Personal Jurisdiction

Question 1

Persons Authorized to Serve Process

Answer 1

Officers, sheriffs, constables, clerk by certified mail, professional process server (certified by TX Sup Ct.)

Question 2

Persons who cannot serve process

Answer 2

• Any Interested party cannot serve process (i.e. a LR or a party to the suit)
• Unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivery the process.
• Service of process is void if made by one without authority to make it

Question 3

Methods of Service

Answer 3

• Hand-delivery by process server
• By certified mail, return receipt requested
• Substituted service: If an affidavit is filed showing that attempts under either method of personal service have failed (above), the court can specifically authorize substituted service. SS can be authorized in any manner that the evidence shows would be “reasonably calculated” to bring the suit to the attention of Defendant under the circumstances. The order for SS must specifically identify the means of SS authorized by the ct.
• Examples:
  
  • “Leave with” Service – made by leaving the papers at the person’s customary place of business or residence with a person over 16 years of age
  • Service by publication is also a permissible alternative service when the preferred methods have failed.

Question 4

What must plaintiff do to initiate suit?

Answer 4

Upon filing “Plaintiff’s Original Petition,” the π must pay a fee and request the clerk to issue a citation. A copy of petition is stapled to citation and ∆ is served with process (Look at Rule 501, 99, 21)

Question 5

Once served, what must be filled out?

Answer 5

Return of service

Question 6

Waiver and Acceptance of Service

Answer 6

• Defendant may accept or waive process and obviate need for formal service
• Must be in writing, filed in the case papers, and signed before a notary other than the handling attorney after suit has been filed.

Question 7

Whom to Serve

Answer 7

• Individual
• Partnership – any partner
• Corporation – registered agent for service
• Non-resident
  
  • In-state delivery if person comes to TX
  • Registered agent
  • Certified mail
• Military Personnel
  
  • May be temporarily suspended if material prejudice or injustice would harm the individual in military service
  • Default judgment will only stand if PLAINTIFF can prove that everything about service was proper

Question 8

TX Long arm statute

Answer 8

• Reaches as far as Due Process will allow.
• CRPC 17.041-45

Question 9

Diligence in Serving Process

Answer 9

• If π files suit before the SOL expires, but effects service after SOL expires, the date of process relates back to the date of filing if π exercised due diligence in trying to locate and serve the ∆.
• When a ∆ has affirmatively pleaded the defense of limitations, & shown that service was not timely, the burden shifts to the π to prove diligence.
• Diligence is determined by asking “whether the π acted as an ordinary prudent person would have acted under the same or similar circumstances & was diligent up until the time the ∆ was served.“
• Although a fact question, unexplained delays of more than a few months negate due diligence as a matter of law

Question 10

Consequences of Failure to Properly Serve the Defendant

Answer 10

• No judgment is valid unless the ∆ has been served w/process, accepted or waived service, or entered an appearance in the case.
• When Defendant responds to the citation by answering or otherwise appearing in the lawsuit, even if the citation or service of process was defective, Defendant has waived any defect in the manner of service.

Question 11

Motion to Quash

Answer 11

• A ∆ may choose to respond to the citation, but instead of answering & waiving service defects, challenge them with a MTQ.
• MTQ is the proper procedural vehicle for challenging formal defects in
  
  • A petition’s allegations of jurisdiction (minimum contacts)
  • The form of process
  • The service of process
    
    • It is virtually useless however, b/c it does not defeat JX or result in dismissal – merely delays ∆’s answer date (clock begins to run towards ∆’s new answer date as if served at time order quashing service is signed)

Question 12

What happens if default judgment is entered?

Answer 12

π will receive judgment for the amount of damages pled and proven.

Question 13

Methods for challenging a default judgment after the fact

Answer 13

• Motion for New Trial
  
  • Must be filed 30 days from date order is signed; only available if there was a legal error in the proceeding, or ∆ shows
    
    • His failure to answer was by mistake or accident, not intentional; &
    • ∆ has a meritorious defense to π’s claim; &
    • π will not be delayed or otherwise injured if granted
  • A TCs decision to invalidate the judgment & grant a new trial cannot be reviewed by an appellate ct. Therefore, this is the best method for attacking a default judgment b/c some judges may grant the motion, even though some of the elements are not satisfied (but the 30 days is pretty strict).
• Restricted Appeal/Writ of Error
  
  • Goes to court of appeals;
    
    • Only available to persons who did not participate in the trial, but were a party to the suit; and
    • Must be filed w/in 6 months of the date of judgment
    • Error must appear on face of record from trial court
• Bill of Review
  
  • New lawsuit filed within 4 years after ∆ knew or should have known of default judgment
  • Filed in the trial court that rendered the judgment and must show “sufficient cause” for the former judgment to be set aside and a new correct judgment substituted for it.
  • If the ∆ was actually served, he must show
    
    • Default judgment was acquired through extrinsic fraud or official mistake; &
    • Meritorious defense to underlying cause of action; &
    • Not negligent in permitting judgment to be taken.
  • If Defendant was not served, then doesn’t have to prove meritorious defense, extrinsic fraud, BUT must still show that the judgment was rendered w/o any fault or negligence on their own part. Proof of non-service will conclusively establish this element.
    
    • If whether or not service of process is a factual issue in dispute, the ∆ is entitled to have the issue tried to a jury.

Question 14

Minimum Contacts: Non-Resident Defendants

Answer 14

Test:

Minimum contacts such that hauling the person into court would not violate traditional notions of fair play and substantial justice

Question 15

General Jurisdiction vs. Specific Jurisdiction

Answer 15

General

• Many contacts with forum state not arising out of the cause of action
• Continuous and systematic

Specific

• There is at least one contact with forum state and
• Cause of action arises out of that contact

Question 16

Fair Play and Substantial Justice factors

Answer 16

• Burden on ∆
• Interests of the forum State
• π’s interest in obtaining relief
• Interstate judicial system’s interest in obtaining the most efficient resolution of controversies
• Shared interest of the several States in furthering fundamental substantive social policies
  
  • TX rules for PJX over non-residents extends as far as allowable under due process

Question 17

Rule 120(a) Special Appearance

Answer 17

A special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of ∆, on the grounds that such party or property is not amenable to process issued by courts of Texas

• Process: Made by a sworn motion (means it is verified) filed prior to filing any other motion. (or it could be filed in the same document so long as the special appearance comes first in the document.)
• Required language: No longer have to include “subject to and not waiving” language when filing other documents with special appearance (but some LRs still do).
• Waiver: General Appearance: the ∆ can waive the special appearance by making a general appearance before filing the special appearance, or by making an appearance inconsistent w/rule 120a after the special appearance is filed, such as setting the case for trial, or filing a motion for summary judgment and having it heard.
• No Waiver: Use of discovery processes, such as the taking of depositions, the issuance of process for witnesses, and the serving of requests for admissions, does not constitute waiver

Question 18

Challenging PJX: the special appearance - Hearing

Answer 18

• Movant must obtain a timely hearing, which must be heard before any other matter is heard or it will be waived. If the ∆ shows up at the special appearance hearing and makes any other argument than PJX, PJX is waved.
• If ∆ presents other issues to the ct at the hearing, waiver may occur
• Affidavits challenging or defending personal jurisdiction must be filed at least 7 days before hearing
• Burden of proof: Once the π has pleaded sufficient jurisdictional allegations, ∆ has burden of pleading and proving he is not subject to the cts JX. The ∆ bears not only the burden of producing evidence in support of his JX challenge, but also the burden of persuasion.

Question 19

Challenging PJX: the special appearance - Appeal from Hearing

Answer 19

• If judge rules there is no PJX, then the case is dismissed, and there is a “final judgment.” You can always appeal from a final judgment.
• If the judge rules there is PJX, then a potential appeal would be interlocutory; an interlocutory appeal can now be taken based on a special appearance.
  
  • B/c this is an “adequate remedy by appeal,” mandamus is not usually involved (except in family law cases).
  • The TX sup ct has interlocutory appeals only if there is a dissent in the CAP, or the CAP opinion conflicts w/a prior opinion of another CAP or the TX sup ct.

Question 20

Dawson v. Austin (109)

Answer 20

interpretation of special appearance rule

• Though the ∆ filed a special appearance objecting to PJX, it was improperly filed as unverified/unsworn. R120a specifically states that a special appearance “may be amended to cure defects.” By cure, the rule means to restore the special appearance. The absence of a verification is such a defect, and it can be amended to restore itself.
  
  • The amendment must still be filed before a general appearance takes place and waives PJX though.
• A motion to transfer venue, & any other plea, pleading, or motion may be contained in the same instrument of filed subsequent there to, w/o waiving a special appearance.
  
  • This rule makes matters in the same document or subsequent documents automatically subject to the special appearance.
• A TC can still grant a divorce if one of the parties satisfies the domiciliary requirements; but they cannot divide any portion of the marital estate not present in TX, including child custody matters.
  
  • BUT one spouse cannot, solely by actions in which the other spouse is not involved, created the contacts b/w a state and the other spouse necessary for JX over a divorce action.

Question 21

Kelly v. General Interior (115)

Answer 21

getting JX over non-resident ∆s

• To establish PJX in TX cts over nonresident ∆s, πs must plead a connection b/w the ∆s alleged wrongdoing and the forum state. If the π fails to plead facts bringing the ∆ w/in the reach of the long-arm statute (i.e. for a tort claim, that the ∆ committed tortious acts in TX), the ∆ need only prove that it does not live in TX to negate JX.
  
  • When the pleading is wholly devoid of JXal facts, the π should amend the pleading to include the necessary factual allegations, thereby allowing JX to be decided based on evidence, rather than allegations, as it should be.
  • BUT because π’s pleadings lack TX specific allegations over the non-resident ∆, and they didn’t amend their pleadings to plead connecting facts, ∆s were able to defeat all JXal basis by proving that they do not live in TX.
    
    • There are some cases in which you could be in a state, but would be statutorily (or for some other reason) impossible to be properly served w/process. i.e. if you were already there defending a suit.

Question 22

Collateral Attack upon Judgment for Lack of Personal Jurisdiction

Answer 22

• This is an attempt to avoid the binding effect of a judgment in a proceeding brought for some other purpose in a court that has no power to directly review the judgment. This could happen when:
  
  • ∆ collaterally attacks a judgment on which π is attempting to assert preclusive effect through res judicata; or
  • When π attempts to enforce it against ∆’s assets by using a collection proceeding
• A judgment is void and subject to collateral attack when the court rendering the judgment “had no [PJX] over a party or his property, no SMJX, no jurisdiction to enter a particular judgment, or no capacity to act as a court”
• Advantage: No statute of limitations exists to bar the collateral attack because it is not considered to be a cause of action

Question 23

Forum Non-Conveniens: A Motion to Dismiss

Answer 23

Procedurally, a motion for FNC is a motion to dismiss by the ∆ based on an assertion that there is a more convenient/practicable forum available in another JX. Technically, the ct actually has both PJX and SMJX, so in effect, when granting a motion to dismiss for FNC, the ct is UST declining to exercise JX.

Question 24

In determining whether to grant a motion to stay or dismiss an action under the doctrine of FNC, the ct shall consider whether:

Answer 24

• An alternative forum exists in which claim or action may be tried;
• If Alternate forum provides an adequate remedy;
• If keeping the case in a TX court would work a substantial injustice to the moving party;
• If the alternate forum, as result of submission of parties or otherwise, can exercise JX over all ∆s properly joined to π’s claim;
• If stay or dismissal would result in unreasonable duplication of litigation;
• Balance of the private interest of the state vs the public’s interest in transference:
  
  • Private Interests factors
    
    • Relative ease of access to sources of proof
    • Availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining attendance of willing witnesses
    • Possibility of viewing the premises, if appropriate, to the action
    • Practical problems that make trial easy, expeditious, and inexpensive
  • Public Interests
    
    • Administrative difficulties caused by ct congestion
    • Jury duty imposed on community with no relation to the litigation
    • Trying a case in the forum that is at home w/the law that governs the case
    • Local interest in having localized controversies decided at home

Question 25

Comity

Answer 25

• the doctrine under which the cts of one ST will recognize the laws of a sister ST; & will extend immunity to a sister ST as a matter of respect, when the sister ST is a party to the suit. This is mentioned here b/c it is similar to FNC in that the ST has proper JX, but is declining to exercise it

Question 26

CRPC 71.031

Answer 26

provides a statutory forum for πs who are actually from another state (so they waive PJX) if they want to bring a suit in TX a/g a ∆ (over which TX has PJX) for wrongful death or personal injury.

Question 27

Forum Selection Clauses

Answer 27

• These are enforceable, and are given a lot of deference.
• A party waives the benefits of a FSC by substantially invoking the judicial process to the other party’s detriment or prejudice.
  
  • But merely participating in (in this case, as ∆) litigation does not categorically mean the party has invoked the judicial process so as to waive enforcement. Waiver can be implied by a party’s unequivocal conduct, but not by inaction.
  • Simultaneously filing an answer & motion to transfer venue with a motion to dismiss falls short of substantially invoking the judicial process to [the π’s] detriment or prejudice.
• A TC abuses its discretion in reusing to enforce a FSC unless the party opposing enforcement of the clause can clearly show that
  
  • Enforcement would be unreasonable or unjust,
  • The clause is invalid for reasons of fraud or overreaching,
  • Enforcement would contravene a strong public policy of the forum where the suit was brought, or
  • The selected forum would be seriously inconvenient for trial.

Question 28

SMJX determines:

Answer 28

which ct in the hierarchy of TX cts is authorized to hear a particular case.

Question 29

PJX determines:

Answer 29

whether the TX st cts (as a whole) have power over a particular ∆.

Question 30

Forum non-conveniens determines:

Answer 30

the appropriate judicial system in which the matter should be litigated.

Question 31

Venue determines:

Answer 31

which of the 254 TX counties are permissible (or mandatory) locations for the litigation