Personal Jurisdiction Flashcards
Personal Jurisdiction
Terrirotiality
(5 elements)
- Served in state (transient/tag)
- Appear in court (waiver)
- Domiciled in state
- Own property in state
- in rem: whole world
- quasi in rem 1: between parties
- quasi in rem 2 for in personam if attached before trial
Specific Jurisdiction
(6 elements)
- Unilateral activity: foreseeability is not enough; must look at the conduct of the defendant (World-Wide Volkswagon)
- Intentional torts/express aiming is no longer enough outside of libel/defamation context; must look at overall facts (Walden)
- Stream of commerce possible tests
- Waiver applies
- For multiple defendants, must analyze separately (Bristol-Myers)
- Sotomayor synthesis in Bristol Myers dissent (also in Cybersell):
General Jurisdiction
(6 elements)
- For corporations: no longer “continuous and systematic” contacts plus due process; test is now whether the corporation is “at home” – which generally means place of incorporation and principal place of business
a. Daimler FN 19: It is arguably possible, to be at home elsewhere (for instance, if most of sales take place in one state)
i. comparative analysis; BSNF (not at home in MT: BNSF has only about 6% of its total track mileage in MT, employs less than 5% of its total workforce there, and generates less than 10% of its total revenue in the State)
b. The “at home” test does not require a separate due process analysis
c. An open issue is whether the presence of an agent for service of process can substitute for being “at home”
d. For individuals, general jurisdiction can be established by domicile, appearance, or tag jurisdiction
e. Waiver applies (e.g., VW corporate didn’t contest personal jurisdiction in World-Wide Volkswagen)
Long Arm Statute
(5 elements)
- State long arm statute: First issue to examine when looking at personal jurisdiction
- Many such statutes provide that jurisdiction goes to the limit of due process.
- Some have narrower wording but have been interpreted to go to the limit of due process. (e.g., Woodring v. Hall)
- Some are narrower than the limit of due process and provide long arm jurisdiction only in certain kinds of cases (e.g., breach of contract, commission of a tort)
- If the lawsuit is not encompassed by the state long arm statute, that is the end of the inquiry (unless a federal statute provides for nationwide personal jurisdiction)
Forum Selection Clauses (FSC)
(2 elements)
- Can serve as a form of contractual agreement to personal jurisdiction
- Supreme Court allowed for forum selection clauses to be enforced even in the consumer context as long as such clauses are not unreasonable
(Carnival Cruise Lines) (did not subject consumer to an inexperienced, partisan, or remote alien forum and was not designed to discourage claimants from pursuing legitimate claims)
Stream of Commerce TESTS
(5 elements)
a. Asahi: O’Connor stream of commerce plus (not specifically rejected by majority)
b. Asahi: Brennan stream of commerce/foreseeability (not specifically rejected by a majority, but the McIntyre Kennedy plurality doesn’t support it and arguably Alito and Breyer don’t support it either)
c. McIntyre: Kennedy plurality’s test of whether there was an intent to submit to jurisdiction (or as Ginsburg puts it, whether defendant “consented” to jurisdiction
d. McIntyre: Alito/Breyer: apply specific contacts approach without a special test for stream of commerce
e. McIntyre: Ginsburg’s test of whether the defendant purposefully availed itself of the US market generally, thus making personal jurisdiction permissible in any state where injury occurred
Worldwide Volkswagen
- Unilateral activity is not enough for PJ
- foreseeability is not enough; must look at the conduct of the defendant
Walden v. Fiore
Location of impact (express aiming) is no longer enough outside of libel/defamation context; must look at overall facts
Bristol-Myers-Squibb
(3 elements)
JD exists if:
- ▲ purposefully availed itself of privilege of conducting activities in forum state
- Claims must arise out of or relate to the defendant’s forum conduct
- Exercise of jurisdiction must be reasonable
For multiple ▲’s, must analyze separately.
Property and Tag Jurisdiction
(3 elements)
- Property for in rem, quasi in rem 1: Will always be sufficient contacts, and it is hard to imagine due process issues
- Property for Quasi in Rem 2: existence of property, even if attached prior to judgment, is not automatically enough
a. Must do minimum contacts/due process analysis
b. Property can, however, be an important contact depending on the case
c. No need for a minimum contacts analysis if the action is merely to seize property to enforce a valid judgment - Tag Jurisdiction
a. Burnham: Supreme Court is divided
i. Scalia plurality: tag jurisdiction always enough without due process analysis (although perhaps subject to a voluntariness test)
ii. White: There may be an egregious situation where tag jurisdiction not enough but in virtually all cases it is enough
iii. Brennan plurality: must apply due process but that test is easily satisfied (e.g., three days in the venue getting the benefits of government services) (note: for Brennan, tag is substitute for continuous and systematic for general jurisdiction but would also require reasonableness)
b. Tag jurisdiction may not be enough, even for the Scalia plurality, if the person served is in the residence involuntarily. For Scalia, this safety valve would exist, if at all, only in the most egregious case (e.g., plaintiff kidnaps the defendant, moves the defendant to the forum state, and effects service)
The “internet”
(5 elements)
- Internet is a source of confusion for personal jurisdiction; every case must be examined closely based on its facts
- Passive web site alone is not enough (Cybersell, Bensusan)
- Something more than passive web site (e.g., putting items on a server in the forum) may be enough (CompuServe)
- Use of the internet for the transaction or matter at issue may demonstrate strong contacts for purposes of specific jurisdiction
- Word of caution regarding general jurisdiction: under the old approach to general jurisdiction (continuing and systematic contacts plus due process) lots of internet activity in the state (e.g., lots of hits from the state) could satisfy general jurisdiction for a corporation; but after Daimler the test is whether a corporate defendant is “at home”
Agency Subsidiary Test (Daimler)
Agency Subsidiary Test Fail: does the sub perform tasks that if it failed to, the parent would have to? (majority rejects)
Agency Subsidiary Test: Is the sub so dominated by the parent that it is in effect, an alter-ego?
