Personal Jurisdiction and Service of Process and Notice

Question 1

Personal Jurisdiction

Answer 1

A court’s authority over a defendant.

Question 2

T or F? Personal jurisdiction can be established for all of the defendants as a whole.

Answer 2

False. Personal jurisdiction must be established separately for each defendant.

Question 3

Three types of personal jurisdiction:

Answer 3

(1) in personam
(2) in rem
(3) quasi in rem

Question 4

In Personam Jurisdiction

Answer 4

Jurisdiction over the parties into a law suit. The defendant is typically present in the forum state, or has some significant contacts with the state.

Question 5

How to Determine Whether a Federal Court has Personal Jurisdiction Over a Particular Party:

Answer 5

The personal jurisdiction law of the state in which the federal court sits must be satisfied

and

the exercise of personal jurisdiction must comply withthe United States Constitution

Question 6

State Long-Arm Statute

Answer 6

the jurisdiction a court has over out-of-state defendant

Question 7

If the state can not assert personal jurisdiction, can the federal court still assert jurisdiction?

Answer 7

No.

Question 8

What mechanism allows state courts to exercise personal jurisdiction over out-of-state defendants?

Answer 8

State courts may exercise personal jurisdiction over an out-of-state defendant if authorized by the state’s long-arm statute.

Question 9

How do long-arm statutes place limitation on the state’s ability to establish personal jurisdiction?

Answer 9

By setting out the types of contacts that establish personal jurisdiction.

Question 10

Does a state law permitting personal jurisdiction over a particular party guarantee that the federal court can assert the same personal jurisdiction?

Answer 10

No, the federal court must establish that the law is constitutional under the Due Process Clause of the Fourteenth Amendment.

Question 11

A state law is constitutional if it authorizes personal jurisdiction in one of the five following circumstances:

Answer 11

(1) residency
(2) consent
(3) service
(4) minimum contacts or
(5) substantial business

Question 12

If the defendant is domiciled in the forum state, is personal jurisdiction over the defendant constitutional?

Answer 12

Yes.

Question 13

A person is domiciled in a jurisdiction if she: (2)

Answer 13

(1) Resides in that jurisdiction

and

(2) has expressed her intent to remain in that jurisdiction indefinitely

Question 14

Can a party consent to federal jurisdiction by waiving her objection to personal jurisdiction?

Answer 14

Yes. If a defendant appears n court without making a motion to dismiss for lack of personal jurisdiction, or does not include lack of personal jurisdiction in a responsive pleading, the defense is waived.

Question 15

Does a defendant waive objections to lack of personal jurisdiction by making an appearance before the court to contest jurisdiction?

Answer 15

No.

Question 16

If a defendant is physically present in the jurisdiction, and is served with process while present, is the court’s exercise of personal jurisdiction is constitutional?

Answer 16

Yes.

Question 17

Minimum Contacts Analysis: Personal jurisdiction under a “minimum contacts” analysis is satisfied if (3)

Answer 17

(1) The defendant must have established a minimum contact with the forum state.
(2) The claim against the defendant must arise from that contact

and

(3) The exercise of jurisdiction must not offend traditional notion of fair play and substantial justice.

Question 18

If a defendant has minimum contacts with the forum state, which party bears the burden of proving that it would it would be unfair for her to litigate in that state in order to avoid the court’s personal jurisdiction?

Answer 18

Defendant.

Question 19

Name three activities that are sufficient to establish minimum contacts in the state.

Answer 19

(1) Does business in the state
(2) Interest in real property in the state
(3) Causes harm in the state

Contact with the state must be purposefully established.

Question 20

Does a defendant have to physically be present in a state to establish minimum contacts?

Answer 20

No.

Question 21

Is placing a product in a stream of commerce sufficient to establish purposeful availment?

Answer 21

No.

Question 22

Five Factors Courts User when Determining Whether it is Fair for the Defendant to Litigate in the Forum State.

Answer 22

(1) The burden on the defendant
(2) The interests of the forum state
(3) The plaintiff’s interest in obtaining Relief
(4) The interstate judicial system’s interest in efficiency

and

(5) Shared policy interest of the states

Note: The burden on the defendant drives the analysis and must be quite substantial for a court to reject personal jurisdiction on the basis of fairness.

Question 23

T or F? A federal court can constitutionally assert personal jurisdiction over a defendant if it is doing “substantial business” in a state.

Answer 23

True.

Question 24

T or F? The Supreme Court has established that ‘Substantial Business’ is a very low bar to meet in terms of establishing personal jurisdiction.

Answer 24

False. Substantial Business is a very high bar to meet. The business activity in a particular state must be so significant that the company is “essentially at home” in that state.

Question 25

T or F? A corporation is likely to be considered a home and therefore subject to general jurisdiction in a state in which it is not incorporated nor has its principal place of business, if the corporation conducts a lot of business in that state.

Answer 25

False. The corporation would not be likely to be found at home in a state in which it is not incorporate nor has its principal place of business.

Question 26

Can a company be “essentially at home” in more than one state?

Answer 26

No. The Court has suggest that a company cannot be “essentially at home” in more than one state.

Question 27

In Rem Jurisdiction

Answer 27

baed on the interests of a particular piece of property or thing located within the forum state.

Question 28

A federal court may exercise in rem jurisdiction when: (3)

Answer 28

(1) There is real or personal property of value located within the state where the federal district is located.

(2) The court seizes the item and
a. A court’s in rem jurisdiction cannot begin until the court has effective control of the asset.

(3) The owner of the property received proper notice of the proceeding.

Question 29

A defendant who is no longer domiciled in the forum state may be subject to in rem jurisdiction if: (2)

Answer 29

(1) The cause of action is of a domestic nature and
(2) The forum state was the place of matrimonial domicile, the defendant abandoned the plaintiff in the forum state, or an agreement or settlement for support was entered into in the forum state.

Question 30

Is a judgment against a defendant over whom the court did not have constitutional personal jurisdiction valid?

Answer 30

No, the judgment would be void and not entitled to Full Faith and Credit by another court.

Question 31

If a defendant had the opportunity to challenge personal jurisdiction and waives the personal jurisdiction challenge is that judgment considered valid?

Answer 31

Yes, a judgment has preclusive effect in future litigation if the defendant in the first case had the opportunity to challenge personal jurisdiction and either waived the personal jurisdiction challenge or made the challenge and lost.

Question 32

Elements required for Quasi In Rem Jurisdiction

Answer 32

(1) There is real or Personal Property of Value Located Within the State or Territorial Limits of the Federal Court
(2) The defendant owns the Property
(3) The property is being attached or seized and
(4) The defendant has been provided proper notice of the proceedings.

Question 33

Can quasi in rem jurisdiction be exercised where there are no minimum contacts?

Answer 33

No.

Question 34

T or F. If a dispute concerns the parties’ rights in a property in a state, the presence of the property in the state will provide sufficient minimum contacts.

Answer 34

True.

Question 35

Subpoena

Answer 35

Process to compel the attendance of witnesses.

Question 36

Is a summons is filed before or after a complaint is filed in federal court?

Answer 36

After

Question 37

A summons is court document that informs the plaintiff or defendant that the complaint has been filed and that she must respond to it, or else be held in default.

Answer 37

Defendant.

Question 38

The formal requirements for a summons are set out in Rule __?

Answer 38

4

Question 39

A summons must:
(1) be signed by the ____
(2) identify the court and the ____
(3) be directed to the plaintiff or defendant
(4) state the name and address of either the plaintiff’s ___ or the plaintiff herself, if unrepresented
(5) Notify the defendant of:
a. The time period within which it must appear or file an answer and
b.
(6) contain the seal of the judge or court

Answer 39

1. ) clerk
2. ) parties
3. ) defendant
4. ) attorney
5. ) the possibility for a default judgment if the defendant fails to appear within the time specified
6. ) court

Question 40

A summons must adhere to what 6 requirements as set out by Rule 4?

Answer 40

A summons must:

(1) be signed by the clerk
(2) identify the court and the parties
(3) be directed to the defendant
(4) state the name and address of either the plaintiff’s attorney or the plaintiff herself, if unrepresented
(5) Notify the defendant of:
a. The time period within which it must appear or file an answer and
b. The possibility for a default judgment if the defendant fails to appear within the time specified
(6) contain the seal of the court.

Question 41

How many requirements are set out by Rule 4 for a properly executed summons?

Answer 41

6

Question 42

Which party is charged with the service of process?

Answer 42

The plaintiff

Question 43

A summons must be served with ___.

Answer 43

A copy of the complaint. If both the complaint and summons are not served on the defendant at the same time, process has not been completed.

Question 44

T or F? If the plaintiff successfully serves the defendant with a copy of the complaint, service is complete.

Answer 44

False. If both the complaint and summons are not served on the defendant at the same time, process has not been completed.

Question 45

Service must occur within ___ days of filing of the complaint.

Answer 45

90

Question 46

If the plaintiff does not timely serve the defendant with process, the court must dismiss the suit without prejudice unless the plaintiff can show ___.

Answer 46

Good cause why service was not timely.

Question 47

If the plaintiff does not timely serve the defendant with process, the court must ___.

Answer 47

dismiss the suit without prejudice unless the plaintiff can show good cause why service was not timely.

Question 48

Service may be effected by any person who is:

(1) over ___ years of age
(2) _____

Answer 48

(1) 18

(2) not party to the suit

Question 49

Service may be effected by any person who is:

Answer 49

(1) over 18 years of age

(2) not party of the suit.

Question 50

If the defendant is a natural person, process can be served in how many ways?

Answer 50

3

Question 51

If the defendant is a natural person, process can be served by: (3)

Answer 51

(1) personally serving the defendant wherever she may be.
(2) leaving the process at the defendant’s usual place of abode with a person of suitable age and discretion who resides there
(3) serving the defendant’s registered agent.

Question 52

If the defendant is a corporation, process can be served by delivering a copy of the summons and the complaint to: (3)

Answer 52

(1) an officer
(2) a managing agent or general agent
(3) Any agent authorized by appointment or by law to receive service process. Note: That if the agent is the one authorized by law and the law requires service by mail, process must be served by personal delivery to the agent and the mail.

Question 53

If the defendant is a corporation, and process is served to an agent and the agent is authorized by the law and the law requires service by mail, then process must be served by ___ .

Answer 53

personal delivery to the agent and the mail

Question 54

Is a waiver of service a waiver of any objections the defendant might have regarding the court’s subject-matter or personal jurisdiction over the suit or the venue of the suit?

Answer 54

No.

Question 55

Can the defendant waive service of process?

Answer 55

Yes, upon request of the plaintiff.

Question 56

If a plaintiff fails to effect service according to the rules, the court must __.

Answer 56

dismiss the case for insufficiency of service of process.

Question 57

A request for waiver of service of process must: (8 steps).

Answer 57

(1) be in writing and addressed to the individual defendant;
a) if the defendant is a corporation, partnership, or association, the request is addressed to an officer, manager, or authorized agent.

(2) Be sent via first-class mail or other reliable means
(3) be accompanied by a copy of the complaint
(4) identify the court where the complaint was filed.
(5) inform the defendant of the consequences of waiving and not waiving service
(6) state the date on which the request was sent.

(7)allow the defendant a reasonable time to return the waiver.
a. At least 30 days after the request was sent
or
b. At least 60 days after the request was sent for defendants located outside any judicial district of the United States and

(8) Provide the defendant with an extra copy of the request, as well as prepaid postage or other means of compliance in writing.

Question 58

What is a reasonable time for a defendant to return a waiver of service.

Answer 58

a. At least 30 days after the request was sent
or
b. At least 60 days after the request was sent for defendants located outside any judicial district of the United States

Question 59

Upon request of the plaintiff, a defendant has a duty to waive service unless the defendant is: (3)

Answer 59

a. A minor or incompetent person
b. the United States or an agency of the United States or
c. A state, local or foreign government

Question 60

A defendant (with the United States who agrees to waive service, need not answer the complaint until ___.

Answer 60

60 days after the waiver request.

Question 61

A defendant (not within the United States who agrees to waive service, need not answer the complaint until ___.

Answer 61

90 days after the waiver request.