Personal Jurisdiction

Question 1

What is the general rule on Personal Jurisdiction?

Answer 1

In addition to having subject matter jurisdiction, a court must be able to exercise judicial power over the persons or property involved in the cases or controversies before it. This authority is broadly referred to as personal jurisdiction and is governed by state statutes regarding jurisdiction and the due process requirements of the US Constitution.

Question 2

What are the three types of personal jurisdiction?

Answer 2

1) In Personam Jurisdiction
2) In rem jurisdiction
3) quasi-in-rem jurisdiction

Question 3

What is the effect of State Jurisdictional Statutes on Personal Jurisdiction in Federal Court?

Answer 3

In general, a federal court does NOT have nationwide personal jurisdiction. Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant “who is subject to the the jdx of a court of general jdx in the state where the district court is located.

Thus, a federal court will look to state jdx statutes to determine if it has authority over the parties before it and will be subject tot he restrictions on states imposed by the Due Process Clause of the US Constitution.

Question 4

In general, a federal court does not have nationwide personal jurisdiction; instead, a service of summons establishes personal jdx over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. What are the exceptions to this rule?

Answer 4

1. Nationwide service of process
2. “Bulge Provision”
3. Rule 4(k)(2)

Question 5

What is the Nationwide service of process exception to the federal court’s limited scope of personal jurisdiction?

Answer 5

The nationwide service of process exception states that a federal court may have national personal jurisdiction for special types of statutorily-created actions, such as federal statutory interpleader actions

Question 6

What is the “Bulge Provision”

Answer 6

The “Bulge Provision” is an exception to the federal court’s limited scope of personal jurisdiction. Under Rule 4(k)(1)(B), aka the Bulge Provision. A federal court has personal jdx over a party who is served within a US judicial district and not more that 100 miles from where the summon is issued, even if state law would otherwise not permit such service.

NOTE: This special rule only applies to two types of parties: a third-party defendant who is joined under rule 14 (third-party practice) and a require party who is joined under rule 19 (required joinder).

Question 7

What is the Rule 4(k)(2) exception to the federal court’s limited scope of personal jurisdiction?

Answer 7

Rule 4 covers summons, and rule 4(k)(2) addresses Federal Claims Outside State-Court Jurisdiction.

A federal court may have personal jurisdiction under 4(k)(2) if ALL FOUR of the following are met:

1) The plaintiff’s claims are based on federal law
2) No state court could exercise jurisdiction over the D’s
3) The exercise of jurisdiction must be consistent with the laws of the US
4) The exercise of jurisdiction must be consistent with the US Constitution. In other words, there must be “minimum contacts”

Question 8

What are the due process requirements for Personal Jurisdiction?

Answer 8

Minimum contacts, notice, right to be heard:

The Due Process Clause also limits a court’s exercise of personal jdx over the parties. A court may not exercise personal jdx over a D unless the D has “minimum contacts” with the state in which the court sits (aka the forum state), and the exercise of jdx would be fair and reasonable.

A court is also required to notify a party of the commencement of an action in which his interests are at stake and provide an opportunity for a party to be heard.

Question 9

Subject matter jurisdiction is not waivable; what about personal jurisdiction?

Answer 9

Yes, a party may consent to personal jdx. The consent may be express, implied, or made by voluntary appearance.
An objection to a court’s exercise of personal jdx over persons or things can also be waived. Under rule 12(b), the defenses of lack of jdx over the person, insufficiency (of service) of process, must be asserted in responsive pleadings or by a motion BEFORE a responsive pleading is submitted. A failure to object in accordance with rule 12 waives the objection.

Question 10

What is personal jdx versus in personam jdx?

Answer 10

Personal jurisdiction refers to the court’s general jdx over persons or property; In Personam jdx is the power that a court has over an individual party.

Question 11

When is in personam jdx required?

Answer 11

In personam jdx is the power that a court has over an individual party. It is required whenever a judgment is sought that would impose an obligation on a defendant personally. When such personal jdx exists, the court has the authority to issue a judgment against the party personally, which can be satisfied by the seizure of all the party’s assets. Such a judgment is entitled to full faith and credit of other states.

Question 12

What are the five circumstances that establish in personam jurisdiction?

Answer 12

1. Voluntary Presence
2. Domicile
   C. Consent
   D. Long-arm statutes
   E. Attachment

Question 13

When does voluntary presence create the possibility of in personam jurisdiction?

Answer 13

If a defendant is voluntarily present in the forum state and is served with process while there, then the state will have personal jdx over the defendant. However, most courts today have two exceptions:

1. If a P fraudulently brings a D into the state for the purposes of serving process on him, then the service will most likely be invalid.
2. An individual will also likely be immune if he is just passing through the state to attend other judiciary proceedings.

Question 14

When does domicile create the possibility of in personam jurisdiction?

Answer 14

If authorized by statute, a state can have jdx over a person who is domiciled within the state, even if the person is temporarily absent from the state. Domicile is established when a person with capacity intends to make that stat his home.

Statutory authorization can be enacted retroactively to apply to a cause of action arising before the enactment of the statute. Additionally, the US has authority to subpoena a citizen of the US living abroad to appear in court to testify. The same rules of domicile apply as when discussing citizenship of the parties.

Question 15

When does consent create the possibility of in personam jurisdiction?

Answer 15

Personal jdx can be established by a party’s consent. Under rule 12(b), the defense of a lack of personal jdx must be asserted in a responsive pleading or by motion before a responsive pleading is submitted. Te failure to timely object to a court’s assertion of personal jdx waives the objection.

Question 16

How to D’s and P’s consent to in personam jdx?

Answer 16

P’s are always said to have consented to personal jdx by filing the lawsuit

D’s can either give express consent, implied consent, or make a voluntary apearance.

Express consent: agreeing in advance by contract (only valid if not a contract of adhesion); Stipulating to personal jdx once the action is brought. Consent is also said to be given if a person authorizes an agent to accept service of process, and usually a state will require non-residents doing business in a heavily-regulating industry to appoint an agent.

Implied Consent: a defendant may be deemed to have consented through conduct, such as by filing a counterclaim or driving a vehicle through the state.

Voluntary Appearance: The voluntary appearance of a D in court automatically subjects the D to personal jdx UNLESS he is present to object to jdx.

Question 17

When does a long-arm statute create the possibility of in personam jurisdiction?

Answer 17

Most states have enacted statutes that authorize personal jdx over non-residents who engage in some activity in the state or cause some action to occur within the state. In many states, the long-arm statute authorizes jdx to the extent possible under the Due Process clause. Thus, a federal court in those states need only to determine whether the exercise of personal jurisdiction comports with due process. A few states have enacted statutes of more limited scope.

Question 18

CA Disinction: Long-Arm Stututes

Answer 18

CA has a long-arm statute that allows its courts the broadest jdx that comports with due process.

Question 19

When does attachment create the possibility of in personam jurisdiction?

Answer 19

Attachment Jdx (historically a type of quasi-in-rem jdx), a P asserting a personal claim against the D would use attachment of the property as a device to obtain jdx and satisfy the judgment, if successful. But when the claim is not related to the ownership of the property that has been attached, there must be minimum contacts between the D and the forum state to establish Jdx

Question 20

What are the due process requirements for personal jdx

Answer 20

In general, due process requirements are satisfied if the nonresident D has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice (Int’l Shoe)

ESSAY NOTE: When analyzing personal jdx questions, focus on contacts with forum state and then whether the assertion of jdx by the court would comport with fair play and substantial justice.

Question 21

What are the four general considerations when assessing whether a D has had minimum contacts?

Answer 21

1) Shaffer
2) Purposeful availment
3) Specific and general jdx
4) Imputed Contacts

Question 22

When assessing minimum contacts for in personam jdx, what is the Shaffer test?

Answer 22

While before Shaffer it was possible to gain jdx over a person merely on the basis of the presence within the state of the person or property of the person, AFTER: any attempt to gain personam jdx, under whatever basis, is subject to to the Int’l Shoe Minimum Contacts test.

Exceptions: actions to enforce previous judgments buy such remedies as attachment, garnishment and sequestration

Question 23

When assessing minimum contacts for in personam jdx, what is purposeful availment?

Answer 23

To warrant the assertion of in personam jdx, a D’s contacts with the forum statemust be purposeful and substantial, such that the D should reasonably anticipate and foresee being taken to court there.

Foreseeability depends on whether a D recognizes or anticipates that by running his business, he runs the risk of being arty to a suit in a particular state.

Question 24

When assessing purposeful availment/foreseeability, what is the analysis for more difficult situations, such as stream of commerce?

Answer 24

When a product is put into the stream of commerce, not necessarily by the manufacturer, but by a third party who purchases the product to use in their product, the court is split. One half of the court believes that it is enough to know that his product that he sold will be put into the stream of commerce, while the other half believe a more affirmative step is necessary.

Question 25

When assessing minimum contacts for in personam jdx, what is the the specific and general jdx analysis?

Answer 25

The scope of the contacts necessary for the assertion of personal jdx depends on the relationship to the cause of action has with the forum state.

When a cause of action arises out of or closely relates to a D’s contact with the forum state, jdx may be warranted even if that contact is the D’s only contact with the forum state; this kind of jdx is often referred to as specific jdx.

However, when a cause of action does NOT arise out of or relate to the D’s contacts with the forum, jdx is only warranted when the D’s contact with the state have been SYSTEMATIC AND CONTINUOUS.

Question 26

What constitutes systematic and continuous contacts with a forum state?

Answer 26

Conducting business activities in a state (keeping an office, conducting correspondence, maintaining active banks accounts, conducting meetings, and paying salaries) is sufficiently systematic and continuous to allow a court to exercise personal jdx over the business for causes of action that are unrelated to the business’s activities. aka general jdx.

Question 27

When assessing minimum contacts for in personam jdx, what are imputed contacts?

Answer 27

In some circumstances, the contacts of one defendant with the forum state may be imputed to another defendant for the purposes of determining jdx:

1) Employees/Independent Contractors
2) Partnerships
3) Corporations

Question 28

When assessing minimum contacts for in personam jdx, when can an employee or independent agent’s contact in a forum be imputed to their employer?

Answer 28

Contacts by a nonresident employer’s agents or employees are generally imputed to the employers when the agent or employee is acting within the scope of the agency or employment. An out-of-state corporation though, is generally not subject to personal jdx solely b/c of contacts in the state by an independent contractor.

Question 29

When assessing minimum contacts for in personam jdx, when can partnerships in a forum state lead to imputed contacts?

Answer 29

Each partner is generally an agent of the partnership for the purpose of its business. Accordingly, a partner’s activities on behalf of the partnership can confer personal jdx over the partnership entity. Such contacts, however, may not necessarily establish personal jdx over that partner or the other partners in the partnership in their individual capacities.

Question 30

When assessing minimum contacts for in personam jdx, when can a corporation’s contacts in a forum state lead to imputed contacts?

Answer 30

An out-of-state corporation’s contacts with the forum state will not automatically establish jdx over a wholly-owned subsidiary of the corporation, and contacts by a wholly-owned subsidiary of the corporation will not automatically confer jdx over a corporate parent. IF, however, the subsidiary is the corporate parent’s alter ego or is specifically acting as the corporate parent’s agent, then its contacts may be imputed to the corporate parent.

Question 31

What is the Fair Play and Substantial Justice test in assessing personal jdx?

Answer 31

Once minimum contacts are established, a court must still examine the facts to determine if maintenance of the action would “offend traditional notions of fair play and financial justice.” There are four factors considered when making this decision:

1) the interest in the forum state in adjudicating the matter
2) The burden of the defendant of appearing in the case
3) the interest of the judicial system in the efficient resolution of controversies
4) The shared interest of the states in promoting common social policies.

Question 32

When can a federal court exert in personam jdx over a corporation?

Answer 32

for in personam jdx purposes, a corporation will be a resident corporation only if it is incorporated in the forum state. Any action may be brought against a corp that is incorporated in the forum state. If the corporation is not incorporated in the state, then it is a foreign corp for purposes of in personam jdx.

Question 33

When can a court find in personam jdx over a foreign corporation?

Answer 33

The rules of minimum contacts and substantial fairness apply to foreign corporations.

Question 34

Does a web presence constitute minimum contacts for purposes of in personam jdx?

Answer 34

No; it is generally accepted that merely having a website does not subject a D to process everywhere that the site can be viewed. Most courts will follow the approach of Zippo, which bases jurisdiction over a nonresident corp’s website on the degree of interactivity between the website and the forum. The court set forth a sliding scale approach with regard to interactivity, ranging from passive sites to those that are integral to the defendant’s business (like an online store). In Zippo the web site had a commercial interactions with 3k residents and ISPs.

Question 35

In general, when can suits based on a K allow for in personam jdx?

Answer 35

1. The K can be relevant to establishing minimum contacts: Although the fact that one party to a K is a resident of the forum state will not, by itself, confer personal jdx over the nonresident party to the K, the existence of the K can be a significant factor in determining that minimum contacts exist, such that the exercise of personal jdx over the nonresident is appropriate.

Question 36

What about personal jdx and choice-of-law provisions in Ks?`

Answer 36

If the K contains a choice of law provision indicating that the forum state’s law is to be used in any action with regard to the K, then this will be a significant factor in finding jdx, as it establishes that the nonresident purposefully availed herself of the benefits of the forums laws.

Question 37

What about Ks of adhesion or procured by fraud?

Answer 37

If the K is adhesive or was procured by fraud, then personal jdx based on the K is not appropriate.

Question 38

What are the two categories of jurisdiction over things?

Answer 38

Historically, jurisdiction over property has been divided into in rem jurisdiction and quasi-in-rem jdx.

Question 39

What is In Rem Jurisdiction?

Answer 39

In rem jurisdiction is the authority of a court to determine issues concerning rights in property, either real or personal. The court generally determines title to the property, and such determination will be conclusive as against all potential claimants in the world.

Question 40

What are some examples of in rem proceedings?

Answer 40

1. Admiralty
2. forfeiture
3. eminent domain actions, when a court must be able to extinguish the interests of persons who may be outside the territory of the forum or who may be unknown. Often, in these cases, no parties are named and the case is known by the property at issue.

Question 41

What are the due process requirements of in rem proceedings?

Answer 41

While in rem proceedings are commenced against property, they must still satisfy due process requirements for personal jurisdiction because the affect the rights of individuals in the property. In general, for in rem jurisdiction to exist, the property at issue must be present within the forum state.

DUE PROCESS IS MET IF: the notice is ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ THUS, it is no longer sufficient just to post the notice on the property or in a newspaper.

Question 42

What is quasi-in-rem jurisdiction?

Answer 42

While a judgment in rem determines the interests of all persons in a particular piece of property, a quasi-in-rem judgment determines only the interest of the parties to the action regarding property located in the forum state.

EX: action to foreclose a lien; action to quiet title

The judgment is not personally binding against the D, it cannot be sued in any other court, and it cannot be enforced by seizing any property of the D other than the property at issue in the quasi-in-rem action.

Question 43

What are the due process requirements for quasi-in-rem jdx?

Answer 43

Shaffer requires a showing of minimum contacts in every exercise of jurisdiction. In most cases, the minimum contacts requirement is apparent and thus satisfied simply b/c there is a close relationship between the claim and the ‘attached’ property. Sometimes, though, disputes are unrelated to the ownership of the property, and no close relationship is formed.

If no close relationship: must have the property located in the forum state, AND minimum contacts must be shown to exist between the defendant and the forum state before jdx will apply. Notice and opportunity to be heard are also constitutionally required.

NOTE: there is some controversy over the attachment of the defendant’s property prior to the trial b/c some consider this to be governmental interference with the D’s rights to the property. The SC has yet to weigh in.

Question 44

What is the limitation on quasi-in-rem jdx?

Answer 44

Under rule 4(n)(2), quasi-in-rem jdx can be used in a U.S. district court under the circumstances and in te manner provided by the law of the state in which the district court is located.

Question 45

What are the notice and hearing requirements for personal jdx in general?

Answer 45

Generally, the Due Process clause requires that deprivation of property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

Question 46

When does notice satisfy due process requirements?

Answer 46

Due process is met if the notice is ‘reasonably calculated under all circumstances to apprised interested parties of the pendency of the action and afford them the opportunity to present their objections.

Question 47

What form does satisfactory notice need to take?

Answer 47

If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required.

If plaintiff knows that the defendants did not receive notice, then the plaintiff cannot proceed unless there are no other reasonable methods to notify the defendants.

Question 48

How must notice be pursued if the ID or address of reasonable parties is not able to be obtained through reasonable efforts?

Answer 48

If the identity or address of reasonable parties is not obtainable through reasonable efforts, then other means, such as publication of notice in newspapers, may be satisfactory.

The constitutional test is generally: what is reasonable under the circumstances?

Question 49

How does the constitutional test for notice apply to in personam jdx cases versus in rem and quasi-in-rem cases; also to multiple defendants?

Answer 49

The standard (what is reasonable under the circumstances?) is less strict for in rem and quasi-in-rem cases than it is for in personam cases.

When there are multiple defendants, each D must be served, but the manner of service will depend on whether their identities and addresses are known or unknown.

Question 50

How do constitutional requirements for notice for personal jdx apply when an agent is appointed?

Answer 50

If an agent has been appointed, either by contract or statute, the defendant will not be subject to personal jurisdiction if the agent did not advise the D of service of process. The rule does not apply when the defendant selects his own agent.

Question 51

Is satisfying due process the only standard for sufficiency of notice?

Answer 51

No; satisfying due process is not the only standard for the sufficiency of notice. Both state and federal courts have procedural rules that dictate the form and service process. While a particular form of notice may meet due process standards, it must also meet the specific procedural requirements that govern in the court where the action is to be heard. Certified mail, for example, meets due process standards, but not every court system allows it.

Question 52

What is the hearing process required under due process to establish personal jdx?

Answer 52

In addition to requiring notice of the claim being made, due process requires that a defendant be given an opportunity to be heard whenever there is a state-sponsored interference with a defendant’s property interest. The state must be an active participant in the interference for due process to apply.

Question 53

What are the 3 defenses to jurisdictional claims?

Answer 53

1. special appearance
2. collateral attack
3. Immunity

Question 54

How is a special appearance a defense to a jurisdictinal claim?

Answer 54

A special appearance is a procedure by which a defendant appears before a court for the specific purpose of challenging personal jurisdiction. The defendant is not generally considered to have consented to jurisdiction by making the appearance, as long as personal jurisdiction is contested in the initial pleading.

NOTE: any mention of the merits in the case will be construed as consent to jurisdiction (general appearance)

Question 55

How do the federal rules treat special appearances?

Answer 55

Under the federal rules, special appearances have been abolished, but a party may make a motion to dismiss the claim for lack of personal jurisdiction under rule 12(b)(2) without becoming subject to jurisdiction on that basis.

Question 56

What happens if an objection to personal jurisdiction is overruled?

Answer 56

If the court overrules a defendant’s objection to personal jurisdiction, most states permit the D to defend the case on the merits and still preserve the objection as an issue for appeal.

Question 57

What is a collateral attack?

Answer 57

Judicial decisions rendered by the courts in one state are recognized and honored in another under the full faith and credit clause of the Constitution. BUT: those decisions are only recognized to the extent that a valid judgment was rendered by a court that had jdx over the parties, and the parties received proper notice and had an opportunity to be heard.

EX: If a default judgment has been entered against a defendant in an action in one state, and the plaintiff sues to enforce the judgment in another state, then the D may collaterally attack the judgment on the basis of lack of personal jdx. If, however, the defendant had both notice and opportunity to be heard, the a collateral attack on the judgment is not permitted under the doctrine of res judicata.

Question 58

When is Immunity a defense against jurisdiction?

Answer 58

Most state provide immunity from service of process to nonresidents who enter the state for purposes of attending a trial or deposition as a witness, party or attorney in order to promote full and active participation in the judicial system. The federal courts also generally provide immunity from suits under the same circumstances.

Question 59

How does CA distinguish itself with regards to immunity from jurisdiction?

Answer 59

CA has abrogated the traditional immunity rule for defendants who are present in the state on a temporary basis to participate in another judicial proceeding.