Personal Jurisdiction/Venue/Joinder (Part II) Flashcards
PJ Outline basics
- Is there basis for JD
- If yes, proper notice must be given
- Special Appearance attacks basis of JD
- A court may exercise power over a D only if D is subject to court’s PJ
- D not subject to PJ doesn’t have to obey court orders
Ways to argue:
- No notice
- No presence
3 Basis for PJ
In Personam, In Rem, quasi in rem
In Personam JD
a. Presence
1. In state: all good
2. Out of state: minimum contacts
b. Consent: the D is consenting to PJ being asserted
1. EXPRESS: the D has expressley consented to PJ
- sign a contract with forum selection clause.
- having an agent for service
2. Implied: If you travel on roads then you have implied ocnsent. Any accidents that arise from behaviour imply consent to registrar of motor vehicles to receive service. Extended from cars to airplanes, bikes, etc…
c. can be waived
In Rem JD
Fairly rare: Brought against a thing, property to adjudicate title
- trespass to try title, condemnation, admirality, probate
- property must be subject to JD of court
- No personal liability imposed on owner
- don’t have to notice
Quasi In rem
Action b/w parties to reach and dispose of property owned by them; adjudicates only intersts of parties or person party to suit in property before court.
- attachment, sequestration, garnishment
- property must be subject to jurisdiction
- parties must have notice
A court can exercise JD if
A. A long arm statute authorizes it
B. It is consistent with federal and state due process (Min contacts/fair play and decency)
Long-Arm statutes
Permits over nonresident D’s who “do business” in Texas.
Applys if:
*Contracts by mail or otherwise with a texas resident or if either party is to perform the contract in part or in whole in the state or
* If they commit a tort in part or in whole in this state
Due Process requirements
Minimum Contacts and “Traditional notions of Fair play and substantial justice” (reasonableness)
Minimum Contacts
When the non resident purposefully avails itself of the priviledge of conducting activities within the forum state, thus invoking the benefits and protection of its laws, then PJ allowed
Purposeful availment
- Only the D’s contacts with the forum are relevant, not the unilateral activies of another party or 3rd person
- contacts relied upon must be purposeful rather than random
- D must seek some benefit, advantage or profit
Types of Minimum Contacts
Specific JD: D’s liability must have arisen from or related to those contacts (must have substatntial connection)(looks at min contacts on relationship among the D, the forum and litgation)
- mere sale is not enough
- stream of commerce ok
- personal injury that occurs outside the forum does not arise or relate to a D’s forum advertising
General JD: D has continuous and systematic contacts with the forum (regardless if the liability arose from teh contacts or not)
- Purchases and related trips are not sufficient alone
- D must be engaged in longstanding business in the forum state: marketing, shipping, performing services, mantaining office
- Time calculated up to filing of suit
- corporate consent: If corp consented, no analysis needed
Reasonableness test
Traditional notions of fair play and substantial justice
- burden on D (distance is not enough)
- Interests of the forum state in adjudicating the dispute, including states special regulatory interests
- p’s interests in obtaining convenient and effective relief
- interstate judicial systems interest in obtaining the most efficient resolution of controversies and
- shared interest of the several states in furthering fundamental substantive social policies
Challenging JD: Special Appearance (120a)
Purpose: For the court to determine only if it has power over D
1. D is objecting to the BASIS of JD
Requirements:
- Sworn motion filed PRIOR TO any other motion or plea
* However they can be contained in the same instrument or filed subsequent thereto without waiver and
* May be amended to cure defects
* Every appearance prior to judgment, not in compliance with this rule is a general appearance
* Other docs submitted with do not have to say subject to
Waiver of SA= General Appearance
General appearance waives any dispute over whether the D is amenable to the process of Texas courts
Definition: Whenever a party invokes the jmt of the court on any questions other than the courts JD, if a D’s act recognize that an action i properly pending or seeks affirmative action from the court
*Does not include a motion for continuance on the special appearance, however a motion on for continuance on any other issue is
Hearing (Challenge to JD)
- Any motion to challenge the JD hall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard
- determine the basis of pleadings
* Affidavits are admissible, must be filed at least 7 days before the hearing and shall:
- be made on personal knowledge
- set forth specific facts as would be admissible in evidence and
- show affirmatively that the affiant is compenant to testify - D has BOP that the court does not have PJD
Collateral Attack Upon Jmt For Lack of PJ
Jmt is attacked in a proceeding different from that in which it was rendered - an attack only if jmt is void
- not able to challenge jmt with contrary evidence, can show evidence that no jd applied
- used in a subsequent proceeding to avoid effect of prior proceeding
- jmt not void where d appears
- A texas ct, when asked to give ffc to another st’s judicial proceedings, may collaterally inqure into the JD of the foreign court to enter the jmt in question.
a. permissible only where the party resisting enforcement of the for.jmt. did not appear in for. proceedings
b. when party appeared, only remedy is appeal.
Service of Process process
- Clerk will ask you if you want Service of Process
- P pays fee & request Clerk to issue citation
- Clerk completes citation with name of parties, lawyers and lawsuit info
- Contains order to respon on or before 10am on the Monday after the expiration of 20 days after the end of service
- After served, person who did serving must file Return of Service
a. Date, time, and method, sign and file with clerk
b. failure to sign makes it unable to be support for default jmt
Methods of service
Rule 106: two preferred methods
a. In hand delivery (Fedex, UPS, hotshot)
b. Registered/Cert. Mail: RetRecReq
c. if either method failed, court can authorized althernative method (motion for substituted service) Must have supporting affadavit that describes failed attempts or default can be reversed
- Alt Methods (not favored)
a. Service by Publication: Don’t know where D is, can never get in personam, can’t get $$ - must be represented by atty ad litem (app by courts)
- Has 2 years to challenge default jmt
- Available when D’s residence or idetity is unknown and is for delenquint or ad valorem taxes or when preferred method fails
b. Leave with service: Leave papers at the person’s customary place of business or residence with person over 16
Persons Authorized to Serve Process
- sheriffs, constables, any other person authorized by law, or person authorized by written order of the trial court can serve process, never have to sign affidavit of return citation
- Clerk by cert mail
- Professional process servers: may serve process for a fee if certified
4: No interested person can, no attys or their employees - Process is void if made by one without authority
Waiver and Acceptance of Service
- D can accept or waive formal service
- Must be in writing, filed in case papers, and signed before a notary after suit has been filed
- must contain D’s acknowledgement of rec. of copy of petition and
- if divorce, D’s mailing address
Whom to serve
If Person: the actual person
If entity: through individual agent or representative
Partnership: any partner
Corp: registered agent, or certain officers, sec. of state
Service on Non-residents
- Physically instate:
a. Individual: Same as resident
b. For. Corp: required to appoint a resident agent, if none appointed, can be served through agent or clerk in the texas office or place of busines - Not physically in state:
a. Rule 108: Allows any method of service from 106, so long as it complies with due process
b. General Long Arm: Authorizes substituted service on the SecOfState where sec mails a copy of citation and petition to D by cermail and rerecreq.- service complete when secstate served adn has sent the cert notice, regardless if d rec. actual notice.
- Even if mail info isn’t correct
- When letter is returned as refused or unclaimed, the notice is sufficient if it is apparent that the add. was valid and could be located by postal service
c. can contract forum selection clause
Dilligence in Serving Process
To interrupt the running of the statute of limitations: P must file suit and perfect service
a. exception: If P files before limitations, but effects service after, teh date of service related back tot eh date of filing IF P has exercised dilligence in effecting service. Keep a record of what you are trying to serve -no gaps.
consequences of failure to Properly Serve the D
- choices D can make
a. agree to go anyway
b. don’t go and fight default jmt for failed serve: Problem bc if judge denies service was failed then jmt sticks
c. motion to quash citation: Proper procedural vehicle to challenge formal defections in petitions allegatiosn of JD (minimum contacts) , form of service, or service of process. - basically is useless, does not defeat JD, merely delays D’s answer due date, turning back closck as if D served when order quashing service is signed
- Dangers: if before motion is heard, the P gets a default jmt for lack of response then judge denies motion to quash = ftanswer and default sticks
