NY Practice - PERSONAL JURISDICTION (basis of jurisdiction over D's person) Flashcards
Basis for Jurisdiction over D’s person
need some type of territorial connection between D and the state of NY
PERSONAL JURISDICTION is this basis. Personal Jurisdiction enables a judgment for money damages to be enforced in full
Types of “Personal Jurisdiction”
Gary Player Don’t Do Stuff Like Not Clap (GPDDSLNC)
GENERAL JURISDICTION - it does not matter where the claim arose:
(1) Presence in NY
(2) Doing Business in NY
(3) Domicile in NY
SPECIFIC JURISDICTION: claim must be specific to D’s NY activity or within terms of contract
(1) Long-Arm Jurisdiction
(2) Non-Resident Motorist Statute
(3) Consent
How do you assert jurisdiction over a D who is PHYSICALLY PRESENT in NY?
Personal Delivery of process to D while physically present in NY - the D’s physical presence in NY at time of service is a valid basis for PERSONAL JURISDICTION over D.
Jurisdiction based on D’s presence in NY is GENERAL and therefore it doesn’t matter what the suit is for or where the claim arose.
“Doing Business” in NY
“Doing Business” is a form of PRESENCE jurisdiction, and is therefore general, so claim can be for anything that arose anywhere
(1) A domestic corporation (incorporated in NY) is subject to personal jurisdiction in NY on any claim whatsoever, no matter where claim arose. Same applies to a foreign corporation (incorporated outside NY) that has become authorized to do business in NY, i.e. “licensed” corporation can be sued in NY on any claim
(2) an UNLICENSED Foreign Corporation is said to be present in NY if it is “doing business” in NY
TEST for “Doing Business”
-P must show that at the time the action is commenced, the corporation’s EMPLOYEES or AGENTS are in NY engaging in commercial activity for the corporation on a “regular, systematic and ongoing” basis
If the corp. is “DOING BUSINESS” in NY, service of process may be made by PERSONAL DELIVERY to a proper corp. representative anywhere in the U.S. or by service on NY Secretary of State
***MOST IMPORTANT FACTOR in determining if a corporation is “doing business” in NY IS – If the corporation has an OFFICE or some physical facility in NY with employees coming or going on a regular basis
Note: if corp found to be “doing business” in NY, it does not have to be a claim that arose from the corporation’s business - can be anything - “doing business” is a form of presence and GENERAL jurisdiction
e.g. on p.31
Three Limitations on “Doing Business” (aka 3 things that DO NOT count as “doing business”)
(1) MERE SALES of a corporation’s products in NY
(2) MERE ADVERTISING by a corporation in NY
(3) MERE TRANSIENT PRESENCE of a Corporate Officer in NY at the time of service (not systematic and ongoing presence)
Some additional notes on “doing business” from lecture:
(i) Satisfaction of the “doing business” standard is usually only necessary if the cause of action arose outside NY. If the COA arose within the state, Long-Arm jurisdiction will probably be available and P won’t need to show that the corp. is “doing business” on a continuous and systematic basis
(ii) the “doing business” basis can probably be used to get jurisdiction over individuals and partnerships as well as corporations
Domicile
Basis for general jurisdiction
DOMICILE is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile. (whereas they can have multiple “residences”)
[establish domicile with (1) presence and (2) intent to remain]
A D who is a DOMICILIARY of NY at the time of the action is commenced can be served with process anywhere in the U.S. and that gives P GENERAL JURISDICTION over D
Long-Arm Jurisdiction
CPLR 302: Long-Arm Statutes has its origins in “minimum contacts” standard of jurisdiction and allows out-of-state service conferring personal jurisdiction on the basis of certain acts by D that have sufficient connection with NY, provided P’s claim arises from those acts that are specifically related to NY
Long-Arm Statute is a form of SPECIFIC personal jurisdiction, so claim must arise from a NY-related activity
BIG DIFFERENCE between LONG-ARM jurisdiction and those that use physical presence – if using physical presence as basis for jurisdiction, doesnt matter where COA arose, but here, to obtain LONG ARM jurisdiction, facts of P’s case must arise out of any one of the five categories of NY-related activities
5 Long-Arm Statute Categories
Mnemonic Device: TCTTL - “TOMMY CAN TAME TORNADO POWER
Long-Arm Statute gives specific jurisdiction
(1) P’s claim arises from a “TRANSACTION OF BUSINESS” by D in NY (different than “doing business”)
(2) P’s claim arises from a “contract transacted anywhere by which D agreed to supply goods and services in NY (contract must be economically significant)
(3) P’s claim arises from D’s “Tortious Act in NY”
(4) P’s claim arises from D’s “Tortious Act OUTSIDE NY which causes injury in NY” PLUS there exists an additional link between D and NY (“SSS”)
(a) D regularly SOLICITS BUSINESS or engages in any other persistent course of conduct in NY
(b) D derives SUBSTANTIAL REVENUE from goods used or consumed, or services rendered, in NY; or
(c) D expects or SHOULD REASONABLY EXPECT the act to have consequences in NY AND D derives SUBSTANTIAL REVENUE from interstate or international commerce, and such commerce MUST purposefully include NY
(5) P’s claim arises from D’s ownership, use, or possession of real property located in NY
Long Arm Statute (1) “Claims arising from a transaction of business by D in NY”
NOTE: don’t confuse with “doing business”
“transaction of business” is a single commercial event in NY that must give rise to the COA sued upon
e.g. contract you heavily negotiated in NY, and P sues for breach of that contract
(pete rose e.g. p.32)
Specific jurisdiction to adjudicate the breach of contract claim in NY (can’t be sued for something having nothing to do with contract claim on this basis - e.g. can’t sue him for tort that took place in OH claiming you have long-arm bc he negotiated a contract in NY)
NOTE: in some cases, D’s phone, electronic or mail transmissions from out of state, if SUBSTANTIAL IN NUMBER and relating to the performance of a SIGNIFICANT CONTRACT, can rise to the level of “transaction of business in NY” - but single phone call won’t do it
e.g. D in CA, called P, a NY atty, to retain P’s legal services in a copyright dispute pending in CA. During the course of a 2 year representation, D sent hundreds of documents to P in NY, and discussed the case with P in dozens of phone calls, faxes, and email transmissions to NY. D refused to pay for the legal services P rendered. The court of apps held: even though D never physically came to NY, D transacted business with P in NY by “projecting himself into NY” and Ps claim for nonpayment had a SUBSTANTIAL NEXUS to the transaction
Long-Arm Statute: (2) A contract anywhere by which D agreed to supply goods or services to NY
The contract for goods or services in NY must be ECONOMICALLY SIGNIFICANT, such as an agreement by D to ship a sizable quantity of merchandise to NY or to perform accounting, legal or entertainment services in NY
E.g. Assume Buyer in MA makes a telephone call to NY Seller to order some goods. Buyer agrees to send check for the goods upon delivery. NY seller ships them to MA Buyer, who refuses to pay. Does seller have a basis of LONG-ARM JURISDICTION over BUyer for a non-payment action in NY?
- -NO!
(a) a One-shot boiler plate phone call (or email or fax or internet transmission) from an out-of-state buyer, standing alone, is not enough to qualify as a “transaction of business” in NY by the buyer
(b) Buyer promises to pay money in NY is not enough either bc promise to pay money in NY is not “goods or services”
Long-Arm Statute: (3) Claims arising from Tortious Act in NY
E.g. driving negligently in NY roadway, making fraudulent statements during a sales negotiation in NY, converting goods while in NY, or assaulting P in NY.
DEFAMATION excluded from this
Long-Arm Statute: (4) Tortious act outside NY which causes injury in NY PLUS there exists an additional link between D and NY
to constitute “injury in NY” the injury must originate in NY (e.g. can’t get injured in NJ, then drive to a NY hospital)
e.g. manufacturer of defective product in WI and it explodes in NY
3 Possible ADDITIONAL LINKS (“SSS”)
(1) D regularly SOLICITS BUSINESS or engages in any other persistent course of conduct in NY;
(2) D derives SUBSTANTIAL REVENUE from goods used or consumed, or services rendered, in NY; or
(3) D expects or SHOULD REASONABLY EXPECT the act to have consequences in NY AND D derives SUBSTANTIAL REVENUE from interstate or international commerce - Such commerce must “PURPOSEFULLY INCLUDE NY.”
DEFAMATION EXCLUDED FROM THIS CATEGORY (see e.g. p.36)
Note: ADDITIONAL LINKAGE requirement does not have to rise to level of “doing business” in NY
another e.g.
New Yorker suffers injury while in Hoboken, NJ, followed by suffering at NY hospital DOES NOT QUALIFY
For commercial torts - e.g. fraud, conversion, theft or trade secrets, NY is the situs of the injury only if P suffers direct financial effects in NY (e.g. loss of NY sales or customers - if sales are lost in some other state, there is no injury in NY even though P is a NY corp.)
e.g.s on p.35-36
CATEGORY 4 (tortious conduct outside NY) - RULE for PHYSICIANS treating ppl coming from all over
A physician’s medical services, even when provided by a well-known specialist who attracts many out-of-state patients, are “inherently local in nature.”
so no long-arm jurisdiction over Dr. under these facts
Long-Arm Statute: (5) P’s claim arises from D’s ownership, use, or POSSESSION OF REAL PROPERTY located in NY
e. g. D of CT owns building in NY and enters into transaction in CT to sell it to P. If D backs out of the deal, P would have long-arm jurisdiction over D in NY to sue for damages or specific performance
- D would also be subject to jurisdiction for a claim arising out of a slip-and-fall at D’s NY building
GENERAL POINTS about the LONG-ARM STATUTE
(1) it covers all types of Ds (e.g. corps, individuals, partnerships)
(2) Act giving rise to jurisdiction can be performed by D herself or by her AGENT or EMPLOYEE. Also, the agent’s acts in NY will subject the agent herself to jurisdiction
(3) even if D dies, decedent’s ESTATE REPRESENTATIVE can be served outside NY
(4) Serving Process: P must use the same methods of service on D outside NY as would be used inside NY
BAR TIP:
(1) First Discuss whether plaintiff can establish jurisdiction under any NON-long-arm categories
(2) Second, discuss whether facts of P;s case fall within one or more of the long-arm categories
(3) briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional DUE PROCESS
