issue within a specified time or in a proper manner

Ex: Not following FRCP Rules 12(g)-(h) or ignoring court orders

Question 37

*An Arizona citizen brought a $70,000 tort action in Arizona state court against a restaurant located in Florida alleging that she had developed food poisoning while eating in that restaurant because of the unhygienic conditions present in the kitchen. The defendant removed the case.

Thereafter, the defendant filed a motion with the federal trial judge requesting that the court dismiss the case for lack of personal jurisdiction over it. The plaintiff acknowledges that the applicable long-arm statute does not provide jurisdiction over this defendant. Should the court grant this motion?

Answer 37

Yes, because the defendant is not subject to personal jurisdiction.

The defendant has removed a state law claim between diverse parties that does not satisfy the amount in controversy requirement of §1332. Consequently, the federal district court does not have subject matter jurisdiction. Since objections to subject matter jurisdiction are not waivable and, in fact, can be raised by the court sua sponte, this problem raises the question of whether this court can adjudicate the personal jurisdiction challenge prior to determining the existence of subject matter jurisdiction.

Resolution of the subject matter jurisdiction question in this instance pretermits consideration of the defendant’s personal jurisdiction challenge and the case will be remanded to the state court since the claim is not removable because it does not meet the amount in controversy requirement of §1332.

This, in turn, means that, to the extent the defendant wants to adjudicate the personal jurisdiction issue, a state, rather than a federal, judge will resolve it. While that result might, in some cases, frustrate the defendant’s desire to have a federal judge resolve that question, since many personal jurisdiction questions involve the construction of state long-arm statutes, it promotes interests of federalism/comity by leaving the interpretation of state law to the state court. In cases where the personal jurisdiction inquiry is either straightforward (as here) or turns primarily on a federal constitutional issue, the federal district court does not abuse its discretion by turning first to personal jurisdiction, particularly when the subject matter jurisdictional question is either complex or novel.

Therefore, this court can consider the personal jurisdiction question even though it does not have subject matter jurisdiction over this claim

Question 38

Dan, a lifelong resident of New York, went to New Orleans, Louisiana, for a convention. One night, he tasted a local Cajun whiskey. Liking what he tasted, he bought a case of the whiskey to take back to New York. Upon his return to New York, Dan gave a bottle to his boss, Ben, a citizen of New York.

After work that evening, Ben decided to try the whiskey and prepared himself a cocktail consisting of the Cajun whiskey and water. After three or four sips of his cocktail, Ben experienced a severe burning sensation in his throat and stomach. He called his doctor, who advised him to come to the hospital and bring the bottle of the whiskey with him. At the hospital it was determined that the bottle contained a high percentage of acid. Ben was treated accordingly. He survived, but had to have part of his stomach removed and will talk in a low raspy voice for the rest of his life.

Ben comes to you, an attorney in New York, and wants you to represent him in his personal injury action. He wants to sue for $1 million to pay for his medical expenses and be compensated for his pain and suffering and permanent physical impairments. You agree to represent him and immediately begin making certain investigations. You learn that the Cajun whiskey is a product distilled by the De-Lis Whiskey Company, a Louisiana corporation with its principal place of business in Louisiana. It distributes its products in Louisiana, Alabama, and Mississippi.

Assume that the legislature in every state in the country has passed the following statute:

The courts of this state shall have personal jurisdiction over an individual, corporation or other entity who, in person or through an agent: transacts business within the state; or commits a tortious act without the state causing injury within the state; or is personally served within the state; or owns property within the state.

Can a state court in Louisiana exercise general jurisdiction over De-Lis Whiskey Company?

Answer 38

Yes, because it is a citizen of Louisiana.

State courts have personal jurisdiction over their citizens, even if they are not residing in the forum state at the time suit is brought. There is no need to examine the application of the long-arm statute since these statutes deal with obtaining personal jurisdiction over noncitizens and nonresidents. There is also no constitutional objection to exercising personal jurisdiction over a forum citizen.

Question 39

*Dan, a lifelong resident of New York, went to New Orleans, Louisiana, for a convention. One night, he tasted a local Cajun whiskey. Liking what he tasted, he bought a case of the whiskey to take back to New York. Upon his return to New York, Dan gave a bottle to his boss, Ben, a citizen of New York.

After work that evening, Ben decided to try the whiskey and prepared himself a cocktail consisting of the Cajun whiskey and water. After three or four sips of his cocktail, Ben experienced a severe burning sensation in his throat and stomach. He called his doctor, who advised him to come to the hospital and bring the bottle of the whiskey with him. At the hospital it was determined that the bottle contained a high percentage of acid. Ben was treated accordingly. He survived, but had to have part of his stomach removed and will talk in a low raspy voice for the rest of his life.

Ben comes to you, an attorney in New York, and wants you to represent him in his personal injury action. He wants to sue for $1 million to pay for his medical expenses and be compensated for his pain and suffering and permanent physical impairments. You agree to represent him and immediately begin making certain investigations. You learn that the Cajun whiskey is a product distilled by the De-Lis Whiskey Company, a Louisiana corporation with its principal place of business in Louisiana. It distributes its products in Louisiana, Alabama, and Mississippi. You learn that De-Lis places ads in NOLA magazine at all local hotels, including the one where Dan stayed during his visit. You learn that about 45% of all sales of the Cajun whiskey are made to New York tourists who take the product back to their home state and 50% of its sales are made to New Yorkers who purchase the liquor through De-Lis’s highly interactive web site. Sales to New Yorkers account for in excess of $3 million annually. In addition, you learn that De-Lis Whiskey Company has $500,000 on deposit in a New York bank.

Assume that the legislature in every state in the country has passed the following statute:

The courts of this state shall have personal jurisdiction over an individual, corporation or other entity who, in person or through an agent: transacts business within the state; or commits a tortious act without the state causing injury within the state; or is personally served within the state; or owns property within the state.

Can a state court in New York exercise specific jurisdiction over De-Lis Whiskey Company?

Answer 39

Yes, because De-Lis transacts business in New York and the cause of action arose out of those contacts.

The proper approach to determining whether or not a state court can exercise personal jurisdiction is a two-step analysis.

1) Determine whether the applicable state long-arm statute applies. Here, De-Lis is doing more than $3 million in annual business with New York customers, both those that come to New Orleans and bring the whiskey to New York and those who buy it over the Internet. So the statute applies.

2) Determine the constitutionality of exercising jurisdiction. That is a multi-step process. First, is the court attempting to exercise specific or general jurisdiction? The question asks only for specific jurisdiction, which means that the cause of action arises out of the defendant’s relationships with the forum state. Here, the cause of action is for damages caused by the defective product.
While it could be argued that the defendant’s connection with the forum is only the transport and not the manufacture of the product, if one views the connection as the entire business of producing and distributing liquor, then the cause of action does arise out of the defendant’s relationships with the forum. In that case, one must then evaluate the extent of the defendant’s relationship.

Since this appears to be a continuous and systematic relationship, the International Shoe standard is met. One must then also evaluate the “fairness” factors set forth in Volkswagen. Here, the plaintiff is a forum citizen and so both he and the forum state have an interest in having the case heard in the chosen forum. And the interstate judicial system has an interest in having the case heard in New York since many of the witnesses including the plaintiff and his doctors are in the forum.

Question 40

The plaintiff, a Texas citizen, brings an action against the defendant, an Ohio corporation, in federal district court in Texas asserting two claims. The first claim alleges a violation of the federal antitrust law, which provides for nationwide service of process. The second claim is for breach of contract with respect to an unrelated matter. The trial court has determined that it can constitutionally exercise personal jurisdiction over the defendant with respect to the federal claim. It has also determined that the defendant is not subject to personal jurisdiction under the terms of the Texas long-arm statute.

Can the court exercise personal jurisdiction over the defendant with respect to the entire case?

Answer 40

No, because the federal and state law claims do not arise out of a common nucleus of operative fact.

The issue here is whether the fact that the defendant would not be subject to personal jurisdiction with respect to one of the claims, here the state law claim, precludes the court from exercising jurisdiction over it with respect to the entire case.

Also, under the Texas state long-arm statute, there is no basis for exercising personal jurisdiction over the defendant (absent supplemental jurisdiction). Since the state law claim arises out of “an unrelated matter” from the event giving rise to the federal claim, the two claims do not constitute one “case,” i.e., they do not arise out of a common nucleus of operative fact.

Hence, the court would not apply the doctrine of pendent personal jurisdiction and the state law claim would have to be dismissed.

Question 41

Jake, a lifetime resident of Boston, made his first ever venture out of Massachusetts when he flew to San Francisco, California. He was unable to get a nonstop flight and so had to change planes at John F. Kennedy International Airport in New York City, New York. While sitting in a coffee shop at Kennedy airport, he was served with process in connection with a lawsuit filed against him by his former next-door neighbor. His neighbor, now a citizen of New York, brought suit in New York claiming that Jake had sold him a lemon—Jake’s 2005 automobile. Jake files a motion to dismiss for lack of personal jurisdiction. How should the court rule?

Answer 41

The court should deny the motion because Jake was served in New York.

A court has jurisdiction over people and property within their jurisdictional borders. If a defendant is present in the jurisdiction when served with process, however briefly, that defendant will be subject to the court’s personal jurisdiction over him. This is called “tag jurisdiction” and has been ruled constitutionally sufficient by the United States Supreme Court.

Question 42

*Plaintiff and Defendant were friends attending their high school reunion. Plaintiff is a resident of California; Defendant is a resident of New York. At the end of the evening, they got into a heated argument and Defendant punched Plaintiff in the face. The next day, Plaintiff sued Defendant in federal court on the basis of diversity jurisdiction, alleging assault and intentional infliction of emotional distress and seeking $1 million in damages. Simultaneous with the filing of the complaint, Plaintiff moved ex parte to attach Defendant’s three-bedroom house. Defendant later moved to vacate the attachment as a violation of his rights under the Due Process Clause of the Fourteenth Amendment.

How is the court likely to rule on Defendant’s motion?

Answer 42

The court will likely grant the motion absent a showing by Plaintiff of exigent circumstances.

Although provisional remedies such as attachment are not per se unconstitutional, their use is constrained by the Due Process Clause and must be justified.

The Supreme Court has held that in assessing the constitutionality of provisional remedies, consideration ought to be given to the balance of three factors: (1) “the private interest that will be affected”; (2) “the risk of erroneous deprivation” of property presented by the attachment, as well as “the probable value of additional or alternative safeguards”; and (3) the “interest of the party seeking” the attachment of property as well as “any ancillary interest the government may have.” Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (adapting the test set out in Mathews v. Eldridge, 424 U.S. 319 (1974) to apply to suits between private parties).

In determining the interest of the party seeking the attachment, the court will consider whether the party had a preexisting interest in the property attached, or whether there were exigent circumstances that necessitate attachment of the property before a hearing. In this case, as in Doehr, the court will likely find that Plaintiff’s interests in favor of the attachment are too weak to outweigh Defendant’s interests against attachment and the risk of erroneous deprivation. Plaintiff did not show that he had a preexisting interest in the three-bedroom house; the house is unrelated to the tort action before the court; and there was no showing of exigent circumstances (such as Defendant’s flight from the jurisdiction or immediate danger to the community). “Absent such allegations … the plaintiff’s interest in attaching the property does not justify the burdening of [the defendant’s] ownership rights without a [preattachment hearing].” Doehr, 501 U.S. at 16.

Question 43

Plaintiff owns and operates a retail store in California. It licenses software from Defendant, a Texas company that specializes in security technology. Despite the software, hackers broke into Plaintiff’s financial system. Plaintiff sued Defendant in a state court in Delaware for breach of contract, choosing the forum because of its unusually long statute of limitations. Defendant did not object to personal jurisdiction. Plaintiff loses on the merits; the state court holds that Plaintiff was contributorily negligent for its injuries because it did not properly install the software. Plaintiff then filed a second lawsuit against Defendant, largely repeating the breach-of-contract claim that was dismissed in the first lawsuit, but this time filing the lawsuit in federal district court in Delaware. Defendant answers the complaint raising the affirmative defense of claim preclusion and asserts a counterclaim that the filing of multiple lawsuits has caused Defendant to suffer wrongful injury to reputation, and alleges special damages of lost business in excess of $75,000.

Other than filing the pair of lawsuits, Plaintiff has no contacts with Delaware. Plaintiff moves to dismiss the counterclaim for lack of personal jurisdiction, arguing that no summons was served with the counterclaim. How should the court rule on the motion?

Answer 43

The court should deny the motion, because Plaintiff has effectively consented to suit in the forum state.

The filing of a lawsuit is treated as consent by the plaintiff to personal jurisdiction in the forum “for all purposes for which justice to the defendant requires his presence.” Adam v. Saenger, 303 U.S. 59, 67-68 (1938). As the Supreme Court has explained, deeming the plaintiff to have consented to personal jurisdiction in the forum in which he has elected to sue “is the price which the state may exact as the condition of opening its courts to the plaintiff” and is consistent with the requirements of the Due Process Clause. Id.; see also Schnabel v. Lui, 302 F.3d 1023, 1037-1038 (9th Cir. 2002) (“[A] party cannot avail itself of the court’s jurisdiction, bringing claims which mandate the filing of counterclaims, and thereafter attack personal jurisdiction when judgment is entered against the party on counterclaims.”). The Plaintiff in this case availed itself of personal jurisdiction in the federal district court in Delaware by bringing suit there. By so doing, Plaintiff effectively waived any objection to personal jurisdiction he might have asserted had Defendant elected to file his counterclaim as an original claim in an independent lawsuit.

Question 44

Lee Johnson is a farmer from California who has used the herbicide Roundup on his property for the last 30 years. Lee contracted non-Hodgkin lymphoma, a form of cancer. His medical bills were over $600,000 in 2018, and he may die of the disease within the next year. Lee went to an attorney for help, and the attorney learned that in 2015, the International Agency for Research on Cancer (IARC), an agency of the World Health Organization, classified glyphosate as an herbicide that is associated with non-Hodgkin lymphoma, resulting in its ban in several countries. The attorney also learned that glyphosate is the primary ingredient in Roundup, which is manufactured by Monsanto, a Delaware corporation with its principal place of business in St. Louis, Missouri. In 2018, Monsanto was acquired for $63billion by Bayer AG, a company that is incorporated and headquartered in Leverkusen, Germany. Lee’s attorney would like to file a lawsuit against Monsanto and Bayer in the federal district court nearest to Lee’s farm. Discuss what basis Lee’s attorney has for personal jurisdiction over Monsanto and Bayer.

Answer 44

I. Personal Jurisdiction: Court’s ability to exercise over a defendant. If words, constitutional limitations. FRCP 4(k). Statutory provisions + Due process.

II. Types of PJ
Specific, General ($$$)
In rem/quasi in-rem (property in forum state, related or unrelated to the cause of action)
“Tag”

III. In Personam
a) General: Plaintiff sues the defendant “generally” for any claims the plaintiff might have, no matter where they arose, but only if the defendant is “at home” in the forum state. At home: Incorporated, principal place of business (Daimler), narrow exceptions (Perkins)

Lee could file in MO court against Monsanto since they are “at home” at their principal place of business. Single isolated incident is OK for general jurisdiction. BUT Bayer is not at home in MO. Neither Bayer and Monsanto are at home in California. Thus, you don’t have general jurisdiction against both entities in CA. And only one in MO (Daimler).

b) Specific: International Shoe: MC + FPSJ. Minimum contacts: SOC, SOC+ analysis. Fairness (not sustaining on its own): efficiency (witness only has a year to live, very ill, based in CA), forum jurisdiction’s interest, little burden on defendant, policy interest between the states since Monsanto has a large presence in many states (health and safety).

Can likely sue in Monsanto California due to MC and FPSJ, since the cause of action arose out of Lee’s contacts in the forum state. Evidence test and “but for” test –> in either test, the standard is met.

IV. What if there’s no PJ? Waiver, consent
N/A here

BUT would Lee be able to sue Bayer based on MC? Since the product has been used for 30+ years and Bayer just acquired Monsanto. (if words: piercing of corporate veil… maybe?)

Question 45

Mr. W is the chief executive officer of a private corporation called W-Enterprises. W-Enterprises is a Delaware corporation with its PPOB in New York. One of the many W-Enterprise projects is a casino in Atlantic City, New Jersey.

Pat Patterson is a carver and custom woodworker. Although she is not incorporated as a business, she personally provides woodworking services for building projects. In October of 2014, Pat personally entered into contract with W-Enterprises to provide artistic flourishes to the woodwork at the Atlantic City casino. Pat successfully completed all of the work exactly as requested, but W-Enterprises never paid her anything. Pat decided that the only way that she would recover the fees owed to her was by suing.

Although Pat grew up in New York and lived there at the time she was doing the work for W-Enterprises, she moved to Amarillo, Texas, in July of 2015, to do carving work in the homes of Texas millionaires.

Mr. W is a billionaire who has at least 5 residences throughout the United States including in Florida, Virginia, and California. However, he is registered to vote at his penthouse in New York City where he grew up. In 2015, Mr. W decided to run as a Republican candidate for the office of president of the United States. All through the summer and fall of 2015, Mr. W has been campaigning from state to state in his chauffeured W-mobile, which is essentially a luxury hotel room on wheels, complete with a shower and toilet.

The W-mobile, with Mr. W aboard, was headed to a debate in Denver in late September of 2015. The planned route was along Interstate highway 70 (I-70) through Missouri and Kansas to Colorado. Because of storms, however, I-70 was closed, so the bus went south through Oklahoma and Texas on I-40. The chauffeur made the decision about going this route as the bus was traveling at night and Mr. W was asleep.•When news media in Amarillo got all excited about Mr. W’s being in town, Pat went out to the rest stop where the W-mobile was temporarily parked. Mr. W was standing in the threshold of the W-mobile waving at the gathered crowd when Pat made her way up to him and placed a copy of her Complaint in his hand.•The Complaint, filed in the U.S. District Court for the Northern District of Texas, lists Pat as plaintiff and both Mr. W and W-Enterprises as defendants. Pat’s claim is for breach of contract alleging that both defendants are jointly and separately liable for the full $100,000 that was agreed to in the contract. Instead of answering the complaint, the defendants’ attorney filed a pre-answer motion requesting that the lawsuit be dismissed under 12b2. Assume that the Texas Long Arm statute is not enumerated and that you are the judge. Rule on the motion explaining the issues these facts raise and your reasoning.

Answer 45

I. PJ generally:
+ PJ is the power of a court in a particular state to issue a judgment over a D.
+ This power is limited by the d/p clause of the 14th amendment of the Constitution.
+ There must be PJ over every separate claim of a lawsuit, so we will examine the claims against each D separately. –> The breach of K claim is seeking money damages and is not about status or property, so they are in personam, rather than in rem.

II. Specific
+ Specific PJ is established by using the International Shoe tests of Minimum Contacts and Fair Play and Substantial Justice.
+ Specific PJ applies to actions that arise out of contacts with the forum state.

III. Long Arm Statute
+ For most civil cases, PJ is tied to the same boundaries as state court PJ because of 4k1A.
+ Because the D are out-of-state, it would appear that the LAS applies unless in-state service qualifies as physical presence under Pennoyer.
+ There may be enumerated long arm statutes with specific actions covered.
–> If so, then PJ is a 2 step analysis, first requiring analysis of coverage under the state statute.

+ FPSJ: Applying the Asahi 5-part reasonableness/fairness tests (1: burden on D; 2: forum state’s interest; 3: P interest in convenient and effective relief; 4: interstate judicial system’s interest in efficient resolution; and 5: fundamental substantive social policies) is superfluous in a general jurisdiction analysis. Daimler/ Glannon pp 246-47.

Conclusion: Because Pat is suing under a New Jersey contract for activities in New Jersey, Specific PJ does not apply here.

II. General PJ
+ Allows a P to sue a D for activities unrelated to the forum state. –> If your home is there, it’s fair (Daimler)
+ True, Mr. W has a mobile home where he’s traveling around the country but he, as an individual is not domiciled in TX
+ Mr W’s corporation is not incorporated in TX, nor do they have their principal place of biz in TX.

Conclusion: General jurisdiction does not apply to Mr. W or his corporation because they are not at home in Texas

V. Tag Jurisdiction
+ Common law rule: Proper service of process is OK for individuals (Scalia/Burnham and Brennan/Burnham). Corporations do not fall under this rule.

Conclusion: The Texas court could exercise PJ over Mr. W as an individual, but not to his corporation.

Question 46

True or false: The Constitution determines how far the long arm reaches for PJ

Answer 46

False: Each state’s legislature determines how far the long arm reaches for PJ. A court cannot exercise personal jurisdiction in every instance where it would be constitutional to do so.

Question 47

Darwin (FL citizen) sent a shipment of computers to Ohio. Peggy (Ohio citizen) bought one of the computers in Ohio and brought it back to her house, where it short-circuited and caused a fire. Peggy sues Darwin in Ohio state court and serves Darwin with process in Florida.

Darwin moves to dismiss on personal jurisdiction grounds. Will the court deny his motion?

Answer 47

Maybe. There’s a constitutional validity to Peggy’s claim, but we’d need to look at the Ohio’s long-arm statute to determine if PJ was allowed.

Question 48

Percy (Ohio citizen) visits Georgia and was in a car accident with Donnor, a Georgia citizen. Donnor has never left Georgia and has no contacts in any other state. Percy returns home to Ohio and sues Donnor in Ohio state court. Donnor is properly served at his home in Georgia and moves to dismiss the case on personal jurisdiction grounds.

Ohio has a provision to its long arm statute that says, “A defendant is subject to personal jurisdiction in Ohio if the plaintiff resides in the state.”

How should the court rule on Donnor’s motion?

Answer 48

Deny the motion because the exercise of personal jurisdiction is unconstitutional.

Do the facts in the case fit within a provision of the state’s long arm statute? The statute allows for personal jurisdiction

Is this exercise of of personal jurisdiction constitutional? No, because Donnor has no contacts in Ohio. This filing against him would be unconstitutional under Due Process.

Question 49

Davis (WI citizen) gets drunk at a bar in Ohio while visiting friends. While drunk at the bar, he recklessly collides with Percy (OH citizen). Percy suffers injuries and sues Davis in Ohio state court. Davis is served at his home in Wisconsin. Davis moves to dismiss the claim on personal jurisdiction grounds.

Ohio has a statute that reads, “a defendant is subject to personal jurisdiction in Ohio only if the defendant resides in Ohio”

What should the court do?

Answer 49

Grant the motion because personal jurisdiction is not authorized under the Ohio statute.

Is this exercise of of personal jurisdiction constitutional? Yes, because it arises out of Davis’s in-state contacts.

However since the court is not authorized to exercise specific jurisdiction and it is not here.

Question 50

If the NY long-arm statute had given a NY federal court permission to exercise personal jurisdiction, would it be constitutional to hail King from MO to a NY court?

What cases would you cite to in your argument?

Answer 50

Personal jurisdiction over an out-of-state website operator is constitutional only if the operator intended to serve or attract in-state audience. –> Young v. New Haven Advocate

Since King was directing his site to an audience in Columbia, MO, it’s likely that personal jurisdiction would be unconstitutional.

What about in rem jurisdiction? What if the website for King’s Blue Note was registered in New York? Probably not, but it’s a slight possibility.

Question 51

Explain FRCP 4(3)(2)(B

Answer 51

Allows service by leaving the summons with a complaint (if D is a person) at D’s dwelling house with a person of suitable age and discretion residing within.

Question 52

Marino is in an accident with Malewicz. He exchanges information with Malewiz at the accident scene. Later, he brings an action against Malewicz and serves him by mail, but the mailing comes back “undeliverable”. Based on Mullane, may Marino now serve Malewicz by publication?

Answer 52

Probably not. Since there is only one person to be located and served (vs. many, many more in Mullane), the expense would be less than in Mullane.

Absent personal notice, Malewicz will very likely not learn of the case and protect his Constitutional rights of due process.

Marino owes more effort than a newspaper publication.

Question 53

Hugo (P) serves Hyde (D) by delivering the summons and complaint to her himself. Is this service of process proper?

Answer 53

No. Hugo as a party is not authorized to serve process himself. FRCP 4(c)(2)

Question 54

Hugo (P) serves Hyde (D) by having a private process server deliver the complaint to Hyde at her office.

Is this service of process proper?

Answer 54

No because Hugo did not include a copy of the summons with the complaint. FRCP 4(c)(1)

Question 55

Hugo (P) sues Jekyll (D) and Hyde (D), two unrelated individuals. He serves process by having the process server deliver two copies of the summons and complaint to Jekyll at his house.

Is this service of process proper?

Answer 55

For Jekyll - yes. But for Hyde, no. Each D must be served separately, unless Jekyll is Hyde’s agent for service of process.

Question 56

Hugo (P) serves Jekyll (D) by having a process server leave the summons and complaint at his house with Jack, a friend of Jekyll who’s in town for a convention.

Is this service of process proper?

Answer 56

No, not in compliance with FRCP 4(e)(2)(B), since Jack does not reside in the house with Jekyll. A visiting conventioner would likely not qualify.

Question 57

Hugo (P) serves Jekyll (D) by having a process server leave the summons and complaint with Jekyll’s wife Jane at the restaurant she runs.

Is this service of process proper?

Answer 57

No. If the process server delivered the papers to Jane at Jane and Jekyll’s home, this would comply with FRCP 4(e)(2)(B) but Jane cannot be served on Jane at some other location.

Question 58

Hugo (P) serves Jane’s Restaurant Corporation and serves process by having the process server deliver the summons and complaint to Child, a pastry chef at Jane’s restaurant.

Is this service of process proper?

Answer 58

No. A corporation may be served by delivering the papers to a “managing or general agent” of the corporation, but it is doubtful that a pastry chef fits the description. FRCP 4(h)(1)(B)

Question 59

Hugo (P) sues Jane’s Restaurant Corporation (D), which owns a restaurant in Minnesota, in Minnesota Court. The process server delivers the summons and complaint to Jane, president of Jane’s, while she is visiting her mother in Wisconsin.

Is this service of process proper?

Answer 59

Yes. A corporation may be served by delivering the papers to an officer. FRCP 4(h)(1)(B). The officer doesn’t have to be in a particular place when she receives service.

Question 60

True or false: As long as a defendant is properly served, a court has PJ over him/her?

Answer 60

False. Service and PJ are separate though related principles.

If the D is properly served, the court does not necessarily have PJ over her. AND a court cannot acquire PJ over D without proper service of process.

Question 61

Danzinger (GA resident) sues Alioto (FL resident) for injuries in an auto accident they had in Florida.

Danzinger files the suit in a Georgia federal court. Alioto has no contacts with Georgia. Danzinger’s counsel arranges for service of process on Alioto in Florida. A Florida process serves goes to Alioto’s machine shop in Florida and hands her the summons and complaint in the action.

Does the court have PJ over Alioto?

Answer 61

Even though service was proper under FRCP 4(e)(2)(A), a Georgia court cannot exercise PJ against Alioto because he doesn’t have any contacts with the state. There’s no basis for PJ here since the accident took place in Florida.

Question 62

Danzinger (GA resident) sues Alioto (FL resident) for injuries in an auto accident they had in Florida.

Danzinger files the suit in Florida federal court. He serves process by publishing notice of the action in a newspaper in the county where the action is pending for three weeks in a row.

Is service of process on Alioto proper? Does the court have PJ over Alioto?

Answer 62

Service was not proper, under Mullane, since newspaper publication (vs. personally serving, mailing a complaint and service form to A’s residence, sending certified mail requiring A’s signature to his home, other authorized Florida service statutes) alone would not suffice as reasonable attempt to notify.

Thus, there is not PJ against Alioto until he is properly served and can appear + defend.

Question 63

Danzinger (GA resident) sues Alioto (FL resident) for injuries in an auto accident they had in Florida.

Danzinger files suit for his injuries in the accident in a Georgia federal court. He serves process on Alioto by having the process server deliver the summons and complaint to Alioto at her hotel while Alioto is visiting Atlanta. Is service of process on Alioto proper? Does the court have PJ over Alioto.

Answer 63

Tag jurisdiction = proper PJ (Burhnam)

FRCP 4(e)(2)(A): in hand service is as good as it gets for actual notice

Question 64

True or false: Service may comply only with state statute/court rule applicable in the court in which the case is filed.

Answer 64

False. Service must comply with the statute/court rule applicable in the court in which the case is filed AND be constitutionally sufficient.

Question 65

What are the two conditions that must be met before a court can exercise PJ?

Answer 65

1) PJ must be authorized by state long arm provision (enumerated, specialized, catchall) AND
2) PJ bust be constitutionally permissible under 14th Amendment Due Process

Question 66

True or false: General PJ does not generally require long arm statute authorization

Answer 66

False. Generally requires LAS authorization, but moot for corporations since most states have agent-for-service requirement

Question 67

True or false: Tag/Transient PJ does not require examination of long-arm statutes

Answer 67

True. This is a common law authority, don’t need to review LAS.

Question 68

True or false: The 14th Amendment applies to states and the federal government.

Answer 68

False. LAS provision: 14th Amendment applies only to states

Federal court’s power is limited by 5th Amendment Due Process.

Question 69

True or false: Federal courts can, without limitation, exercise PJ anywhere in the U.S.

Answer 69

False. FRCP4(k)(1)(a): limits federal court P to scope of state court PJ