Personal JDX Flashcards
Generally
Jurisdiction over the parties or property at issue; limits of due process. Long-arm statutes extend a state’s JDC beyond its own territory if due process is satisfied
What does in personam JDX allow?
In personam JDX–gives court power to award judgment imposing personal liability on defendant (attaches to the person, plaintiff becomes judgment creditor, can execute on all property within state or sue in other states on the judgment)
Bases for Personal JDX
- personal service within the state
- domicile–maintenance of a residence/physical presence in state + mental intent to reside permanently (residence is mere physical presence; you can be domiciled only in ONE place, resident of multiple); includes people and partnerships/corporations
- consent–express (designate agent in VA/include forum selection clause) OR implied (P by filing suit; defendant appears and doesn’t timely object on P. JDX grounds)
- Nonresident motorist - deemed to have appointed DMV commissioner to be his agent for service if he/agent/employee is involved in accident
- Long-arm JDX
What is the VA long-arm statute?
Court may exercise P. JDX over person who acts directly or by agent as to cause of action arising from:
1. transacting business
2. contracting to supply services/things in VA
3. causing tortious injury by act/omission in VA
4. causing tortious injury by act/omission in VA by an act outside of VA of D regularly does business or engages in persistent course of conduct in VA
5. causing injury by breach of warranty express/implied in sale of goods outside of VA if he might have reasonably have expected to use/consume the good in VA IF HE ALSO regularly does business/engages in a course of conduct or derives revenue from goods/services rendered in VA
6. Interest in, possessing, or using real property in VA
7. Contracting to insure any person or property in VA
8. Having executed agreement obligating person to pay child or spousal support in VA; been ordered to pay it in VA by court w/ PJDX in VA; shown by personal conduct that person fathered child in VA
9. Having maintained a matrimonial domicile in VA at time of separation of the parties that upon which grounds for divorce or maintenance is based, or at time cause of action arose or suit commenced, if other party resides herein
10. Having incurred liability for taxes/fines/penalties/interest to any political subdivision of the Commonwealth
Service of Process – when is PJDX effective?
When he has been properly notified that an action was commenced against him by service of a copy of P’s initial pleading commencing the action and a notice that a response is necessary in order to avoid default judgment
What is process?
In all civil actions, legal or equitable, process is by means of a summons, where a copy of the initial pleading (complaint in CC; motion for judgment in DC) is attached
When is service of process timely?
Timely as to a particular defendant if accomplished within 12 months of commencement of the action against D, OR, if the court finds that P exercised due diligence in attempting to have timely service made on the defendant
What happens if service isn’t effectuated within one year of commencement of the action?
D may make a special appearance, which is not a general appearance, to file a motion to dismiss for lack of PJDX.
When must the court dismiss an action with prejudice concerning service of process?
Upon finding that P did not exercise due diligence to have timely service and sustaining the MTD, court MUST dismiss the action WITH prejudice.
When can the court deny motion to dismiss regarding service of process and what happens next?
Upon finding P did exercise due diligence to have timely service and denying the MTD, the court MUST require D to file a responsive pleading within 21 days of the ruling.
Who is authorized to serve process?
Sheriff in the political subdivision in which he serves and in any contiguous city/county; person over 18 who is not a party or not otherwise interested in subject matter in controversy
What are the methods of service?
- Personal – delivering a copy of process to defendant personally at his usual place of abode
- Substituted – if party to be served not found at usual place of abode, copy of process may be left at D’s abode with member of his family (not a temporary person or guest) who is 16 years or older, such that the person in question is given information as the nature of the process
- If service cannot be effected by leaving process with family, can be posted on the front door of the residence or at such other door that appears to be the entrance
A. If service effected this way, at least 10 days before any default judgment may be entered, the P making service or his lawyer must mail a copy of the process to the person served and file a certificate of mailing with the clerk - Publication – if personal nor substituted can be used, an order of publication may be used to notify. If party served by this method does not appear before date of judgment against him, may petition to have case reheard, may plead or answer, and may have any injustice in the proceeding corrected:
A. within 2 years after judgment BUT
B. if served with a copy of the judgment more than a year before the end of such period, then within one year of service
How is service effected outside of VA?
On a nonresident person outside of VA, may be made by
1. Any person authorized to serve process in the JDX where the party to be served is located; or
2. any person 18 or older who is not a party or otherwise interested in the subject matter of the controversy
What effect does service on a nonresident outside of VA have on the action/person?
If VA can exercise long-arm JDX over the nonresident, such service has same effect as personal service on nonresident within VA. Otherwise, such service or service by leaving a copy of the process at the nonresident’s home with appropriate person, has same effect as an order of publication.
In order to effect long-arm JDX, what first must be satisfied?
Constitutional due process. A D must have certain minimum contacts with the forum state such that the maintenance of a suit does not offend traditional notions of fair play and substantial justice.
