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Personal Jurisdiction 1. Statutory Bases for PJ A. Is there a state statute in the forum state allowing the exercise of PJ?

B. What kind of PJ does it grant? 1. ppl served w/ process in the state or domiciled in it 2. nonresidents a. motorist- Hess i. Jurisdictional predicate is implied consent from specific jurisdiction & notice is agency by law- technically unconstitutional b/c legal fiction. b. long-arm- something D did or had an effect in the forum & specific jurisdiction i. type in which state court can exercise jurisdiction over the nonresident to the extent US Constitution can (if so, must determine whether its constitutional for state court to assert PJ ) ii. laundry-list statute, a list of activities (i.e. transact business or commit a tortious act) 3. attachment, which allows attachment of property in the forum state that a nonresident owns or claims to own C. Does the statute grant specific or general jurisdiction? 1. specific jurisdiction: claim arises from something D did in the forum or had an effect there 2. general jurisdiction: Ds contacts w/ the forum are so substantial that he can be sued there even on a claim from somewhere else D. Carefully read the statute & see if it relates to Ds activity. 1. Look at difference between a requirement that D transact substantial business in the forum or any. 2. Look at difference between Ds committing a tortious act in the forum or a tortious act or omission. E. Suggest that P can use QIR-2 if in personam is too hard b/c of a narrow interpretation of a long-arm statute (as long as D has property in the forum). - Minimum contact is established when property presence itself satisfies in rem & QIR [Shaffer requires property to be actually related to CoA], status & cases where property caused Ps injury. 2. Constitutional Analysis (all in personam) - If theres a statutory basis for the exercise of PJ, must assess whether constitutional. - power theory of PJ: (nexus + notice) due process (5th, 14th) full faith & credit (must be enforced by other states court) A. If in personam, is there a traditional basis of PJ exception of the power theory under Pennoyer? 1. Traditional basis: 1. physical presence in forum 2. Residence 3. property in forum 2. Exceptions: 1. Consent/waiver (willingly or mistakenly) 2. Domicile 3. Agency 4. Divorce/status 5. Corp 6. Contract B. No matter what, apply IS test 1. If theres a Pennoyer basis a. For the most traditional basis (service of process on D in the forum), split on whether Pennoyer or Shaffer applied to Burnham (traditional basis). i. Scalia: jurisdiction can be based on presence in the forum when D was served w/ process, w/o IS ii. Brennan: all assertions of personal jurisdiction, even the ones from Pennoyer, must follow IS b/c any transient D avails himself of significant benefits provided by the state (privileges & immunities): 1) the states police & other services protect the transients health & safety 2) the transient is free to travel in the state 3) the transient likely enjoys the fruits of the states economy b. IS doesnt technically affect Pennoyer, but the broad language in Shaffer says IS must assess all assertions of statecourt jurisdiction. 2. If theres no Pennoyer basis, assess in this order: contact, whether general or specific jurisdiction, fairness. C. Apply IS test. D must have minimum contacts w/ the forum that exercise of jurisdiction doesnt offend traditional notions of fair play & substantial justice. - Presence in the forum state was still a basis for in personam jurisdiction but the minimum contacts is an alternative to presence, so Shoe increased the scope of permissible state assertion of PJ. - Minimum contacts test has 2 purposes of contact & fairness: protects D from litigation in an unduly burdensome forum & so states dont overreach. 1. Apply WWV test. Did the contact result from Ds purposeful availment of the forum (not just minimum contact)? a. Contact cant be accidental, must be of Ds volition b. Contact cant be b/c of Ps unilateral activities (Hanson). c. Calder-effects test: relevant contact between D & forum can be established not only by D going to the forum & doing something there, but by intentionally causing an effect there (targeted, tortious injury) 2. Gray test. Was it foreseeable that D could get sued in the forum- (not just whether it was foreseeable that Ds product would get into the forum)? a. Asahi test (no majority). Argue both OConnor & Brennan & then pick one. i. OConnor (WWV): just putting a product into a stream of commerce, even knowing that it will get to the forum, isnt enough. Purposeful availment requires another factor, additional conduct, intent or purpose to serve the forum states market. ii. b. Brennan: as long as D puts a product in the stream of commerce & is aware the final product is being marketed in the forum state, a lawsuit there cant be a surprise

3. IS test. Is it specific or general jurisdiction [specific jurisdiction: claim arises from something D did in the forum or had an effect there, general jurisdiction: Ds contacts w/ the forum are so substantial that he can be sued there even on a claim from somewhere else]? Compare Ds level of activity in the forum & whether the claim against D is related to his activities there. a. If D has continuous & systematic activities & the claim is related to them, theres in personam jurisdiction. b. If D has limited contact w/ the forum & the claim is unrelated to it, theres no in personam jurisdiction. c. If D has continuous & systematic activities but the claim is unrelated to them, there may be general in personam jurisdiction. d. If D has limited contact w/ the forum & the claim is related, there may be in personam jurisdiction. 4. Is exercise of PJ fair (5 fairness factors)? a. burden on D- under BK, its Ds burden to establish that the forum is not only inconvenient but unconstitutionally unfair, a severe disadvantage; but due process doesnt guarantee the best or even reasonably good fo rum i. Useful to add choice of law &/or forum clauses. b. forums interest in adjudicating, but not sure how much interest there needs to be c. Ps interest in getting fair & effective relief d. interstate judicial systems interest in getting the most efficient solution ( Kulko) e. shared interest of the states in furthering fundamental substantive social policies ( Keeton) D. Apply Brennans Helicol dissent: there should be a sliding scale 1. If the fairness is overwhelming, there should be jurisdiction even w/ less contact. a. McGee: jurisdiction can be based on a single contact w/ the forum as long as the holding meets IS (long-arm) 2. Theres a difference between a claim arising out of Ds in-state activities & one related to those activities. 3. But majority in Helicol said theres no difference. E. Is there general jurisdiction? 1. Helicol: Minimum contacts must be continuous & systematic. 2. Goodyear: Evidence of stream of commerce isnt enough to establish continuous & systematic. a. General jurisdiction may not be asserted on a foreign corp when that state is not the corps headquarters, princi pal place of business or otherwise constitutes its home- Ginsburg. b. General jurisdiction may not be asserted on a foreign corp when it hasnt engaged in continuous & systematic activities in the state. F. Is there nationwide jurisdiction? 1. FR 4(k)(2) allows jurisdiction instead of FR 4(k)(1)(A) if there isnt enough purposeful availment directed at a state. 2. FR 4(k)(2) requirements a. When the case arises under federal law b. When the D isnt otherwise subject to jurisdiction in any state of US c. When jurisdiction is consistent w/ the Constitution G. Is there a stream of commerce? - Stream of commerce: D in State A manufactures something & sends it to party in State B, party in State B sends it to party in State C, it hurts P in State C. - A cant be sued in C b/c A didnt reach out to C; the part only got to C b/c of Bs unilateral act so theres no pu rposeful availment. - Indemnification: A indirectly availed himself b/c B wouldnt have bought so much from A if he wasnt selling them to C, so B sues A] H. Is this an Internet case? - Internet hasnt rly changed PJ assessment. - Many cases split like OConnor & Brennan in Asahi, which makes sense b/c Internet is a modern type of stream of commerce. 1. Use IS to assess minimum contact & relatedness; use WWV to assess purposeful availment & fairness. a. active website: activities indicate interaction w/ ppl; shows that D availed himself of the forum b. passive website: D just posts info; ppl in other states have access but theres no PJ c. interactive website: D can send or receive info (middle) i. Raju: there wasnt purposeful availment through the Zippo test 2. Use the Brennan view? a. Theres contact if D can reasonably foresee the product getting into the forum. b. Some courts say that maintaining a website that ppl in other states can access is a relevant contact in any state. i. B/c the website can reach anyone, D purposefully availed himself to any of those states. 3. Use the OConnor view (which turns out to be McIntyre)? a. Foreseeability is insufficient by itself; there must be activity directed toward the forum for there to be contact. b. Most courts believe that simply creating a site, like putting a product into the stream of commerce, may be nationwide, but its not an act purposefully directed toward the forum state. c. Ppl release things on the Internet, similar to how they send products through the stream of commerce. i. The stream may pass through many places, but ppl may act on the stream in only some of the places.